Debasish Kar Gupta, J.@mdashLet the affidavit of service be kept on record. This writ application is filed by the petitioner assailing the action of the respondent authorities in deducting a sum of Rs. 1,43,497/- from his terminal benefits arising out of his service as an assistant teacher of Paschim Sripatinagar Dr. B.C. Memorial Vidyapith, District South 24 Parganas on the ground of alleged overdrawal during the tenure of his service.
2. Since a point of law is required to be decided on the basis of the materials available on record this matter is taken up for final hearing. Let it further be recorded that on the prayer made on behalf of the petitioner the issue regarding recovery of alleged overdrawal from the terminal benefits of the petitioner is taken up for consideration of this case. The issue of re-fixation of the pay of the petitioner has not been considered in this case on its merit and it will be open for the petitioner to take steps in respect of the above issue afresh, if it is so advised.
3. The ''fact of the case is a nut shell is as follows:--
4. The appointment of the petitioner in the post under reference was approved by the respondent No. 3 with effect from February 26, 1982 under its memo No. 60/DH/S dated June 8, 1982. The petitioner retired from the above services with effect from November 1, 2010 on attaining the age of retirement on superannuation. The Pension Payment Order has been issued in his favour by the respondent authorities on September 3, 2013 (Annexure P/4 at page 47 of the writ application). It appeared from the Pension Payment Order that a sum of Rs. 1,43,497/- had been deducted on the ground of alleged overdrawal during the tenure of his service.
5. It is the settled proposition of law that no amount of money can be deducted from the terminal benefits of the petitioner on the ground of overdrawal provided there was fault and/or laches on his part. Reference may be made to the decision of
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1913, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
6. The above issue was taken up by the Hon''ble Supreme Court once again in the matter of
"59. Para-12. Later, a three-Judge Bench in Syed Abdul Qadir Case, after referring to Shyam Babu Verma, Col. B.J. Akkara, etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case (supra).
"Undoubtedly, the excess amount that has 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. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and'' to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. "(emphasis added)" Para-15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered."
7. Relying upon the above settled proposition of law a Division Bench of this High Court delivered a judgment dated September 9, 2013 in the matter of State of West Bengal & Ors. v. Asis Das Gupta (In re: W.P.S.T. 216 of 2013) and the relevant portion of the above decision is quoted below:--
''The learned Tribunal passed the impugned order upon placing reliance on a three-Judge Bench judgment of the Supreme Court in the case of Shyam Babu Verma & Ors. v. Union of India & Ors. (supra) which has been consistently followed by the Supreme Court in the subsequent decisions including the decisions cited on behalf of the petitioners herein. The aforesaid three-Judge Bench judgment in the case of Shyam Babu Verma & Ors. v. Union of India & Ors. (supra) is operative and binding till today since the said decision has not yet been overruled by the Supreme Court in any subsequent decision. The learned Tribunal, therefore, committed no error by allowing the prayer of the applicant namely, the respondent herein, upon placing reliance on the aforesaid decision of the Supreme Court in the case of Shyam Babu Verma & Ors. v. Union of India & Ors. (supra).
For the reasons discussed hereinabove, we do not find any merit in the present writ petition. Therefore, we affirm the decision of the learned Tribunal and dismiss this writ petition without awarding any costs."
8. In view of the above settled proposition of law, I direct the respondent authorities to release the aforesaid overdrawal amount of Rs. 1,43,497/- to the petitioner within two months from the date of communication of this order provided there was no fault and/or laches and/or misrepresentation and/or fraud on the part of the petitioner.
9. It is made clear that in the event the petitioner is not entitled to get the above benefit on the basis of the observations made hereinabove the respondent authorities shall communicate the reasons therefore to the petitioner within the period mentioned hereinabove and after giving an opportunity of hearing to the petitioner.
10. This writ petition stands disposed of.
11. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
