Calcutta High Court (Appellete Side)State Of West Bengal & Ors vs Asis Das Gupta on 9 September, 2013Author:Pranab Kumar ChattopadhyayBench:Pranab Kumar ChattopadhyayIN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE

Present :
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Murari Prasad Srivastava.



                           W.P.S.T. No 216 of 2013
                          State of West Bengal & Ors.
                                 Versus.
                            Asis Das Gupta.


For the Petitioners:             Mr. Bimal Kr. Chatterjee, Ld. Advocate General,
                                 Mr. Joyotosh Mazumdar,
                                 Mr. Arindam Mandal.


For the Respondent:              None.Heard On :                                      29.08.2013.


Judgment On:                                    09.09.2013



Pranab Kumar Chattopadhyay. J.This writ petition has been filed by the State of

West    Bengal   and      the    senior    officers       of   the   State

Government challenging the judgment and order dated 22nd

February,    2012      whereby   the     West    Bengal   Administrative
 Tribunal      finally       disposed    of    application       filed     by   the

respondent herein by directing the authorities concerned

namely, the petitioners herein to make arrangement for

refund of Rs. 41,244/- to the respondent herein since the

said amount was recovered from the retiral benefit on the

ground of excess payment.Despite service of notice none appears on behalf of

the     respondent.         The   learned       Tribunal        following      the

decision of the Supreme Court in the case ofShyam Babu

Verma    &    Ors.    Vs.     Union    of    India    &    Ors.,   reported in

(1994)2 SCC 521 held that the aforesaid amount of Rs.

41,244/- cannot be recovered from the retiral benefit of

the employee concerned namely, the respondent herein and

therefore, directed the petitioners herein to refund the

said amount of Rs. 41,244/- to the employee concerned.The learned Advocate General appearing on behalf of

the     petitioners         submitted       that     the    learned      Tribunal

committed an error by not considering Rule 140 of the

West     Bengal       Services        (Death-cum-Retirement              Benefit)

Rules,       1971    which,    according       to    the    learned      Advocate

General, specifically provides for recovery of government

dues     from       retiring      government         servant.      The    learned

Advocate General also relied upon the following decisions

in support of his arguments :-1.    "Comptroller & Auditor General of India & Ors.Vs. Farid Sattar, reported in (2000) 4 SCC 13.2.Union of India & Ors. Vs. Sujatha Vedachalam
           (Smt)& Anr., reported in (2000)9 SCC 187.3.    Col. B.J. Akkara (Retd.) Vs. Government of
           India & Ors., reported in (2006) 11 SCC 709.4.Videsh Sanchar Nigam Ltd. & Anr. Vs. Ajit Kumar
           Kar & Ors., reported in (2008) 11 SCC 591.5.Union of India Vs. S. R.          Dhingra    &   Ors.,
           reported in (2008) 2 SCC 229.6.Chandi Prasad Uniyal & Ors. Vs. State of
           Uttarakhand & Ors., reported in (2012)8 SCC 4177.State of Haryana & Ors. Vs. Vijay Singh & Ors.,
           reported in (2012)8 SCC 633.8.The Calcutta Municipal Corporation & Ors. Vs.
           Rukhsana Anjum, reported in 2008(2)CLJ(Cal)887.9.    Fibrosa Spolka Akcyjna Vs. Fairbairn Lawson
           Combe Barbour, Ltd., reported in [1942] 2 All
           E.R. 122."Let us now consider whether the Rule 140 of the West

