JUDGMENT
Biswanath Somadder, J.
1. Heard the learned Advocates appearing on behalf of the parties.
2. Initially when the matter was taken up on 29th June 2007, directions for affidavits were given. The matter was thereafter adjourned till 17th July, 2007. Subsequently, 2nd August, 2007, on the prayer of the learned Advocate appearing on behalf of the State, time to file affidavit-in-opposition was extended by a week. Today, the matter appears ‘For Orders’. Learned Advocate appearing on behalf of the State authorities submits that they have not used any affidavit-in-opposition. I am, therefore constrained to take up this matter and decide on the basis of the pleadings in the writ petition, which stand uncontroverted.
3. The writ petitioner was appointed as an approved clerk of a High School in the district of Birbhum and was serving there since 7th October, 1969. He retired from service on 31st January, 2007. He, thus, appears to have been in service for around 37 years.
4. Before his retirement, he requested the respondent authorities to finalise his pension papers, so that he could get his retiral dues immediately after his retirement. It appears from paragraph 4 of the writ petition that the school authority forwarded the pension papers to the pension sanctioning authority. It further appears that on 21st February, 2007, three weeks after he had retired, the Headmaster handed over to the writ petitioner an objection raised by the Deputy Director of Accounts, Birbhum regarding the settlement of pension of the writ petitioner. A copy of the said document, being a Verification Report of pay and provident fund of the writ petitioner, issued by the Deputy Director, Directorate of Accounts, Government of West Bengal, School Education Department, Birbhum, is annexed at page 31 of the writ petition. It appears that the Deputy Director, Birbhum, issued this Verification Report on 5th February, 2007, which was after the writ petitioner retired from service on 3lst January, 2007. The school, thereafter, wrote to the writ petitioner on 9th March, 2007 with regard to the said Verification Report and requested the writ petitioner to give a reply and also reminded the writ petitioner to give his opinion against the overdrawn amount for the period indicated in the Verification Report.
5. It appears from the Verification Report of the Deputy Director, Birbhum dated 5th February, 2007, that from 7th October, 1969 till 1st April, 2006, adjustments are shown to have been made upon reflxation of pay of the writ petitioner. There is an observation in the Verification Report which runs as follows:
As the employee H.S (old) failed, the pay is to be refixed as follows:
6. It thus appears from the said Verification Report that the Deputy Director, Directorate of Accounts, School Education Department, Birbhum, has refixed the pay of the writ petitioner on and from 7th October, 1969 till 1st April, 2006, on 5th February, 2007, i.e., after the writ petitioner retired from service on 31st January, 2007.
7. According to the learned Advocate appearing on behalf of the writ petitioner, his client was given his usual pay, right from the date of his joining, i.e. 7th October, 1969 till the date of his retirement, i.e. 31st January, 2007 without any adjustment or reflxation in the intervening period of around 37 years. He submits that no demand whatsoever was ever raised or any notice given by the respondent authorities during his client’s entire service career of over thirty-seven years, with regard to refund of any excess amount of pay.
8. According to the learned Advocate for the petitioner the Hon’ble Supreme Court in the case of Shyam Babu Verma and Ors. v. Union of India and Ors. , has considered it just and proper to direct the concerned authority not to recover any excess amount from the writ petitioners which had already been paid to them by way of their getting a higher scale of pay, since it was due to no fault, of theirs. The Hon’ble Supreme Court, further directed that no steps were to be taken to recover or to adjust airy excess amount paid to the petitioners, due to the fault of the respondents, the petitioners being in no way responsible for the same. According to the learned Advocate for the petitioner, the decision of the Hon’ble Supreme Court is squarely applicable in the facts and circumstances of the present case.
9. Learned Advocate for the petitioner further relies on another Judgment of the Hon’ble Supreme Court, in the case of Bhagwan Shukla v. Union of India and Ors. . He specifically relies on paragraph 3 of the said judgment wherein it has been he by the Hon’ble Supreme Court that the reduction of basic pay of the appellant after twenty-one years meant that the appellant had obviously been visited with civil consequences, but was granted no opportunity to show cause against the reduction of his basic pay. The Hon’ble Supreme Court in the said judgment had further held that he (appellant) was not put on any notice before his pay was reduced and the order came to be made behind his back without following any procedure known to law. The Hon’ble Supreme Court thus observed that there had been a flagrant violation of principles of natural justice and the appellant had been made to suffer huge financial loss without being heard. The Hon’ble Supreme Court further observed that fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. The Hon’ble Supreme Court, on these facts and circumstances, set aside the impugned order.
