Arijit Banerjee, J
(1) Affidavit-of-service filed in Court be kept with the record.
(2) The petitioner was an Assistant Teacher of a Primary School. He retired from service on 31 January, 2006. The Pension Payment Order was
issued by the respondent authorities on 23 June, 2006. An amount of Rs. 1,43,970/- was deducted on account of alleged overdrawal. Being aggrieved,
the petitioner has approached this Court by way of the present writ petition.
(3) Learned Counsel for the petitioner submitted that recovery of excess payment cannot be made from the retiral benefits of an employee unless
such excess payment was made to the concerned employee because of some misrepresentation or fraud on his part. In support of his submission,
Learned Counsel relied on several decisions of this court and primarily on three Supreme Court decisions in the cases of Shyam Babu Verma-vs.-
Union of India, (1994) 2 SCC 521, Syed Abdul Qadir-vs.-State of Bihar, (2009) 3 SCC 475 and State of Punjab-vs.-Rafiq Masih, (2015) 4 SCC 334.
In paragraph 18 of the last of the said three judgments, the Hon’ble Apex Court observed as follows:-
“18. 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 follow 3 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.â€
(6) I have also considered the decision of the Hon’ble Apex Court in Chandi Prasad Uniyal-vs.-State of Uttarakhand, (2012) 8 SCC 417, which is
to the effect that except in few instances pointed out in Syed Abdul Qadir (supra) and in Col. B. J. Akkara-vs.-Govt. of India, (2006) 11 SCC 709,
excess payment made due to wrong/irregular pay fixation can always be recovered. I have also considered the decision of the Hon’ble Apex
Court dated 29 July, 2016 delivered in Civil Appeal No. 3500 of 2006 (High Court of Punjab & Haryana-vs.- Jagdev Singh) to the effect that if at the
time of taking benefit of a revised higher pay scale or at the time of applying for pensionary benefits the concerned employee/officer gives an
undertaking/declaration that he would be liable to refund any excess payment made to him, he would be bound by such undertaking/declaration. As
and when the excess payment is detected by the employer/State, the same can be recovered from the concerned employee and the same can be
deducted from the pensionary benefits released in favour of a superannuating employee if such excess payment is detected prior to releasing such
benefits.
(7) I have considered the rival contentions of the parties.
(8) In Shyam Babu Verma (supra), although the Hon’ble Apex Court held that the petitioners were entitled to a lower scale of pay than they
actually enjoyed, yet, since they received a higher scale of pay due to no fault of theirs, the Hon’ble Apex Court held that it shall only be just and
proper not to recover any excess amount which had already been paid to them. In Syed Abdul Qadir (supra), the Hon’ble Apex Court observed
that the relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the
employees from the hardship that will be caused if recovery is ordered. However in a given case, if it is proved that the employee had knowledge that
he was receiving payment in excess of what he was entitled to or in cases where the arrear is deducted or corrected within a short time of wrong
payment, the matter being in the realm of judicial discretion, Courts may on the facts and circumstances of any particular case, order for recovery of
the amount paid in excess. In the facts of that case, the Hon’ble Apex Court found that the excess amount that had been paid to the appellant
teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being
paid to them was more than what they were entitled to. Accordingly, the Hon’ble Apex Court held that no recovery of the amount that had been
paid in excess to the appellant teachers should be made.
(9) In Chandi Prasad Uniyal-vs.-State of Uttarakhand (supra), at paragraphs 14 and 15 of the judgment the Hon’ble Apex Court observed as
follows:-
“14. We are concerned with the excess payment of public money which is often described as “tax payers money†which belongs neither to the
officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in
such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess
payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because
money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the
mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients
also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme
hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust
enrichment.
15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara case
(supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.â€
(10) In High Court of Punjab & Haryana-vs.-Jagdev Singh (supra), the Hon’ble Apex Court observed that if an employee had undertaken to
refund any excess amount paid to him, such excess payment could be recovered from him.
(11) In Col. B. J. Akkara-vs.-Govt. of India, (2006) 11 SCC 709, the Hon’ble Apex Court held that it has consistently granted relief against
recovery of excess wrong payment of emoluments/allowances from an employee if the excess payment was not made on account of any
misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for
calculating the pay/allowance or on the basis of a particular interpretation of a rule/order which is subsequently found to be erroneous. Such relief is
granted by Courts not because of any right of the employees but in equity, in exercise of judicial discretion to relieve the employee from the hardship
that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever
emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that
he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship, relief is granted in that behalf. But where the
employee was aware that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a
short time of wrong payment, Courts will not grant relief against recovery. The matter is in the realm of judicial discretion.
(12) Although apparently there seems to be some conflict in so far as the aforesaid judgments of the Hon’ble Apex court are concerned, on a
careful analysis and harmonious reading thereof, in fact, in my opinion, there is no conflict. Thus, Chandi Prasad Uniyal (supra) and Rafiq Masih
(supra) can be reconciled by reading the two judgments as laying down the proposition that even without fraud or misrepresentation on the part of an
employee excess payment made to an employee can be recovered only up to one year before the retirement of the employee and not after that.