Bengal    Services   (Death-cum-Retirement   Benefit)       Rules,

1971 is at all applicable in the facts of the present

case. The said Rule 140 is set out hereunder :-"Recovery of Government dues.- (1) It
              shall be the duty of every retiring
              Government   servant   to  clear   all
              Government dues before the date of his
              retirement.Compiler's Note : *Power of Audit
              Officer under this sub-rule has been
              restricted consequent on issue of F.D.
              Memo, No. 10000 dated 13.9.82 under
                  which concurrence of Finance Deptt, is
                 required in case of continuance of
                 Provisional   pension   be   12  months.
                 Compare with Compiler's Note at page 88.(2) where a retiring Government servant
                 does not clear Government dues and these
                 are ascertainable an equivalent cash
                 deposit may be taken from him, or, out
                 of the gratuity payable to him an amount
                 equal to that recoverable on account of
                 ascertainable Government dues, such as,
                 balance of House Building or Conveyance
                 Advance, arrears of rent and other
                 charges pertaining to occupation of
                 Government accommodation, overpayment of
                 pay and allowance and arrears of income-tax deductible at source under theIncome Tax Act,1961(43 of 1961) shall
                 be deducted there from".In terms of Rule 140 (1) it shall be the duty of

every retiring government servant to clear all government

dues before the date of his retirement.In the present case, the employee concerned retired

from service on attaining the age of superannuation on

31/01/2007. The petitioner no. 4 issued a letter on 22nd

March, 2007 to the Principal Accountant General (A & E)

West    Bengal      revising    and   refixing   the    pay   of   the

respondent     at    Rs.   7200/-     with   effect    from   01/04/02

instead   of     7600/-.   By   the   said   written    communication

petitioner no. 4 also informed the Principal Accountant

General (A & E) that a sum of Rs. 41,244/- is to be
 recovered from the pensionary benefit of the respondent

herein for overdrawal of pay and allowances with effect

from 01/04/02 to 31/01/07. The petitioner no. 4 herein

revised       and        refixed    the    pay    scale    of    the    employee

concerned long after his retirement on 22nd March, 2007.

Therefore, it cannot be said that the respondent herein

being    a     retiring       government         servant   failed       to   clear

government dues before the date of his retirement since

on the date of retirement authorities concerned did not

revise       the    pay     scale    of    the    respondent      employee     and

determine          the    overdrawal      amount.    From       the    government

records it does not appear that on the date of retirement

of the respondent herein any amount was due and payable

to the State Government by the respondent herein.In    the        aforesaid     circumstances,          the     respondent

herein had no occasion to clear any government dues since

on the date of retirement nothing was due to the State

Government from the respondent herein. Therefore, Rule

140 (1) has no manner of application in the facts of the

present case. The Sub-Rule 2 of Rule 140 also cannot be

made applicable in the facts of the present case for the

identical          reasons    since       it   cannot     be    said    that   the
 respondent herein being a retiring government servant did

not clear government dues on the day of retirement.For the aforementioned reasons, we hold that Rule

140   of    the       West       Bengal      Services        (Death-cum-Retirement

Benefit)        Rules,       1971      has    no   manner      of    application     in

respect of the respondent employee herein.The       decisions         of   the     Supreme       Court    cited    by   the

learned Advocate General in the case ofComptroller &

Auditor General of India & Ors. Vs. Farid Sattar(supra),

Union      of    India       &    Ors.       Vs.   Sujatha      Vedachalam     (Smt)&

Anr.(supra) and State of Haryana & Ors. Vs. Vijay Singh &

Ors.(supra) have no manner of application in the facts of

the     present       case        since       in   the       aforesaid    decisions,

Hon'ble Supreme Court had no occasion to consider the

recovery         of    any        amount       from      a    retired     government

employee.In        the    case       of     Col.      B.J.      Akkara     (Retd.)Vs.

Government of India                & Ors.(supra), Hon'ble Supreme Court

relied on the earlier decision of the three Judge Bench

of the said Supreme Court in the case ofShyam Babu Verma

& Ors. Vs. Union of India & Ors.(supra) and specifically

observed that the pensioners can seek a direction that

wrong       payments         should       not      be   recovered.       The   Hon'ble

