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2010 DIGILAW 311 (CAL)

Chittaranjan Maiti v. STATE OF WEST BENGAL

2010-03-24

BISWANATH SOMADDER

body2010
JUDGMENT 1. HEARD the learned Advocates for the parties. 2. THE writ petitioner was an approved Assistant Teacher of "Keshabpur Gadadhar Jagindra Milan Vidyapith" of Keshabpur Jalpai, District-Purba Medinipur. He retired from service on 30th April, 2003, after thirty-three years spent in teaching. The scale of pay of the writ petitioner was revised from time to time, as per ROPA 81, ROPA 90 and ROPA 98. As such, revised scale of pay and fixation of the scale of pay were duly recorded by the school authorities in the service-book of the writ petitioner. The same was also approved from time to time by the concerned District Inspector of Schools, without any dispute and/or complain. Before retirement, all his papers were submitted by the school authorities to the concerned District Inspector of Schools for the purpose of sanctioning pensionary benefits including gratuity. Upon receiving the Pension Payment Order, the writ petitioner came to learn for the first time that Rs.1,29,737/- has been deducted from the gratuity amount due and payable to him, on account of overdrawal in pay. It is an admitted position that such deduction has been made by the authorities without giving any notice to the writ petitioner and without assigning any reasons. The writ petitioner raised an objection before the concerned Treasury Officer but to no avail. In such circumstances, the instant writ petition has been filed praying, inter alia, for issuance of writ in the - nature of mandamus commanding the respondents to refund the amount of Rs.1,29,737/-, which has been deducted from the gratuity amount of the writ petitioner after his retirement, together with interest at the rate of 10% per annum on such amount to be payable from the date of retirement till such payment was made by the concerned authority. 3. AT the time of hearing of the instant matter, learned Advocate appearing on behalf of the State fairly submits that it was impermissible for the respondent authorities to deduct any amount from the gratuity amount payable to the writ petitioner upon his retirement. 4. IN my view, the issue, sought to be raised by the writ petitioner in the instant case, has been well-settled by various pronouncements of the Supreme Court as well as by this Court. IN a recent decision of the Supreme Court reported in 2009 (1) Supreme 163 (SyedAbdul QadirA Ors. 4. IN my view, the issue, sought to be raised by the writ petitioner in the instant case, has been well-settled by various pronouncements of the Supreme Court as well as by this Court. IN a recent decision of the Supreme Court reported in 2009 (1) Supreme 163 (SyedAbdul QadirA Ors. v. State of Bihar and Ors.), it has held, inter alia, as follows:- "..........This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the 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 of rule/order, which is subsequently found to be erroneous. The relief against recovery is 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. See: Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verwa v. Union of INdia, 1994 (2) SCC 521 ; Union of INdia v. M. Bhaskar, 1996 (4) SCC 416 ; V. Ganga Ram v. Regional Jt, Director, 1997 (6) SCC 139 ; Col. B. J. Akkara (Retd.) v. Government-of INdia and Ors., 2006 (11) SCC 709 ; Purshottam Lal Das and Ors. v. State of Bihar, 2006 (11) SCC 492 ; Punjab National Bank and Ors. v. Manjeet Singh and Anr., 2006 (8) SCC 647 ; and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr., 2000 (10) SCC 99 . In a recent Division Bench judgment of this Court dated 11th May, 2009, in the case of The State of West Bengal and Ors. v. Manjeet Singh and Anr., 2006 (8) SCC 647 ; and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr., 2000 (10) SCC 99 . In a recent Division Bench judgment of this Court dated 11th May, 2009, in the case of The State of West Bengal and Ors. v. Sri Harekrishna Sardar and Anr., reported in 2009 (2) Cal LJ (Cal) 259, it was observed, inter alia, that it is a settled proposition of law that any order which causes civil consequences can only be passed after observing rules of natural justice. 5. IN the facts of the instant case, the amount which is shown as overdrawal in pay to the tune of Rs.1,29,737/- undoubtedly, has not been appropriated by the writ petitioner by obtaining such payment by misrepresentation or practising fraud. If there is carelessness on the part of the officials of the" State of West Bengal to compute payment of salary, while the writ petitioner was in service for thirty-three years, such negligence and/or carelessness, solely due to some inefficient and callous officials, cannot be corrected and/ or set right by deduction of Rs.1,29,737/- from the gratuity amount, due to payable to the writ petitioner. 6. THIS Bench, in a judgment delivered on 24th August, 2007 in Sk. Md. Zakeria v. The State of West Bengal and Ors., reported in 2008 (1) Cal LJ (Cal) 190 held, inter alia, that if a person has received a higher scale of pay, due to no fault of his own,. and subsequently the said scale was reduced with retrospective effect by the concerned authorities, no steps could be taken to recover or adjust any excess amount paid to that person due to the fault on the part of the State authorities, since that person was in no way responsible for the same. and subsequently the said scale was reduced with retrospective effect by the concerned authorities, no steps could be taken to recover or adjust any excess amount paid to that person due to the fault on the part of the State authorities, since that person was in no way responsible for the same. The ratio of the decision of the Supreme Court in the case of Shyam Babu Verma as also Bhagwan Shukla was followed in that judgment wherein it was also held that in a situation where a person's basic pay was wrongly fixed initially and thereafter reduced with retrospective effect, the position having been allowed to continue for twenty years due to administrative lapses, such person was obviously visited with civil consequences and was not granted any opportunity of show-cause against the reduction of his basic pay and thus the concerned person was not even put on notice before his pay was reduced by the department and as such, there had been a flagrant violation of the principles of natural justice when the person had made to .suffer huge financial loss without being heard. For the above reasons, I direct issuance of a writ in the nature of mandamus, commanding the respondent No.4, being the Treasury Officer, Haldia, District - Purba Medinipur, to refund the amount of Rs. 1,29,737/- to the writ petitioner, which has been deducted from the gratuity amount payable to him after his retirement together with interest at the rate of 8% per annum on the said amount to be computed from the date of his retirement till, such date the payment is made in terms of this order. 7. THE Director of Pension, Provident Fund and Group Insurance, being the respondent No. 2 herein, is directed to refix the amount of monthly pension payable to the writ petitioner on the basis of his last pay drawn and consequentially issue necessary order for preparation of a fresh Pension Payment Order. These directions shall be complied with by the concerned respondents, preferably within a period of eight weeks, but not later than twelve weeks from date of communication of a photo-stat certified copy of this order. 8. THE instant writ petition stands allowed accordingly. Urgent photo-stat certified copy of this order, if applied for, be given to the learned Advocate for the parties.