Debashis Chatterjee vs The State Of West Bengal & Ors
2023 Latest Caselaw 2484 Cal

12.04.2023            IN THE HIGH COURT AT CALCUTTA
  DL-3               CONSTITUTIONAL WRIT JURISDICTION
   (PP)                    APPELLATE SIDE

                           WPA 17425 of 2019

                           Debashis Chatterjee
                                   Vs.
                      The State of West Bengal & Ors.


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

                     Ms. Sonal Sinha
                                                   ......for WBSMICL.


                    Affidavit-in-opposition filed in Court today is

             retained with the records.

                    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 28,

             2017.    From the retiral benefits due and payable to

             the petitioner, a sum of Rs.45,404/- was deducted on

             the ground of the same being overdrawn by the

             petitioner.

                    Mr. Ghosh, learned counsel appearing on behalf

             of the petitioner submits that the petitioner has

             suffered extreme hardship due to the deduction of the

             purported overdrawn amount post retirement.

                    Mr. Ghosh 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
                     2




Masih (White Washer)]. He 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 circumstances.

            "(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."

     He 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
                        3




'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.

       (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   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
                        4




service on February 28, 2017 will suffer extreme

hardship in the event the said amount of Rs. 45,404/-

is not paid to him. The deduction of the amount for

being overdrawn has already caused hardship to the

petitioner.

     In the circumstances, the impugned order dated

July 26, 2019 is quashed and/or set aside.

     The respondent authorities are directed to pay

the said overdrawn amount of Rs. 45,404/- along with

the interest @ 6% p.a. from February 28, 2017 (being

the date succeeding the date of retirement) till the

date of actual payment within six weeks from date to

the petitioner.

With the directions aforesaid, WPA 17425 of

2019 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.)