10. Learned Advocate appearing on behalf of the petitioner also relies on a judgment of this Court in the case of Kalyan Kumar Chattopadhyaya v. State of West Bengal and Ors. reported in 2006(1) WBLR (Cal) 591. In the said judgment, Jyotirmay Bhattacharya, J. while relying on the decision of the Hon’ble Supreme Court in the case of Shyam Babu Verma (supra) inter alia held as follows:
The subsequent decision of the Hon’ble Supreme Court in the case of V. Gangaram v. Regional Joint Director and Ors. (supra), cannot be held to be a good law inasmuch as the principle as laid down in the earlier decision of the larger Bench of the Hon’ble Supreme Court in the case of Shaym Babu Verma v. Union of India (supra), as aforesaid, was not considered.
Here in the instant case, the respondent has not come out with a case that the petitioner is in any way responsible for erroneous fixation of his pay scale. The pay scale of the petitioner was revised from time to time. Such revision was not only noted in the service book but also authenticated by the appropriate authority.
Standard of living of every person rises with the increase of his income. Thus, whatever additional benefits a person received by way of increment in his salary during his service period, are all normally spent with the rise of his standard of living. The retired person cannot subsequently recover the said amount from the person to whom such payment was made in lieu of the benefits which he received therefrom.
Thus, if this equitable consideration is taken into account, then it should be held that the respondents who are at fault, should not be allowed to recover the said amount from the retiral benefits, of a retired person. That apart, the question of limitation, estoppel etc. are also relevant consideration which all stand in the way of such recovery.
Under such circumstances, by following the decisions of the Hon’ble Supreme Court which were cited by Mr. Bhattacharya as aforesaid, this Court holds that when such, excess payment was made to the petitioner due to admitted fault on the part of the respondents, the respondents cannot recover the said excess amount by way of adjustment from the retiral dues of the petitioner.
11. Learned Advocate for the petitioner relies on another Judgment of this Court rendered in the case of Kamala Kant Jha v. State of West Bengal reported in 2005(1) CHN 54. In this judgement, Jyotirmay Bhattacharya, J. again follows the ratio of the decision of Hon’ble Supreme Court in the case of Shyam Babu Verma (supra), an holds as follows:
In such view of the matter, even if it is found that such pay fixation was made erroneously be the authorities concerned and any overdrawal was made by the petitioner on account of such erroneous pay fixation, such overdrawal cannot be adjusted and/or realized from the retiral benefits of the petitioner by the respondents….
12. Relying on the aforementioned pronouncements, learned Advocate appearing on behalf of the writ petitioner submits that in the facts of the instant case, where the writ petitioner had joined service in the year 1969 and retired in January, 2007, all of a sudden, after his retirement on 31 January, 2007, cannot be visited with civil consequences in the form of adjustments by way of reflxation of salary, right from 1969 till 2006, without giving him any notice whatsoever during the entire period of thirty-seven years of his service career. The learned Advocate submits, in the facts and circumstances, the prayer of his client as made in the writ petition, be allowed.
13. On the other hand, the learned Advocate appearing on behalf of the State respondents relies on a Judgment of the Hon’ble Supreme Court in the case of V. Gangaram v. Regional Joint Director and Ors. reported in 1997(6) SCC 139. Relying on the aforementioned judgment of the Hon’ble Supreme Court she submits that there is no embargo and/or fetter on the part of the concerned authorities to recover the excess amount paid by mistake. She thus submits that her clients are entitled in law to recover and/or adjust such excess amount paid by mistake to the writ petitioner.
14. Having considered the submissions made on behalf of the parties, I am of the opinion that the Hon’ble Supreme Court in the case of Shyam Babu Verma (supra) has clearly laid down that if a person has received a higher scale of pay, due to no fault of his own, and subsequently the said scale is reduced with retrospective effect by the concerned authorities, no steps can be taken to recover or to adjust any excess amount paid to that person due to the fault on the part of the State authorities, since that person is in no way responsible for the same.
