Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Kaliprosad Mondal & Anr on 14 July, 2021
14 14.7.2021 WPST 29 of 2020
Ct-16
State of West Bengal & Ors.
Vs.
Kaliprosad Mondal & Anr.
ar
Mr. Tapan Kumar Mukherjee, Ld. A.G.P
Mr. Pranab Halder
...For the Petitioners
Mr. Pinaki Bhattacharyya
Mrs. Nibedita Barui
Mrs. Nandini Sharma
...For the Respondents
This writ petition is directed against an order
passed by the West Bengal Administrative
Tribunal on 29th January, 2019 in O.A 1307 of
2016. The original applicant/respondent no. 1
herein filed the said application before the
Tribunal inter alia praying for a direction upon
the respondents for refund of an amount of Rs.
69,736/-, which was recovered from the retiring
gratuity of the applicant on the ground of excess
payment due to wrong fixation of pay.
The defence of the present writ petitioners
before the Tribunal that on the verge of
retirement i.e. 18th February, 2015 the
applicant/respondent no. 1, a Constable working
in Lalbag Caontoment, Murshidabad, had
undertaken in writing that he was paid
Rs.4875/- since 1st April, 2000 instead of Rs.
4725/- and the excess amount paid to him
would be realised from his retirement benefit.
Mr. Tapan Kumar Mukherjee, learned
Additional Government Pleader, has strenuously
argued before us that this aspect of the matter
has not been taken into consideration by the
Tribunal while allowing the prayer of the writ
petitioner/respondent no. 1 for refund of the
excess amount along with interest.
The effect of an undertaking extracted from
an employee at the time of his retirement was
being considered by two division benches of this
Court in WPST 25 of 2015 (Asitosh Bhattacharya
Vs. State of West Bengal & Ors.) reported at
(2015)2 Cal LT 339 (HC) and CAN 4386 of 2018
in MAT 398 of 2018 (The Director of Pension,
Provident Fund & Group Insurance, Govt. of West
Bengal & Anr. Vs. Rajkumar Jana & Ors.). It was
held by such coordinate benches that the
petitioner is in no way responsible for overdrawal
of salary and the employer cannot realise the
said overdrawal amount on the verge of his
retirement, relying upon the decision in the case
of State of Punjab & Ors. Vs. Rafiq Masih (White
Washer) reported in(2014)8 SCC 883.
Mr. Mukherjee also submits that the
Tribunal has not taken into consideration the
subsequent decision of the Hon'ble Supreme
Court in the case of High Court of Punjab &
Hariyana Vs. Jagdev Singh reported in (2016)14
SCC 267.
A coordinate bench has decided the matter
on similar facts after taking into consideration
the decision of Jagdev Singh (supra) and
distinguished the said decision. Reference in
this regard may be made in the case of Rajkumar
Jana & Ors. (supra). The relevant paragraphs 10
to 13 are reproduced below wherein the
relevance of Jagdev Singh (supra) was
discussed:-
"10. In Jagdev Singh (supra) the challenge
was against a direction issued by the State to the
Accountant-General for the recovery of an excess
payment towards salary of the employee who
submitted an undertaking before receiving the
revised pay. The said employee was suspended
and was thereafter compulsorily retired. The
rules on the basis of which the pay of the
employee was fixed and benefits disbursed with
effect from January 7, 2002 were once again
revised with effect from January 01, 1996, though
the said revised rules were notified on May 7,
2003, in view of the acceptance of the
recommendations of the First National Judicial
Pay Commission by the Court in a writ petition. In
those facts, the recovery process was upheld, but
in the instant case, the respective R.O.P.A Rules,
on the basis of which the petitioner's salary was
revised and fixed, having not been subsequently
altered. Furthermore, in the instant case, the
State by a circular dated July 19, 2010 detailed
the specific circumstances in which overdrawal
can be recovered irrespective of any undertaking
given by the employee.
11. In our view the learned single Judge is
correct in holding that the case of Jagdev Singh
(supra) is clearly distinguishable on the facts and
it is well settled that one little difference in the
facts will free the court from being bound by the
ratio of a decided case. The judgment of the court
cannot be read as a statute. The court needs to
find out the ratio of the judgment. The court
needs to analyse the judgment to find out the law
decided by the court on the given facts and
circumstances of the case.
