Narayan Chandra Guchhait vs State of West Bengal & Ors

Md. Nizamuddin, J

Heard learned Advocates appearing for the Parties.

This Writ Petition has been filed against the impugned order dated 16th September, 2011 passed by the District Inspector of Schools (S.E) Purba Medinipur/ respondent no. 4 making prayer for quashing the said impugned order and restraining him from deducting the alleged excess amount paid to the petitioner as higher scale of pay i.e. Post Graduate Scale of Pay which was approved by the respondent authority.

Relevant facts involved in brief in this case is that the petitioner is appointed as an Assistant Teacher of Dakshin Anukha Mokshada Vidyabhaban, District - Purba Medinipur on 30th April, 1975 which was approved by the respondent no. 4 on 29th November, 1975. The petitioner appeared for the annual examination of M.A. in Islamic History and Culture in the year of 1981.

It is the case of the petitioner that he rendered his service without any hindrance and he was getting the higher scale of pay on approval by the Additional District Inspector of Schools and he retired from service on 31st March, 2012 and prior to his retirement he was getting the salary of Post Graduate (PG) Scale of Pay as per ROPA Rules, 1990, 1998 and also the ROPA Rules 2009 and the petitioner was granted Post Graduate Scale of Pay and all other retiral benefits approved by the respondents. Respondent no. 4 communicated to the Head Master of the School/ respondent no. 8 by Memo No. 753-S/Pen dated 16th September, 2011 relevant portion of which as follows;

"...... The drawal of higher scale of Pay (P.G) under ROPA 81 appears not in order as per G.O. No. 372-Edn (B) dated 31.07.81Clause N. B 2(c) be asked to clarify the same at an early date......."

Aggrieved by the aforesaid impugned order, petitioner has filed the present Writ Petition on the ground that same is illegal and the action of the respondent authorities withholding the petitioner's entire retiral benefit of legitimate dues is illegal. Petitioner contends that respondent no.4 allowed fixation of pay from time to time as per ROPA Rules, 1990, 1998 and also the ROPA Rules 2009 imposed Post Graduate Scale of Pay and the petitioner withdrawn the higher scale of pay as Post Graduate Scale of Pay till the date of retirement without any objection from any corner at any point of time. Petitioner contends that the retiral benefit of the petitioner should be fixed as per the last drawn salary as per the Post Graduate Scale of Pay and the State should release the petitioner's legitimate arrear payment towards retiral benefit.

Respondent no. 4 has filed affidavit-in-opposition on perusal of which from nowhere it appears that the alleged excess payment made to the petitioner during his service was due to any fraud or misrepresentation on the part of the petitioner rather it appears from Paragraph 8 and 11 of the affidavit-in-opposition of the respondent no. 4 that the alleged excess payment was made due to mistake or fault on the part of the respondent authorities which is as follows;

"8............................

......... In this connection, "I say that on the basis of wrong approval of Post Graduate Scale of Pay the pay of the petitioner was revised time to time under different ROPA Rules.......""

"11.........................

.......... In this connection, "I say that the said order was issued inadvertently for misconception for Govt. Circulars exist at that material point of time..........""

It is an admitted position that the fixation of the petitioner paid at the higher scale for his enhanced qualification was approved by the concerned respondent authorities and salary was revised from time to time under ROPA Rule and respondent authorities concerned failed to establish in their affidavit-in-opposition that alleged excess payment was due to any fault, fraud or misrepresentation on the part of the petitioner. It is well settled that if any excess payment has been made to an employee by the employer it cannot be recovered from his retiral dues unless employer is able to establish that the excess payment was made to an employee during his service due to any misrepresentation or fraud practised by the employee on the employer. Here it is an admitted position that respondent authorities failed to establish from any material that the alleged excess payment made to the petitioner was due to any misrepresentation or fraud practised by the petitioner. It is also an admitted position that Post Graduate Scale of Pay of the petitioner was approved and revised from time to time by the authority concerned. Respondent no. 4 himself has admitted that making such excess payment was due to their own mistake and due to inadvertent and misconception of relevant Government Circulars.

A similar issue was involved in the case of Asit Baran Maity -vs- the State of West Bengal & Ors in W.P. No. 356 (W) of 2012 (unreported), by order dated 17th February, 2012, this Court has held as follows;

".............The objection which was raised by the audit on 31st March, 2011 is as follows:

"The drawal of higher scale of pay (P.G.) from 6th September, 1987 appears to be not in order as per the G. O. No. 372-Edn. (B) dated 31st July, 1981, West Bengal."

Thus, it appears to this court that the State respondents withheld the payment of the retiral dues of the petitioner as the overdrawal in pay due to his wrong pay fixation has not yet been recovered from him.

In view of the decision of the Supreme Court in the case of Shyambabu Verma vs. Union of India reported in (1994) 2 S. C. C. 521, this court is the view that recovery of the excess payment made to an employee due to wrong pay fixation during the tenure of his service after his retirement is not permissible unless the State respondents can show that such wrong pay fixation was made on the basis of any fraudulent and/or misrepresentation of the petitioner. The State respondents cannot recover such excess payment even by way of adjustment against the retiral dues of the petitioner after his retirement as there is nothing on record to show that the petitioner's such erroneous pay fixation was made on the basis of any misrepresentation and/or fraudulent misrepresentation of the petitioner. Admittedly, the fixation of the petitioner's pay at the higher scale for his enhanced qualification was approved by the concerned District Inspector of Schools in 1988. The State respondents continued to pay the pay and allowances of the petitioner at the higher scale as per such refixation made by the concerned District Inspector of Schools. The State respondents has not explained as to why such error could not be detected immediately thereafter and further as to why no effective step was taken by the State authority for recovery of such excess payment from the petitioner before his retirement............"

Respectfully following the aforesaid decision, I am also of the view that the impugned order dated 16th September, 2011 being annexure 'P-4' to the Writ Petition is not sustainable and is accordingly quashed and I direct the State Respondents concerned to settle the retiral dues of the petitioner on the basis of his last drawn salary without deducting the alleged excess payment on the basis of the impugned order dated 16th September, 2011 and the State Respondents are directed to complete the entire exercise of payment of admissible retiral dues to the petitioner on the basis of his last drawn salary within 12 weeks from the date of communication of this order. In the event the State Respondents failed to pay the admissible retiral dues to the petitioner within the time as aforesaid, they will be liable to pay interest at the rate of 8 % per annum from the date of retirement to the date of actual payment thereof. I also direct the State Respondents to pay all the retirement benefits to the petitioner which he is entitled by taking into account the order passed in this petition.

The Writ Petition being W. P. No. 26617 (w) of 2013 is disposed of accordingly.

No order as to cost.

Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.