Calcutta High Court (Appellete Side)
Prasanta Kumar Das vs The State Of West Bengal on 8 September, 2015
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 1592 (W) of 2015
Prasanta Kumar Das
Vs
The State of West Bengal
For the Petitioner : Mr. Rabi Lal Maitra, Learned Senior Advocate
Mr. Kanai Lal Samanta, Learned Advocate
Mr. Rajit Lal Maitra, Learned Advocate
For the State : Mr. Sadhan Kr. Halder, Learned Advocate
Mr. Abdus Salam, Learned Advoate
Heard on : August 17, 2015
Judgment on : September 8, 2015.
Samapti Chatterjee, J.
1. Petitioner has filed the present writ petition assailing the orders dated 15th July, 2013 and 6th September, 2013 also the Memo dated 6th January, 2014 issued by the Deputy Director of Accounts and the order dated 10th April, 2014. The petitioner also prayed for direction upon the respondent authorities to release pension and gratuity on the basis of pay drawn by the petitioner in the last month of his service at an early date.
2. The petitioner's case in brief is as follows :-
That on 16th May, 1979 the petitioner was appointed as an Assistant Teacher in the Bishrail High School (S.E) District- Dakshin Dinajpur. His appointment to the said post was duly approved by the District Inspector of Schools of 1st February, 1980. On and from 24th August, 1987 the petitioner was granted two additional increments with effect from 1st January, 1987 by the District Inspector of Schools (S.E) Dakshin Dinajur. On 2nd August, 1993 the pay of the petitioner was fixed vide G.O. No.33Edn (B) dated 7th March, 1990 taking into consideration the said two additional increments for DELT course as the petitioner passed DELT Examination in the year 1986. On 1st January, 1997 the petitioner was appointed as Headmaster of the said school which was duly approved by the said District Inspector of Schools (S.E) on 8th January, 1997. Again on 16th August, 1991 the pay of the petitioner was fixed and approved by the District Inspector of Schools under ROPA 1990 and further on 18th August, 1990 the pay of the petitioner was fixed and approved by the District Inspector of Schools (S.E) under ROPA 1999.
Again on 15th July, 2010 the pay of the petitioner was fixed and approved by the concerned Additional District Inspector (S.E). On 31st January, 2013 the Secretary of the said school submitted pension papers of the petitioner to the office of the District Inspector of Schools (S.E) Dakshin Dinajpur.
On 15th July, 2013 the Deputy Director of accounts raised an objection on the papers forwarded by the school authority pertaining to the petitioner's service. On 16th August, 2013 the Secretary of the school gave a reply on the audit objection. Thereafter on 6th September, 2013 again the Deputy Director of accounts made observation in respect of pension case of the petitioner. On 30th October, 2013 the Secretary of school submitted necessary papers in respect of audit observation of the Deputy Director and thereafter on 7th October, 2013 the District Inspector of Schools wrote a letter to the Secretary for necessary order in respect of granting additional increments in favour of the petitioner. As a result thereof on 1st November, 2013 the Secretary submitted necessary papers in respect of the pension case of the petitioner.
Thereafter on 10th April, 2014 the District Inspector of Schools (S.E) Dakshin Dinajpur issued an order directing the Secretary to take necessary action to recover the alleged overdrawn amount from the petitioner's pensionary benefit. Against that the petitioner made representation to the concerned authority on 8th December, 2014 to take step to issue PPO in favour of the petitioner but no step was taken.
Hence the writ petition.
3. Mr. Robilal Maitra, learned Senior Counsel appearing for the petitioner submits that the petitioner is very much entitled to get pension and gratuity on the basis of the last pay drawn in view of the memo dated 24th August, 1987 and also the memo dated 2nd August, 1993 whereby the petitioner was granted two additional increments with effect from 1st January, 1987 by the concerned District Inspector of Schools. As per G.O No.33Edn(B) dated 7th March, 1990 it was taken into account the said two additional increments for possessing DELT course.
4. Mr. Maitra also submits that the petitioner is entitled to enjoy the pension and gratuity on the basis of the last pay drawn as the petitioner's pay scale was time to time fixed under ROPA 1990, 1999 as well as 2009 without any objection and the no recovery was made during the period of the service of the petitioner.
5. Mr. Maitra also vehemently contended that no recovery can be made after the retirement on the principle of natural justice.
6. Mr. Maitra further contended that the petitioner retired on 30th September, 2014.
7. Mr. Maitra also strongly contended that the petitioner was allowed to enjoy the two additional increments with effect from 1st January, 1987 vide the order dated 24th August, 1987 issued by the District Inspector of Schools (S.E) Dakshin Dinajpur.
8. Mr. Maitra further contended that the pay scale of the petitioner was fixed under G.O No. 33 Edn (B) dated 7th March, 1990 taking into account the said two additional increments for DELT course.
