Calcutta High Court (Appellete Side)
In Re: Paramananda Vishwakarma vs State Of Bihar And Others Reported In on 16 February, 2012
Author: Indira Banerjee
Bench: Indira Banerjee
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16.2.12
W. P. 21921 (W) of 2011
In re: Paramananda Vishwakarma ... Petitioner
Mr. Tarapada Das
Mr. Chandan Datta ... For the Petitioner
Mr. Asraf Mandal ... For the State
This writ application is directed against, inter alia, deduction of
Rs.94,700/- from the retiral benefits due and payable to the petitioner on the
ground of alleged overdrawal in pay by reason of erroneous fixation. The
petitioner, an Assistant Teacher of Karnani Primary School (hereafter referred to
as the School), retired from service on 31st October, 2007.
A Pension Payment Order being Memo No.4495/P dated 8th August, 2008
was issued. On a perusal of the said Pension Payment Order, it appears that
Rs.94,700/- was deducted from the gratuity payable to the petitioner.
The salary and allowances of the petitioner were fixed by the concerned
authorities and not by the petitioner. This deduction has apparently been made
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without notice to the petitioner and without affording the petitioner any
opportunity of hearing and/or any opportunity of representation.
There can be no doubt that deduction of Rs.94,700/- has adverse civil
consequences. It is well-settled that any action, which results in adverse civil
consequences, can only be taken upon observance of principles of natural justice
and fair play in action. The deduction of Rs.94,700/- from the gratuity dues of
the petitioner is in flagrant violation of principles of natural justice.
In Syed Abdul Qadir and others Vs. State of Bihar and others reported in
2009 (1) Supreme 163, the Hon'ble Supreme Court held as follows :-
"......this court , in a catena of decisions, has
granted relief against recovery of excess
payment of emoluments/ allotments if (a) the
excess amount was not paid on account of
any misrepresentation or fraud on the part
employee and (b) if such excess payment was
made by the employer by applying a wrong
principle for calculating the pay/ allowance or
on the basis of a particular interpretation or
rule/order, which is subsequently found to be
erroneous. The relief against recovery is
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granted by Courts not because of any right in
the employees, but in equity, exercising
judicial discretion to relieve the employees
from the hardship that will be caused if
recovery is ordered. But, if in a given case, it
is proved that the employee had knowledge
that the payment received was in excess of
what was due or wrongly paid, or in cases
where the error is detected or corrected
within a short time of wrong payment, the
matter being in the realm of judicial
discretion, Courts may, on the facts and
circumstances of any particular case, order
for recovery of the amount paid in excess."
Unilateral deduction of Rs.94,700/- from gratuity benefits more than four
years after the retirement of the petitioner cannot be sustained. It is nobody's
case that erroneous fixation was due to any fraud or misrepresentation on the
part of the petitioner. The respondents are liable to refund the withheld amount
of Rs.94,700/- to the petitioner immediately with interest at the rate of 10% per annum from 1st November, 2007, till date of full payment to the petitioner. 4
Apart from the illegal deduction, as aforesaid there has also been delay in payment of the balance gratuity admittedly due and payable to the petitioner.
The issue of whether delay in payment of gratuity would attract interest was decided by a learned Single Judge of this Court in W. P. No. 10270 (W) of 2007 (Abha Acharya vs. State of West Bengal & Ors.). Subsequently, numerous writ petitions have been disposed of directing payment of interest at the rate of 10 per cent per annum.
The learned Single Judge, following the directions of a Division Bench in FMA 725 of 2004 and FMA 731 of 2004, directed the respondent to pay interest at the rate of 10% per annum for the delay in release of gratuity. About 81 writ petitions were disposed of with the same directions.
It is true that there has been delay in approaching this Court. This Court is not obliged to dismiss the writ petition on that ground. No prejudice has been caused to the respondents by reason of delay. There will not be any additional burden on the State by reason of delay. No third party interest has accrued grant of relief will not unsettle things settled. The respondents have delayed release of gratuity. The petitioner is legitimately entitled to interest. The petitioner is similarly circumstanced as other retired teachers who have been allowed interest pursuant to orders of this Court. This Court is not inclined to reject a good case on merits only on the ground of delay. 5
This writ application is disposed of by directing the respondents authorities to forthwith release and/or refund the amount of Rs.94,700/- illegally deducted from the gratuity to the petitioner from 1st November, 2007 till the date of payment to the petitioner. The respondent authorities shall compute interest on gratuity including interest on the aforesaid deducted amount of Rs.94,700/- at the rate of 10 per cent per annum from the date of retirement to the petitioner till the date of disbursement. The interest shall positively be computed and released immediately preferably within a period of sixty days from the date of communication of this order. The interest shall be computed as per reducing balance.
The petitioner having unnecessarily been dragged to this Court for recovery of his legitimate dues, will be entitled to costs of these proceedings assessed at 300 G.Ms., i.e. Rs.5100/- which is to be paid to the petitioner along with the withheld gratuity amount.
Needless to mention that the petitioner shall comply with the requisite formalities as may be required of him.
The writ application is disposed of.
6Urgent certified photostat copy of this order, if applied for, be given to the learned advocate for the parties, subject compliance with the requisite formalities.
(Indira Banerjee, J.)