Excess payment made to an employee due to wrong pay fixation cannot be recovered from his retiral dues after retirement if the employee had no fraudulent role to play.

1. The petitioner herein was appointed as a Craft Teacher in Mayayanharh High School in the District of Paschim Medinipur. His appointment as Craft teacher in the said school was approved by the then District Inspector of School (Secondary Education), Medinipur, with effect from 1st January, 1971. The approval of the petitioner’s appointment as Craft Teacher was communicated to the school authority by the said DI of School vide his letter No. 1188-8 dated 9th May, 1972. The petitioner’s entitlement to the salary in terms of G.O. No. 343(END-S) dated 3rd March, 1973 with effect from 1st May, 1972 was confirmed by the said DI of the school vide his letter dated 4th March, 1975 under memo No. 1452-5. The petitioner retired from service on superannuation on 31st October, 2004. His pension paper was submitted to the concerned DI of school Secondary Education, Paschim Medinipur by the school authority on 13th April, 2003.

2. Trouble started after submission of the petitioner’s pension papers, in course of settlement of the retiral dues of the petitioner as the District Inspector of School, Secondary Education, Paschim Medinipur was of the view that the scale of pay which was given to him for his craft training, in fact, was not admissible to him as he did not complete two years’ training course. According to the said DI of school, since the petitioner did not complete two years’ training course, he was entitled to pay scale admissible to the Assistant Craft Teacher having one year’s training qualification. Thus, he was of the view that the excess money which was paid to the petitioner on account of his wrong pay fixation was either required to be refunded by him or the same may be adjusted against his retiral dues. As a matter of fact, a sum of Rs.2,26,986/- was adjusted against his retiral dues on account of overdrawal in pay due to such wrong pay fixation.

3. The petitioner has challenged the authority and/or competence of the State respondents for recovering the said amount of Rs.2,26,986/- by way of adjustment against his retiral dues after his retirement.

4. This very point as to the competence to the State respondents to recover overdrawal in pay from a retired person out of his retiral dues after his retirement was considered by the Hon’ble Supreme Court in the case of Shyambabu Varma Vs. Union of India & Ors. reported in (1994) 2 S.C.C. page 521 wherein it was held that if any excess payment is made to an employee due to his wrong pay fixation during the tenure of his service, such excess payment, cannot be recovered from such employee from his retiral dues after his retirement if the employee concerned had no fraudulent role to play in the process of his wrong pay fixation. The said decision, thus, makes clear that if such wrong pay fixation was made due to any fraudulent misrepresentation made by the petitioner and as a result excess payment was made to him during the tenure of his service, such excess payment, no doubt, can be recovered from him from his retiral dues even after his retirement.

5. In the present case, the State respondents contended in their affidavit that such wrong pay fixation was made due to the fraud exercised by the petitioner upon the concerned authority. It was further contended therein that since he received salary at a higher scale of pay which, in fact, was not admissible to him and such payment having been made because of the fraud exercised by him upon the concerned authority in the process of his pay fixation, he cannot oppose adjustment of such overdrawal in pay against his retiral dues. It is further contended by the State respondents that the petitioner failed to submit his original Training certificate which he was called upon to produce before the concerned District Inspector of School in course of settlement of his retiral dues, for its verification from the issuing authority and as a result the petitioner’s claim that he completed two years’ training course could not be effec