Gayatri Jash vs State of West Bengal & Ors.

Let affidavit of service filed in Court today be kept on record.

The petitioner has filed the present writ petition for a direction upon the respondent no. 2, the Director of Pension, Provident Fund & Group Insurance,

Government of West Bengal to refund the deducted amount of Rs. 52,939/- with interest at the rate of 10% per annum from the date of retirement of

her husband till the date of actual payment and re-fix his/her pension accordingly.

The petitioner’s case in short as follows that the husband of the petitioner was an Assistant Teacher of Uchalan Primary School, Burdwan.Â

After completion of service, the husband of the petitioner retired from service on 30.12.1994 and he expired on 01.10.2001. Before retirement of the

husband of the petitioner, the concerned authority has prepared the papers for pension but the said pension papers were withheld. For the reason,

the petitioner has drawn excess amount due to wrong fixation of the husband of the petitioner’s pay scale during his/her service tenure and the

authority forced the petitioner to refund the overdrawal amount. It also appears that the concerned authority reduced the husband of the

petitioner’s pay drawn at the time of retirement and calculated the overdrawal amount of Rs. 52,939/-. Thereafter the Pension Payment Order

was issued by the Assistant Director of Pension, Provident Fund and Group Insurance vide Memo dated 02.04.2001 wherefrom it reveals that the

authority had deducted the basic pay drawn at the time of retirement and deducted the amount of Rs. 52,939/- from the husband of the petitioner’s

gratuity but before deduction no opportunity of hearing as well as notice was ever given for refund. Only after retirement from the Pension Payment

Order it is found that Rs. 52,939/- had been deducted from the husband of the petitioner’s pensionary benefits.

Learned Advocate appearing for the petitioner submits that it is a settled law laid down by the Hon’ble Supreme Court in several cases which has

been time to time followed by the Hon’ble Division Bench as well as the learned Single Bench of this Hon’ble Court in several decisions.

In support of his/her contention, learned Advocate for the petitioner relied on the decisions reported in 1994(2) SCC 521 (Shyambabu Verma & Ors.-

vs- Union of India & Ors.) and 2009(3) Supreme Court Cases 475 (Syed Abdul Qadir & Ors. â€"vs- State of Bihar & Ors.). He/she also relied on

the latest Supreme Court decision reported in 2015 (1) Supreme Today 671 ( State of Punjab & Ors. â€"vs- Rafiq Masih (White Washer) etc. ).

Paragraph 12 at pages 19 and 20 of the aforesaid decision is quoted below :

“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payment have

mistakenly been made by the employer, in excess of their entitlement. Be that 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 â€"III and Class â€"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.

(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.â€​

Learned Advocate for the petitioner also relied on the Hon’ble Division Bench decision passed on 9th September, 2013 in W.P.S.T. No. 216 of

2013 (State of West Bengal & Ors. â€"vs- Asis Das Gupta).

Learned Advocate for the petitioner further contends that the point raised by the learned Advocate for the petitioner that after long time the petitioner

approached this Hon’ble Court, therefore, the writ petition should be dismissed on the sole ground of delay for approaching before this

Hon’ble Court.

After demolishing the argument of the State respondents, learned Advocate for the petitioner contends that since it is a fault on the part of the

respondent authority where the petitioner was not a party and moreover the petitioner was not at all informed by the authority and no opportunity was

given to the petitioner by the authority before such deduction, therefore, the argument advanced by the learned Advocate for the State respondents

that the petitioner came late before this Hon’ble Court cannot be sustained. In support of his/her contention, Learned Advocate for the

petitioner relied on one unreported judgement passed by the Hon’ble Division Bench in M.A.T. No. 1067 of 2010 (Smt. Nanda Rani Das â€"vs-

State of West Bengal & Ors.) where the Hon’ble Division Bench after considering the Hon’ble Supreme Court decision reported in 2008(8)

Supreme Court Cases 648 (Union of India â€"vs- Tarsem Singh) held as follows :

“It is true that the aforesaid overdrawn amount was deducted in the year 2001 and the petitioner approached before this Court after lapse of nine

years. However, on account of the aforesaid delay no third party right has accrued and it is only the petitioner who suffered due to non-payment of

the aforesaid amount by the respondent authorities.

In the case of Union of India vs. Tarsem Singh, reported in (2008) 8 Supreme Court cases, 648, the Hon’ble Supreme Court observed as follows :

For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of

third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others delay would render the claim scale and doctrine

of laches/limitation will be applied.â€​

Learned Advocate appearing for the State respondents submits on instruction that the State Authority is not an obligation to refund the amount which

has been deducted as it was wrongly given by the State Authority. Therefore, since the petitioner is not entitled to enjoy this amount which was

wrongly given by the State Authority when it was detected then the State Authority has the right to deduct the amount from the husband of the

petitioner’s gratuity.

Therefore, in conclusion learned Advocate for the State respondents submits that the petitioner is not entitled to get any refund as he/she was wrongly

allowed by the State Authority to enjoy the said amount for which he/she is not entitled to.

Considering the submissions advanced by the learned Advocates for the respective parties and after perusing the records and averments and also

after considering the decisions of the Hon'ble Supreme Court in the case of Syed Abdul Qadir; Rafiq Masih and Tarsem Singh (supra), I am of the

view that the amount which was wrongly deducted by the authority from the husband of the petitioner’s pensionary benefit without giving an

opportunity of hearing to the petitioner when the husband of the petitioner is very much in service cannot be accepted.

