Calcutta High Court (Appellete Side)
Smt. Sabita Ghosh Biswas vs State Of West Bengal & Ors on 21 September, 2022
02.
W.P.A. 5660 of 2019
21.09.2022
bd. Ct.15
Smt. Sabita Ghosh Biswas
-vs-
State of West Bengal & Ors.
Mr. Dilip Kumar Samanta
... for the petitioner.
Mr. Tulsidas Ray
... for the State
Affidavit of service filed by the petitioner in
Court today pursuant to the previous order dated
2nd September, 2022 is taken on record.
The grievance of the petitioner is deduction
of Rs. 1,32,535/- from the gratuity of the petitioner
at the time of releasing retiral dues on issuing
pension payment order under memo dated 12th
December, 2018 after superannuation of the
petitioner on 30th June, 2016. Petitioner was
working in the post of Assistant Teacher in a
Government aided recognised high school. While
releasing retiral dues it was found by the State
respondents that basic pay of the petitioner was
required to be fixed at Rs.8,000/- with effect from
1st April, 1999 in stead of Rs. 8225/- and
consequently last pay at the time of
superannuation was required to be reckoned as
Rs.29520/- in stead of Rs.30160/-. Accordingly,
the State respondents by issuing memo dated 31st
October, 2018 calculated Rs.1,32,535/- as
overdrawn amount in respect of service rendered by
the petitioner till the date of superannuation on
30th June, 2016 and consequently while issuing
pension payment order under memo dated 12th
December, 2018 the said amount of Rs. 1,32,535/-
was deducted from the gratuity of the petitioner.
The petitioner being aggrieved by such
decision to recover Rs. 1,32,535/- from the gratuity
of the petitioner as it emanates from memo dated
31st October, 2018 issued by the District Inspector
of Schools (SE), Siliguri, as well as the pension
payment order issued under memo dated 12th
December, 2018 preferred this writ petition
pursuant to the leave granted by a coordinate
Bench while disposing of the previous writ petition
being W.P.4822 (W) of 2009. In the said order the
coordinate Bench granted leave to the petitioner to
challenge the pension payment order and to claim
interest on delayed payment of salary and retiral
benefits.
Mr. Tulsiday Ray, learned advocate,
appears on behalf of the State Respondents has
defended the decision of the respondent authorities
in deducting the alleged excess drawn amount from
the gratuity of the petitioner.
This Court has heard the learned advocates
representing the parties and has perused the memo
dated 31st October, 2018 and the pension payment
order dated 12th December, 2018 whereby the
alleged excess drawn amount was deducted from
the gratuity of the petitioner.
On perusal of the decision of the concerned
District Inspector of Schools dated 31st October,
2018 it appears that in terms of Government Order
No. 185/SE-B dated 4th May, 2000 amending
relevant clauses of ROPA 1998 basic pay of the
petitioner was required to be refixed and
consequently the last pay was also required to be
altered. Due to such findings of the concerned
District Inspector of Schools it was found by the
authority that there was requirement to recover
excess drawn amount. Further considering the
facts of the case it appears that petitioner retired
on superannuation on 30th June, 2016 and the
decision was taken by the concerned District
Inspector of Schools on 31st October, 2018, more
than two years after the superannuation of the
petitioner wherein decision was taken to refix the
basic pay of the petitioner with effect from 1st April,
1999.
It is not the case of the State respondents
that by way of mis-representation or fraud
petitioner during her tenure managed to get the
benefit of fixation of basic pay which she was not
entitled. The respondent authorities had enough
time to refix the basic pay of the petitioner with
effect from 1st April, 1999 well before the
superannuation of the petitioner which was not
done. In this regard reliance is placed on the
judgment of the Hon'ble Supreme Court reported in
(2015) 4 SCC 334 (State of Punjab & Ors. -vs-
Rafiq Masih (White Washer) and Ors, paragraph
18 as well as recent unreported judgment of the
Hon'ble Supreme Court passed in Civil Appeal No.
7115 of 2010 (Thomas Daniel-vs- State of
Kerala & Ors.) dated 2nd May, 2022. In these two
judgments the Hon'ble Supreme Court has
succinctly decided that after superannuation the
employer cannot deduct excess drawn amount if
the same is not drawn by the employee during the
tenure by fraud or mis-representation. Wrong
fixation of basic pay and wrong consideration of
last pay drawn at the time of superannuation can
not be a ground for deduction of alleged excess
drawn amount from the retiral dues of the
employee concerned.
Accordingly, the concerned respondent
authorities are directed to refund the deducted
amount i.e., Rs.1,32,535/- to the petitioner along
with 7% interest from the date of deduction till the
date of refunding the said amount within a period
of six weeks from the date of communication of this
order.
However, it is made clear that respondent
authorities shall be at liberty to release the retiral
dues based on the last pay drawn by the petitioner
as calculated by the concerned District Inspector of
Schools which emanates from the memo dated 31st
October, 2018, if the same is not done till date. The
respondent authorities shall also be at liberty to
issue revised pension payment order for fixation of
appropriate amount to be reckoned as last pay
drawn as indicated in the said memo dated 31st
October, 2018.
With the aforesaid direction the writ
petition stands disposed of.
However, there shall be no order as to
costs.
Urgent photostat certified copy of this
order, if applied for, be given to the learned
Advocates for the parties on the usual
undertakings.
(Saugata Bhattacharyya, J.)
