Ommey Kulsum Mullick vs The State Of West Bengal & Ors
2023 Latest Caselaw 1525 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE

                           W.P.A. 14214 of 2015
                (IA NO: CAN 1/2018 (Old No: CAN 1814/2018)



                          Ommey Kulsum Mullick
                                     -vs-
                       The State of West Bengal & Ors.



For the Petitioner       : Mr. Ekramul Bari, Adv.
                           Ms. Tanuja Basak, Adv.
                           Syed Mansur Ali, Adv.
                           Sk. Imtiaj Uddin, Adv.


For the State            : Mr. Jaharlal Dev, Adv.
                           Ms. Debarati Sen (Bose), Adv.


Hearing concluded on     : 01.03.2023


Judgment On              : 01.03.2023



Saugata Bhattacharyya, J.:



          The writ petition is presented by a retired assistant teacher after

  superannuation on 31st May, 2015, inter alia, challenging memo dated 1st

  August, 2014 issued by the District Inspector of Schools (S.E.), Howrah
                                      2


whereby the school authority was asked to downgrade the fixation of pay

of the petitioner with effect from 8th March, 1994 and to calculate

overdrawn amount paid to the petitioner.

       On behalf of the petitioner Mr. Bari has drawn attention of this

Court to the Pension Payment Order issued under memo dated 16 th

January, 2018 wherein it was indicated by the State respondents that

Rs.1,26,513 was drawn in excess by the petitioner during the tenure as

assistant teacher of a Government aided high school. The Pension

Payment Order was issued during pendeny of the writ petition.

Petitioner, as it has been contended, was paid provident fund dues

contemporaneously after her retirement but petitioner did not receive

other retiral dues pursuant to the Pension Payment Order since she did

not accept the demand of the State respondents to refund the overdrawn

amount which was calculated pursuant to the impugned memo dated 1 st

August, 2014 issued by the concerned District Inspector of Schools. Till

date petitioner is not in receipt of monthly pension and other retiral dues

excepting provident fund.

In support of such submission made on behalf of the petitioner

reliance has been placed on the judgment of the Supreme Court,

reported in (2015) 4 SCC 334 (State of Punjab & Ors. -vs- Rafiq Masih

(White Washer) & Ors.) and a judgment reported in 2022 SCC Online

SC 536 (Thomas Daniel -vs- State of Kerala & Ors.).

Upon placing reliance on the aforesaid two judgments of the Apex

Court it has been contended on behalf of the petitioner that appropriate

fixation of pay which was required to be made by the State respondents

in 1994 was not made contemporaneously and just before the date of

retirement of the petitioner school authority was directed to downgrade

the pay fixation of the petitioner and calculate the amount which was

allegedly excess drawn by her for recovery from the gratuity of the

petitioner which was required to be paid on her superannuation and

such belated act on the part of the State respondents is impermissible in

view of the law laid down by the Supreme Court in the aforesaid two

judgments.

On the contrary Mr. Dey, learned advocate representing the State

respondents has opposed the writ petition on facts upon placing reliance

on the application made by the petitioner for processing her pension case

dated 29th November, 2013 and a letter dated 26th November, 2014

which are annexed to the supplementary affidavit-in-opposition used on

behalf of the State respondents.

It has been submitted that there was an undertaking on the part

of the petitioner since she signed the prescribed proforma which was

required to be submitted before the authority for processing the pension

case on 29th November, 2013 and subsequently by letter dated 26 th

November, 2014 she accepted demand of the State respondents and was

ready to deposit the overdrawn amount.

On behalf of the State respondents reliance has been placed on

the judgments of the Supreme Court, reported in (2012) 8 SCC 417

(Chandi Prasad Uniyal & Ors. -vs- State of Uttarakhand & Ors.),

(2015) 4 SCC 334 (State of Punjab & Ors. -vs- Rafiq Masih (White

Washer) & Ors.), (2014) 8 SCC 883 (State of Punjab & Ors. -vs- Rafiq

Masih (White Washer) & Ors.) and (2016) 14 SCC 267 (High Court of

Punjab & Haryana & Ors. -vs- Jagdev Singh). Emphasis has been laid

on behalf of the State respondents on paragraph 14 of Chandi Prasad

Uniyal (supra) wherein it was decided by the Apex Court that amount

paid/received without the authority of law can always be recovered

barring few exceptions of extreme hardships but not as a matter of right

and in such situations law implies an obligation on the payee to repay

the money otherwise it would amount to unjust enrichment.

However, the decisions of the Apex Court rendered in Shyam

Babu Verma -vs- Union of India reported in (1994) 2 SCC 521 and

Sahib Ram -vs- State of Haryana reported in (1995) Supp 1 SCC 18 on

the contrary the decision of Chandi Prasad Uniyal (supra) were

considered by three Judge Bench of the Apex Court in the case of Rafiq

Masih (supra). While answering the reference three Judge Bench of the

Supreme Court in Rafiq Masih (supra), reported in (2014) 8 SCC 883

held in paragraph 13, which runs infra:

"13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be

best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgements and the latter judgment."

