Md. Piyaru vs State Of West Bengal And Others
2021 Latest Caselaw 663 Cal

28-01-2021 ct no. 13 Sl.38 pk/sp

WPA 11077 of 2020 (Through Video Conference)

Md. Piyaru Versus State of West Bengal and others

Mr. Joy Chakraborty, Mr. Dip Jyoti Chakraborty ...for the petitioner

Mr. Ayan Banerjee, Ms. Debasree Dhamali ... for the SBSTC.

The petitioner was a Group C employee of

the South Bengal State Transport Corporation.

In the year 2017 pursuant to scheme floated by

the employer the petitioner opted for V. R. S.

and his application was accepted.

80 per cent of his dues under the V. R. S.

under various heads including PF was released

to him. The balance 20 per cent in terms of the

scheme was to be released within two months.

When the petitioner did not receive the balance

amount, he applied to the Authorities on

19.3.2018 for the same.

By communication dated 28.3.2018 the

SBSTC contended that the excess amounts have

been paid to the petitioner by reason of error in

calculation. The error was in calculating the

length of service of the petitioner. The date of

actual superannuation was mistakenly taken as

length of service whereas it should have been

calculated upto 2017. A sum of Rs.2,90,000/-

was stated to have been paid in excess. The

same was adjusted. No further amount was

stated to be due and payable to the petitioner.

The petitioner is aggrieved by the same.

The following arguments are advanced by the

counsel for the petitioner.

The petitioner is a Group "C" employee

and any sum paid to him even assuming the

same is under mistake cannot be recovered or

adjusted by the reason, inter alia, of the

decision of the Supreme Court in the case of

State of Punjab and others Versus Rafiq

Masih reported in (2015) 4 SCC 334.

SBSTC has provided him with the

breakup of the PF dues in October 2017. The

petitioner is in the dark about the actual

deduction made. A period of nearly one-year has

passed from the initial payment of 80% to the

petitioner and to recover the same from him

would cause undue hardship.

The petitioner in addition to Rafiq Masih

decision (supra), particularly, paragraph 18

thereof also relied upon the decision of the

Supreme Court in the case of HEC Voluntary

Retd. Employees Welfare Society and

another Versus Heavy Engineering Corpn.

Ltd. and others reported in (2006) 3 SCC 708.

The petitioner also relied upon a decision of a

Co-ordinate Bench of this Court in the case of

Jyotsna Rani Das Versus State of West

Bengal and others reported in (2018) 0

Supreme (Cal) 286 and another decision in the

case of Sujan Kumar Ghosh Versus State of

West Bengal and others reported in 2017 (2)

CLJ 177.

In the aforesaid two decisions of the Co-

ordinate Benches, of this Court relied upon the

decision of Rafiq Masih (supra) and the

subsequent decisions of the Supreme Court

following Rafiq Masih.

Per contra learned counsel for the SBSTC

submits that the excess payment made to the

petitioner was to his knowledge. He submits

that 80% payment made in July 2017 was

merely an ad hoc assessment and could not

amount to a conclusive payment. The

communication contained in the letter dated

May 28, 2018 recording the excess payment and

denial of any further sums of money to the

petitioner, therefore, cannot constitute a

recovery within the meaning of the decision of

Rafiq Masih.

The Court has carefully considered the

submissions of the parties. It is not in dispute

that excess payments have been made. It is

equally true that the final order of payment was

not done until May 28, 2018. What was paid on

July 28, 2017 was ad hoc. This Court cannot

disbelieve the SBSTC when they have explained

the error having cropped up by reason of taking

the normal superannuation date of the

petitioner as he qualifying service for retirement

dues under the V.R.S. as opposed to the date on

which the petitioners application for VRS was

accepted i.e. 2017. The mistake of this nature is

quite understandable since the Provident Fund

is handled by the Provident Fund Trustees and

the other benefits under the V.R.S. is dispensed

by the Board of Directors of the Corporation.

The question that needs to be answered is

two-fold. Firstly, whether in the facts of the

case, any recovery can be deemed to have been

effected by the employer. It is only after

answering this question that the propriety of

such recovery can be assessed in view of the

dicta laid down by the Hon'ble Supreme Court

and as applied by a Co-ordinate Bench of this

Court referred to herein above.

It has already been seen that only a part

payment was made on July 28, 2017, that too of

an ad hoc amount that is not conclusive. The

communication on May 28, 2018 cannot be

deemed to be an order of recovery.

