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2015 DIGILAW 843 (CAL)

Asim Kr. Goswami v. Union of India

2015-10-01

BIDISHA BANERJEE, R.BANDYOPADHYAY

body2015
ORDER : Bidisha Banerjee, J. 1. The grievance of the applicant is with regard to purported deduction of Fts. 1,15,694/- from the retiral benefits of the applicant by the National Atlas & Thematic Mapping Organization (NATMO in short), after seven months from his date of retirement on the ground of erroneous fixation of pay of the applicant to the post of Scientific Officer on 14.8.89 i.e. about 22 years back, in which the applicant claims to have had no hand. It has been urged that after retirement of the employee, the relationship of master & servant ceases and therefore, the authority concerned has no power and legal sanction to realise/ deduct any amount from the retirement benefits of the employee. Accordingly the present application has been filed seeking the following reliefs: "An order or direction to set aside the impugned order being No. 43-10/20 10/Estt/AKG/6486 dated 2.11.11 with further direction to pay back Rs. 1, 15,694/- along with statutory interest on it which was recovered from your applicant's retiral benefits, in violation of the provisions of law." 2. In support of his contention the learned Counsel for the applicant has relied upon the following decisions: (i) State of Punjab & Others v. Raflq Masih (White Washer), rendered by Hon'ble Supreme Court of India in Civil Appeal No. 11527 of 2014 (Arising out of SLP (C) No. 11684 of 2012) (ii) State of West Bengal v. Asis Das Gupta, 2013 (5) CHN (CAL) 440, where while upholding the decision of the Tribunal, Hon'ble High Court was considering justifiability of the following: "After retirement his pay has been revised and refixed in order to recover over-drawal of pay from pensionary benefit - Rule 140(1)-Whether any excess payment can be recovered from retired Government Servant?" The Hon'ble Court held as follows: "The learned Tribunal passed the impugned order upon placing reliance on a three-Judge Bench judgment of the Supreme Court in the case of Shyam Babu Verma & Others v. UOI & Others (supra) which has been consistently followed by the Supreme Court in the subsequent decisions including the decisions cited on behalf of the petitioners herein. The aforesaid three-Jude Bench judgment in the case of Shyam Babu Verma & Others v. UOI & Others, (supra) is operative and binding till today since the said decision has not yet been overruled by the Supreme Court in any subsequent decision. The aforesaid three-Jude Bench judgment in the case of Shyam Babu Verma & Others v. UOI & Others, (supra) is operative and binding till today since the said decision has not yet been overruled by the Supreme Court in any subsequent decision. The learned Tribunal, therefore, committed no error by allowing the prayer of the applicant namely, the respondent herein, upon placing reliance on the aforesaid decision of the Supreme Court in the case of Shyam Babu Verma & Others v. UOI & Others (supra). For the reasons discussed herein above, we do not find any merit in the present writ petition. Therefore, we affirm the decision of the learned Tribunal and dismiss this writ petition without awarding any costs." 