Calcutta High Court (Appellete Side)

Chittaranjan Patra vs State Of West Bengal & Ors on 5 February, 2021

05.02.2021
 SL No.69
Court No.12
  (dns/gc)
                               FMA 1088 of 2017
                                      With
                                 CAN 1 of 2018
                           (Old No: CAN 732 of 2018)

                               Chittaranjan Patra
                                       Vs.
                           State of West Bengal & Ors.

                                (Via Video Conference)

                                 Mr. Partha Sarathi Bhattacharyya, Sr. Adv.,
                                 Mr. Soumik Ganguli,
                                 Mr. Arunava Maiti,
                                 Mr. Sourat Nandy
                                                         ...for the Appellant.
                                 Mr. Amal Kr. Sen, Ld. A.G.P.,
                                 Mr. Jaladhi Das,
                                                               ...for the State.



                    This appeal is arising out of an order dated 28th

              November, 2016 in a writ petition in which the writ

              petitioner has objected to a deduction of Rs.458736/- from

              the retiral benefits receivable by the petitioner on account of

              overdrawal   or    otherwise.     The   learned   Single   Judge

              dismissed the writ petition on consideration of the report

              filed by a Committee constituted by the Court to look into

              the allegation of overdrawal.    There is no dispute that the

              petitioner was in the employment of the Bidhanchandra

              Krishi Viswavidyalaya since 1st January, 1981 till he retired

              on 31st January, 2015 as a Senior Field Assistant attached

              to the RRSS, Raghunathpur, D/Research, BCKV. On 29th

              January, 2015 the Registrar Acting, issued an order by

              which the scale of pay of the appellant was revised and

              refixed as a consequent whereof it was found that he had
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overdrawn Rs.458736/- towards salary. After he was retired

on 31st January, 2015, the Registrar issued a Memo dated

4th March, 2015 by which Viswavidyalaya recovered excess

salary amounting to Rs.458736/- from the retirement

benefits of the writ petitioner. Viswavidyalaya realized the

aforesaid amount out of gratuity.        This order of the

Viswavidyalaya was challenged before the learned Single

Judge. The learned Single Judge during the hearing of the

writ petition constituted a Committee to look into the

allegations of overdrawal of salaray and on the basis of the

report filed by the Committee disclosing instances of

employees similarly placed drawn excess salaries did not

interfere with the order of the Registrar and dismissed the

writ petition. Although the attention of the learned Single

Judge was drawn to the State of Punjab & Ors. Vs. Rafiq

Masih (White Washer) & Ors. reported in (2015) 4 SCC

334 which is the case holding the field with regard to the

right of the employer to realize overdrawal amount, the

learned Single Judge relying on the observation made in

Paragraph 18 that it is not possible to postulate all

situations of hardship which would govern employees on the

issue of recovery, where payments have mistakenly been

made by the employer, in excess of their entitlement, applied

the said observation contextually to the findings of the

Committee that over a period of time number of employees

have been benefited by wrong fixation of pay scale, refused

to exercise discretion in favour of the writ petition and
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dismissed the writ petition.     It is against this order of

dismissal that the appeal has been preferred.

      From the conspectus of facts emanating from the

pleadings and also from the submission made on behalf of

the parties it cannot be disputed that the writ petitioner is

not responsible for the wrong fixation of the pay scale. It is

not the case of the University or the State that during the

course of his employment, the writ petitioner has made any

misdeclaration   or    has   produced   any     forged   and/or

fabricated documents or any misrepresentation to get a

higher scale of pay.

      The learned Counsel for the State has submitted that

every time there is a pay fixation and an undertaking is

obtained from the employee that any amount which may be

drawn by him in excess of what is admissible to him on

account of erroneous fixation of his pay in the revised scale

of pay as soon as the fact of such excess drawal comes to his

notice or is brought to his notice, he would refund such

excess amount and, accordingly, the employee cannot at

this stage question the propriety of the action taken by the

University in realizing the amount paid in excess. In short,

it is submitted that if at the time of taking benefit of a

revised higher scale of pay, the concerned employee gives an

undertaking and if the rule permits as the case may be that

any excess amount so paid is liable to refund then such

employee would be bound by such undertaking.
                   4




      Earlier to Rafiq Masih (supra) in Syed Abdul Qadir

Vs. State of Bihar reported in (2009) 3 SCC 475, the

Hon'ble     Supreme      Court     considering   the     similar

circumstances has stated clearly that except in cases where:

      (a) the excess amount was not paid on account of any

          misrepresentation or fraud on the part of the

          employee.

      (b) if such excess payment was made by the employer

          by applying a wrong principle for calculating the

          pay/allowance or on the basis of a particular

          interpretation of rule/order, which is subsequently

          found to be erroneous.

      (c) it is found that the employee had knowledge that

          the payment received was in excess of what was

          due or wrongly paid.

      (d) an error is detected or corrected within a short time

          of wrong payment.

             No overdrawal is to be deducted from the

          retirement benefits of the employee.

      The    aforesaid   principle   was    reiterated   in   B.

Radhakrishnan Vs. State of Tamil Nadu & Ors. reported

in (2015) 17 SCC 507 paragraphs 16 and 17 which

reads:-

          "16. Applying the same principle to the facts of the
          case in hand, we notice that firstly, the respondents

issued an order sanctioning stepping up of the pay scale of the appellants on the strength of the order of High Court. Secondly, while claiming this relief,

the appellants neither committed any fault nor made any incorrect/false statement to secure the benefits because it was being claimed only on the basis of parity and lastly, the appellants rendered their services for the period in question.

17. In the light of these reasons and further keeping in view the short controversy involved in the case which is somewhat akin to the case of Shaym Babu (supra), we are of the view that similar directions, which were given in the case of Shaym Babu, can also be given in these appeals against the respondents. In other words, it shall only be just and proper not to recover any excess amount from the appellants, which has been paid to them on the basis of stepping up of their pay scale. It is much more so when as mentioned above, the appellants have given up their challenge to the respondent's main action taken against the appellants objecting for the grant of benefit of stepping up of their pay and confined their attack to the issue of recovery of excess amount from them."

In the instant case, in absence of any allegation of

fraud or misrepresentation or manipulation of service record

or presence of any of the instances which would have

disqualified the employee to get the benefit of overdrawal, we

feel that the respondent authorities do not have any right or

authority to realize the amount paid in excess towards

salary. Looking at it from the equitable point of view it can

be safely concluded that it would be inextricably inequitable

and unjust if excess payment is now deducted from the

retiral dues when the fact remains that the employee is not

at fault at all. It is immaterial as to whether a Committee

comes to a different conclusion that such mistakes had