Calcutta High Court (Appellete Side)
Dipak Kumar Halder vs The State Of West Bengal & Ors on 13 April, 2023
128.
13.4.2023
S.D.
W.P.A. 26774 of 2022
Dipak Kumar Halder
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.
Mr. Syed Nasirul Hosain
...For the Respondent Nos. 1 & 2
The petitioner challenges an impugned order dated
June 25, 2019 whereby the benefits of Modified Career
Advancement Scheme (MCAS) was sought to be withdrawn.
Admittedly, a sum of Rs.3,21,348/- was deducted from the
monthly payments of salary of the petitioner from November
2019 to October 2020. The petitioner worked as Typist,
Grade-I, a Group (C) employee. The petitioner was
superannuated from service on October 31, 2020. The
impugned order was passed on June 25, 2019, a few months
prior to the retirement of the petitioner.
Ms. Dey (Basu), learned counsel appearing on behalf of
the petitioner argues that such a deduction was arbitrary and
illegal. She submits that she 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 was 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."
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 who was to retire
within one year.
She further prays for interest on delayed payment of
provident fund dues and gratuity amount to the petitioner,
causing extreme hardship to the petitioner/retired employee.
A sum of Rs.15,28,096/- as provident fund dues was paid to
the petitioner on January 4, 2021. First instalment of gratuity
to the tune of Rs.15,11,280/- was released to the petitioner on
March 19, 2021. A sum of Rs.2,81,720/- being second
instalment of gratuity was released to the petitioner on August
23, 2022.
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
Office Memo 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, was recoverable forthwith. She submits
that since it has been made unequivocally clear by the Memo
dated July 14, 2010 that the benefits are provisional and
recovery could be made, 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 is not only a Group - 'C ' employee
but was also an employee from whom a few months
before his retirement the amount of Rs.3,21,348/-
was sought to be recovered on account of it being
overpaid.
(c) 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.
(d) 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 and therefore should not be recovered
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, 2020 will suffer extreme hardship in the event the
said amount of Rs.3,21,348/- is not repaid to him. The
deduction of the amount for being overdrawn has already
caused hardship to the petitioner.
In the circumstances, the impugned order dated June
25, 2019 is quashed and/or set aside.
The respondent authorities are directed to pay the said
overdrawn amount of Rs.3,21,348/- to be refunded along with
interest @ 6% p.a. within three months from date. The
petitioner will be entitled to interest @ 6% p.a. on the
provident fund amount of Rs.15,28,096/- payable from
November 1, 2020 (the date subsequent to the date of
retirement) till January 4, 2021 (the date on which it has been
actually paid). The petitioner is also entitled to interest @ 6%
p.a. on a sum of Rs.15,11,280/- (first instalment of gratuity)
with effect from November 1, 2020 till the actual date of
payment on March 19, 2021 and the interest on the sum of
Rs.2,81,720/- (second instalment of gratuity) @ 6% p.a. from
November 1, 2020 till August 23, 2022 ( being the date on
which it was actually released).
The said interest will be paid within 3 months from the
date of order. In the event of default, the rate of interest will
stand increased to 8% p.a.
With the directions aforesaid, W.P.A. 26774 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.)