3. Per contra the respondents have contended that excess payment made by the office would be recovered at any time when it comes to the notice of the authority. They have contended that "Dr. Goswami submitted undertaking mentioning that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies notices subsequently will be returned by him to the Government either by adjustment against future payments are due to him or otherwise." They have prepared a due-drawn statement extracted verbatim herein below: "No. 38-3/2011/Estt/4945 Dated: 19th/20th May, 2011 Office Order In partial modification of earlier Office Order No. 40/91, dated 5.4.1991 (Ref. File No. 38-4/87-Estt), the pay of Dr. Asim Kumar Goswami, Scientific Officer appointed through UPSC selection is revised in the light of Office Order No. 148/89, dated 27.10.89 (Ref. File No. 31-9/42-AKG/Estt) and his pay as Scientific Officer is straightway fixed at Rs. 2000/- in the scale of Rs. 2000-60-2300-E6-75-3200 as per FR 22(1)(a)(1). In the light of above the details of Due & Drawan will be as below:- Pay due revised on his direct appointment to the post of SO w.e.f. 14.8.89 in the pay scale of Rs. 2000-60-2300-EB-75-3200/- Pay drawn earlier as per his option furnished on promotion. Appointed as SP pay straightway fixed 14.8.89 - Rs. 200/- 14.8.1989 Pay initially fixed at Rs. 2000/- pay scale of Rs. 2000-60-2300-EB-75-3200-100-3500 as per Office Order No. 40/91 dated 5.4.1991. 1.8.1990 - Rs. 2060/- 1.6.1990 - Rs. 2120/- Pay re-fixed as per his option vide O/O No. 40/91, dated 5.4.91. 1.8.1991 - Rs. 2120/- 1.6.1991 - Rs. Appointed as SP pay straightway fixed 14.8.89 - Rs. 200/- 14.8.1989 Pay initially fixed at Rs. 2000/- pay scale of Rs. 2000-60-2300-EB-75-3200-100-3500 as per Office Order No. 40/91 dated 5.4.1991. 1.8.1990 - Rs. 2060/- 1.6.1990 - Rs. 2120/- Pay re-fixed as per his option vide O/O No. 40/91, dated 5.4.91. 1.8.1991 - Rs. 2120/- 1.6.1991 - Rs. 2180/- 1.8.1992 - Rs. 2180/ 1.6.1992 - Rs. 2240/- 1.8.1993 - Rs. 2240/- 1.6.1993 - Rs. 2300/- 1.8.1994 - Rs. 2300/- 1.6.1994 - Rs. 2375/- 1.8.1995 - Rs. 2375/- 1.6.1995 - Rs. 2450/- 1.8.1996 - Rs. 2450/- 1.6.1996 - Rs. 2525/- 1.8.1997 - Rs. 2525/- 1.6.1997 - Rs. 2600/- Pay revised as per 5th CPC Pay fixed in the corresponding revised pay scale of Rs. 6500-200-10,500/-w.e.f. 1.1.1996- Rs. 7300/- Revision of pay as per 5th CPC, pay scale of Rs. 6500-200-10500, Pay fixed w.e.f. 1.1.1996- Rs. 7500/- 1.8.1996 - Rs. 7500/- 1.6.1996 - Rs. 7700/- 1.8.1997 - Rs. 7700/- 1.6.1997 - Rs. 7900/- 1.8.1998 - Rs. 7900/- 1.6.1998 - Rs. 8100/- 1.8.1999 - Rs. 8100/- 1.6.1999 - Rs. 8300/- 1.8.2000 - Rs. 8300/- 1.6.2000 - Rs. 8500/- 1.8.2001 - Rs. 8500/- 1.6.2001 - Rs. 8700/- 1st F.U. granted w.e.f. 14.8.01, under the ACP scheme, pay scale of Rs. 8000-275-13,500, pay is initially fixed w.e.f. 14.8.01 - Rs. 8550/- 1st F.U. granted w.e.f. 14.8.01, under the ACP scheme, pay scale of Rs. 8000-275-13,500, pay is initially fixed w.e.f. 14.8.01 - Rs. 8825/- Pay re-fixed w.e.f. Pay re-fixed w.e.f. 1.8.2002 - Rs. 9100/- 1.6.2002 - Rs. 9375/- 1.8.2003 - Rs. 9375/- 1.6.2003 - Rs. 9650 /- 1.4.2004 - Rs. 9375/- + (DP) 5688/- 1.4,2004 - Rs. 9650/- + (DP) 4825/- 1.8.2004 - Rs. 9650/- + (DP) 4825/- 1.6.2004 - Rs. 9925/- + (DP) 4963/- 1.8.2005 - Rs. 9925/- + (DP) 4963/- 1.6.2005 - Rs. 10200/- + (DP) 5100/- Pay revised as per 6th CPC w.e.f. 1.1.06 pay fixed in the corresponding revised pay band - 3 (15600-39100) 1.1.06 - Rs. 18,470/- + (GP) 5400/- Pay revised as per 6th CPC w.e.f. 1.1.06 pay fixed in the corresponding revised pay band - 3 (15600-39100) 1.1.06 - Rs. 18,980/- + (GP) 5400/- 1.7.06 - Rs. 19,190/- + (GP)5400/- 1.7.06 - Rs. 19,720/- + (GP) 5400/- Promoted to the post of Research Officer w.e.f. 31.10.06, this promotion will be treated as functional promotion, no pay fixation benefit is required in the new post. 18,980/- + (GP) 5400/- 1.7.06 - Rs. 19,190/- + (GP)5400/- 1.7.06 - Rs. 19,720/- + (GP) 5400/- Promoted to the post of Research Officer