(13) In so far as Jagdev Singh’s (supra) case is concerned, the same is distinguishable on facts. In that case, the concerned judicial officer availed
of the revised pay scale by furnishing a specific undertaking to the effect that any excess payment which may be found to have been made will be
refunded to the Government either by adjustment against future payment due or otherwise. (emphasis is mine). The judicial officer was compulsorily
retired from service on 12 February, 2003. On 18 February, 2004, a letter for recovery of excess payment was served on him. In those facts, the
Hon’ble Apex Court upheld the recovery process and observed that the principle laid down in Rafiq Masih (supra) that recovery from retired
employee or employees who are due to retire within one year of the order of recovery, would not apply.
(14) Learned Counsel for the respondents relied on a declaration of the petitioner to the following effect:- “I do hereby declare that overdrawal
amounting to Rs. 1,43,970/- (One Lakh Forty Three Thousand Nine Hundred Seventy Only) for wrong fixation of pay and allowances may be
adjusted from the pensionary benefit.â€
(15) It is common knowledge that such declarations are signed by an employee under compelling circumstances with no real choice in the matter.
Unless such a declaration is signed, the pension papers of the employee concerned who is on the verge of the retirement would not be processed and
the retiring employee will be facing financial predicament upon retirement. As a learned Judge observed in one case, the choice between signing and
not signing such a declaration is like choosing between the devil and the deep sea.
(16) Pensionary benefits are paid to a superannuated person by way of social welfare measure to enable him to live a life of dignity which is now
recognized as a fundamental right of a citizen of India. Retiral benefits are not to be lightly interfered with. Any right of the employer to recover from
the pensionay benefits of an employee any excess payment received by the employee due to no fault, fraud or misrepresentation on his part is to be
strictly construed. Of course, it will be a different thing altogether if the employee has fraudulently induced the employer to make the excess payment.
In such a case, the employer’s right to recover excess payment from the pensionary benefits of the employee cannot be doubted since fraud
unravels everything. It has not been argued on behalf of the State that the petitioner in the present case has received excess payment by practising
fraud or making misrepresentation nor that the petitioner was conscious that he was receiving more than he was entitled to. The petitioner had no role
to play in the wrong fixation of his pay and allowances. At the fag end of the petitioner’s service career when he is approaching superannuation if
he is told that unless he signs a declaration like the one in the present case, his pensionary benefits will be in jeopardy, would the petitioner have any
real choice in the matter? I think not. It is a kind of economic duress under which such declarations are extracted from an employee who is on the
verge of retirement and in my opinion, such declarations cannot create any right in favour of the State to recover from a retiring employee’s
pensionary benefits any excess payment that he might have received during his service tenure without there being any fault on his part.
(17) I also draw support from the decision of a Division Bench of this Court in the case of Asitosh Bhattacharya-vs.-The State of West Bengal,
(2015) 2 CLT 339, in which the Hon’ble Division Bench considered the decisions in Shyam Babu Verma (supra), Syed Abdul Quadir (supra),
Chandi Prasad Uniyal (supra) and Rafiq Mashi (supra) and held that no recovery can be made from a retired employee who is due to retire within one
year from the order of recovery. Reference may also be made to two other decisions of this Court. One is the decision of a learned Judge in the case
of Kalyan Kumar Chattopadhyay-vs.-The State of West Bengal & Ors., (2006) 1 WBLR (Cal) 591. In that case it was held that any declaration of
the retiring employee to the effect that any excess payment may be recovered from his pensionary benefits is of no effect if such person had no role
to play in the State making such excess payment. The other decision is of a learned Judge rendered on 25 March, 2010 in a bunch of writ petitions the
first of which was WP No. 10885 (W) of 2008 (Sachindra Nath Maiti-vs.-The State of West Bengal & Ors.), which also supports the view that I
have taken in this judgment.
(18) In view of the aforesaid, no recovery could be made from the retiral benefits of the petitioner and withholding of the sum of Rs. 1,43,970/- was
clearly contrary to law.
(19) The only other question is that whether the writ petition should be entertained in spite of delay of about 11 years in approaching this Court. In a
judgment and order dated 6 September, 2010 delivered in MAT 1933 of 2010 a Division Bench of this Court held that although the petitioner had
approached the Court after a lapse of nine years, no third party right had accrued because of the delay and it was only the petitioner who suffered due
to non-payment of the withheld amount on account of alleged over-drawal. Accordingly the Division Bench set aside the order of the Learned Single
Judge by which the writ petition had been dismissed only on the ground of delay.
(20) Following the Division Bench judgment of this Court adverted to above, I hold that it is only the petitioner who suffered by reason of the wrongful
withholding of the aforesaid sum from his retiral benefits. Although there has been a delay of about 11 years in approaching this Court, the same has
not given rise to any third party right and allowing this writ application is not going to affect the right of any third party. It may also be noted that the
Hon’ble Apex Court observed in its decision in the case of Union of India-vs.-Tarsem Singh, (2008) 3 SCC 648 that relief may be granted to a
writ petitioner in spite of the delay if it does not affect the right of third parties.
(21) In view of the aforesaid, this writ petition succeeds. The concerned Treasury Officer is directed to release the amount of Rs. 1,43,970/- to the
petitioner along with interest at the rate of 6 per cent per annum with effect from the date of issuance of PPO. Such payment is to be made to the
petitioner within a period of 8 weeks from the date of communication of this order.
(22) WP No. 24231 (W) of 2017 is accordingly disposed of. There will, however, be no order as to costs.
(23) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
