Calcutta High Court (Appellete Side)
Tapan Kumar Chatterjee vs The State Of West Bengal & Ors on 16 December, 2022
02
16.12.2022
d.p.
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P.A 18837 of 2019
Tapan Kumar Chatterjee
-versus
The State of West Bengal & Ors.
Mr. Swapan Kumar Nandi,
Mr. Debjyoti Ghosh.
...For the Petitioner.
Mr. S.P. Lahiri.
...For the State.
Mr. Keshab Chandra Das,
Ms. Aparajita Mondal.
...For the Respondent
Nos.4 and 5.
Affidavit-in-reply filed in Court today is taken on
record.
The petitioner was serving as the Rent Collector of
the Tarakeshwar Municipality. His scale of pay was
Rs.220...388/-. The same was revised to
Rs.2600...4175/-.
The Municipality entered into a bipartite
agreement with the recognized union of the
Municipality and revised the aforesaid scale of pay from
Rs.2600...4175/- to Rs.3350...6325/- that is the scale
prescribed for the post of Rent Collector in the
Government.
The aforesaid scale was effective from the date of
the order. The order of revision of scale of pay was
subject to the approval of the State Government.
On the basis of the aforesaid order of the
Chairman of the Municipality dated 28th August, 2004,
the petitioner received the enhanced scale of pay.
By a communication dated 1st November, 2017,
the Chairman of the Municipality intimated the
concerned employees that the Rent Collectors enjoying
pay scale of Rs.3350-6325/- (erstwhile Rs.300...685/-)
vide office order dated 28th August, 2004 with effect
from 1st August, 2004 is fixed at Rs.800...1265/-
(erstwhile 220...388/-), in view of the order of the
Director of Local Bodies vide No. 663 DLB/Verification-
1/2002 (pt-I) dated 27th May, 2013.
The petitioner was intimated that as per resolution
of the meeting of the Board of Councillors held on 31st
October, 2017, it was ordered that the excess drawal
will be recovered by deducting from salary of November
2017 onwards.
The petitioner retired from service on attaining his
normal age of superannuation on 31st May, 2019.
By a communicating letter dated 5th June, 2018,
the petitioner was requested to submit a formal
application for pension in the prescribed form.
By a further communication made by the
Chairman of the Tarakeswar Municipality on 27th June,
2019, the petitioner was directed to deposit a sum of
Rs.2,74,534/- only being excess drawal of pay for the
period 13th August, 2004 to 30th October, 2017 by 12th
July, 2019.
The petitioner is aggrieved by the same.
It has been submitted that as there was no error
on the part of the petitioner in receiving the amount
which was disbursed as salary to the petitioner by the
employer, accordingly, the petitioner ought not to have
been directed to refund the alleged excess drawal of
pay.
It has been submitted that the petitioner received
the aforesaid amount on the basis of the order passed
by the Chairman of the Municipality in the year 2004.
The petitioner was no way involved in either fixation of
pay or enhancement of pay.
It has been submitted that the petitioner was
unaware of the fact that the enhanced payment was
subject to the order of approval by the Government.
Reliance has been placed on the decision delivered
by the Hon'ble Supreme Court in the matter of State of
Punjab & Ors. -vs- Rafiq Masih (White Washer) & Ors.
reported in (2015) 2 SCC 334.
Reliance has also been placed on an unreported
judgment dated 19th August, 2019 passed by the
Hon'ble Division of this Court in W.P.S.T. 79 of 2019
(State of West Bengal & Ors. -vs- Subrata Sankar Roy
& Anr.).
It has been submitted that in Rafiq Masih (supra),
the Hon'ble Supreme Court laid down the instances
where the recovery from the employee would be
impermissible in law.
It has been contended that as the petitioner
received the enhanced pay on and from 2004 till the
date of his retirement which is a considerable period of
time, accordingly, it will not be proper for the employer
to seek refund of the amount allegedly paid as excess.
The petitioner prays for setting aside the impugned
communication dated 27th June, 2019.
The prayer of the petitioner has been opposed by
the Municipality.
It has been averred in the affidavit-in-opposition
filed by the Municipality that the pay was enhanced
with effect from 1st August, 2004 subject to the
Government approval. The Director of Local Bodies is
yet to approve the increase in pay of the Rent Collector
of the Municipality.
It has been submitted that the petitioner was
informed way back in 2017 regarding refund of the
overdrawal amount. The petitioner did not take any
steps to challenge the same. Only after the petitioner
retired from service and notice was issued for refunding
the excess amount that the petitioner filed the present
writ petition.
Learned advocate appearing for the
State respondents submits that the Municipality
enhanced the scale of pay of the Rent Collectors of the
Municipality at par with the scale of pay of the Rent
Collectors in the Government. The said revision was
made by way of an internal arrangement between the
municipal authority and the union of the Municipality.
The Government never approved the said increase/
revision of pay.
It has been submitted that the Government ought
not to be burdened with the extra amount which is
required to be paid on account of the revision. The
same will amount to unjust enrichment.
Learned advocate appearing for the State
respondents distinguishes the ratio of the judgment in
the matter of Rafiq Masih (supra) and Subrata Sankar
Roy (supra).
I have heard and considered the rival submissions
made on behalf of all the parties.
It appears that the scale of pay of Rent Collectors
of the Municipality was revised by the Municipality by
way of a bipartite agreement entered into by the
Municipality and the union of the Municipality. The
Government never approved the said revision of pay.
The petitioner, while in service, was intimated by
the Municipality regarding recovery of the excess
amount from the salary of the employee on and from
November 2017. It appears that the petitioner accepted
the same and never raised any objection thereto.
The impugned communication mentions about the
refund of the excess drawal of pay for the period 13th
August, 2004 till 30th October, 2017. The same implies
that from November 2017 till May 2019 the
Municipality paid the salary of the petitioner at the
reduced scale of pay.
The same further implies that the petitioner
submitted to the jurisdiction of the Municipality and
voluntarily accepted the salary at the reduced rate.
At this stage, the petitioner is estopped from
challenging the same and he will not be permitted to
submit that he will not be bound to refund the excess
payment received by him.
Permitting the petitioner to retain the excess
amount will amount to approval of the decision taken
by the Municipality pursuant to the bipartite agreement
entered in between the Municipality and the Union
which was not approved by the Government. Moreover,
the excess payment was received by several Rent
Collectors. The State Government ought not to bear the
extra financial responsibility of the said Rent Collectors
who received money without the approval of the State
Government.
The decision relied upon by the petitioner in the
case of Rafiq Masih and Subrata Sankar Roy (supra), in
my opinion, will not be applicable in the facts and
circumstances of the instant case.
In Rafiq Masih and in Subrata Sankar Roy (supra),
decision to recover the excess amount was intimated to
the employee after retirement.
In the present case, the decision to recover excess
payment was intimated to the petitioner while he was in
service and the petitioner accepted the said proposal for
refund and has actually accepted salary at the reduced
rate on and from November, 2017 till the date of his
retirement on 31st May, 2019.
In view of the above, the prayer of the petitioner for
setting aside the impugned order seeking refund cannot
be interfered with as the same appears to have been
acted upon and accepted by the petitioner.
The writ petition, accordingly, fails and is hereby
dismissed.
Urgent photostat certified copy of this order be
supplied to the parties, if applied for, as early as
possible.
( Amrita Sinha, J.)
