Calcutta High Court (Appellete Side)
Shri Subhas Chandra Saha vs Union Of India & Ors on 30 August, 2022
27 IN THE HIGH COURT AT CALCUTTA
30.08.2022 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct23 APPELLATE SIDE
WPA 19604 of 2022
Shri Subhas Chandra Saha
Vs.
Union of India & Ors.
Mr. P. K. Das,
Mr. Subrata Mukherjee
... For the petitioner.
Mr. Kumarjyoti Tewari
... For Union of India.
Affidavit of service filed in Court today is taken on
record.
The petitioner is an Assistant Commandant/Junior
Administrative Officer (in short, AC/JAO) in Central
Industrial Security Force (in short, CISF) and is
scheduled to retire on 31st December, 2022, on attaining
the age of superannuation. The petitioner says that he
has been served with an order dated 11th August, 2022
by which a sum of Rs.2,91,501/- has been sought to be
realised from his salary on account of excess payment
made to him. The said order also proposes to recover a
sum of Rs.58,300/- from the salary for the month of
August, 2022 to November, 2022 and the remaining sum
of Rs.58,301/- will be recovered from the salary for the
month of December, 2022. The basic of the petitioner has
been also fixed at Rs.82,400/- in terms of the said notice.
The petitioner says that the recovery of any sum paid to
2
an employee even by mistake within one year preceding
the date of his retirement is impermissible in view of the
judgment reported in (2015) 4 SCC 334 (State of
Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors.),
except for certain exceptions. No such exception is there
in the petitioner's case and as such the proposed
recovery is illegal.
On behalf of the respondents it is submitted that
there is no dispute as to the ratio laid down in Rafiq
Masih (supra), however, whether there is any exception
in the instant case is required to be ascertained.
Considering the submissions made by the parties,
the materials on record and the ratio laid down in Rafiq
Masih (supra), I am inclined to permit the respondents
an opportunity to disclose their stand regarding the
exceptions provided in the judgment of Rafiq Masih
(supra) subject to the recovery as proposed under the
recovery of over-payment order dated 11th August, 2022
remains stayed till the final disposal of the writ petition
or until further orders whichever is earlier. Unless this
interim protection is granted, the writ petition after
completion of affidavit will become infructuous. At the
same time it is to be kept in mind that the petitioners
retiral benefits have to be finalised immediately after 31st
December, 2022 on his retirement upon attaining the age
of superannuation. In the event the writ petition remains
pending beyond 31st December, 2022, the petitioner may
find it difficult in realising the retiral benefits and at the
same time the employer may also be not in a position to
finalise the retiral benefits available to the petitioner.
In the aforesaid facts and circumstances, I direct
the respondents to file a report in the form of an affidavit
dealing with the core issue involved in the writ petition by
30th September, 2022 with a copy to the learned advocate
for the petitioner.
Exception/reply, if any, thereto may be filed by 7th
November, 2022.
The recovery under the order dated 11th August,
2022 shall remain stayed till the disposal of the writ
petition or until further orders.
Let this matter appear on 14th November, 2022
under the heading, "For Orders".
(Arindam Mukherjee, J.)