Supreme Court however, permitted the Union of India to
 recover    the   excess    amount    from    the   pensioners   from     a

particular date when clarificatory circular was issued

and pensioners were put on notice in regard to the wrong

calculations. Paragraph 29 of the aforesaid decision is

set out hereunder :-"On the same principle, pensioners
                  can also seek a direction that wrong
                  payments should not be recovered, as
                  pensioners      are      in      a     more
                  disadvantageous       positioin        when
                  compared to in-service employees. Any
                  attempt   to    recover     excess    wrong
                  payment would cause undue hardship to
                  them. The petitioners are not guilty
                  of any misrepresentation or fraud in
                  regard to the excess payment. NPA was
                  added to minimum pay, for purposes of
                  stepping    up,    due     to    a    wrong
                  understanding by the implementing
                  departments. We are therefore of the
                  view that the respondents shall not
                  recover any excess payments made
                  towards pension in pursuance of the
                  circular dated 7-6-1999 till the
                  issue of the clarificatory circular
                  dated   11-9-2001.     Insofar     as   any
                  excess    payment    made      after    the
                  circular dated 11-9-2001, obviously
                  the Union of India will be entitled
                  to recover the excess as the validity
                  of the said circular has been upheld
                  and as pensioners have been put on
                  notice   in   regard     to    the    wrong
                  calculations earlier made".The    learned       Advocate    General      relied    upon      the

decision    ofUnion     of   India      Vs.    S.   R.   Dhingra     &

Ors.(supra) which in our opinion cannot be of any help to
 the petitioners herein since the Hon'ble Supreme Court in

the aforesaid judgment specifically held :-"However, any amount already
                     paid to the respondents and other
                     similarly situated persons shall not
                     be recovered from them."The learned Advocate General heavily relied on the

decision     of    the       Supreme     Court      in    the    case    ofChandi

Prasad      Uniyal       &    Ors.     Vs.        State    of     Uttarakhand        &

Ors.(supra).In the aforesaid decision, Hon'ble Supreme

Court specifically accepted the earlier view of the three

Judge Bench of the Supreme Court in the case ofSyed

Abdul Quadir Vs. State of Bihar, reported in (2009) 3 SCC

475 and also in the case of Col. B.J. Akkara (Retd.)Vs.

Government of India               & Ors.(supra).In the case ofSyed

Abdul    Quadir      Vs.     State     of    Bihar(supra),   three         Judge

Bench of the Supreme Court affirmed the earlier three

Judge Bench decision of the Supreme Court in the case ofShyam      Babu    Verma      &   Ors.      Vs.    Union    of    India       &   Ors.(supra)and        Col.   B.J.     Akkara      (Retd.)Vs.   Government         of

India      & Ors.(supra).The decisions of the Supreme Court in the case ofChandi Prasad Uniyal & Ors. Vs. State of Uttarakhand &

Ors.(supra)will also not support the arguments advanced

by   the    learned      Advocate        General     specially          in    view   of
 Paragraphs 12 and 15 ofthe said judgment. The paragraphs

12 and 15 are set out hereunder :-"Para-12.   Later, a three-Judge Bench inSyed
       Abdul QadirCase, after referring to Shyam
       Babu Verma, Col. B. J. Akkara, etc.restrained
       the department from recovery of excess amount
       paid, but held as follows: (Syed Abdul Qadircase, SCC pp. 491-92, para 59)

                  "59. Undoubtedly, the excess
             amount that has been paid to the
             appellant teachers was not because of
             any misrepresentation or fraud on
             their part and the appellants also
             had no knowledge that the amount that
             was being paid to them was more than
             what they were entitled to. It would
             not be out of place to mention here
             that the Finance Department had, in
             its counter-affidavit, admitted that
             it was a bona fide mistake on their
             part. The excess payment made was the
             result of wrong interpretation of the
             Rule that was applicable to them, for
             which the appellants cannot be held
             responsible.    Rather,    the    whole
             confusion was because of inaction,
             negligence and carelessness of the
             officials concerned of the Government
             of Bihar. Learned counsel appearing
             on behalf of the appellant teachers
             submitted   that   majority    of   the
             beneficiaries have either retired or
             are on the verge of it. Keeping in
             view    the   peculiar     facts    and
             circumstances of the case at hand and
             to   avoid   any   hardship    to   the
             appellant teachers, we are of the
             view that no recovery of the amount
             that has been paid in excess to the
             appellant    teachers     should     be
             made."(emphasis added)

