Calcutta HC Orders No Recovery Of Overdrawal To Be Made From Retired Force Commissioned Officer’s Salary When State Committed Mistake
The Calcutta High Court ordered no recovery of overdrawal to be made from a Retired Force Commissioned Officer’s salary after considering the fact that mistake was committed by the State Authorities.
The High Court was considering contempt and clarification applications filed by the Retired Officer.
The Division Bench comprising Justice Rajasekhar Mantha & Justice Ajay Kumar Gupta said, “In those circumstances, this Court directs that there shall be no recovery of overdrawal from the petitioner’s salary upto 7th April, 2011.”
Senior Advocate D. N. Ray represented the Petitioner while A.G.P Somnath Ganguly represented the Respondent.
The petitioner was engaged as a Platoon Commander by the State (GD & TRG) under the West Bengal National Volunteer Force in the year 1995. The petitioner superannuated from service of the State in 2019. The State mistakenly since 1995 had been paying the last drawn pay of the petitioner with the Indian Air Force. The State (a lower scale) had also mistakenly ignored the Circular dated September 22, 1995 issued by the Finance Department which stipulated that a re-employed Military pensioner would get a pay scale as fixed by the State and not the pay scale he was drawing with the Air Force.
The State Authorities sought to effect recovery from the petitioner’s salary and allowances. The petitioner challenged such recovery before the West Bengal Administrative Tribunal and he was allowed protection against recovery of excess amount which was granted to him. The Tribunal did not protect the mistakenly higher pay granted to the petitioner. In such circumstances, the petitioner could not have been paid the salary which was drawn as a Commissioned Officer of the Indian Air Force under his service with the State. The petitioner challenged the order of the West Bengal Administrative Tribunal under Article 226 of the Constitution but the High Court held that the interest of justice would be subserved by continuing with the overdrawal protection that the tribunal afforded to the writ petitioner.
The Bench noted that notwithstanding the order of the Tribunal passed by West Bengal Administrative Tribunal, the higher IAF pay scale was granted to the petitioner until the date of retirement in the year 2019. The Bench also referred to the judgment of the Supreme Court in Col. B.J. Akkara Vs Government of India & Ors. reported in (2006) 11 SCC 709 wherein it was held that where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery.
“This appears to be clearly a mistake and error on the part of the alleged contemnors. The petitioner’s salary ought to have been reverted to the scale that he was entitled to under the State atleast from 7th April, 2011”, the Bench said.
The High Court also rejected the submission that the said mistake could have occurred especially after the clear and specific order of the Tribunal. The petitioner ought to have reverted to have his salary that he was actually entitled to under the State service in terms of the 1995 Memo.
“In those circumstances, this Court directs that there shall be no recovery of overdrawal from the petitioner’s salary upto 7th April, 2011. For the excess salary paid from May, 2011 till the date of the petitioner’s superannuation, the State shall be entitled to recover all excess amounts”, the Bench ordered.
The High Court disposed of the Contempt Petition by further directing, “Let recoveries from May, 2011 of excess payment to the petitioner by the State be effected from the terminal benefits of the petitioner, preferably spread over in six installments. Let pension payable to the petitioner be calculated forthwith in terms of the aforesaid order and the same be disbursed to him together with arrears from the date of retirement till date. The arrears shall carry interest at the rate of 7% per annum.”
Cause Title: Saumen Kumar Bhattacharjya Versus Shri Dushyant Narial Principal Secretary, Government of West Bengal & Anr. [CPAN 1039 of 2024 With I.A. No. CAN 1 of 2024]
Appearance:
Petitioner: Senior Advocate D. N. Ray, Advocates Sourav Halder, Rajesh Kumar Shah
Respondent: A.G.P Somnath Ganguly, Advocates Bikash Goswami, Tuli Sinha