The recovery of excess or unauthorized

payment to an employee by an employer that

came to be subject matter of the Rafiq Masih

decision (supra) was in the context of any

wrongful payment made prior to retirement,

particularly, two years prior thereto and

recovery thereof during that period or post

superannuation. In the instant case, it is clearly

found that the order dated May 28, 2018 is not

a recovery and can at the most be treated as a

final settlement. The judgments cited by the

counsel for the petitioner may not have the

application in this regard.

The second question that needs to be

addressed, therefore, becomes academic i.e., on

the assumption that there was any excess

payment made and recovery is sought to be

effected by the employer. In the instant case,

even assuming for the sake of argument that the

order dated May 28, 2018 is, in fact, the

recovery one needs to bear in mind the dicta of

the Supreme Court at paragraph 12 of the Rafiq

Masih decision which is set out below.

"12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar [Syed Abdul

Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] , wherein this Court recorded the following observation in para 58: (SCC p. 491) "58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana [Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] , Shyam Babu Verma v. Union of India [Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M.

Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] , V.

Gangaram v. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] , B.J.

Akkara v. Govt. of India [B.J. Akkara v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar [(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National Bank v. Manjeet Singh [(2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 : 2000 SCC (L&S) 394] ."

(emphasis supplied)

It is clearly evident that the dicta laid

down in Rafiq Masih decision was not intended

to confer any right on an employee but to

address an unfairness and hardship that may

arise in attempting to make recoveries from an

employee immediately prior to his retirement or

thereafter. In the instant case, this Court finds

from a plain reading of the writ petition that the

petitioner has not pleaded hardship. The

petitioner has also not stated that he has altered

his position in any way having calculated his

terminal benefits on the basis of 80% payment

made in July 2017. It is not even stated that

any financial commitment or otherwise has been

made by the petitioner based on any

representation by the employer, contained in the

year July 2017.

In those circumstances, this Court is of

the view that the petitioner cannot come within

the scope of the situations set out in paragraph

18 of the Rafiq Masih (supra) decision.

The other two decisions cited by the

counsel for the petitioner in the context may

also be addressed. In Sujan Kumar Ghosh

(supra), the Co-ordinate Bench was dealing with

the case where the employee retired as an

Assistant Teacher in a School and retired after

39 years of service in June, 2006. The

employee's pay was re-fixed by the D.I. of

Schools and the Pension Payment Order of May,

2006 shown a overdrawn of Rs. 1.40 lakhs. The

wrong fixation of pay during service, being

incorrect was never informed to the petitioner

until after retirement. It is only post retirement

that the wrong fixation which may have been

detected at the time of issuance of P.P.O.

Pursuant thereto recovery was sought to be

effected. The application of the Rafiq Masih

(supra) decision in such circumstances was

appropriate. The facts of Sujan Kumar Ghosh

(supra) are completely different from that of the

instant case and hence the said decision cannot

help the petitioner.

In the Jyotsna Rani Das decision

(supra) the facts were that the petitioner therein

was also a primary teacher under the

Government of West Bengal. Even in the said

case, a wrong Pension Payment Order came to

be issued for wrongful fixation of the petitioner's

pay scale while she was already in service for a

long period of time. The excess amount of Rs.

42,538/- was sought to be recovered from the

gratuity amount payable to the petitioner

therein. It is, therefore, clearly evident that the

two decisions are completely distinguishable

from the facts of the instant case.

The jural relationship of the petitioner in

the instant case with the employer ceased with

the release of the petitioner's post acceptance

under the V.R.S. The decision HEC Voluntary

Retd. Emps. Welfare Soc. (supra) cited by the

petitioner, particularly, paragraph 19, is an

undisputed proposition of law.

The fact that is vital to be addressed is as

to whether any serious disadvantageous

position to the petitioner has cropped up by

reason of an error committed by the employer

SBSTC. In the absence of any such

disadvantage or hardship or alteration of

position, this Court is of the view that the claim

for refund by the petitioner would definitely

come under the category of unjust enrichment.

The petitioner cannot make wrongful gain by on

account of a mistake committed by the

employer.

The petitioner's claim, therefore, fails on

both the questions as indicated herein above.

Accordingly, the writ petition is dismissed.

There shall be no order as to costs.

This Court places on record its

appreciation for the assistance rendered by the

counsel for the petitioner and the strenuous

efforts to put forward his client's case.

All parties are to act on a server copy of

this order on the usual undertaking.

(Rajasekhar Mantha, J.)