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2013 DIGILAW 938 (CAL)

Sipra Mukherjee v. State of W. B.

2013-12-18

NADIRA PATHERYA, TAPASH MOOKHERJEE

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JUDGMENT In this appeal the order under challenge is dated 2nd July 2012 whereby the writ petition was dismissed on two grounds whereby the preliminary objection raised was upheld and writ petition dismissed. 2. Counsel for the appellant submits that the only issue that needs to be considered is whether the appellant herein would be entitled to recover the amount deducted on account of overdrawal of salary from the gratuity payable to her. 3. The employee retired on 31st December 2005. PPO was issued on 27th August 2007 wherein it was specifically stated that on account of excess drawal sums were being deducted from the gratuity amount. This could not have been done as the appellant as legal heir and representative of the deceased employee is entitled to gratuity amount. In view of the decisions reported in 1994(2) SCC 521 and 2009 (3) SCC 475 the appellant is entitled to payment of sums withheld as there has been no misrepresentation or fraud practiced on the respondent by either the employee or his legal heir and representative. In fact, the recovery will cause extreme hardship to the appellant as her employee husband expired in June 2009. PPO was issued by the office of the Director of Pension, Provident Fund and Group Insurance. Pursuant to the decision reported in 2009 (3) SCC 475 (Syed Abdul Kader vs. State of Behar) a circular has been issued by the Directorate of Pension, Provident Fund and Group Insurance wherein it has been specifically stated that in case of any of the four circumstances mentioned therein, no excess payment is to be recovered from the retiral benefit of an employee. Therefore, by the said circular a meaningful interpretation has been given to the decision reported in the case of Syed Abdul Kader & Ors.(supra). The appellant is not seeking any refixation of pay scale as subsequently pension has been paid on the scale which would be applicable to the employee husband and the same has been accepted by the appellant without demur. The appellant as a legal heir and representative of the employee husband is entitled to payment of retiral benefits and while it may be true that the employee husband realized the retiral benefit without raising any objection, she as a legal heir and representative is also entitled to receive the retiral benefits which have been withheld. The appellant as a legal heir and representative of the employee husband is entitled to payment of retiral benefits and while it may be true that the employee husband realized the retiral benefit without raising any objection, she as a legal heir and representative is also entitled to receive the retiral benefits which have been withheld. On an earlier occasion a writ petition was filed for payment of interest on the delayed payment of gratuity. The said writ petition was entertained and order passed. Therefore, the locus of the appellant cannot be questioned by the respondent authorities in this writ petition as no appeal has been filed from the order passed in the earlier writ petition. 4. The order under appeal in so far as it has held that the only person who could have been aggrieved is the Teacher is an error in law as the legal heir and representative of the employee is entitled to pension and the benefits of gratuity. Therefore, the order dated 2nd July 2012 be set aside. 5. In opposing the said appeal, Counsel for the State respondents relies on Rule 9 of the 1971 Rules and submits that where the 1985 Rules is silent the 1971 Rules must apply. Rule 9 of the 1971 Rules permits recovery of sums to meet any sum due to the Government from Pension and Gratuity within four years from the date of retirement of the employee. PPO was issued in 2007 and as the employee retired in 2005, the recovery of sum is within two years. Admittedly, the employee died in June 2009 without raising any objection. Therefore, the employee accepted the recovery of the said sum and no right to sue survives in the appellant herein. Reliance is placed on 2012 (8) SCC 417 for the proposition that excess payment made is from public money, i.e., the tax payers money which does not belong to the officer or to the recipient and recovery can be made where the payment is due to wrong or irregular pay fixation. 6. In the light of the aforesaid, the writ petition was rightly dismissed and the order dated 2nd July 2012 calls for no interference. 7. In reply Counsel for the appellant submits that the decision reported in 2012 (8) SCC 417 is distinguishable on facts and the recovery amount be paid to the appellant with interest. 8. 6. In the light of the aforesaid, the writ petition was rightly dismissed and the order dated 2nd July 2012 calls for no interference. 7. In reply Counsel for the appellant submits that the decision reported in 2012 (8) SCC 417 is distinguishable on facts and the recovery amount be paid to the appellant with interest. 8. Having considered the submissions of the parties it is true that the employee husband of the appellant raised no objection to the recovery made from the gratuity amount but accepted the same. It is only after his demise in 2009 that the writ petition was filed in 2010 challenging such recovery by his legal heir and representative the widow. While the retired employee would be entitled to retiral benefits his legal heir and representative would be entitled to family pension and only to that extent would be entitled to the retiral benefits. Gratuity is a one time payment and upon receipt of the same by the employee no issue can be raised on the same. But in the instant case the sums from the gratuity amount have been withheld and the appellant as the legal heir and representative being entitled to the retiral benefit would be entitled to challenge such withholding of the amount by the authorities. In the absence of any misrepresentation and fraud on the part of the employee husband so also the PPO issued by the office of the Director of Pension and Provident fund and Group Insurance in 2007 and the circular issued, subsequent to the decision of the Supreme Court of India in the case of Syed Abdul Kader (supra) on 19th July 2010, one of the four situations in which excess payment is not be deducted from past retiral benefit applies to the appellant. It is on the basis of the said decision and circular that the appellant became aware of her entitlement and without a doubt the appellant is an aggrieved person. 9. The appellant is not seeking pay refixation. Therefore, dismissal of the writ petition on this ground cannot be sustained. This is contrary to the records as subsequent thereto the pay scale has been corrected and pension is being paid on such corrected pay scale. 10. 9. The appellant is not seeking pay refixation. Therefore, dismissal of the writ petition on this ground cannot be sustained. This is contrary to the records as subsequent thereto the pay scale has been corrected and pension is being paid on such corrected pay scale. 10. Having held that the appellant being the legal heir and representative of the employee husband is an aggrieved person the order dated 2ndJuly 2012 cannot be sustained in the eye of law. 11. Accordingly the Order under appeal is set aside. The matter is remitted to the Trial Court for disposal on merits. It is made clear that besides the maintainability issue all other issues are left open for consideration by the Trial Court and the same has not been considered in appeal. 12. With the aforesaid directions the appeal and the connected application is disposed of. Urgent certified photocopies of this order be made available to the parties, if applied for, subject to the compliance of all requisite formalities.