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2017 DIGILAW 962 (CAL)

Rajkumar Jana v. State of West Bengal

2017-12-07

TAPABRATA CHAKRABORTY

body2017
JUDGMENT : TAPABRATA CHAKRABORTY, J. 1. The subject matter of challenge in the present writ petition is an order dated 16th August, 2016 passed by the respondent No. 4 and the impugned denial of the respondents to disburse the pensionary benefits of the petitioner. Shorn of unnecessary details the facts are that the petitioner was appointed to the post of an assistant teacher in Bar-ghasipur High School on 2nd February, 1976. With effect from 1st December, 1978, he was granted the benefits of post graduate scale of pay, having acquired the M.Sc. degree. Thereafter the petitioner was appointed to the post of Head Master at Kapasaria Bamunia Bandhab High School and such appointment was approved with effect from 15th February, 1989 by a memo dated 27th September, 1989 issued by the respondent No. 7. Subsequent thereto, the petitioner's pay scale was revised in terms of the Revision of Pay and Allowances Rules (hereinafter referred to as the ROPA Rules). The petitioner thereafter attained the age of superannuation on 31st July, 2014. After the pension papers were prepared and forwarded and the petitioner was awaiting disbursement of the pensionary benefits, he was communicated a memo dated 4th November, 2016 issued by the respondent No. 4. The said memo contained "Audit Observations", inter alia, to the effect that "option as per Ropa' 90 exercised w.e.f. 15.2,89 as H.M. in scale of pay 660-40-1100-50-1600/- seems to be not in order". By the said memo the respondent No. 4 further advised the pension sanctioning authority to recast the petitioner's pay and to calculate the overdrawal and to obtain refund. Objecting against the said memo dated 4th November, 2016, the petitioner submitted a representation through his learned advocate to the respondent Nos. 3 and 4 on 1st August, 2017 but the same was not attended to and aggrieved thereby the petitioner has approached this Court. 2. Mr. Mostafa, learned advocate appearing for the petitioner submits that the petitioner was granted the post graduate scale of pay after he enhanced his qualification and his pay was duly revised in terms of the ROPA Rules. The respondents did not at any juncture raise any objection as regards grant of such higher scale of pay and the revised benefits under the ROPA Rules. The respondents did not at any juncture raise any objection as regards grant of such higher scale of pay and the revised benefits under the ROPA Rules. It is only about two years after his retirement the impugned memo dated 4th November, 2016 was issued by the auditing authority expressing a tentative view that the petitioner's fixation of pay in terms of the ROPA Rules seems to be not in order. On the basis of the said memo, the pension sanctioning authority, being the respondent No. 7 has illegally withheld the disbursement of the pensionary benefits. Till date no final order has been communicated by the respondent No. 7 to the effect that the petitioner has overdrawn any amount and no refund has been demanded. The petitioner's claim towards disbursement of the pensionary benefits has been simply kept in abeyance in an illegal manner. 3. According to Mr. Mostafa, it would be explicit from the memo dated 27th September, 1989 issued by the respondent No. 7 approving the appointment of the petitioner to the post of Head Master that the petitioner was having a qualification of M.Sc. and B.Ed. On the basis of such approval, fixation was effected under the ROPA Rules. The said approval memo has neither been altered nor recalled. He was given his usual pay, right from the date of his joining till the date of his retirement without any adjustment or refixation in the intervening period of around 38 years. As such, after retirement of the petitioner the respondents can neither alter the pay fixation nor recover any alleged overdrawn amount from his retirement benefits. In support of such contention he has placed reliance upon the judgments delivered in the case of Shyam Babu Verma & Ors. v. Union of India & Ors., reported in (1994)2 SCC 521 , in the case of Syed Abdul Qadir & Ors. v. State of Bihar & Ors., reported in (2009)3 SCC 475 and in the case of State of Punjab & Others v. Rafiq Masih (White Washer), reported in (2014) 8 SCC 883 . 4. Per contra, Mr. Chattopadhyay, learned advocate appearing for the State respondents submits that the orders passed by the Hon'ble Apex Court in Shyam Babu Verma (supra) and Syed Abdul Qadir (Supra) were under Article 142 of the Constitution and did not amount to declaration of law under article 141 of the Constitution. 4. Per contra, Mr. Chattopadhyay, learned advocate appearing for the State respondents submits that the orders passed by the Hon'ble Apex Court in Shyam Babu Verma (supra) and Syed Abdul Qadir (Supra) were under Article 142 of the Constitution and did not amount to declaration of law under article 141 of the Constitution. According to him, the law is as declared by the Hon'ble Apex Court in Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors., reported in (2012)8 SCC 417 , which is to the effect that except in few instances pointed out in Syed Abdul Qadir (supra) and in Col. (Retd.) B.J. Akkara v. The Govt. of India & Ors., reported in (2006)11 SCC 709 , excess payment made due to wrong/irregular pay fixation can always he recovered. 5. He further submits that at the time of pay fixation under the respective ROPA Rules of 1981, 1990 and 1998 the petitioner has given a categoric undertaking to the effect that "I hereby undertake to refund to the government any amount which may be drawn by me in excess of what is admissible to me on account of erroneous fixation of my pay in the revised scale of pay as soon as the fact of such excess drawl comes to my notice or is brought to my notice". If at the time of taking benefit of revised higher scale of pay, the concerned employee gives an undertaking that he would be liable to refund any excess payment made to him, he would be bound by such undertaking. In support of such contention he has placed reliance upon a judgment delivered in the case of High Court of Punjab & Haryana v. Jagdev Singh. 6. In support of such contention he has placed reliance upon a judgment delivered in the case of High Court of Punjab & Haryana v. Jagdev Singh. 