Naba Kumar Ghosh vs Union Of India & Ors
2023 Latest Caselaw 48 Cal

03.01.2023            IN THE HIGH COURT AT CALCUTTA
   DL-1              CONSTITUTIONAL WRIT JURISDICTION
   (PP)                    APPELLATE SIDE
   Ct.21
                               WPA 2644 of 2022

                              Naba Kumar Ghosh
                                      Vs.
                              Union of India & Ors.

                     Mr. Manas Kumar Ghosh,
                     Ms. Susmita Dey (Basu),
                     Mr. Nabhajit Prasad Basu
                                                        .....for the petitioner.

                     Mr. Ajit Kumar Chaubey
                                                        ....for Union of India.


                    In     this    writ     petition,   the    petitioner      has

             challenged an impugned order dated June 15, 2021

             passed      by       Senior     Accounts     Officer        (Pensions)

             pursuant       to     an   order    passed       by    the    Hon'ble

             Coordinate Bench of this High Court on March 15,

             2021 in WPA 3554 of 2021. By the said order, the

             Hon'ble Coordinate Bench directed the authorities

             concerned to consider the petitioner's representation

             in the light of the office memorandum dated March 1,

             2004 and also in the light of the judgment in State of

             Punjab and others Vs. Rafiq Masih (white washer)

             and others reported in (2015) 4 SCC 334.

                    The undisputed facts in this writ petition are

             that    the      petitioner     worked     with       the    Garrison

             Engineers (North)/respondent no.2 and was promoted

to the post of Fitter General Mechanic (HS-II) on

October 7, 1996. The petitioner retired from the

services of Garrison Engineers (North), Ministry of

Defence on December 31, 2004. The Punjab National

Bank was the pension disbursing agency of the

petitioner. Since the petitioner retired from services

on December 31, 2004, he is covered under the office

memorandum dated March 1, 2004 issued by the

Ministry of Finance, Department of Expenditure,

Government of India.

Ms. Dey (Basu), learned counsel appearing on

behalf of the petitioner submits that by the impugned

order dated June 15, 2021, the Senior Accounts

Officer (Pensions)/the respondent no.5 did not

consider the memorandum dated March 1, 2004 nor

Rafiq Masih's case (supra) while disposing of the

representation of the petitioner. The petitioner was

granted revised pensionary benefits as per the office

memorandum dated March 1, 2004 till July, 2018.

Much after his retirement, from July 2018 the

respondent authorities sought to deduct the

purported overdrawn amount from the petitioner's

pensionary benefits. The said act on the part of the

respondent authorities is not permissible in law.

Mr. Chaubey, learned counsel appearing on

behalf of the respondent nos.1 to 4 submits that the

representation of the petitioner has been duly

considered by the respondent no.5. He submits that

the petitioner's case is squarely covered by the

judgment passed by the Hon'ble Apex Court in Civil

Appeal No.3500 of 2006 (High Court of Punjab &

Haryana & Ors. Vs. Jagdev Singh)

Having considered the rival submissions of the

parties and the materials placed on record, this Court

finds that the impugned order squarely relies on an

undertaking given by the petitioner for

reimbursement to the bank in case of overpayment.

No such undertaking has been produced by the

respondent authorities in affidavit-in-opposition filed

by them.

Furthermore, neither the office memorandum

dated March 1, 2004 issued by the Ministry of

Finance, Department of Expenditure, Government of

India nor Rafiq Masih's case (supra) was considered

by the respondent no.5 while disposing of the

representation of the petitioner. Furthermore, in the

case of Jagdev Singh (supra), the Apex Court has

taken into consideration the exceptions noted in

Rafiq Masih (supra). The Apex Court has also

recognised the fact that in case of extreme hardship,

the overdrawn amount should not be required to be

refunded by the employee to the employer.

This Court finds that since the petitioner retired

in 2004 and the excess amount, if any, paid to the

petitioner has not been due to any fault/fraud on the

part of the petitioner, if such an amount is allowed to

be withdrawn at such a belated stage the petitioner

will suffer extreme hardship. The said action on the

part of the respondent authorities would be harsh

and arbitrary. The petitioner is squarely covered by

the judgment of Rafiq Masih (supra)

In the light of the discussions above, the

impugned order dated June 15, 2021 is quashed

and/or set aside.

The respondent no.5 is directed to reconsider the

representation of the petitioner dated October 21,

2020 within four weeks from date in the light of the

observations made in the present writ petition along

with the directions given by the Hon'ble Coordinate

Bench by its order dated March 15, 2021. The

petitioner will be given a personal hearing. The

representation of the petitioner will be disposed of by

a reasoned order. The reasoned order shall be

communicated to the petitioner within two weeks of

passing thereof.

With the directions aforesaid, WPA 2644 of

2022 is disposed of.

All parties shall act on the server copies of this

order duly downloaded from the official website of

this Hon'ble Court.

Urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon

compliance of all necessary formalities.

(Lapita Banerji, J.)