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2006 Supreme(Cal) 47
High Court Of Calcutta
JYOTIRMAY BHATTACHARYA
KALYAN KUMAR CHATTOPADHYAY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 18974 (W) Of 2005
Decided On : 01/27/2006
ANIRBAN SINHA, ASHIM HALDER, MILAN CHANDRA BHATTACHARJI, SAIKAT BANERJI, SHYAMAL SARKAR
Excess payment made to a retiree due to the respondent's fault cannot be recovered from the retiree's retirement dues due to equitable considerations, and a declaration obtained by the respondent in excess of the statutory requirement does not improve their defense.
Headnote:
RETIREMENT BENEFITS - ERRONEOUS PAY FIXATION - EXCESS PAYMENT - RECOVERY FROM RETIREMENT DUES: Equitable considerations prevent recovery of excess payment made due to respondent's fault from retiree's retirement dues; declaration obtained by respondent in excess of statutory requirement does not improve their defense; non-disclosure of such declaration not fatal to retiree's interest.
Fact of the Case:
Petitioner, a retired Assistant Teacher, received revised pay scales under various ROPA rules during his service. He exercised his option under ROPA 1981, which was accepted, and his pay scale was revised accordingly. The petitioner's pay scale was subsequently revised under ROPA 1990 and ROPA 1998. He was paid his salary according to such fixation by the concerned authority until his retirement. However, a sum of Rs. 1,17,439/- was deducted from his gratuity amount on the ground that it was overdrawn due to wrong fixation of his pay scale.
Finding of the Court:
1. Equitable considerations prevent the recovery of excess payment made due to the respondent's fault from the retiree's retirement dues. 2. The declaration obtained by the respondent in excess of the statutory requirement does not improve their defense. 3. Non-disclosure of such a declaration is not fatal to the retiree's interest. 4. The right to recover excess amounts from retired persons out of retirement dues has not been recognized by the Hon'ble Supreme Court.
Issues: 1. Whether excess payment made to a retiree due to the respondent's fault can be recovered from the retiree's retirement dues? 2. Whether a declaration obtained by the respondent in excess of the statutory requirement improves their defense? 3. Whether non-disclosure of such a declaration is fatal to the retiree's interest?
Ratio Decidendi: 1. Equitable considerations, such as the fact that the retiree has already spent the excess amount and that the respondent is at fault for the overpayment, prevent the recovery of excess payment from the retiree's retirement dues. 2. The declaration obtained by the respondent in excess of the statutory requirement does not improve their defense because it was taken in violation of the principles of natural justice and without providing the retiree an opportunity to be heard. 3. Non-disclosure of such a declaration is not fatal to the retiree's interest because the right to recover excess amounts from retired persons out of retirement dues has not been recognized by the Hon'ble Supreme Court.
Final Decision: The writ petition is allowed. The concerned respondents are directed to pay the petitioner the sum of Rs. 1,17,439/- along with interest @ 10% per annum from the date of retirement until the actual date of payment.
( 1 ) THE petitioner who was appointed as an Assistant Teacher of Madarat popular Academy on 13th June, 1966 retired from service on superannuation with effect from 31st January, 2003.
( 2 ) THE pay scale of the petitioner was revised from time to time on several occasions during the period of his service.
( 3 ) THE petitioner exercised his option under the ROPA 1981 on 2nd april, 1981. The said option was accepted by the concerned respondent and the pay scale of the petitioner was revised accordingly under the said ROPA rules of 1981 with effect from 2nd April 1981. Such pay revision was not only recorded in the Service Book of the petitioner but was also authenticated by the concerned District Inspector of Schools.
( 4 ) EVEN thereafter the petitioner's pay scale was revised subsequently under ROPA Rules of 1990 as well as under the ROPA Rules of 1998.
( 5 ) THE petitioner was paid his salary according to such pay fixation by the concerned authority upto the date of his retirement. Last pay certificate certifying that the basic pay of the petitioner was Rs. 11450/- as on the date of his retirement, was also issued by the school authority.
( 6 ) IN spite of compliance of all the necessary formalities by the petitioner, the entire retiral dues of the petitioner has not been paid by the concerned authority till date. The grievance of the petitioner in this writ petition is primarily against the State respondents for withholding the payment of a sum of Rs. 1,17,439/- on account of the overdrawal in pay of the petitioner. The Pension Payment Order being annexure 'p-2' to this writ petition at page 48 indicates that the said sum of Rs. 1,17,439/- was deducted from the gratuity amount payable to the petitioner on the ground that the said amount was overdrawn by the petitioner due to wrong fixation of his pay scale.
( 7 ) THE reasons for which such deduction was made, are indicated in annexure 'p-3' to this writ petition at page 49. It is mentioned therein that "since the option date of the petitioner under ROPA 1981 is 01. 04. 1981 instead of 02. 04. 1981 (vide DDA's Notings No. DD/pen-12-H/147 dated 17th June, 2003), his pay fixation is to be changed under Ropa 81 and under subsequent ropas. . . . . . "
( 8 ) THE contents of the said document indicate that the concerned authority refused to give the benefits under the ROPA Rules of 1981 to the petitioner as the petitioner exercised his option one day beyond the schedule date. Consequently the benefits of the subsequent ROPAs were also denied to the petitioner.
( 9 ) THUS, it appears that the said amount was overdrawn by the petitioner on account of erroneous pay fixation by the concerned authority.
( 10 ) MR. Milan Bhattacharya, learned Advocate, appearing for the petitioner, submitted that since the petitioner was never responsible for erroneous pay fixation, the concerned authority cannot recover any amount which was allegedly overdrawn by the petitioner on account of such erroneous pay fixation by the concerned authority.
( 11 ) IN support of such submission, Mr. Bhattacharya relied upon the following decisions of the Hon'ble Supreme Court :- (i) (1994) 2 SCC 521 (Shyam Babu Verma v. Union of India), (ii) 1995 Supp (3) SCC 600 (Union of India v. Indian Railway Sas Staff association ).
( 12 ) MR. Bhattacharya has also relied upon another decision of this Court in the case of Kamalakanta Jha v. State of West Bengal and Ors. reported in (2001)1 Cal HN page 54 in support of his above contention.
( 13 ) MR. Bhattacharya further pointed out that adjustment of any amount on account of overdrawal against the gratuity amount is not permissible under the extant Rule.
( 14 ) MR. Bhattacharya thus submitted that the petitioner is not only entitled to recover the said amount which was unauthorisedly deducted from his gratuity amount as aforesaid, but also is entitled to get interest thereon at a penal rate.
( 15 ) MR. Saikat Banerjee, learned Advocate, ap
