Samar Kumar Biswas vs The State Of West Bengal & Ors
2022 Latest Caselaw 5979 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE
26.08.2022
Item No. 04
Court No.23
 (Suvendu)
                             WPA 14379 of 2022

                             Samar Kumar Biswas
                                    Vs.
                          The State of West Bengal & Ors.


               Mr. Manas Kumar Ghosh
               Ms. Susmita Dey (Basu)
                                   ...............for the petitioner

               Ms. Sonal SInha
               Ms. J. Rubana
                                         .........for the WBSMIC

               Ms. Sanghamitra Nandy
               Mr. Arun Kumar Sahu
                                              ........for the State



                 The petitioner retired from the services of the

              West Bengal State Minor Irrigation Corporation

              Limited (in short, WBSMIC) on attaining the age of

              superannuation on 30th November, 2020.              The

              Release Order issued to the petitioner on his

              superannuation is dated 27th November, 2020 which

              is annexed at page 11 of the writ petition.

                 The petitioner says that by an order dated 4 th

              September, 2019 issued by the Managing Director of

              WBSMIC, the respondent no. 3 has expressed its

intention to recover an alleged overdrawn amount of

Rs. 98, 861/-. The overdrawn amount, as appears

from the order dated 4th September, 2019, appears

to be on account of rectification of pay and

allowance fixed in the case of the petitioner. It was

found by WBSMIC that inadvertently the last basic

of the petitioner was fixed at Rs. 19,530/- instead of

Rs. 18,960/-. In view of such difference in the last

basic pay, an additional amount of Rs. 98, 861/-

had been paid to the petitioner under the heads of

Gratuity and Leave Salary which is now sought to be

recovered.

The petitioner says that in view of the ratio in

(2015) 4 SCC 334 [State of Punjab & Ors. Vs. Rafiq

Masih (White Washer) & Ors.], no recovery for any

amount even paid under mistake can be made

immediately prior to the retirement or after the

retirement.

In the instant case, the recovery is sought to be

made after retirement.

On the other hand, the respondent nos. 3 to 5

submit that the petitioner had agreed to the recovery

of the said sum of Rs. 98,861/- from the monthly

salary in twelve installments starting from

December, 2019 by giving an option. In view of such

option which amounts to be an undertaking, the

petitioner has waived his right and is estopped from

challenging the recovery. The petitioner, therefor, is

not entitled to relief as claimed in the writ petition.

Responding to such submissions of the

respondent nos. 3 to 5, it is submitted on behalf of

the petitioner that the Option Form referred to by

the said respondents and appears at page 31 of the

report filed by the respondent nos. 3 to 5 had to be

given for the purpose of release of the retiral benefits

as unless the same was given the retiral benefits of

the petitioner would not have been released. It is

further submitted that "Option" as appears in page

31 of the report is not an "undertaking" and as such

the petitioner's case does not come within the ambit

of (2016)14 SCC 267 (High Court of Punjab and

Haryana & Ors. Vs. Jagdev Singh) as also of the

Division Bench judgment of this Court passed in

Dilip Kumar Bose Vs. State of West Bengal & Ors.

(MAT 369 of 2021 with IA No. CAN 1 of 2021).

After hearing the parties, the matter is

adjourned till 16th September, 2022 for further

consideration.

The petitioner will be at liberty to take exception

to the report filed by the respondent nos. 3 to 5 on

or before the next date of hearing with a copy served

on the learned advocate for the respondents

sufficiently in advance.

(Arindam Mukherjee, J.)