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2019 DIGILAW 219 (CAL)

Ashis Kumar Bhowmik v. State of West Bengal

2019-02-15

ARIJIT BANERJEE

body2019
JUDGMENT : ARIJIT BANERJEE, J. 1. In this writ application the petitioner prays for a writ of mandamus commanding the respondents to take immediate steps for sanctioning the pension-cum-gratuity in favour of the petitioner on the basis of the last basic pay drawn at the time of his retirement i.e. 31 January, 2008 and on the basis of the option exercised by him in response to the Notification dated 13 June, 2014 and to release his retiral dues together with interest at the rate of 10% per cent per annum calculated from the date of his retirement till the date of payment. 2. The undisputed facts of the case are that the petitioner was an Assistant Teacher in Gangarampur High School, District Dakshin Dinajpur. He joined the said school on 2 February, 1970. His appointment was approved by the concerned D.I of Schools (S.E.) vide Memo dated 16 September, 1970. 3. On 24 September, 1979, the petitioner obtained Diploma in English Literature Training (DELT). As per G.O No. 3416-Edn (D) dated 22 June, 1965 as clarified by Memo No. 1620-Edn (S) dated 16 October, 1973, the petitioner was allowed two advance increments for his training qualification (DELT) with effect from 25 September, 1979. 4. After introduction of ROPA, 1981 (G.O No. 372-Edn (B) dated 31 July, 1981), the petitioner's pay scale was re-fixed at Rs. 500/- in the pay scale of Rs. 500-1360/- plus Rs. 40 for his DELT, with effect from 1 April, 1981. Such fixation was made on 15 March, 1982. 5. The petitioner's pay scale was again revised as per ROPA, 1990 at Rs. 2175/- plus Rs. 80/- (increment), aggregating Rs. 2255/- with effect from 1 April, 1988. Under ROPA, 1998 his pay scale was revised at Rs. 9075/- with effect from 1 April, 1996 and was further revised at Rs. 25,770/- as per ROPA, 2009 with effect from 1 January, 2006. The petitioner's last basic pay was fixed at Rs. 27,350/- as on the date of his superannuation i.e. 31 January, 2008. 6. On 23 May, 2007, the Head Master of the school where the petitioner was teaching, sent the pension papers of the petitioner to the D.I of Schools (S.E), Dakshin Dinajpur. The petitioner's last basic pay was fixed at Rs. 27,350/- as on the date of his superannuation i.e. 31 January, 2008. 6. On 23 May, 2007, the Head Master of the school where the petitioner was teaching, sent the pension papers of the petitioner to the D.I of Schools (S.E), Dakshin Dinajpur. On 3 December, 2008, the D.I of Schools sanctioned the gratuity of the petitioner on the basis of his last basic pay and sent all the papers to the Office of the Director of Pension, Provident Fund and Group Insurance. On 20 May, 2009, the Assistant Director of Pension, Provident Fund and Group Insurance returned the pension file of the petitioner to the D.I of Schools with a request to rectify the pay fixation as per Audit observation. On 16 July, 2009 the D.I of Schools sent the pension file with rectification to the Director of Pension, Provident Fund and Group Insurance. On 20 August, 2009, the Assistant Director of Pension, Provident Fund and Group Insurance again returned the pension file of the petitioner with a request to the D.I of Schools to approach the Secondary Education Department regarding the fixation of the petitioner's pay. On 1 July, 2010, the D.I of Schools sent the pension file of the petitioner to the Director of School Education. On 9 March, 2011, the Director of School Education instructed the D.I of Schools to fix the petitioner's pay scale as per the G.O No. 171-Edn (B) dated 15 May, 1988. On 1 September, 2011, the D.I of Schools advised the Head Master of the concerned School to follow the instruction of the Director of School Education. 7. On 8 September, 2014, the petitioner exercised option to switch over to the pension-cum-gratuity scheme as per the Government Notification dated 13 June, 2014. The petitioner accordingly refunded the Government's share of Provident Fund with interest. The concerned Assistant Inspector of Schools (S.E) has given "Clearance Certificate" to the petitioner for sanctioning of the pension-cum-gratuity in terms of the notification dated 13 June, 2014. 8. On 19 September, 2014, the Head Master of the School re-submitted the pension file of the petitioner to the D.I of Schools. On 5 February, 2015, the D.I of Schools sent the pension file to the Director of Pension, Provident Fund and Group Insurance. 