6. Pursuant to the decision reported in 2009(2) SCC 475 (Syed Abdul Kader v. State of Bihar), a circular dated 19th July, 2010 has been issued by the Directorate of Pension, Provident Fund and Group Insurance wherein it has been specifically stated that except in cases where (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, (b) 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, (c) it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid and (d) the error is detected or corrected within a short time of wrong payment, no overdrawal/excess payment is to be deducted from the retiral benefits of the 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) and from the said circular it is explicit that save and except in the four circumstances mentioned therein and irrespective of any undertaking availed from the employees, the State adopted a conscious decision not to recover any overdrawal. 7. In the case of Jagdev Singh (supra) challenge was against a direction issued by the State to the Accountant General for the recovery of an excess payment towards salary of the employee who submitted an undertaking before receiving the revised pay. The said employee was suspended and was thereafter compulsorily retired. The rules on the basis of which the pay of the employee was fixed and benefits disbursed with effect from 7th January, 2002 were once again revised with effect from 1st January, 1996 though the said revised rules were notified on 7th May, 2003 in view of acceptance of recommendations of the First National Judicial Pay Commission by the Court in a writ petition. In those facts the recovery process was upheld but in the instant case the respective ROPA Rules on the basis of which the petitioner's salary was revised and fixed have not been subsequently altered. In those facts the recovery process was upheld but in the instant case the respective ROPA Rules on the basis of which the petitioner's salary was revised and fixed have not been subsequently altered. Furthermore in the instant case the State by a circular dated 19th July, 2010 detailed the specific circumstances in which overdrawal can be recovered irrespective of any undertaking given by the employee. Thus the judgment delivered in the case of Jagdev Singh (supra) is clearly distinguishable on facts. It is well settled that one little difference in the facts will free the Court from being bound by the ratio of a decided case. 8. The mere fact of the petitioner having put his signature on the pro forma and thereby agreeing to abide by the undertaking to refund does not warrant that a deduction shall be made on account of alleged overdrawal spanning over a period of more than three decades. The undertaking executed pertains to refund of an amount drawn "in excess of what is admissible". In the instant case the petitioner's pay was fixed on the basis of the approval memo dated 27th September, 1989 issued by the respondent No. 7. The said approval memo having not been altered, rectified or withdrawn by the competent authority, it cannot be said that the fixation of pay as per the ROPA Rules and the consequential benefits were not admissible to the petitioner. Admittedly steps were taken by the respondents towards recovery after the petitioner's retirement. Once the petitioner retired, the master and servant relationship ceased and the relationship existed only for the purpose of payment of terminal benefits to the petitioner on the basis of the situation existing on the date of his retirement. The contractual relationship between the parties terminated with the situations that existed on the date of retirement and hence the respondents were no longer empowered to change the concluded terms of contract unilaterally and without any sanction of law. 9. The pension sanctioning authority cannot withhold the disbursement of the petitioner's pensionary benefits on the basis of tentative audit observations. Such observations cannot be construed to be sacrosanct and merely on the basis of the same the pension sanction authority cannot revise the pay fixation to the detriment of the petitioner after his retirement. 9. The pension sanctioning authority cannot withhold the disbursement of the petitioner's pensionary benefits on the basis of tentative audit observations. Such observations cannot be construed to be sacrosanct and merely on the basis of the same the pension sanction authority cannot revise the pay fixation to the detriment of the petitioner after his retirement. The scale in terms of the ROPA Rules was fixed by the authorities concerned on their own and there was no any participation of the petitioner in the process of such refixation. It is also not a case that the pay fixation was compulsive in nature having been made in terms of any interim order of this Court. 10. The respondents have not come out with a case that the petitioner is in any way responsible for erroneous fixation of his pay scale. The pay scale of the petitioner was revised from time to time. Such revision was not only noted in the service book but also authenticated by the appropriate authority. Standard of living of every person rises with the increase of his income. Thus, whatever additional benefits a person received by way of increment in his salary during his service period, are all normally spent with the rise of his standard of living. The retired person cannot subsequently recover the said amount from the person to whom such payment was made in lieu of the benefits which he received therefrom. Thus, if this equitable consideration is taken into account, then it should be held that the respondents who are at fault, should not be allowed to recover the said amount from the retiral benefits, of a retired person. For the reasons discussed above, I dispose of this writ petition by quashing the objection raised by the Assistant Director of Pension, Provident Fund and Group Insurance, government West Bengal as contained in the memo dated 4th November, 2016 and I direct the respondents to issue the pension payment order on the basis of the last pay drawn by the petitioner for releasing arrear pension, gratuity and other retiral benefits, upon compliance of the necessary formalities by the petitioner, within eight weeks from the date of communication of this order. There shall, however, be no order as to costs. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.