15. That apart, the Hon’ble Supreme Court in Bhagwan Shukla’s case (supra) has specifically held that in a situation where a person’s basic pay was wrongly fixed initially and thereafter reduced with retrospective effect, the position having been allowed to continue for twenty years due to administrative lapses, it is obvious that he was visited with civil consequences and was granted no opportunity to show cause against the reduction of his basic pay and the impugned Memorandum was accordingly set aside. The Hon’ble Supreme Court also held that the person concerned was not even put on notice before his pay was reduced by the department and that there had been a flagrant violation of the principles of natural justice and the person was made to suffer huge financial loss without being heard.
16. Thus, the ratios of the two aforementioned decisions of the Hon’ble Supreme Court are wholly applicable in the facts of the present case.
17. The judgments delivered by this Court in the case of Kalyan Kumar Chattopadhyay and Kamala Kant Jha are reiteration of the same principles of law as laid down by the Hon’ble Supreme Court. In my view, in the facts of the instant case, both judgments of this Court are also squarely applicable. Moreover, the Hon’ble Supreme Court’s decision in V. Gangaram’s case has also been distinguished by this Court in the case of Kamal Kumar Chattopadhyay.
18. So far as the Judgment of Hon’ble Supreme Court, as cited by the learned Advocate for the State respondents, is concerned, I am of the opinion that the Hon’ble Supreme Court in V. Gangaram’s case (supra) was dealing with entirely different factual situation. In that case, appellant was originally appointed as a Teacher/Headmaster in a private aided school on 9th November, 1959, in a particular scale of pay. After passing Secondary Grade Degree Training Examination in the year 1967, he was granted a higher scale of pay with effect from 18th December, 1967. The appellant thereafter went on improving his educational qualifications and the authorities went on giving revision of the pay scale granting advance increments as and when he acquired the qualification on the pay scale applicable at the relevant time. The impugned proceedings were issued to recover the excess amount paid to him on the premise that he was not entitled to more than two advance increments. The Tribunal had dismissed the petition. Appeal was filed by way of special leave. The Hon’ble Supreme Court, in that case, considered two Government Circulars/Memos dated 13th September, 1977 and 17th November, 1986 and held that they were wrongly applied by the authorities and on the factual basis thereof held that the appellant was entitled to only two additional increments, namely one increment for MA and thereafter one for M. Ed. In those facts, the Hon’ble Supreme Court held that the appellant was not entitled to the four increments, as successively claimed and that he was entitled to only two increments. The Hon’ble Supreme Court, in the facts of that case, directed that arrears paid prior to 1985 were not to be recovered and excess amount from 1985 was liable to be recovered from the pension payable to the appellant. It, therefore, appears that the judgment of the Hon’ble Supreme Court in V. Gangaram s case was rendered in a totally different factual context and therefore not at all applicable in the facts and circumstances of the present case.
19. In view of the foregoing discussion, I am of the opinion that the writ petitioner is entitled to the following reliefs:
(I) The Verification Report dated 5th February, 2007 issued by the Deputy Director, Directorate of Accounts, Government of West Bengal, School Education Department, Birbhum, stands quashed.
(II) Respondent No. 3, being the District Inspector of Schools (SE), Birbhum, is directed to immediately process the pension papers of the writ petitioner taking his last pay into consideration and to ensure that his pension papers are made ready as expeditiously as possible.
(III) Respondent No. 5, being the Director of Pension, Provident Fund & Group Insurance, is directed to take immediate steps upon receipt of the pension papers from the office of the respondent No. 3 and to process the same and issue necessary pension payment order in favour of the writ petitioner.
The directions given hereinabove shall have to be completed within a period of twelve weeks from the date of communication of this order.
20. So far as the prayer for interest for delayed disbursement of the retirement dues of the writ petitioner is concerned, I am not going into this aspect at all and the same is kept open.
This writ application stands allowed to the extent as indicated above. There shall be, however, no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties.
Biswanath Somadder, J.