8. On 19 September, 2014, the Head Master of the School re-submitted the pension file of the petitioner to the D.I of Schools. On 5 February, 2015, the D.I of Schools sent the pension file to the Director of Pension, Provident Fund and Group Insurance. On 24 June, 2015, the Assistant Director of Pension Provident Fund and Group Insurance again returned the petitioner's pension file to the D.I of Schools with objection. On 31 July, 2015, the D.I of Schools sent the pension file to the Joint Secretary of the School Education Department for necessary clarification regarding the pay fixation of the petitioner. 9. Mr. Jana, learned counsel for the petitioner submitted that not having received his retiral benefits for more than eight years after his retirement, the petitioner had no option but to approach this Court. 10. He submitted that the petitioner's pay fixation was made as per the G.O No. 3416-Edn (D) dated 22 June, 1965 as clarified by Memo No. 162-Edn (s) dated 16 October, 1973 and was subsequently, re-fixed as per the ROPA, 1981. Hence, G.O No. 171-Edn (B) dated 15 May, 1984 and the subsequent Memo No. 1569 (16) G.A. dated 21 September, 1985 have no relevance for fixing the petitioner's pay scale as has been contended by the Assistant Director of Pension in his letter dated 20 August, 2009. 11. Mr. Jana further submitted that even assuming that the petitioner was allowed to draw extra increment upon consideration of his DELT without following the Government order dated 15 May, 1984, the same cannot be questioned after twenty five years and after his retirement. In this connection, he relied on the decision dated 17 July, 2012 of a learned Judge of this Court in W.P No. 11206 (W) of 2008 (Narendranath Banerjee versus State of West Bengal and others). 12. Learned counsel further submitted that rectification of pay fixation and recovery of excess amount on account of over-drawal of pay after retirement of an employee is improper, unfair, unwarranted, arbitrary and mala fide and, hence, violative of the mandate contained in Article 14 of the Constitution of India. In this connection, he relied on the following three decisions:- (i) Shyam Babu Verma and others Versus Union of India and others reported in, (1994) 2 SCC 521 . In this connection, he relied on the following three decisions:- (i) Shyam Babu Verma and others Versus Union of India and others reported in, (1994) 2 SCC 521 . (ii) Syed Abdul Qadir and others Versus State of Bihar and others reported in, (2009) 1 Supreme 163 . (iii) State of Punjab and others Versus Rafiq Masih (White Washer) and others reported in, (2015) 4 SCC 334 . 13. Mr. Jana submitted that during preparation of the pension papers of an employee who is due to retire, such employee has to sign diverse related documents including the Comprehensive Form for sanction of pension and gratuity. Hence, the undertaking given if any, in a prescribed form at the time of retirement is nothing but a mere declaration for refund of amount paid in excess, if there is a fault and/or misrepresentation on the part of the retiring employee. In this connection, learned counsel relied on the following two decisions:- (i) Amita Kundu (Rana) Versus State of West Bengal and others reported in, (2008) 3 CalHN 62. (ii) Subhendu Mukhopadhyay Versus State of West Bengal and others reported in, (2014) 4 CalLT 445 (H.C). 14. On the basis of the above submission, learned counsel submitted that the impugned action of the respondent authorities in re-casting the pay scale of the petitioner after his retirement is unsustainable in law. The petitioner is entitled to get his retiral benefit calculated on the basis of his last basic pay drawn at the time of his retirement along with interest at the rate of 10% per cent per annum on the entire amount of his retiral dues. 15. Appearing for the State-respondents Mr. Tapan Kumar Mukherjee, learned Additional Government Pleader submitted that the petitioner is not entitled to receive pension from the date of retirement as all his retiral benefits were paid upon his retirement on 31 January, 2008. Admittedly, he exercised his option to switch over to the Government Pension Scheme and has returned the Government's share of Provident Fund with interest. As per the notification dated 13 June, 2014 and judgment of the Special Bench of this Court reported in (2013) 3 CLJ 178, he is entitled to receive pension from the date of refund of the Government's share of the Provident Fund. However, there was wrong pay fixation in so far as the petitioner is concerned. As per the notification dated 13 June, 2014 and judgment of the Special Bench of this Court reported in (2013) 3 CLJ 178, he is entitled to receive pension from the date of refund of the Government's share of the Provident Fund. However, there was wrong pay fixation in so far as the petitioner is concerned. As a result thereof, he received two additional increments which he was not entitled to. With his application for pensionary and retirement benefit the petitioner gave an undertaking that he will refund all amounts which have been wrongly paid to him. Thus, the petitioner accepted that his fixation of pay was not correct. The petitioner is bound by his undertaking. The petitioner cannot contend that the Government is not entitled to check his pay fixation. 