Ultimately, the issue went back to the two Judge Bench of the

Apex Court and the issue was finally set at rest by the judgment

delivered in Rafiq Masih (supra), reported in (2015) 4 SCC 334.

In addition to the aforesaid judgments it has been argued on

behalf of the State respondents that in view of undertaking furnished by

the petitioner on 29th November, 2013 read with letter dated 26 th

November, 2014 the decision rendered by the Apex Court in Jagdev

Singh (supra) is attracted and therefor petitioner is required to deposit

the amount which the State respondents found to have paid in excess

with effect from 8th March, 1994.

This Court on consideration of the submissions made on behalf

of the petitioner and State respondents as well as in view of chronology of

decisions rendered by the Apex Court as relied upon by the parties finds

that it is required to follow the law laid down by the Apex Court in Rafiq

Masih (supra) as reported in (2015) 4 SCC 334. In paragraph 18 of the

said judgment in no uncertain terms Apex Court has postulated few

situations where recovery from the retiral dues is impermissible; in sub-

paragraph (ii) as contained in paragraph 18 of the said judgment it has

clearly been decided that recovery from retired employees or the

employees who are due to retire within one year is not permissible.

The present case at my hand according to the assessment of this

Court comes within the purview of paragraph 18(ii) of the judgment of

Rafiq Masih (supra). Petitioner retired on 31st May, 2015 whereas

process was initiated by the concerned District Inspector of Schools for

recovery by issuing impugned memo dated 1 st August, 2014 directing the

concerned school authority to downgrade pay of the petitioner for the

purpose of recovery. In view of decision rendered in Rafiq Masih (supra)

such act on the part of the State respondents is wholly contrary to the

view expressed by the Apex Court. The decision of the Apex Court as

contained in Rafiq Masih (supra) has been echoed in the judgment of

Thomas Daniel -vs- State of Kerala & Ors., reported in 2022 SCC

Online SC 536 wherein it has been held that attempt to recover

incremental benefits after passage of ten years of retirement is

unjustified.

Much emphasis has been laid on behalf of the State respondents

on the letter dated 26th November, 2014 of the petitioner wherein

according to the State respondents petitioner agreed to deposit the

overdrawn amount. The stand emanates from the submission of the

State respondents is found to be unjustified by this Court keeping in

view the contents of the said letter dated 26 th November, 2014.

This Court believes that the concerned State respondents might

not have red the letter in its true spirit wherefrom it appears that the

petitioner was compelled to right the letter in desperation at the juncture

when her husband was on death bed and the petitioner was in dire need

of money.

In the aforesaid conspectus of facts, this Court is required to find

out whether the law laid down by the Apex Court in Jagdev Singh

(supra) is applicable in the present case or not. On reading the decision

of the Supreme Court, it appears that the Hon'ble Supreme Court

proceeded on the basis of admission made by the respondent/employee

in the counter affidavit relating to furnishing undertaking to refund the

excess amount if paid which was furnished at the time of receiving higher

scale of pay which was before the date of compulsory retirement of the

employee. Facts of the case which was considered by the Apex Court as it

appears from the judgment goes to show that under the specific rules

applicable to the employee concerned, employees were required to

furnish undertaking for getting the benefit of revised scale of pay to the

extent of receiving the excess amount if it is found to be paid in favour of

the employees subsequently. In Jagdev Singh (supra) the employee got

the benefit of revised pay and subsequently on completion of proceeding

was compulsorily retired. In view of these facts the Hon'ble Supreme

Court has held in paragraph 11 that furnishing of undertaking to act as

a fetter in enjoying the amount which was paid to employee in excess.

It is found by this Court that facts of the present case is

completely different. The State respondents initiated the process of

recovery by issuing impugned memo dated 1 st August, 2014 that too in

respect of payment made to the petitioner with effect from 8 th March,

1994 whereas petitioner retired on 31 st May, 2015. Such conduct on the

part of the State respondents for recovery of excess amount paid with

effect from 8th March, 1994 is found to be impermissible just before the

date of retirement i.e. 31st May, 2015.

Accordingly, the impugned memo dated 1 st August, 2014 stands

set aside.

The State respondents are directed to issue revised Pension

Payment Order without showing any amount to be recovered towards

excess amount paid to the petitioner as it has been done previously.

The revised Pension Payment Order is to be issued within a

period of eight weeks from the date of communication of this order.

The respondents are directed to pay interest @ 8% per annum on

the pensionay benefits as well as gratuity of the petitioner excluding

Rs.1,26,513/-(overdrawn amount) from the date following the date of

retirement till the date of issuance of pension payment order. However,

respondents shall pay interest at the rate of 8 % per annum on Rs.

1,26,513/- from the date following the date of superannuation till the

date of payment.

It has been clarified that petitioner to receive pension to be

calculated based on admissible last pay of the petitioner.

With the aforesaid direction the writ petition stands allowed and

the same stands disposed of.

Application, if any pending, also stands disposed of.

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.)