The High Court of Calcutta, while allowing a petition filed by the petitioner to quash the impugned order dated 10.8.2016 issued by the sixth respondent and also seeking direction restraining the respondents from giving any effect or further effect of the order dated 10.8.2016, held that recovery at the fag-end of the career of an employee or after his superannuation is not at all permissible in law especially when the excess amount drawn and paid to the petitioner was without any fault of the petitioner.
Brief Facts:
The case of the petitioner is that he joined as a Copyist in the Judicial Department and retired from service on 31.10.2007. The arrear salary for the period from 1.4.2003 to 31.10.2007 to the tune of Rs.2.09 lakh was released and paid to the petitioner. By a letter, the Treasury Officer informed the sixth respondent that the petitioner is not entitled to the arrear salary on the basis of ROPA 2009. Further, although the Hon’ble Supreme Court had directed the State Government to revise the pay scale with effect from 1.4.2003, the Government of West Bengal did not consider such an aspect. Against the aforesaid backdrop, the issuance of the impugned order by the sixth respondent directing the petitioner to return the amount of overdrawn arrear salary to the tune of Rs.2.09 lakh is ex-facie bad. Hence, the writ petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that following the recommendation of the Shetty Commission, the pay of the petitioner was revised and, consequent thereto, arrear salary for the period from 1.4.2003 to 31.10.2007 was released and paid. Since the District Judge already acted upon the recommendation of the Shetty Commission and the order of the Hon’ble Supreme Court, the order of recovery of arrear salary is not sustainable in the eye of the law.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that violating the restriction of arrear in the ROPA 2009, the petitioner was allowed to draw arrear at the revised pay for the period from 1.4.2006 to 31.10.2007. He argued that for the aforesaid period, the petitioner was entitled to the benefit of Grade I post at unrevised pay prior to ROPA 2009 only. Therefore, the respondent authorities are right in issuing the impugned order.
Observations of the court:
The court noted that the entitlement of the revised pay and drawal thereof has been clearly proved by the petitioner and, therefore, there is no question of drawal of the excess amount by the petitioner.
The Court observed that recovery at the fag-end of the career of an employee or after his superannuation is not at all permissible in law. In the case on hand, the petitioner is a retired employee. The petitioner retired from service on 31.10.2007 and the impugned order of recovery of over-drawal of arrear salary was issued on 10.8.2016. The impugned recovery order cannot be issued after a long period of ten years from the date of retirement. The excess amount, if any, drawn and paid to the petitioner is without any fault of the petitioner. It is not on account of any misrepresentation made by the petitioner that the benefit of the higher pay scale was given to him.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the impugned direction of the Additional District Judge to return the amount of the alleged overdrawn arrear salary cannot be sustained in the eye of the law.
Case Title: Swapan Kumar Saha v. The State of West Bengal & Ors.
Coram: Hon’ble Mr. Justice M.V. Muralidaran
Case No.: W.P.A. No. 6976 of 2017
Advocate for the Petitioner: Mr. Indranath Mitra
Advocate for the Respondent: Mr. Wasim Ahmed
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