16. Learned Counsel further submitted that the concerned school authority repeatedly failed to comply with the observations of the DPPG and failed to furnish the clarificatory information asked for by the School Education Department which has resulted in the delay in re-fixation of the petitioner's pay scale. 17. However, the school authority after complying with the observations of the DPPG and re-fixing the pay scale of the petitioner, re-submitted the pension papers to the office of the District Inspector of Schools (S.E), Dakshin Dinajpur vide school memo dated 6 August, 2018. The office of the DI under cover of office memo dated 6 August, 2018 forwarded such papers to the office of the DPPG, Government of West Bengal. The pension payment order has been issued in favour of the petitioner vide DPPG Memo No. K/S/00105/2018 dated 8 August, 2018. As per the pay fixation made by the school authority, it was found that an overdrawn amount of Rs. 1,33,268/- was enjoyed by the petitioner during his service tenure. Such amount has been adjusted against the retiral benefits of the petitioner by the DPPG at the time of issuing the PPO as per the petitioner's declaration dated 23 May, 2007 made by him, at the time of submission of his pension papers. 18. As per the correct pay fixation of the petitioner, his basic pay as on 31 January, 2008 (the date of his retirement) should be Rs. 26,360/- instead of 27,350/- as incorrectly mentioned in his service book. Accordingly, the admissible amount of pension payable to the petitioner is Rs. 18. As per the correct pay fixation of the petitioner, his basic pay as on 31 January, 2008 (the date of his retirement) should be Rs. 26,360/- instead of 27,350/- as incorrectly mentioned in his service book. Accordingly, the admissible amount of pension payable to the petitioner is Rs. 13,180/- with effect from 8 September, 2014 i.e. from the date of refund of the employer's share of the Provident Fund. 19. Learned Counsel heavily relied on the declaration submitted by the petitioner at the time of submission of his pension papers to the effect that "I Sri Ashis Kr. Bhowmik of Gangarampur High School (H.S) hereby declare that any amount of excess payment and over-drawal in pay and allowances, Loans, Advances etc. if found during scrutiny of my pension paper should be adjusted from the gratuity and pensions/relief. I hereby promise to raise no objection whatsoever for such adjustment". Learned Counsel also relied on another undertaking submitted by the petitioner in the form of certificate in Serial No. 7 at Page 31 of the Comprehensive Form for sanction of pension under the DCRB Scheme, 1981 to the effect that "Certified that an overdrawn of Rs (as shall be fixed) only due to wrong fixation, overstay etc. may please be recovered from the pension and gratuity dues of the employee." 20. Learned Counsel submitted that as per Paragraph 4 of the Notification dated 26 May, 1998, the DPPG is entitled to check the fixation of pay of a retiring employee. Neither the said notification nor the undertaking given by the petitioner for refund of overdrawn amount has been challenged by the petitioner. The present writ application was filed on 16 February, 2016 prior to re-fixation of the petitioner's pay and is, therefore, premature. 21. It was further submitted that the petitioner with open eyes submitted the undertaking and is bound by the same. He is estopped from contending that the excess amount is not liable to be refunded. Pension is paid from taxpayers' money and if the petitioner is allowed to retain the excess amount, the same will amount to unjust enrichment of the petitioner. He is estopped from contending that the excess amount is not liable to be refunded. Pension is paid from taxpayers' money and if the petitioner is allowed to retain the excess amount, the same will amount to unjust enrichment of the petitioner. Learned Counsel relied on the decision of the Hon'ble Supreme Court in the case of Krishna Kumar, (1990) AIR SC 1782, Paras 17 to 19) and on a Division Bench decision of this Court in FMA No. 4388 of 2016 (State of West Bengal versus Rabindra Nath Munshi delivered on 15th May, 2017). I have carefully gone through the said decisions. With great respect to learned counsel, I do not see how the said decisions are relevant in the facts of the present case or for the purpose of deciding the issue involved in this writ petition. 