Back
IN THE HIGH COURT OF CALCUTTA
Pranab Kumar Chattopadhyay and Ishan Chandra Das, JJ.
Asitosh Bhattacharya - Petitioner
Versus
State of West Bengal and others - Respondents
W.P.S.T. No. 25 of 2015
Decided On : 27-4-2015
For the Petitioner:Subrata Banerjee and Sumana Sinha, Advocates.
For the State :Chaitali Bhattacharya and Subhendu Sengupta, Advocates.
For the Respondent No. 5:Sandip Kr. Bhattacharyya, Advocate.
Recovery from a retired employee who is due to retire within one year from the order of recovery is not permissible.
Headnote:
RECOVERY FROM GRATUITY - PAY REFIXATION - WEST BENGAL SERVICES (DEATH-CUM-RETIREMENT BENEFIT) RULES, 1971 - RULES 9 AND 140 - INDIAN CONTRACT ACT, SECTION 72 - Held that recovery from the petitioner is not permissible since the excess payment had been made for a period in excess of five years before issuance of the order of recovery by the respondent Commandant SAP 2nd Bn., Barrackpore.
Fact of the Case:
The petitioner, a retired Armed Inspector, challenged the deduction of Rs. 2,13,035/- from his gratuity by the respondent authorities on the ground that the overdrawal amount was recovered just a few days before his retirement. The Tribunal dismissed the petition, following the Supreme Court's decision in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand and Ors.
Finding of the Court:
The Court held that the respondent authorities had no authority to recover any amount from the petitioner by refixing the pay of the petitioner only three weeks before the actual date of retirement. The said respondent Commandant SAP 2nd Bn., Barrackpore had also no authority and/or power to recover any amount from the retiring gratuity of the said petitioner on the basis of the aforesaid modified pay fixation only two weeks before the date of retirement of the petitioner on attaining the age of superannuation.
Issues: Whether the respondent authorities were entitled to recover the overdrawal amount from the petitioner's gratuity.
Ratio Decidendi: The Court relied on the Supreme Court's decision in State of Punjab and Ors. v. Rafiq Masih, which held that recovery from a retired employee who is due to retire within one year from the order of recovery is not permissible. The Court also held that recovery from the petitioner is not permissible since the excess payment had been made for a period in excess of five years before issuance of the order of recovery by the respondent Commandant SAP 2nd Bn., Barrackpore.
Final Decision: The Court quashed the decision of the respondent authorities regarding recovery of the overdrawal amount of Rs. 2,13,035/- from the retiring gratuity of the petitioner and set aside the impugned judgment and order passed by the learned Tribunal. The Court directed the respondent authorities to refund the amount of Rs. 2,13,035/- already recovered from the petitioner without any further delay but positively within a period of three weeks from the date of communication of this order.
This writ petition has been filed assailing the judgment and order dated 6th January, 2014 passed by the West Bengal Administrative Tribunal in Case No. O.A. 1163 of 2012 whereby the said learned Tribunal following the decision of the Supreme Court in the case of Chandi Prasad Uniyai and Ors. v. State of Uttarakhand and Ors., reported in (2012)8 SCC 417 refused to grant any relief to the petitioner herein.
2. From the records it appears that the petitioner herein was appointed as Armed Sub-Inspector on 7th June, 1974 and he was subsequently promoted to the post of Armed Inspector. The Commandant, S.A.P. 2nd Bn., Barrackpore by the order dated 7th December, 2011 refixed the pay of the petitioner pursuant to the observation of the Sr. Accounts Officer in the office of the A.G, West Bengal. The Commandant SAP 2nd Bn., Barrackpore by written communication dated 16th December, 2011 informed the Principal Accountant General (A&E), West Bengal that a sum of Rs. 2,13,035/- will be recovered from the gratuity of the petitioner as per modified pay fixation and ultimately recovered the said amount from the gratuity of the petitioner.
3. The aforesaid written communication dated 16th December, 2011 issued by the Commandant SAP 2nd Bn., Barrackpore to the Principal Accountant General (A&E), West Bengal is set out hereunder:
"To
The Principal Accountant General (A&E)
West Bengal Treasury Building,
Kolkata-01.
Sub:- Resubmission of pension papers.
Ref. Memo No. Pen X/274(A)/11-12/0/1856 dated 02.11.2011 of AG (A&E) West Bengal?
The original Service Book alongwith the pension papers of Asitosh Bhattacharya of this unit are resubmitting herewith after taking necessary action from this end as per observation made vide memo under reference. It is informed that the excess pay and allowances an amount of Rs. 2,13,035/- as per modified pay fixation will be recovered from retiring gratuity.
Commandant SAP 2nd Bn., Barrackpore
Memo No. 3118/l)l)P.O/Date 16-12-11/"
4. The petitioner being aggrieved by the deduction of the aforesaid amount of Rs. 2,13,035/- from the gratuity filed the Original Application before the West Bengal Administrative Tribunal.
5. The learned Tribunal, however, refused to grant any relief to the petitioner and therefore, the said petitioner filed the present writ petition challenging the impugned judgment and order dated 6th January, 2014 passed by the learned Tribunal.
6. Mr. Subrata Banerjee, learned Advocate representing the petitioner submits that the Commandant SAP 2nd Battalion Barrackpore refixed the pay of the petitioner on 7th December, 2011, that is, only few days before the date of retirement of the said petitioner since the petitioner herein retired from service on 31st December, 2011. Mr. Banerjee further submits that the respondent authorities should not have recovered the overdrawal amount from the gratuity of the said petitioner by issuing an order just few days before the actual date of retirement of the petitioner on attaining the age of superannuation. Mr. Banerjee refers to various orders issued from time to time by the Commandant SAP 2nd Bn., Barrackpore wherein it has been specifically mentioned that overdrawal, if any, should be recovered immediately.
7. There is no dispute that the pay of the petitioner was refixed by the order dated 7th December, 2011 by the Commandant SAP 2nd Bn., Barrackpore in respect of the period from 28th October, 1986 to 31st March, 2008.
8. The learned Advocate representing the petitioner referring to the aforesaid order dated 7th December, 2011 submits that the authorities concerned instead of recovering the overdrawal amount immediately decided to recover the same after a lapse of more than two decades as per modified pay fixation. The concerned respondent refixed the pay of the petitioner with effect from 28th October, 1986 to 31st March, 2008.
9. Ms. Chaitali Bhattacharyya, learned Advocate representing the State respondents submits that the petitioner herein by the written communi
