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2004 Supreme(Cal) 442
High Court Of Calcutta
Jyotirmay Bhattacharya
KAMALA KANT JHA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 4537 (W) Of 2004
Decided On : 07/05/2004
BHUDEV BHATTACHARYA, INDRAJIT KULKARNI, PRADIP TARAFDAR
Excess payments made to an employee during service cannot be recovered from their retirement benefits.
Headnote:
PAY FIXATION - ROPA RULES, 1990 - SECTION 4, 5 - Erroneous pay fixation rectified by authorities - No participation of petitioner - Overdrawal cannot be adjusted from retiral benefits.
Fact of the Case:
Petitioner's pay was erroneously fixed at Rs. 1975/- instead of Rs. 2,120/-. The error was rectified during the pendency of a writ petition challenging the erroneous fixation. The petitioner received the revised salary and benefits till retirement. However, after retirement, the authorities sought to adjust the excess amount paid due to the erroneous fixation from the petitioner's retiral benefits.
Finding of the Court:
The court found that the revised pay fixation was not made pursuant to an interim order of the court and that the petitioner had no role in the process of refixation or the alleged overpayment. The court also relied on the Supreme Court decision in Shyam Babu Verma (1994) 2 SCC 521, which held that excess payments made to an employee during service cannot be recovered from their retirement benefits.
Issues: Whether the petitioner is entitled to the revised pay fixation and the consequential benefits.
Ratio Decidendi: The court held that the petitioner was entitled to the revised pay fixation as contained in Annexure 'p-3' to the petition. The court further held that any excess payment made to the petitioner during service could not be realized or adjusted from his retirement benefits, relying on the decision in Shyam Babu Verma.
Final Decision: The court quashed the objection raised by the Assistant Director of Pension, Provident Fund and Group Insurance, Government of West Bengal, and directed the respondent authorities 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 within eight weeks from the date of communication of the order. The court also directed the respondent to release the retiral benefits in favor of the petitioner together with interest at the rate of 5% per annum from the date of the order till the date of actual payment.
( 1 ) EARLIER a dispute was raised in the process of refixation of the scales of pay of the petitioner in course of implementation of the ROPA Rules, 1990. The petitioner claimed that in terms of the ROPA Rules, 1990, his pay fixation should have been made at Rs. 2,120/- in the scale of Rs. 1780-3780/-, but the respondent authorities wrongly fixed the pay of the petitioner at Rs. 1975/- in the scale of Rs. 1780-3750/ -.
( 2 ) ACCORDINGLY, the petitioner challenged the said erroneous pay fixation of the petitioner by filing a writ petition being C. O. No. 709 (W) of 1993 earlier in this Court.
( 3 ) DURING the pendency of the said writ petition, the District Inspector of schools (Secondary Education), South 24-Parganas by an Office Memo being no. 115 dated 12. 3. 1997 being Annexure 'p-3' to this writ petition, modified the earlier pay fixation of the petitioner and revised the pay of the petitioner at Rs. 2,120/- in the scale of pay of Rs. 1780-3780/- with effect from 1st April, 1986.
( 4 ) SINCE the pay fixation was revised by the concerned District Inspector of schools during the pendency of the writ petition, the petitioner did not ultimately proceed with the said writ petition. As a result, the writ petition was dismissed for default.
( 5 ) IT is claimed by the petitioner that after such refixation of pay was made by the concerned District Inspector of Schools, the entire arrear salary with effect from 1st April, 1986 was paid to the petitioner in terms of the said modified pay fixation. It is also claimed by the petitioner that since the time of refixation, the petitioner was also given the salary and other service benefits in the same scale following the said refixation of the pay of the petitioner till the date of his retirement.
( 6 ) THE trouble once again started after the retirement of the petitioner at the time of settlement of the retiral benefits of the petitioner following an objection raised by the Assistant Director of Pension, Provident Fund and Group insurance, Government of West Bengal vide his letter under Memo No. DPPG/ sec/alp-60/2002 dated 6. 9. 02 being Annexure 'p-11' to this writ petition. According to the said Assistant Director of Pension, Provident Fund and Group insurance, the petitioner is not entitled to get the benefit of the said fixation as ultimately the earlier writ petition being C. O. No. 709 (W) of 1993 was dismissed for default. Accordingly, the concerned District Inspector of Schools was directed to review the pay fixation of the petitioner.
( 7 ) IT is submitted on behalf of the petitioner that since then the retiral benefits of the petitioner has not been finalised by the authorities concerned. Accordingly, the petitioner has filed this writ petition seeking direction upon the respondent concerned so that the retiral benefits of the petitioner are released by the authorities concerned at an early date.
( 8 ) MR. Bhudeb Bhattacharya, learned Senior Advocate for the State respondents submits that the petitioner is not entitled to get the benefits of the revised scale which according to Mr. Bhattacharya was given to the petitioner in terms of the interim order passed by this Court in connection with the earlier writ petition being C. O. No. 709 (W) of 1993.
( 9 ) MR. Bhattacharya further submits that since certain excess amount had been paid to the petitioner due to such erroneous refixation of the scale of pay to the petitioner, the concerned authority wants to adjust the overdrawal amount against the retiral benefits of the petitioner. Accordingly, Mr. Bhattacharya submits that the petitioner is not entitled to get the benefits of the pay fixation as mentioned in Annexure 'p-3' to this writ petition.
( 10 ) AFTER hearing the submissions of the learned Advocate for both the parties and after considering the materials on record, it appears to me that the pay fixation as contained in Memo No. 115 dated 12th March, 1997 being Annexure 'p-3' to this pet