22. Regarding the decisions cited on behalf of the petitioner, learned counsel submitted that the same do not apply to the facts of the instant case. The said decisions did not discuss the effect of an undertaking as given by the petitioner in the present case nor took into account the relevant Government orders. Learned counsel prayed for dismissal of the writ petition. Court's View:- 23. The basic grievance with which the petitioner had approached this Court i.e. non-payment of his retiral benefits, stands redressed. The PPO has been issued in his favour vide memo dated 8 August, 2018. However, his pay scale has been re-casted and applying such re-fixed pay scale it was found that Rs. 1,33,268/- has been overpaid to the petitioner during his service tenure. Accordingly, the said amount has been recovered by the DPPG from the retiral benefits of the petitioner. Learned counsel for the petitioner submitted that neither the petitioner's pay scale could be re-caste with retrospective effect after such a long time nor any recovery of any excess payment could be made from the retiral benefits of the petitioner. 24. As regards, re-casting the petitioner's scale of pay, I do not think it would be a correct proposition of law to say that the petitioner's scale of pay could not be re-caste because of passage of a long period of time. If at any stage an error in fixation of a person's pay is detected, the same should be corrected. But, this should be only for future purposes. If at any stage an error in fixation of a person's pay is detected, the same should be corrected. But, this should be only for future purposes. I am unable to countenance the argument that even if an error in pay fixation is detected, just because such error occurred long time ago, the error cannot be corrected and the pay scale cannot be re-fixed. Hence, the first submission of the learned counsel for the petitioner is not acceptable. 25. As regards the recovery of the overdrawn amount from the retiral benefits of the petitioner, the same clearly is not permissible in law. In His Lordship's judgment dated July 17, 2012 delivered in Narendranath Banerjee versus State of West Bengal and others (supra), a learned Judge of this Court set aside the act on the part of the Government in deducting from the petitioner's retiral benefits a sum of money allegedly overpaid to the petitioner during his service tenure due to wrong pay fixation. The learned Judge observed that it was not the case of the Government that the petitioner's pay was wrongly fixed for any misrepresentation on the part of the petitioner or fraud practised by him. The learned Judge directed the State to refund to the petitioner the deducted amount along with interest. 26. In Shyam Babu Verma and others versus Union of India and others (supra), the Hon'ble Supreme Court held that no steps could be taken by the Government to recover or adjust any excess amount paid to an employee due to error on the part of the employer for which the employee was in no way responsible. 27. In Syed Abdul Qadir and others versus State of Bihar and others (supra), at Paragraphs 27 and 28 of the judgment, the Hon'ble Supreme Court held as follows:- "27. 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 vs. State of Haryana, (1995) Supp1 SCC 18, Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521 ; Union of India vs. M. Bhaskar, (1996) 4 SCC 416 ; V. Ganga Ram vs. Regional Jt., Director, (1997) 6 SCC 139 ; Col. B.J. Akkara [Retd.] vs. Government of India & Ors., (2006) 11 SCC 709 ; Purshottam Lal Das & Ors., vs. State of Bihar, (2006) 11 SCC 492 ; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., (2006) 8 SCC 647 ; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., (2000) 10 SCC 99 . 28. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made." 28. In State of Punjab and others versus Rafiq Masih and others (supra), the Hon'ble Supreme Court discussed its earlier judgments on this point and observed that orders passed by the employer seeking recovery of monetary benefits wrongly extended to the employees, can only be interfered with in cases where such recovery would result in a hardship of a nature which would far outweigh the equitable balance of the employer's right to recover. Interference would be called for in such cases where it would be iniquitous to recover the payment made. Summing up its discussion, at Paragraph 18 of the judgment, the Hon'ble Supreme Court observed as follows:- "18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise 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 for a 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." 