IMPORTANT POINT
Recovery of excess amount paid to a retired employee just before their retirement may be impermissible, as established by the law laid down by the Supreme Court in Rafiq Masih (supra).

JUDGMENT :

Saugata Bhattacharyya, J.

1. The writ petition is presented by a retired assistant teacher after superannuation on 31st May, 2015, inter alia, challenging memo dated 1st August, 2014 issued by the District Inspector of Schools (S.E.), Howrah whereby the school authority was asked to downgrade the fixation of pay 8th of the petitioner with effect from March, 1994 and to calculate overdrawn amount paid to the petitioner.

2. On behalf of the petitioner Mr. Bari has drawn attention of this Court to the Pension Payment Order issued under memo dated 16th January, 2018 wherein it was indicated by the State respondents that Rs.1,26,513 was drawn in excess by the petitioner during the tenure as assistant teacher of a Government aided high school. The Pension Payment Order was issued during pendeny of the writ petition. Petitioner, as it has been contended, was paid provident fund dues contemporaneously after her retirement but petitioner did not receive other retiral dues pursuant to the Pension Payment Order since she did not accept the demand of the State respondents to refund the overdrawn amount which was calculated pursuant to the impugned memo dated 1st August, 2014 issued by the concerned District Inspector of Schools. Till date petitioner is not in receipt of monthly pension and other retiral dues excepting provident fund.

3. In support of such submission made on behalf of the petitioner reliance has been placed on the judgment of the Supreme Court, reported in (2015) 4 SCC 334 (State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors.) and a judgment reported in 2022 SCC Online SC 536 (Thomas Daniel vs. State of Kerala & Ors.).

4. Upon placing reliance on the aforesaid two judgments of the Apex Court it has been contended on behalf of the petitioner that appropriate fixation of pay which was required to be made by the State respondents in 1994 was not made contemporaneously and just before the date of retirement of the petitioner school authority was directed to downgrade the pay fixation of the petitioner and calculate the amount which was allegedly excess drawn by her for recovery from the gratuity of the petitioner which was required to be paid on her superannuation and such belated act on the part of the State respondents is impermissible in view of the law laid down by the Supreme Court in the aforesaid two judgments.

5. On the contrary Mr. Dey, learned advocate representing the State respondents has opposed the writ petition on facts upon placing reliance on the application made by the petitioner for processing her pension case dated 29th November, 2013 and a letter dated 26th November, 2014 which are annexed to the supplementary affidavit-in-opposition used on behalf of the State respondents.

6. It has been submitted that there was an undertaking on the part of the petitioner since she signed the prescribed proforma which was required to be submitted before the authority for processing the pension case on 29th November, 2013 and subsequently by letter dated 26th November, 2014 she accepted demand of the State respondents and was ready to deposit the overdrawn amount.

7. On behalf of the State respondents reliance has been placed on the judgments of the Supreme Court, reported in (2012) 8 SCC 417 (Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors.), (2015) 4 SCC 334 (State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors.), (2014) 8 SCC 883 (State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors.) and (2016) 14 SCC 267 (High Court of Punjab & Haryana & Ors. vs. Jagdev Singh). Emphasis has been laid on behalf of the State respondents on paragraph 14 of Chandi Prasad Uniyal (supra) wherein it was decided by the Apex Court that amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right and in such situations law implies an obligation on the payee to repay the money otherwise it would amount to unjust enrichment.

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