9. Mr. Maitra also contended that the order of the District Inspector of Schools (S.E) Dakshin Dinajpur dated 10th April, 2014 is bad in law in view of the fact that the concerned District Inspector of Schools has time to time passed the order thus allowing the petitioner to draw two additional increments vide order dated 24th August, 1987 and the said order is still in force.
10. Mr. Maitra further vehemently urged that no steps has been taken by the concerned District Inspector of Schools to modify and/or cancel the order relating to grant of two additional increments before the date of the superannuation of the petitioner. Not only that Mr. Maitra also contended that in view of that facts the petitioner made a representation on 8th December, 2014 before the concerned authority to take steps for issuance of PPO in favour of the petitioner @ 10 per cent interest for the period from 1st October, 2014 till the disbursement of the admissible amounts due to the petitioner from his retirement.
11. Mr. Maitra also contended that this act on the part of the respondent authorities is illegal, arbitrary, unfair, unjust and very much against the principle of natural justice and also contrary to Article 300A of the Constitution of India.
12. Mr. Maitra further contended that it is a settled law as laid down by the Hon'ble Supreme Court in catena of decisions which have been time to time followed by the Hon'ble Division Bench as well as the Learned Single Bench of this Hon'ble Court in several decisions. In support of his contention, learned Counsel appearing for the petitioner relied on the decisions reported in 1994(2) SCC Page-521 (Shyambabu Verma & Ors. -vs-Union of India & Ors) and 2009 (3) Supreme Court Cases 475 (Syed Abdul Qadir & Ors -vs-State of Bihar & Ors). Learned Counsel also relied on the latest Supreme Court decision reported in 2015 (1) Supreme Today Page-671 (State of Punjab & Ors vs Rafiq Masih (White Washer) etc.) Paragraph 12 at pages 19 and 20 of the aforesaid decision which is quoted below :-
"Para-12-It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payment have mistakenly been made by the employer, in excess of their entitlement. Be that it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Learned Counsel for the petitioner also relied on an unreported decision of the Hon'ble Division Bench passed on 9th September, 2013 in W.P.S.T. No.216 of 2013 (State of West Bengal & Ors.vs Asis Das Gupta).
13. Per contra, Mr. Sadhan Kr. Halder, learned Counsel appearing for the State submitted that the petitioner was wrongly granted two increments for possessing DELT course with effect from 1st January, 1987 though the petitioner is not entitled to enjoy the said increments. Therefore, the Deputy Director of Accounts, School Education Department by its letter dated 6th September, 2013 wrote a letter to the District Inspector of Schools (S.E) Dakshin Dinajpur. Extract of that letter is quoted below from Annexure P10 of the writ petition:-
"Calculation Sheet submitted herewith shows that the statement prepared by school authority. So, they can not deny their responsibility as said vide their no.56/B/2013-14, Dt.29-08-2013. Therefore, appropriate action may be taken for recovery of the due amount at earliest."
14. Mr. Halder further contended that as a result thereof the District Inspector of Schools (S.E) Dakshin Dinajpur wrote a letter to the Secretary of the said school. Contents of the letter dated 30th January, 2014 is quoted below :-
"From : The District Inspector of Schoolss (SE) Dakshin Dinajpur. To : The Secretary, Bishrail High School P.O.-Chendhra, D/Dinajpur.
Sub. : Regarding pension case of Sri Prasanta Kumar Das, Headmaster of Bishrail High School.
Ref : Memo No.150(B).2013/14 , Date :30-01.2014 As per audit observations regarding 2 (Two) advance increments for DELT, raised by the Deputy Director of Accounts, School Education, Dakshin Dinajpur it is established (as compliance report of School Authority on point no.1 of audit observations is not satisfactory) that the teacher concerned enjoyed excess payment since 1-1-87.
Therefore, you are directed to take necessary action to recover the excess payment drawn by Sri Das before his retirement. Relevant Government Orders in this regard are enclosed herewith for your ready reference.
Sd/-
District Inspector of Schoolss (SE) Dakshin Dinajpur"
15. Mr. Halder further vehemently urged that the petitioner is not entitled to enjoy the said benefit of two increments for possessing DELT course therefore respondent should be directed to re-fix the petitioner's pay scale excluding two increments for possessing DELT course.
16. Mr. Halder also contended that the authority will not deduct the amount which has been enjoyed by the petitioner for re-fixing of his pay scale by granting two increments for possessing DELT course with effect from 1st January. 1987 on the basis of the order no. 1984 dated 24th August, 1987 issued by the District Inspector of Schools (S.E) Dakshin Dinajpur. In support of his contention Mr. Halder relied on a Supreme Court decision reported in 2007 (15) Supreme Court Cases Page-598 Paragraph-2 (P.H.Reddy And Others vs National Institute of Rural Development And Others) and also relied on another Supreme Court decision reported in (2014) 13 Supreme Court Cases Page-598 Paragraphs 3 and 11 (Union Territory, Chandigarh And Others vs Gurcharan Singh And Another) .
17. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records I find that it is revealed from the record that the petitioner was appointed as an Assistant Teacher on 16th May, 1979 in Bishrail High School, District-Dakshin Dinajpur and his appointment was duly approved by the concerned authority. He was allowed to complete the DELT course 47th Section by the school authority and he completed the said training course and the petitioner was allowed to enjoy two additional increments in view of completing the said DELT court with effect from 1.1.1987 vide an order no.1984 dated 24th August, 1987 issued by the District Inspector of Schools (S.E), Dakshin Dinajpur and thereafter the Director of School Education time to time fixed the scale of pay of the petitioner from time to time under different ROPAs including ROPA 2009 without any break and without any objection.
It is also revealed from the record that the petitioner superannuated from his service on 30th September, 2014 when he was working as Headmaster in the said school.
It is further evident from the records that the petitioner was appointed as Headmaster on 2nd January, 1997 and his pay was fixed taking into account the two additional increments for possessing DELT Certificate and the school authority submitted all the relevant papers and documents pertinent to the petitioner's terminal benefits in the office of the District Inspector of Schools (S.E) Dakshin Dinajpur on 30th January, 2013 long before the date of the petitioner's superannuation.
18 I cannot also ignore the fact that the petitioner's pension sanctioning authority is the District Inspector of Schools (S.E) Dakshin Dinajpur and orders dated 24th August, 1987 and 2nd August, 1993 and subsequent orders were issued by the said District Inspector of Schools (S.E) Dakshin Dinajpur. Therefore, no question can be raised by the same District Inspector of Schools (S.E) Dakshin Dinajpur relating to the petitioner's entitlement of two increments for possessing DELT course.
19. I also cannot shut my eyes to the point that two orders dated 24th August, 1987 and 2nd August, 1993 have not been withdrawn and cancelled by the concerned District Inspector of Schools when the petitioner was in service and it is nobody's case that the petitioner during his service tenure made any defalcation of fund or fraud on the said school. Therefore, after the retirement of the petitioner question of recovery as observed by the audit observation does not and cannot arise at all.
20. Now I have to deal with the decisions relied on by Mr. Halder. Both the decisions Union Territory And Others (Supra) and P.H. Reddy And Others (Supra) relate to the fixation of the salary on re-employment under the basis of the relevant rules and regulations. As in both the cases the petitioner was re-appointed after retirement from the Indian Army being ex serviceman and from the Indian Army the said employees have been getting regular pension defence service, more so, there the employees were granted re-employment in the civil posts and they had been getting regular pension from defence service.
But the present case in hand the petitioner was a retired teacher and after retirement from his service on 30th September, 2014 and just before seven months from the date of superannuation i.e. on 30th January, 2014 the District Inspector of Schools (S.E) Dakshin Dinajpur informed the Secretary of the said school regarding recovery of the alleged excess payment drawn by the petitioner before his retirement which in my opinion is patently bad in law.
21. Considering the submissions advanced by Mr. Maitra and also after considering the decisions of the Hon'ble Supreme Court in case of Syed Abdul Qadir & Ors (Supra) and Tar Singh's case and Rafiq Masih case (Supra) I am of the view that the letter dated 30th January, 2014 issued by the concerned District Inspector of Schools for recovery of the excess payment drawn by the petitioner just before seven months of his retirement is bad in law, therefore, cannot be sustained in the eye of law because the said District Inspector of Schools (S.E) Dakshin Dinajpur by two orders dated 24.8.1987 and 2.8.1993 allowed the petitioner to enjoy two additional increments for having DELT course with effect from 1.1.1987 which was time to time refixed under various ROPAs including ROPA 2009 without any objection and without raising any question.
22. That being the position I have no hesitation to hold that the impugned order dated 15th July, 2013 issued by the Deputy Director Accounts, School Education and the order dated 6th September, 2013 issued by the Deputy Director of Accounts, School Education and the order dated 30th January, 2014 issued by the District Inspector of Schools (S.E) Dakshin Dinajpur should be quashed and set aside. Therefore, impugned order dated 15th July, 2013 issued by the Deputy Director Accounts, School Education and order dated 6th September, 2013 issued by the Deputy Director of Accounts, School Education and the order dated 30th January, 2014 issued by the District Inspector of Schools (S.E) Dakshin Dinajpur are hereby quashed and set aside.
23. In view of the decision of the Hon'ble Supreme Court in case of Shyambabu Verma and Others (Supra) and subsequent decision in case of Abdul Qadir (Supra) and Rafiq Masih (Supra) I hold that in the facts of the present case recovery of excess amount cannot be allowed after retirement of the petitioner concerned since the said amount was not paid on account of any mis-representation or fraud on the part of the petitioner. Accordingly I direct the respondent authority to release the pension and gratuity on the basis of the pay drawn by the petitioner in the last month of his salary at an early date but positively within three (3) months from the date of communication of this order.
24. With these directions this writ petition is allowed.
25. No order as to costs.
26. Urgent photostat certified copy of this Judgment, if applied for, be supplied to the parties after fulfilling all the formalities.
(Samapti Chatterjee, J)