BISWANATH SOMADDER,J. - (1.) The only issue that falls for consideration in the facts of the instant case is whether deduction of any amount from the pensionary benefits being received by the writ petitioner is permissible in law in the absence of any misrepresentation made by the petitioner in order to receive any excess amount paid to him whilst in service, particularly when no fraud has been alleged to have been practiced by the writ petitioner in order to receive such excess amount.
(2.) In the facts of the instant case, the writ petitioner was in service under the Directorate of Panchayats and Rural Development, Government of West Bengal since 3rd January, 1963. He ultimately retired from service on 30th September 2005, as Muhurrir Grade-I. After three years from the date of his retirement, an order was issued on 20th October 2008, by the Commissioner, Panchayats and Rural Development, West Bengal, whereby it was held, inter alia, that the petitioner was promoted erroneously to officiate as Muhurrir Grade-II and as such a promotion order dated 3rd December, 1976, stood cancelled by the order dated 20th October 2008. Consequently, an amount of Rs. 1,23,870/- has been recovered from the pensionary account of the writ petitioner on account of overdrawal of pay and allowances. A memo to this effect was issued by the Senior Accounts Officer/Assistant Accountant General dated 5.4.2010, addressed to the Commissioner, Panchayats and Rural Development, Government of West Bengal. The writ petitioner has challenged such recovery of alleged overdrawal of pay and allowances.
(3.) The law relating to recovery of excess payment from the pensionary accounts of former employees of the State has been quite well settled. Such recovery is generally prohibited by Courts when there is absence of any misrepresentation or fraud on the employee's part and excess payment has been made by applying a wrong principle or wrong interpretation of a rule/order. Such relief is granted not just because the employee has any right, but because the Courts exercise its equity jurisdiction so as to avoid hardship to an employee who is not at fault. In this context one may take notice of the judgment rendered by the Supreme Court in the case of (Syed Abdul Quadir and Ors. v. State of Bihar and Ors.) reported in 2009(3) SCC 475 and also a judgment of this Court rendered in the case of (Sk. Md.Zakeria v. The State of West Bengal and Ors.) reported in 2008(1)CLJ (CAL) 190.;