In the judgement passed by this Hon’ble Court reported in (2017) 3 WBLR (Cal) 490 also considered all points.

 In my considered view the issue regarding undertaking exercised by the petitioner has already been discussed in plethora of decisions of

Hon’ble Supreme Court as well as Hon’ble Division Bench of this Hon’ble Court. In State of West Bengal & Ors vs Harekrishna

Sardar & Anr reported in 2009 (4) CHN (CAL) Page 136 where the Hon’ble Division bench relying on the Hon’ble Supreme Court decision

reported in AIR 1957 SC 1269 (State of Orissa vs Dr. Miss Binapani Dey) held that even if undertaking was given but after retirement deduction

from the gratuity amount without giving any opportunity of hearing to the petitioner when the petitioner was in service cannot be sustained since it is

an administrative order which causes civil consequences. Accordingly the Hon’ble Division Bench affirmed the Trial Court Judgment without any

interference.

 In Col. B.J. Akkara-vs-Govt. of India, (2006) 11 SCC 709, the Hon’ble Apex Court held that it has consistently granted relief against recovery

of excess wrong payment of emoluments/allowances from an employee if the excess payment was not caused due to any misrepresentation or fraud

on the part of the employee or 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 a rule/order which is subsequently found to be erroneous. Such relief is granted by Courts not because

of any right of the employees but in equity, in exercise of judicial discretion to relieve the employee from the hardship that will be caused if recovery is

implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep

of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any

subsequent action to recover the excess payment will cause undue hardship, relief is granted in that behalf. But where the employee was aware that

the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong

payment, Courts will not grant relief against recovery. The matter is in the realm of judicial discretion.

 The form of declaration clearly means that even at the highest, recovery of excess payment could be made by the State from the salary bill of the

petitioner during the tenure of his service. In my opinion, such a declaration would not entitle the State to recovery any over-drawals from the

pensionary benefits of the petitioner after retirement.

 I draw support to my view taken above, from the decision of a Division bench of this Court in the Court of Asutosh Bhattacharya-vs-The State of

West Bengal, (2015) 2 CLT 339, in which the Hon’ble Division Bench considered the decisions in Shyam Babu Verma (supra), Syed Abdul Qadir

(supra), Chandi Prasad Uniyal (supra) and Rafiq Masih (supra) and held that no recovery can be made from a retired employee who is due to retire

within one year from the order of recovery.

 In view of the discussions above I hold that, no recovery could be made from the retiral benefits of the petitioner and the deduction of the sum of

`1,40,840/was clearly contrary to law.

The same issue has also been settled by Hon’ble Division Bench decision reported in (2015) 2 CAL LT Page â€"339 (HC) and by Hon’ble

Single Bench decision reported in (2008) 3 CAL LT Page-308 (HC) (Dhirendra Nath Purkait Vs The State of West Bengal & Ors).

 In my considered view the cited decision of the Hon’ble Division Bench of the Hon’ble Supreme Court under Article 141 was

rendered in a different fact situation. In that cited decision (High Court of Punjab & Haryana & Ors Vs Jagdev Singh) the petitioner /respondent

was a suspended employee of the subordinate judiciary under High Court of Punjab and Haryana. The respondent furnished an undertaking and he

was granted the revised pay scale and selection grade. Subsequently the recommendation of the First National Judicial Pay Commission (Shetty

Commission) was accepted by the Hon’ble Court. Thereupon, the Haryana Civil Services (Judicial Branch) and Haryana Superior Judicial

Service Revised Pay Rules 2003 were notified on 7th May, 2003.

In the said backdrop the pay scale of Judicial Officers in Haryana were once again revised with effect from 1st January, 1996 where the petitioner

exercised his undertaking for adjustment of excess payment made to Judicial Officers following the notification of the Revised Pay Rules. But in

the case in hand the facts is totally different. No such recommended Pay Commission (Shetty Commission) has ever been accepted by the

petitioner. Here the petitioner’s pay scale was sanctioned according to ROPA and such benefit of ROPA was revised time to time as per

subsequent ROPA.

 On the basis of that in the latest judgment in Rafiq Masih Case (supra) the Hon’ble Apex Court laid down five criteria. Therefore, in my

considered view since the facts of the case in hand and the fact of the case in Shyam Babu Verma and Sahib Ram Verma (supra) are same and the

decision rendered subsequently in Rafiq Masih case where the Hon’ble Supreme Court laid down five criteria, the authority are not entitled to

recover the overdrawal amount from the petitioner.

 Therefore the impugned decision for recovery from the petitioner after retirement cannot be upheld by this Hon’ble Court.

Therefore, the aforesaid deduction of the overdrawn amount of Rs. 52,939/- from the gratuity amount of the husband of the petitioner after retirement

cannot be approved by this Court. Therefore, I hold that the impugned deduction by the respondent authority is bad in law. The respondent authorities

are, therefore, directed to pay the aforesaid overdrawn amount of Rs. 52,939/without any further delay but positively within a period of eight weeks

from the date of communication of this order.

With the aforesaid direction, this writ petition is allowed.

There will be no order as to costs.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary

formalities.