Smt. Rama Rana vs The State Of West Bengal & Ors
2023 Latest Caselaw 6294 Cal

Form No. J.(2)
Item No.6


                 IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                       CONSTITUTIONAL WRIT JURISDICTION
                                APPELLATE SIDE
                              HEARD ON: 20.09.2023
                             DELIVERED ON: 20.09.2023

                                     CORAM:
             THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
                              W.P.A. 8091 of 2020
                                Smt. Rama Rana
                                       Vs.
                         The State of West Bengal & Ors.
Appearance:-

Mr. Uttam Kr. Bhattacharya
Mr. Kaustav Mishra                        ...........for the petitioner
Mr. Bhaskar Prasad Vaisya
Mr. Arindam Chattopadhyay
Ms. Lipika Chatterjee                   .........for the State

                                    JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. This writ petition is at the instance of a retired Assistant Teacher of a

Higher Secondary School challenging the order of the Commissioner of

School Education, West Bengal dated August 24, 2020 by virtue of which

the school authority was directed to calculate the overdrawal amount for

the period from April 1, 1986 to March 31, 1996 and from April 1, 1996 to

December 31, 2014.

2. The writ petitioner, who was an Assistant Teacher of a Higher Secondary

School retired from service w.e.f. January 1, 2015. She applied before the

headmaster of the concerned school immediately after retirement for

release of her retirement benefits. Her pension papers were sent to the

Directorate of Pension, Provident Fund and Group Insurance by the

concerned District Inspector of Schools (for short 'D.I.'). Directorate of

Pension, Provident Fund and Group Insurance raised certain objections

against release of pensionary benefits in favour of the petitioner. Such

objection was the subject matter of challenge at the instance of the writ

petitioner in W.P. 7656(W) of 2018. A coordinate Bench by an order dated

April 4, 2019 directed the concerned D.I. to consider and dispose of the

representation of the petitioner in accordance with law and on the basis of

several decisions of the Hon'ble Apex Court as also by this Court and by

passing a reasoned order.

3. Alleging inaction on the part of the respondent authorities, the petitioner

filed another writ petition being W.P. 17770(W) of 2019, which was

disposed of by an order dated February 19, 2020 by directing the

Commissioner of School Education (Law) to expedite the release of

pensionary benefit in the light of the Apex Court judgment on overdrawal

by passing a reasoned order at the earliest.

4. Thereafter the Commissioner of School Education passed the order dated

August 24, 2020, which is under challenge in this writ petition. The

Commissioner of School Education was of the opinion that admissible

pension should be released in favour of the petitioner after recasting the

pay fixation in accordance with law. The Commissioner of School Education

further observed that overdrawal amount for certain periods should

immediately be calculated separately by the school authority and after

vetting of the same by the concerned Deputy Joint Director of Accounts of

the district, the petitioner should immediately deposit such amount.

5. Mr. Bhattacharya, learned advocate appearing for the petitioner submits

that during the service tenure of the petitioner there was no allegation from

the end of the respondent authorities that the petitioner has drawn

amounts over and above the amounts which she was entitled to. He further

submits that the authorities cannot direct recovery of the alleged

overdrawal amount after the petitioner has retired from service. In support

of such contention, Mr. Bhattacharya places reliance upon the Memo

No.739/DPPG dated July 19, 2010 thereby highlighting the situations

where overdrawal amount cannot be recovered.

6. By referring to the decision of the Hon'ble Supreme Court in the case of

State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. reported at

(2015) 4 SCC 334, Mr. Bhattacharya submits that the Hon'ble Supreme

Court has summarised the situations, wherein recoveries by the employers

would be impermissible in law.

7. Mr. Chattopadhyay, learned advocate representing the State submits that

the petitioner received certain amounts during her service tenure over and

above the amounts she was entitled to as per the law. He, therefore,

submits that the authorities were justified in directing recovery of the

overdrawal amount, to which the petitioner was not entitled to under the

law.

8. Heard the learned advocates for the parties and perused the materials

placed.

