Calcutta High Court (Appellete Side)
Nazrul Islam vs The State Of West Bengal & Ors on 8 December, 2022
34.
08.12.2022
S.D.
W.P.A. 3479 of 2020
Nazrul Islam
Vs.
The State of West Bengal & Ors.
Mr. Manas Kumar Ghosh
Ms. Susmita Dey (Basu)
... For the Petitioner
Ms. Sonal Sinha
....For the W.B.S.M.I.C.L.
Mr. Naryan Chandra Bhattacharyya
Ms. Sujata Ghosh
..For the State
The petitioner was a Group- 'C' employee of the West
Bengal State Minor Irrigation Corporation Limited (in short,
"WBSMICL"). The petitioner was superannuated from his
service on October 31, 2018. The retiral benefits of the
petitioner was belatedly paid on August 2, 2019. From the
retiral benefits due and payable to the petitioner, a sum of
Rs.2,55,301/- was deducted on the ground of the same being
overdrawn by the petitioner.
Ms. Dey (Basu), learned counsel appearing on behalf of
the petitioner submits that not only the petitioner has
suffered extreme hardship due to the deduction of the
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purported overdrawal amount post retirement but also
suffered hardship because of the belated disbursement of the
retiral dues.
Ms. Dey (Basu) further argues that such deduction was
arbitrary and illegal and the petitioner's case is squarely
covered by the decision reported in (2015) 4 SCC 344 [The
State of Punjab and Ors. vs. Rafiq Masih (White Washer)].
She relies on the conditions laid down in sub-paragraph nos.
(i) to (v) of paragraph no. 18 of the said judgment wherein the
recovery by the employers is held to be impermissible in law
in the following conditions.
"(i) Recovery from the employees belonging to
Class III and Class IV service (or Group C and Group
D service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one year, of
the order of recovery.
(iii) Recovery from the employees, when the
excess payment has been made for a period in excess
of five years, before the order of recovery is issued.
(iv) Recovery in case where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to
work against an inferior post.
(v) In any other case, where the Court arrives at
the conclusion, that recovery if made from the
employee, would be iniquitous or harsh or arbitrary
to such an extent, as would far outweigh the equitable
balance of the employer's right to recover."
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She further submits, that not only the petitioner is a
Group - 'C' employee but also the recovery of the excess
amount has been made from an employee post retirement.
Ms. Sinha, learned counsel appearing on behalf of the
employer/WBSMICL submits that the petitioner's case is
different from that of Rafiq Masih (supra). She relies on the
Circular dated July 14, 2010 issued by the Managing Director,
WBSMICL in support of her contentions that pay
fixation/enhancement of the pay was 'provisional' and
'overdrawal', if any could be recovered forthwith. She submits
that since it was made unequivocally clear by the Memo
dated July 14, 2010 that the benefits are provisional and
overdrawal can be recovered, the petitioner cannot maintain
a case against recovery of an overdrawn amount that was
wrongly granted to him.
Having considered the rival submissions of the parties
and the materials placed on record, this Court finds;
(a) the petitioner is squarely covered by the ratio in the
case of Rafiq Masih (supra).
(b) The petitioner was a Group-'C' employee.
(c) The recovery of the overdrawn amount was made
post retirement.
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(d) Reliance is placed by this Court on the Division
Bench Judgment in the case of West Bengal State
Minor Irrigation Corporation Ltd. & Ors. Vs.
Pradosh Kumar Kundu in M.A.T. No. 750 of 2022.
(e) It is also not lost upon this Court that the
overpayment/overdrawal made to/by the petitioner
was not on account of any misrepresentation by the
petitioner relying on Sahib Ram vs. State of
Haryana and Ors. reported in 1995 Supp (1) SCC
18.
In the light of the discussions above, this Court finds
that the petitioner who has superannuated from service on
October 31, 2018 will suffer extreme hardship in the event the
said amount of Rs.2,55,301/- is not paid to him. The
deduction of the amount for being overdrawn has already
caused hardship to the petitioner. Furthermore the petitioner
suffered extreme hardship due to belated payment of retiral
dues.
In the circumstances, the impugned order dated July 25,
2019 is quashed and/or set aside.
The respondent authorities are directed to pay the said
overdrawn amount of Rs.2,55,301/- along with the interest @
6% p.a. from November 1, 2018 (being the date succeeding
the date of retirement) till August 2, 2019 (the date of
disbursal of the dues) within six weeks from date to the
petitioner.
With the directions aforesaid, W.P.A. 3479 of 2020 is
disposed of.
All parties shall act on the server copy of this order
duly downloaded from the website of this Court.
Urgent photostat certified copy of this order, if applied
for, be given to the parties upon compliance of all the
formalities.
(Lapita Banerji, J.)