12. It is trite law that a judgment is an
authority for what it decides and not what can be
logical inferred from it. On such considerations,
we are in agreement that the observation made by
the learned Single Judge in paragraphs 9,10 and
11 of the impugned judgment, which reads as
follows is correct:
"9. The mere fact of the petitioner having put
his signature on the pro forma and thereby
agreeing to abide by the undertaking to
refund does not warrant that a deduction
shall be made on account of alleged
overdrawal spanning over a period of more
than three decades. The undertaking
executed pertains to refund of an amount
drawn "in excess of that is admissible". In
the instant case the petitioner's pay was fixed
on the basis of the approval memo dated 27th
September, 1989 issued by the respondent
no. 7. The said approval memo having not
been altered, rectified or withdrawn by the
competent authority, it cannot be said that
the fixation of pay as per the ROPA Rules and
the consequential benefits were not
admissible to the petitioner. Admittedly
steps were taken by the respondents towards
recovery after the petitioner's retirement.
Once the petitioner retired, the master and
servant relationship ceased and the
relationship existed only for the purpose of
payment of terminal benefits to the petitioner
on the basis of the situation existing on the
date of his retirement. The contractual
relationship between the parties terminated
with the situations that existed on the date of
retirement and hence the respondents were
no longer empowered to change the
concluded terms of contract unilaterally and
without any sanction of law.
10.The pension sanctioning authority cannot
withhold the disbursement of the petitioner's
pensionary benefits on the basis of tentative
audit observations. Such observations
cannot be construed to be sacrosanct and
merely on the basis of the same the pension
sanction authority cannot revise the pay
fixation to the detriment of the petitioner
after his retirement. The scale in terms of
the ROPA Rules was fixed by the authorities
concerned on their own and there was no any
participation of the petitioner in the process
of such re-fixation. It is also not a case that
the pay fixation was compulsive in nature
having been made in terms of any interim
order of this Court.
11. The respondents have not come out with
a case that the petitioner is in any way
responsible for erroneous fixation of his pay
scale. The pay scale of the petitioner was
revised from time to time. Such revision was
not only noted in the service book but also
authenticated by the appropriate authority.
Standard of living of every person rises with
the increase of his income. Thus, whatever
additional benefits a person received by way
of increment in his salary during his service
period, are all normally spent with the rise of
his standard of living. The retired person
cannot subsequently recover the said amount
from the person to whom such payment was
made in lieu of the benefits which he received
therefrom. Thus, if this equitable
consideration is taken into account, then it
should be held that the respondents who are
at fault, should not be allowed to recover the
said amount from the retiral benefits, of a
retired person."
13. At this stage in absence of any challenge
being thrown to the audit observation mentioned
in the memo dated 4th November, 2016 alleging
overdrawal and payment of excess amount based
on wrong fixation of pay, we feel that any
payment made after 4th November, 2016 towards
pensionary benefits and/or retiral benefits is
liable to be recovered and/or adjusted against
future retiral benefits. The memo dated 4th
November, 2016 is relevant only to decide the
propriety of the claim made by the appellants at
this distant point of time from the writ petition
allegedly on account of wrong fixation of pay for
which admittedly the writ petitioner was not
responsible. We have already found that there
was no concealment of fact on the part of the writ
petitioner in submitting the relevant documents for
scrutiny during his tenure and the writ petitioner
cannot be asked at this stage to refund amounts
alleged to have been paid in excess on the basis
of an audit observation for which he was not
responsible. At this stage any demand for
recovery on the alleged ground of re-fixation of
pay would not only be inequitable but also
arbitrary. However, we are not unmindful of the
fact that any payment made on the basis of such
wrong fixation cannot continue beyond 4th
November, 2016 as it has been accepted at the
bar that there could have been a wrong fixation of
pay scale which was identified vide memo dated
4th November, 2016."
On such consideration we feel that the
direction passed by the Tribunal cannot be
interfered with. The Tribunal has decided the
matter rightly.
Accordingly, the writ petition being WPST 29
of 2020 fails and is hereby dismissed.
There will be no order as to costs.
Urgent photostat copy of this order, if applied
for, be given to the parties upon compliance of all
undertakings.
(Hiranmay Bhattacharyya,J.) (Soumen Sen, J.)