9. Admittedly, there was no allegation made against the writ petitioner during

her service tenure that an amount in excess of what she was entitled to

was being drawn by her. It is only after the petitioner retired from service

and applied for release of her retirement benefits that the authorities have

alleged that there has been an overdrawal. The Directorate of Pension,

Provident Fund and Group Insurance, Finance Department of the

Government of West Bengal issued the Memo No. 739/DPPG dated July 19,

2010, wherefrom it appears that under certain circumstances,

overdrawal/excess payment cannot be recovered. It would be relevant to

extract a portion of the No. Memo 739/DPPG dated July 19, 2010.

"............Perusing the aforesaid facts and records, it transpires that if (1) overdrawal/excess amount was not paid on account of any misrepresentation or fraud on the part of the employee.

Or (2) such excess payment was made by the employer by applying a wrong Principle for calculating the pay/allowances or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous.

Or (3) the employee had no knowledge that the payment received was in excess of what was due or wrongly paid.

Or (4) the error leading to such wrong calculation was not detected or corrected within a short time of wrong payment no overdrawal/excess payment is to be deducted from his post retiral benefit.

As Pension Sanctioning Authority, he has to send the pension case either recovering overdrawal mentioning one/more grounds of the above four or without deducting overdrawal in the light of four above mentioned grounds".

10. The Commissioner of School Education while passing the order dated

August 24, 2020 did not return any finding that the overdrawal/excess

amount was paid on account of any misrepresentation or fraud on the part

of the employee. Since the petitioner cannot be said to be at fault for

payment of the amount in excess of what she was entitled to as per the law,

this Court is of the considered view that the overdrawal amount under

such circumstances cannot be allowed to be recovered from the petitioner

and that too after her retirement.

11. The Hon'ble Supreme Court in the case of Rafiq Masih (White Washer)

(supra) has summarised the following situations wherein recoveries by the

employers would be impermissible in law. The Hon'ble Supreme Court held

thus:

"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

12. As observed hereinbefore, that during the service tenure of the petitioner,

the authorities did not allege that the petitioner has drawn amounts in

excess of what she was entitled to.

13. The alleged overdrawal is for the period from 1 st April, 1986 to 31st March,

1996 and again from 1st April, 1996 to 31st December, 2014. Petitioner

retired with effect from 1 st January, 2015. It is not in dispute that the

attempt to recover overdrawal amount was made after the retirement of the

petitioner. The case of the petitioner falls within the situations wherein the

Hon'ble Supreme Court in the case of Rafiq Masih (supra) held that

recoveries by employers of overdrawal amount would be impermissible.

14. Since the petitioner has, in the meantime, retired, any direction for

recovery from the petitioner would be harsh and therefore, the employer

cannot be allowed to recover the alleged overdrawal amount from the

petitioner.

15. For the aforesaid reasons, this Court holds that the direction contained in

the order of the Commissioner of School Education dated August 24, 2020

to the effect that withdrawal amount for the period from April 1, 1986 to

March 31, 1996 and from April 1, 1996 to December 31, 2014 should be

calculated by the school authority together with a direction upon the

petitioner to deposit such calculated amount is liable to be set aside and

quashed and the same is accordingly set aside and quashed.

16. The direction contained in the said order dated August 24, 2020 for

recasting of the pay of the petitioner in accordance with law is not

interfered with by this Court. The District Inspector of Schools (SE),

Jhargram is directed to recast the pay of the petitioner as per the directions

contained in the order of the Commissioner of School Education, West

Bengal dated August 24, 2020 as expeditiously as possible but positively

within a period of three weeks from the date of receipt of server copy of this

judgment and order.

17. Upon such recasting of the pay, the Pension Sanctioning Authority is to

forward necessary papers to the concerned authorities for taking necessary

consequential steps and the retiremental as well as other benefits shall be

released within a period of three working weeks thereafter together with

interest @ 6 % per annum from the date of retirement till the date of actual

payment of the retirement benefits.

18. With the above observations/directions, the writ petition stands partly

allowed.

19. There shall be, however, no order as to costs.

20. Urgent Photostat certified copy of this order, if applied for, be furnished to

the parties expeditiously upon compliance of all legal formalities.

(HIRANMAY BHATTACHARYYA, J.)

Pallab AR(Ct.)