Sri Sasti Pada Das vs The State Of West Bengal & Ors
2022 Latest Caselaw 8512 Cal

   22.
20.12.2022
   S.D.


                                    W.P.A. 22038 of 2020

                                  Sri Sasti Pada Das
                                          Vs.
                            The State of West Bengal & Ors.

                  Ms. Susmita Dey (Basu)
                                                  ... For the Petitioner
                  Ms. Sonal Sinha
                                            ....For the W.B.S.M.I.C.L.



                  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 February 29, 2020.      The retiral benefits of the

             petitioner was belatedly paid on December 2, 2021. From the

             retiral benefits due and payable to the petitioner, a sum of

             Rs.43,525/- 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

             purported overdrawal amount post retirement but also
                        2




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."
                        3




      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.
                          4




        (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

February 29, 2020 will suffer extreme hardship in the event

the said amount of Rs.43,525/- 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 30,

2019 is quashed and/or set aside.

        The respondent authorities are directed to pay the said

overdrawn amount of Rs.43,525/- along with the interest @

6% p.a. from March 1, 2020 (being the date succeeding the

date of retirement) till December 2, 2021 (the date of disbursal

of the dues) within six weeks from date to the petitioner.

With the directions aforesaid, W.P.A. 22038 of 2022 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.)