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2012 DIGILAW 591 (CAL)

Sourav Mitra v. Tapas Kumar Mandal

2012-07-06

JYOTIRMAY BHATTACHARYA

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JUDGMENT: JYOTIRMAY BHATTACHARYA, J. 1. THE petitioner who was an Assistant Teacher of Basudebpur Haripriya Institution (H.S.) in the district of Purba Medinipur retired from service on superannuation with effect from 30.09.2004. After retirement of the petitioner, Pension Payment Order was issued from the office of the Director of Pension, Provident Fund and Group Insurance, Government of West Bengal on 21.03.2005. The retiral benefits of the petitioner as per the said Pension Payment Order were paid to the petitioner. 2. THE petitioner has filed this writ petition challenging the illegal action on the part of the concerned authority for deducting a sum of Rs.1,00,263/- on account of overdrawal in pay from the retiral benefits of the petitioner. 3. 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 and 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. 4. 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. 5. IT is submitted by the learned advocate appearing for the State-respondents that despite his best efforts, instruction could not be obtained by him from his client in this matter. 6. 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. 7. 7. 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.1,00,263/- which was illegally deducted by the respondents from the retiral benefits of the petitioner together with interest @6% 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 twelve weeks from the date of communication of this order. Re: Payment of Pensionary Relief 8. 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 and 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. 9. 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. 10. 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 amount of money paid to any retired person on account of pension in excess of his entitlement cannot be recovered from him. 11. 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 benefits accordingly and pay the same to the petitioner. 12. 11. 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 benefits accordingly and pay the same to the petitioner. 12. 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. 13. THE writ petition is, thus, disposed of. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.