Excess payments made to pensioners due to a mistake on the part of the government cannot be recovered, unless the excess payment was made after a clarificatory circular was issued and the pensioners were put on notice.

Pranab Kumar Chattopadhyay, J.

This writ petition has been filed by the State of West Bengal and the senior officers of the State Government challenging the judgment and order dated 22nd February, 2012 whereby the West Bengal Administrative Tribunal finally disposed of application filed by the respondent herein by directing the authorities concerned namely, the petitioners herein to make arrangement for refund of Rs. 41,244/- to the respondent herein since the said amount was recovered from the retiral benefit on the ground of excess payment.

Despite service of notice none appears on behalf of the respondent. The learned Tribunal following the decision of the Supreme Court in the case of Shyam Babu Verma & Ors. Vs. Union of India & Ors., reported in (1994)2 SCC 521 held that the aforesaid amount of Rs. 41,244/- cannot be recovered from the retiral benefit of the employee concerned namely, the respondent herein and therefore, directed the petitioners herein to refund the said amount of Rs. 41,244/- to the employee concerned.

The learned Advocate General appearing on behalf of the petitioners submitted that the learned Tribunal committed an error by not considering Rule 140 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which, according to the learned Advocate General, specifically provides for recovery of government dues from retiring government servant. The learned Advocate General also relied upon the following decisions in support of his arguments :-

1. “Comptroller & Auditor General of India & Ors. Vs. Farid Sattar, reported in (2000) 4 SCC 13.

2. Union of India & Ors. Vs. Sujatha Vedachalam (Smt)& Anr., reported in (2000)9 SCC 187.

3. Col. B.J. Akkara (Retd.) Vs. Government of India & Ors., reported in (2006) 11 SCC 709.

4. Videsh Sanchar Nigam Ltd. & Anr. Vs. Ajit Kumar Kar & Ors., reported in (2008) 11 SCC 591.

5. Union of India Vs. S. R. Dhingra & Ors., reported in (2008) 2 SCC 229.

6. Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors., reported in (2012)8 SCC 417

7. State of Haryana & Ors. Vs. Vijay Singh & Ors., reported in (2012)8 SCC 633.

8. The Calcutta Municipal Corporation & Ors. Vs. Rukhsana Anjum, reported in 2008(2)CLJ(Cal)887.

9. Fibrosa Spolka Akcyjna Vs. Fairbairn Lawson Combe Barbour, Ltd., reported in [1942] 2 All E.R. 122.”

Let us now consider whether the Rule 140 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 is at all applicable in the facts of the present case. The said Rule 140 is set out hereunder :-

“Recovery of Government dues.- (1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.

Compiler’s Note : *Power of Audit Officer under this sub-rule has been restricted consequent on issue of F.D. Memo, No. 10000 dated 13.9.82 under which concurrence of Finance Deptt, is required in case of continuance of Provisional pension be 12 months. Compare with Compiler’s Note at page 88.

(2) where a retiring Government servant does not clear Government dues and these are ascertainable an equivalent cash deposit may be taken from him, or, out of the gratuity payable to him an amount equal to that recoverable on account of ascertainable Government dues, such as, balance of House Building or Conveyance Advance, arrears of rent and other charges pertaining to occupation of Government accommodation, overpayment of pay and allowance and arrears of income-tax deductible at source under the Income Tax Act,1961 (43 of 1961) shall be deducted there from”.

In terms of Rule 140 (1) it shall be the duty of every retiring government servant to clear all government dues before the date of his retirement.

In the present case, the employee concerned retired from service on attaining the age of superannuation on 31/01/2007. The petitioner no. 4 issued a letter on 22nd March, 2007 to the Principal Accountant General (A & E) West Bengal revising and refixing the pay of the respondent at Rs. 7200/- w