29. Hence, it is well-established now that any over payment made to an employee due to erroneous pay fixation or misinterpretation of any rule by the employer or on its behalf, for which the employee is in no way responsible cannot be recovered from the employee's retiral benefits. Retiral benefits are designed to enable a retiring employee to live a life of dignity. Such benefits are not to be lightly interfered with. Of course, it would be an entirely different thing if the employee had a role to play in the excess payment to him by either misrepresenting facts or practising fraud. In such a case, the employer's right to recover the overpaid amount even from the employee's retiral benefits cannot be disputed. However, in the present case, it is not the State's contention that the petitioner had any role to play in the erroneous fixation of his pay scale. It would be grossly inequitable and unfair to permit the State to recover from the petitioner's retiral benefits any amount that was overpaid to him due to wrong fixation of his pay scale by the State. 30. Learned counsel for the State heavily relied on the declaration submitted by the petitioner at the time of submission of his pension papers. He also relied on the declaration of the petitioner made in the Comprehensive Form for sanction of pension under the DCRB Scheme, 1981. I have extracted the said declarations in Paragraph 19 of this judgment. 31. In my considered opinion, such declarations are of no effect. An employee who is on the verge of retirement has no choice but to sign on dotted lines as otherwise his pension papers will not be processed and pension will not be sanctioned resulting in severe financial hardship after retirement. Such an employee has no real choice in the matter. In my considered opinion, such declarations are of no effect. An employee who is on the verge of retirement has no choice but to sign on dotted lines as otherwise his pension papers will not be processed and pension will not be sanctioned resulting in severe financial hardship after retirement. Such an employee has no real choice in the matter. It is a kind of duress under which such an employee has to sign an undertaking/declaration as extracted above. As observed by a learned Judge of this Court in the case of Amita Kundu (Rana) versus State of West Bengal and others (supra), such an undertaking pushes the retiring employee between the devil and the deep sea. In that case, the learned Judge refused to give effect to a similar undertaking and directed the State to refund the sum deducted from the pensionary benefits of the retiring employee on account of over-drawal, along with interest at the rate of 8% per annum. 32. In Subhendu Mukhopadhyay versus State of West Bengal and others (supra), a learned Judge of this Court held that it is obvious that retiring persons are always eager to get their retiral benefits settled at an early date. Such persons often give such undertakings with the hope of early settlement of their retiral dues. The State should not take undue advantage of its disproportionate bargaining power in obtaining such undertakings from retiring persons in the absence of any statutory provisions. 33. I respectfully agree with the views expressed by the two learned Judges in the two decisions of this Court referred to above. In my view, the State cannot take any mileage out of the undertakings/declarations signed by the petitioner as mentioned above. 34. For the reasons stated above, I hold that deduction of the sum of Rs. 1,33,268/- from the retiral benefits of the petitioner was unlawful. The State respondents are directed to refund the said sum of Rs. 1,33,268/- to the petitioner with interest at the rate of 8% per annum from the date of issuance of the PPO till the actual date of re-payment. 35. The petitioner retired from service on 31 January, 2008. The pension payment order was issued more than 10 years later on 8 August, 2018. This inordinate delay was not for any reason that could be attributed to the petitioner. 35. The petitioner retired from service on 31 January, 2008. The pension payment order was issued more than 10 years later on 8 August, 2018. This inordinate delay was not for any reason that could be attributed to the petitioner. One can fully appreciate the agony, worry and anxiety that the petitioner must have gone through running from pillar to post to get his retiral benefits. The least that the respondents can do is to compensate the petitioner by paying interest on the arrear pension and delayed payment of gratuity. Accordingly, I direct the respondents to pay interest to the petitioner at the rate of 8% per annum on the arrear pension as well as gratuity amount from 1 March, 2008 till the actual date of payment of such amounts to the petitioner. 36. W.P No. 2735 (W) of 2016 is accordingly disposed of. There will be no order as to costs. 37. Urgent Photostat certified copy of this judgment shall be given to the parties, if applied for, upon compliance with requisite formalities.