Calcutta High Court (Appellete Side)
Pabitra Kumar Sarkar vs State Of West Bengal & Ors on 14 June, 2021
14.06.2021
Sl. No.14
srm
WPA No. 29759 of 2016
Pabitra Kumar Sarkar
Vs.
State of West Bengal & Ors.
Mr. Ranajit Chatterjee,
Mr. Prasenjit De,
Mr. Aniruddha Mitra
...for the Petitioner.
None appears on behalf of the State-respondents
and the University despite service.
Mr. Amal Kumar Sen, learned Additional
Government Pleader, with Mr. Lal Mohan Basu, learned
Advocate, who are engaged in the subsequent matters
involving similar question of law, are requested to
appear before this Court. Learned Legal Remembrancer
is directed to regularise their appointment.
As the issue has already been decided by the
Hon'ble Division Bench in respect of a similarly situated
Group C staff of the concerned university, this Court
does not find any reason not to take up the matter in the
absence of the University and as Mr. Amal Kumar Sen is
before the Court and is ready with the matter.
This writ petition has been filed challenging a
portion of the order dated July 22, 2015 issued by the
Registrar, Bidhan Chandra Krishi Viswa Vidyalaya, by
which the over-drawn amount was directed to be
adjusted from the retirement benefits of the petitioner.
According to the petitioner, he joined as a Group C staff
of the said university and retired on November 30, 2014,
subsequent thereto, the order of deduction was illegal,
contrary to law and also contrary to the decision of the
Hon'ble Apex Court in the matter of State of Punjab &
Ors. vs. Rafique Masih reported in (2015)4 SCC 334.
Mr. Chatterjee has also placed reliance on a
Division Bench judgment of this Court dated February
5, 2021 in FMA No.1088 of 2017. The Hon'ble Division
Bench has categorically held that in the absence of any
allegation of fraud or misrepresentation or manipulation
of service record at the instance of the petitioner therein,
who was also a Group C employee of the said university,
the respondents did not have any right or any authority
to realise the amount paid in excess towards salary. The
authorities were directed to refund the excess amount
drawn but without interest.
The relevant portion of the order of the Hon'ble
Division Bench is set out for convenience:
"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 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 occurred in cases of many,
however, we in such cases find that the
employees concerned were responsible for such
wrong fixation and it is not necessary for us to
come into such conclusion since it is clear from
the record that the petitioner has an
unblemished service record and he has not
contributed to such wrong fixation of pay scale.
We feel that the case of the petitioner squarely
comes within sub-paragraphs (2), (3) and (4) of
Paragraph 18 of the ratio in Rafiq Masih
(supra) and the other judgments referred to in
this order.
On such consideration, we set aside the order
under appeal.
We allow the appeal and direct the respondent
authorities to refund the same sum of
Rs.458736/- within four weeks from date,
however, without any interest."
Under such circumstances, as the petitioner is
similarly situated with one Chittaranjan Patra in whose
favour the Hon'ble Division Bench has passed the
aforementioned order and having taken note of the
proposition of law already laid down in this regard by
the Hon'ble Apex Court as also by this Court, the writ
petition is allowed to the extent that the amount as
overdrawn that is Rs.1,07,399/- be refunded to the
petitioner but without interest by the respondent
authorities within a period of eight weeks from the date
of communication of this order.
The order dated July 22, 2015 is set aside and
quashed to the extent of the direction of adjustment of
the excess payment from the retirement benefits.
As the order of refund has already been passed in
favour of the petitioner, the question of violation of
principles of natural justice as raised by Mr. Chatterjee
does not survive.
The writ petition is, thus, disposed of.
There will be, however, no order as to costs.
All parties are directed to act on the basis of the
server copy of this order.
(Shampa Sarkar, J.)
