Samapti Chatterjee, J. - (1.) The petitioner has filed the present writ petition assailing the decision of the Director of School Education, West Bengal passed on 14th/17th December, 2009 thereby holding that the petitioner is liable to refund Rs. 1,40,840/- as per the direction of Director of Pension and Provident Fund and Group Insurance under memo dated 16.05.2006, the pension payment order.
(2.) The petitioner's case in a nutshell is as follows:- That the petitioner was appointed as an Assistant Teacher on 3rd May, 1967 at Jote Shibrampur, Shikshaniketan under District-South 24 Parganas (hereinafter referred to as the said School). After 39 years of service upon attending the age of superannuation the petitioner retired from his service on 1st June, 2006. It is revealed that pay of the petitioner was time to time refixed by the respondent no.3 the District Inspector of School (S.E) South 24- Parganas. On 16th May, 2006 the Pension Payment Order was issued wherefrom it revealed that a sum of Rs. 1,40,840/- had been shown as overdrawn amount. Further the pension of the petitioner was sanctioned under a lesser pay scale that was allowed to the petitioner when he was in service. It is submitted that during his service tenure the petitioner was never informed regarding the wrong fixation of the petitioner's pay scale by the authority. Unfortunately, after retirement from the pension payment order the petitioner came to know that a sum of Rs. 1,40,840/- has been deducted towards the overdrawn amount. The petitioner made representation before the authority thereby ventilating his grievances. Since the authorities were sitting tight over the petitioner's representation, therefore, without finding any alternative the petitioner approached this Hon'ble Court thereby filling a writ petition being W.P 7034 (W) of 2008. That writ petition was disposed of by this Hon'ble Court on 15th May, 2008 thereby directing the Director of School Education, West Bengal to dispose of the petitioner's representation by passing a reasoned order in accordance with law within eight weeks after giving an opportunity of hearing to the petitioner. Pursuant to the said order the hearing was held by the Director of School Education, West Bengal. On the basis of such hearing the impugned order was issued by the said Director of School Education thereby holding that the authority is entitled to recover from the petitioner's gratuity amount a sum of Rs. 1,40,840/-which has been wrongly overdrawn by the petitioner. Submissions of the Learned Advocates
(3.) Mr. Ekramul Bari, learned Advocate appearing for the petitioner submitted that it is trite law as laid down by the Hon'ble Supreme Court in catena of decisions which has been followed by the Hon'ble Division Bench as well as the Hon'ble Single Bench of this Hon'ble Court in several matters., that recovery from the retired employees is impermissible, which however, has been done in the instant case. In support of his contention learned Advocate for the petitioner relied on the decisions reported in 1994 (2) SCC 521 (Shyambabu Verma and Ors v. Union of India and Ors) and 2009 (3) Supreme Court Cases 475 (Syed Abdul Qadir and Ors v. State of Bihar and Ors ). He also relied on a latest Supreme Court decision reported in 2015 (1) Supreme Today 671 (State of Punjab and Ors. v. Rafiq Masih (White Washer) etc.) Paragraph 12 at pages 19 and 20 of the aforesaid decision is quoted below:- Para-12-It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payment have mistakenly been made by the employer, in excess of their entitlement. Be that it may, bases on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, herein 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.;