J. Bhattacharya, J. - (1.) The Petitioner herein, who was an assistant teacher of Bhogpur K.M. High School in the District of Purba Medinipur, retired from service on superannuation with effect from 30th November, 2003. At the time of settlement of the retiral dues of the Petitioner, it was detected by the Joint Director of Accounts that the Petitioner was paid his salary in excess of his entitlement during the tenure of his service due to wrong pay fixation. Accordingly, the pension papers, which were submitted to the District Inspector of Schools by the School Authority prior to the retirement of the Petitioner, were all returned to this school for resubmission of the pension papers after recasting the pay structure of the Petitioner, and also for assessment of the amount overdrawn by the Petitioner during the tenure of his service. The Head Master of the said school, accordingly, recast the pay structure of the Petitioner and calculated overdrawal amount and then resubmitted the entire paper to the office of the District Inspector of Schools for processing the pension papers of the Petitioner so that the retiral benefits can be given to the Petitioner immediately after his retirement. It was, thus, detected that the sum of Rs. 53,810/ - was overdrawn by the Petitioner in excess of his entitlement towards his salaries during the tenure of his service. On the basis of such resubmitted papers, the Director of Pension, Provident Fund and Group Insurance issued a pension payment order on 10th November, 2003. It appears from the said pension payment order that the said overdrawn amount of Rs. 53,810/ - was adjusted against the death -cum -retiring gratuity of the Petitioner. The Petitioner is aggrieved, as the said amount of Rs. 53,810/ - was recovered from the Petitioner from his retiral dues. Hence he has filed the instant writ petition before this Court.
(2.) The question as to whether such overdrawal amount in pay can be recovered from a retired person from the retiral dues after his retirement, has already been decided by this Hon'ble Supreme Court in the case of Shyambabu Varma v/s. Union of India, reported in : 1994(2) SCC 521 wherein it was held that if a retired person had no hand either in the process of the fixation of pay or further payment, the overdrawal amount cannot be adjusted and/or realized from the retiral benefits of such retired person after his retirement. It was further held that such recovery of overdrawal in pay from the retiral benefits of a retired person after his retirement is possible only when it is found that such payment was made due to erroneous pay fixation by the authority and such error in fixation of the pay scale was resulted due to any fraudulent misrepresentation made by the Petitioner relating to his entitlement of higher pay scale.
(3.) It is not the case of the State Respondents that the Petitioner had any role in the process of erroneous pay fixation and as a result, he enjoyed higher scale of pay though he was not otherwise entitled to. Thus, this Court holds that if the Petitioner was not responsible for such erroneous pay fixation then the recovery of the excess payment made to him during the tenure of his service from his retiral dues, is not permissible. As such deduction of such excess payment from the retiral dues of the Petitioner on the face of it, is illegal. The learned advocate, appearing for the State Respondents, tried his best to justify the action of the State Respondents in this regard. She submits that the dispute which is involved in the writ petition cannot be decided by applying the principle which was laid down by the Hon'ble Supreme Court in the case of Shyambabu Varma v/s. Union of India reported in : 1994(2) SCC 521 (Supra) as in the instant case recovery of the excess payment was made by this State Respondents before the retirement of the Petitioner. She, thus, contended that since the excess amount was recovered from the Petitioner before his retirement, the Petitioner cannot complain against such recovery.;