State Not Entitled To Recover Excess Amount Paid To Retired Officer Due To Mistake On State's Part : Calcutta High Court

Background facts of the case

The petitioner was originally in the Indian Air force (IAF). Later, he retired and was appointed by the West Bengal National Volunteer Force as a platoon commander in the year 1995. Initially in his job, the state government erroneously paid him the same salary that he had been receiving during his tenure of IAF. On the other hand, as per the rules of the government given in a circular dated September 22, 1995 , reemployed military pensioners had a fixed pay scale by the state and not upon their previous military position or salary.

Despite this the petitioner's higher pay salary was not adjusted with his current position until his retirement in the year 2019, wherein the state sought to recover the excess amount he received from his salary. The petitioner then challenged this decision before the West Bengal Administrative tribunal, which simultaneously protected him from such recovery but did not allow for the continuation of such a mistaken pay scale. The petitioner then again challenged this decision through the writ petition before the Calcutta High Court.

It was contended by the petitioner that, firstly the state government has made a fault from their side by paying him the excess amount based on his last drawn salary from the Indian air force, despite the circular dated September 22, 1995. Secondly, he argued that despite the tribunal's order of 7th april 2011, the state continued to provide him with the higher pay. The petitioner highlighted that the persistent receipt of such payment without knowledge of mistake caused undue hardship and recovery of the same would be unjust. On the other hand it was contended by the respondents that the said mistake was due to indecision by the authorities occurring out of pendency of the proceedings before the High Court and the tribunal.

Findings and observations of the court

It was observed by the court that despite the protection granted by West Bengal Administrative tribunal, the state continued with its erroneous mistake of providing with the highest pay scale to the petitioner rather than reverting to the fixed pay scale as per the circular dated 1995, which was a mistake on the part of the state.

It was also observed by the court that the argument of respondent of indecision on parts of the authorities did not fully justify the continued overpayments.

The case of Col. B.J. Akkara v. Government of India & Ors. was relied upon by the court wherein the Supreme Court emphasized that relief against the recovery of excess payments to employees is not based on any inherent right but on equity and judicial discretion to prevent undue hardship. Such relief is granted when the employee genuinely believes they are entitled to the payment and has already spent it.

In light of these observations, it was ruled by the court that there should be no recovery of overdrawal from the petitioner's salary up to 7th April, 2011. But the State shall be entitled to recover all excess amounts for the excess salary paid from May, 2011 till the date of the petitioner's superannuation.

It was also directed by the court that the recovery could be made through petitioner's terminal benefits feasibly in six installments. It was also directed that recalculation should be made from the petitioner's pension and further paid with the interest of 7% on the arrears from the date of the retirement.

It was held by the court that the pension payment order be issued to the petitioner within two weeks by the Office of the Accountant General (A&E), West Bengal and the other respondents. With the aforesaid observations, writ petition was disposed of.

Case no. : CPAN 1039 of 2024

Counsel for the petitioner: D. N. Ray, ld. Sr. Advocate, Sourav Halder, Rajesh Kumar Shah

Counsel for the respondent: Somnath Ganguly, ld. A.G.P, Bikash Gos