Overdrawal in pay due to erroneous fixation of pay scale by the concerned authority, without any fraudulent role of the employee, cannot be recovered from the employee's retiral dues. However, the retired person cannot claim pensionary relief for the current months on the basis of his last drawn salary which was not admissible to him on the date of his retirement.

1. THE petitioner who was an Assistant Teacher of Shyampur Basuli Vidya Bhawan in the District of Purba Medinipur retired from service on superannuation with effect from 31st January, 2011. Before his retirement, pension papers of the petitioner were submitted to the concerned District Inspector of Schools on 23rd November, 2009.

2. THE retiral dues and the pensionary reliefs of the petitioner have not yet been settled due to the audit objection dated 9th February, 2011 as indicated in the communication made between the District Inspector of Schools (S.E.), Purba Medinipur and the Secretary of the said school on 10th March, 2011 vide annexure "P-4" to this writ petition at page 77 thereof. THE said audit objection which was mentioned there, is as follows :-

"THE Pay drawn as on 13.2.83 at Rs. 550/- under Ropa-81 appears to be not in order. It is to be rectified and recast in Service Book and all other papers. THE overdrawal amount if any, is required to be deposited in Government A/C."

Thus, the concerned authority was of the view that the retiral dues and the pensionary reliefs of the petitioner cannot be settled until the overdrawal in pay is recovered from the petitioner.

3. IT appears from the materials on record that no effective step was taken by the concerned authority for recovering the overdrawal in pay from the petitioner before his retirement.

4. THE concerned authority is now insisting upon the petitioner to refund the overdrawal amount as a condition for payment of his retiral dues and the other pensionary reliefs. Let me now consider as to how far the concerned authority was justified in taking the said stand in the facts of the instant case.

5. IN view of the decision of the Hon'ble Supreme Court in the case of Shyambabu Varma v. Union of INdia and Ors. reported in (1994)2 SCC page 521, overdrawal in pay cannot be recovered from a retired person out of his retiral dues if such excess payment was made to the employee due to no fault on the part of the employee in the process of fixation of his pay scale during the tenure of his service.

6. HERE is the case where the State-respondents have not stated that the petitioner had any fraudulent role in the process of erroneous fixation of his pay scale. As such, the petitioner cannot be held responsible for excess payment made to him during the tenure of his service due to wrong pay fixation of the petitioner by the concerned authority. Accordingly, this Court is of the view that the State-respondents are not entitled to recover any amount on account of the overdrawal in pay from the petitioner out of his retiral dues.

7. AS such, the audit objection dated 9th February, 2011 as contained in the communication made between the District Inspector of Schools (S.E.), Purba Medinipur and the Secretary of the said school dated 10th March, 2011 being annexure "P-4" to this writ petition at page 77cannot be allowed to be retained. Accordingly, the said audit objection stands quashed.

8. THE concerned authority is, thus, directed to complete the entire exercise for settlement of the retiral dues of the petitioner on the basis of his last drawn salary as early as possible and pay the admissible dues to the petitioner without deducting any amount towards the overdrawal in pay from the retiral dues of the petitioner, positively within a period of eight weeks from the date of communication of this order. The concerned authority is also directed to release the pensionary benefit which is admissible to him within eight weeks from the date of communication of this order.

9. MR. Ganguli, learned Advocate appearing for the State-respondents invites this Court to clarify the modality which is to be followed by the authority for fixing the admissible pension payable to the petitioner in the facts of the instant case.

10. THOUGH, this Court earlier in several matters directed the concerned authority to pay the pensionary relief to the retired person on the basis of his last drawn salar