             "Para-15.We are, therefore, of the
             considered  view  that  except  few
                instances pointed out inSyed Abdul
               Qadircase and in Col.B. J. Akkara
               case, the excess payment made due to
               wrong/irregular   pay  fixation  can
               always be recovered."The   learned   Advocate     General   also   referred     to   a

passage from Fibrosa Spolka Akcyjna Vs. Fairbairn Lawson

Combe   Barbour,   Ltd.(supra).    The   said   passage   has   been

quoted at page 138 of the aforesaid decision which is

reproduced hereunder :-"This, I think, was the view of
               VISCOUNT HALDANE, L.C., speaking for
               the Judicial Committee inRoyal Bank
               of Canada Vs. R.(36), at p.296. He
               said :It     is    a    well-established
               principle of the English common law
               that when money has been received by
               one person which in justice and
               equity belongs to another, under
               circumstances     which    render    the
               receipt of it a receipt by the
               defendant     to   the   use   of    the
               plaintiff, the latter may recover as
               for money had and received to his
               use. The principle extends to cases
               where the money has been paid for a
               consideration that has failed. It
               applies, as was pointed out by BRETT,
               L. J., in Wilson v. Church (24) [at
               p.49] when money has been paid to
               borrowers in consideration of the
               undertaking of a scheme to be carried
               into    effect   subsequently   to   the
               payment     and   which    has    become
               abortive. The lender has in         this
               case a right to claim the return of
               the money in the hands of the
               borrowers as being held to his use."The aforesaid principle of English Common Law has no

manner of application in the facts of the present case

since we are only concerned whether any excess payment

can be recovered from a retired government servant.The    learned          Advocate    General          desperately         raised

another objection with regard to the maintainability of

the application before the learned Tribunal referring toSection      21of    the    West    Bengal      Administrative          Tribunal

Act,   1985.       The    respondent       employee         in   the    application

filed before the learned Tribunal specifically declared

that   the        said   application          was    within       the     period       of

limitation as prescribed underSection 21of the West

Bengal Administrative Tribunal Act, 1985.The learned Advocate for the State did not raise any

objection before the learned Tribunal with regard to the

maintainability          of     the    application.         Therefore       at       this

belated      stage,       we     are    not     inclined          to    decide       the

aforesaid         objection       raised      on     behalf        of     the    State

Government         since        the     issue        with        regard     to        the

maintainability           should       have     been      raised        before        the

learned Tribunal at the first instance and not before

this   court       after       disposal    of       the   application           by    the
 learned Tribunal on merits in presence of the learned

advocate of the State Government.We are, therefore, not inclined to decide the issue

with   regard      to   the   maintainability   of   the   application

before the learned Tribunal at this stage after final

disposal of the said application on merits by the learned

Tribunal.The learned Tribunal passed the impugned order upon
placing reliance on a three-Judge Bench judgment of the
Supreme Court in the case ofShyam Babu Verma & Ors. Vs.
Union of India & Ors.(supra) which has been consistently
followed by the Supreme Court in the subsequent decisions
including   the  decisions   cited   on  behalf  of   the
petitioners herein.The aforesaid three-Judge Bench
judgment in the case ofShyam Babu Verma & Ors. Vs. Union
of India & Ors.(supra)is operative and binding till
today sincethe said decisionhas not yet been overruled
by the Supreme Court in any subsequent decision.The
learned Tribunal, therefore, committed no error by
allowing the prayer of the applicant namely, the
respondent herein, upon placing reliance on the aforesaid
decision of the Supreme Court in the case ofShyam Babu
Verma & Ors. Vs. Union of India & Ors.(supra).For   the   reasons     discussed   hereinabove,    we   do   not

find any merit in the present writ petition. Therefore,

we   affirm     the     decision   of   the   learned   Tribunal     and

dismiss this writ petition without awarding any costs.The respondent authorities are directed to comply

with the order passed by the learned Tribunal within four

weeks from date positively.Let urgent Xerox certified copy of this judgment and

order, if applied for, be given to the learned Advocates

of the parties on usual undertaking.(PRANAB KUMAR CHATTOPADHYAY, J.)



Murari Prasad Srivastava, J
    I agree.(MURARI PRASAD SRIVASTAVA, J)