w.e.f. 31.10.06, this promotion will be treated as functional promotion, no pay fixation benefit is required in the new post. Promoted to the post of Research Officer w.e.f. 31.10.06, this promotion will be treated as functional promotion, as he was drawing the pay scale of R.O. on his F.U. 1.7.07 - Rs. 19930/- + (GP) 5400/- 1.7.07 - Rs. 20480/- + (GP) 5400/- 1.7.08 - Rs. 20690/- + (GP) 5400/- 1.7.08 - Rs. 21260/- + (GP) 5400/- 1.7.09 - Rs. 21480/- + (GP) 5400/- 1.7.09 - Rs. 22060/- + (GP) 5400/- 2nd F.U. granted w.e.f. 14.8.09 under the MACPs in the PB-3 (15600-39100) + GE of Rs. 6600/-, pay straightway fixed w.e.f. 2nd F.U. granted w.e.f. 14.8.09 under the MACPs in the PB-3 (15600-39100) + GP of Rs. 6600/-, pay straight way fixed w.e.f. 14.8.09 - Rs. 22290/- + (GP) 6600/- 14.8.09 - Rs. 22890/- + (GP) 6600/- 1.7.2010 - Rs. 23160/- + (GP) 6600/- 1.7.2010 - Rs. 23780/- + (GP) 6600/- Retired on superanuation on 30.4.2011 (An) Retired on superanuation on 30.4.2011 (An) Citing the aforesaid they have justified their action. 4. We have heard the learned Counsels for the parties and perused the materials on record. 5. 22890/- + (GP) 6600/- 1.7.2010 - Rs. 23160/- + (GP) 6600/- 1.7.2010 - Rs. 23780/- + (GP) 6600/- Retired on superanuation on 30.4.2011 (An) Retired on superanuation on 30.4.2011 (An) Citing the aforesaid they have justified their action. 4. We have heard the learned Counsels for the parties and perused the materials on record. 5. We have noted the settled law, infra: (i) The rules on preparation of pension papers, extracted herein below is explicit that: "Every Head of Office shall undertake the work of preparation of pension papers in Form 7 two years before the date on which a Government servant is due to retire on superannuation, or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier." (ii) The decision in Rafiq Masih (supra) where the Hon'ble Apex Court was considering the following: "The long and short of the matter is, that all the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their dues." The Hon'ble Apex Court based on its earlier decisions rendered in Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18, Shyam Babu Verma v. UOI & Others, (1994) 2 SCC 521 , UOI & Others v. M. Bhaskar, 1996 (4) SCC 416 , V. Gangaram v. Regional Joint Director and Others, (1997) 6 SCC 139 , Col B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709 . Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99 etc. summarised 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 fora 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. (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. 6. In the aforesaid legal backdrop we have carefully considered the matter. We have failed to decipher any materials which would suggest that the alleged excess payments were induced by any fraud or misrepresentation of the employee. As such we feel that recovery from the retiral benefits of the applicant would be iniquitous and cause undue hardship to the pensioner. Since the instant case squarely falls under the criteria (ii) enunciated in Rafiq Masih (supra) we have no hesitation to adopt the ratio of the decision and hold that the recovery from terminal benefits as unduly harsh and impermissible in law. However, we noticed that refixation has not been deprecated in any manner. 7. Accordingly we although permit the authorities to refix pension in accordance with law we direct them to refund the recovered amount within two months from the date of communication of this order. 8. Accordingly the OA is disposed of. No order is passed as to costs. Application is disposed of.