Sujoy Kumar Pal vs The State Of West Bengal & Ors. ...
2021 Latest Caselaw 853 Cal

                    IN THE HIGH COURT AT CALCUTTA
                               (Appellate Side)
                     CONSTITUTIONAL WRIT JURISDICTION


                                                      Reserved on: 06/01/2021

                                                      Pronounced on: 03/02/2021

                                                            W.P.S.T. 145 OF 2016



Sujoy Kumar Pal                                                         ........Petitioner
                                  Through:-
                                  Mr. Rudra Jyoti Bhattacharjee,
                                  Ms. Debjani Ghosal,
                                  ...Advocate, Present through VC

                                       -Vs-
The State of West Bengal & Ors.                                ........Opposite party

                                  Through:-
                                  Ms. Chaitali Bhattacharya,
                                  ...Advocate, Present through VC
                                  Ms. Sukla Das Chanda,
                                       ... Advocate, Present in Court

Coram:              THE HON'BLE JUSTICE RAJESH BINDAL
                                      AND
                    THE HON'BLE JUSTICE ANIRUDDHA ROY

                                     JUDGMENT

Rajesh Bindal, J.

1. The present petition has been filed challenging the order dated 27/11/2015

passed by the West Bengal Administrative Tribunal, Kolkata (for short 'the

Tribunal') in O.A. No.997 of 2013.

2. The learned Counsel for the petitioner submitted that issue regarding

fixation of pay and pension of the deceased Adwaita Kumar Pal has not been dealt

with by the Tribunal in terms of which proper fixation of the last drawn pay and

consequently the pension of the deceased employee was not made. It is further

argued that the Tribunal has failed to grant interest on the amount of gratuity of

2,50,000/-, which was wrongly withheld by the respondents.

W.P.S.T. 145 OF 2016

3. On the other hand, the learned Counsel for the respondents submitted that

the issue regarding fixation of pay and family pension was not raised by the

petitioner before the Tribunal, hence, seems to have been forgone. In fact, on

account of excess payment to the deceased employee recovery of 2,50,000/-was

required to be made and was partly made out of the gratuity payable to him.

Recovery of excess payment made to the predecessor-in-interest of the petitioner

has been set aside only in terms of the judgment of the Hon'ble the Supreme

Court in State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported

as (2015) 4 SCC 334. The only argument raised before the Tribunal was that

recovery of the amount from the gratuity due to the predecessor-in-interest of the

petitioner should not have been made and the amount already deducted be

refunded. It was further submitted that the petitioner is not entitled to get any

interest thereon as even the principal amount which, has been directed to be

refunded is on account of equity.

4. Heard the learned counsels for the parties and perused the relevant referred

record.

5. As far the first argument raised by the learned Counsel for the petitioner

regarding correct fixation of the pay and consequently pension of the deceased

employee is concerned, the issue was never raised before the Tribunal as the

same is not part of the impugned order. While exercising its power of judicial

review this Court would not like to venture on the issue which was not raised

before the Tribunal. Validity of an order passed by the Tribunal Court cannot be

examined on the issue not raised before it. It is not the case of the petitioner that

any application was filed by him before the Tribunal raising the issue that the

argument raised by him has not been noticed and considered.

6. As far the claim of interest on the amount of gratuity, out of which the

excess paid amount of the deceased employee was partly recovered is concerned,

in our opinion the petitioner is not entitled to receive the same. Non-recovery of

the excess amount paid on account of various factors from an employee who has

already retired or nearing retirement is on account of principle of equity and the W.P.S.T. 145 OF 2016

fact that he may not be able to pay the amount in lump sum if asked for at the

time of retirement. It is not that he was entitled to receive that amount as a

matter of right. Benefit of error committed at the end of the officials is given.

Hence, to state that for any excess paid amount, which was recovered from the

gratuity of the petitioner when refunded in terms of the order passed by the

Tribunal, the petitioner should be awarded interest thereon will not be

reasonable.

7. For the reasons mentioned above we do not find any merit in the present

petition. The same is accordingly dismissed.

(RAJESH BINDAL) JUDGE

(ANIRUDDHA ROY) JUDGE

Kolkata 03/02/2021

-------------------

PA(SG)