Calcutta High Court (Appellete Side)
Amarendra Nath Purkait vs State Of West Bengal & Ors on 9 September, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
09.09.2011. W. P. No. 9858 (W) of 2011
Amarendra Nath Purkait
versus
State of West Bengal & Ors.
Mr. Pankaj Halder ... For the Petitioner.
Ms. Mitali Mukherjee ... For the State.
The petitioner who was an approved Assistant Teacher of
Ramkishorepur Radhanagar High School in the district of
South 24-Parganas retired from service on superannuation
with effect from 31.11.2004. After retirement of the petitioner,
Pension Payment Order was issued from the office of the
Director of Pension, Provident Fund & Group Insurance,
Government of West Bengal on 19.07.2005. The retiral benefits
of the petitioner as per the said Pension Payment Order were
paid to the petitioner on 03.08.2008.
The petitioner has filed this writ petition challenging the
illegal action on the part of the concerned authority for
deducting a sum of Rs.69658/- on account of overdrawal in
pay from the retiral benefits of the petitioner.
The question regarding legality of such deduction on
account of overdrawal and/or excess payment of salary from
the retiral benefits of a retired person has already been decided
by the Hon'ble Supreme Court in the case of Shyambabu
Varma Vs. Union of India & Ors. reported in (1994) 2 S.C.C.
page 521 wherein it was held that if a retired person had no
hand either in the process of refixation of pay and further
payment, the overdrawal amount cannot be adjusted and/or
realised from the retiral benefits of such retired person after
his retirement.
2
It is submitted by the learned advocate appearing for the
State-respondent on instruction from her client that such
excess payment was made to the petitioner during the tenure of his service due to his wrong pay fixation.
It is not a case where the State Government alleges that such refixation of salary of the petitioner at a higher slab was made due to fraudulent misrepresentation made by the petitioner. As such, this Court holds that the petitioner was not at fault in the process of refixation of his pay scale during the tenure of his service.
Thus, this Court by relying on the aforesaid decision of the Hon'ble Supreme Court holds that if any amount is found to have been paid to the petitioner in excess of his entitlement during the tenure of his service due to wrong pay fixation by the concerned respondents, the said respondents are neither entitled to adjust such overdrawal amount against the retiral benefits of the petitioner nor the said overdrawal amount can be realised from the retiral benefits of the petitioner.
Under such circumstances, this Court disposes of this writ petition by directing the concerned authority to complete the entire exercise regarding release of the said sum of Rs.69658/- which was illegally deducted by the respondents from the retiral benefits of the petitioner together with interest @8% per annum thereon for the period i.e., from the date of retirement of the petitioner up to the date of actual payment thereof. The entire exercise in this regard including payment of the aforesaid amount should be completed within eight weeks from the date of communication of this order.
The petitioner has also claimed interest on delayed payment of gratuity.
3Since this Court finds that the gratuity was paid to the petitioner almost after four years after his retirement, the State-respondent is also directed to pay interest @8% per annum on delayed payment of such gratuity from the date of retirement of the petitioner up to the date of actual payment thereof within the time as mentioned above.
Let the written instruction filed by the learned advocate appearing for the State-respondents in Court today, be kept with the record.
Re: Payment of Pensionary Relief This Court is of the view that though in view of the decision of the Hon'ble Supreme Court in the case of Shyambabu Varma Vs. Union of India & Ors. (supra), recovery of the excess payment made to the petitioner due to wrong pay fixation by the concerned authority in which the petitioner had no fraudulent role to play, is not permissible after his retirement out of his retiral dues, but the Hon'ble Supreme Court in the said decision has not held that the concerned authority is required to go on paying the current pensionary relief on the basis of the last drawn salary which was not admissible to him as per the law.
This Court, thus, holds that though recovery of the excess payment from the retired person from his retiral dues is not permissible, but the retired person cannot claim the pensionary relief for the current months on the basis of his last drawn salary which, in fact, was not admissible to him on the date of his retirement.
In my view, State cannot be burdened with such recurring liability for payment of pension for the current months by giving effect to such erroneous pay fixation even after such error is detected. However, I make it clear that any 4 amount of money paid to any retired person on account of pension in excess of his entitlement cannot be recovered from him.
As such, this Court directs the concerned authority to ascertain the entitlement of the petitioner with regard to his pay and allowance which was admissible to him as per law as on the date of his retirement and calculate the admissible pensionary relief payable to the petitioner accordingly.
The concerned authority is, thus, directed to complete the entire exercise in this regard within six weeks from date, so that the ultimate payment of the arrear pensionary relief reaches the hands of the petitioner within two weeks thereafter.
The concerned authority is also directed to go on paying the current pension regularly at the rate to be fixed in the manner as aforesaid.
The writ petition is, thus, disposed of.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned advocate of the parties as early as possible.
(JYOTIRMAY BHATTACHARYA, J.) dc.