Sri Sankar Chandra Das vs The State Of West Bengal & Ors
2023 Latest Caselaw 4886 Cal

  259.
09.8.2023
  srm

                                   W.P.A. 26777 of 2022

                                Sri Sankar Chandra Das
                                          Versus
                             The State of West Bengal & Ors.



                  Mr. Manas Kumar Ghosh
                  Ms. Susmita Dey (Basu)
                                              ...for the petitioner
                  Mr. T.M. Siddiqui
                  Mr. Suddhadev Adak
                               ...for the Respondent Nos. 3 & 4.

The petitioner was an employee of West Bengal State

Minor Irrigation Corporation Limited (WBSMICL). The

petitioner has been superannuated from service with effect

from March 31, 2019. In the present writ petition, the

petitioner has prayed for interest on the delayed payment of

retiral benefits calculated from the date of his retirement till

the date of payment on August 8, 2019. The amount that was

disbursed to the petitioner aggregated Rs.11,36,333/-. A sum

of Rs.2,63,363/- was withheld by the Corporation pursuant to

the impugned order vide No.MIC/608 issued by the Managing

Director, WBSMICL.

Pursuant to the materials placed on record, it appears

that the petitioner was given the two benefits under Career

Advancement Schemes. From the Report on Affidavit filed on

behalf of the WBSMICL, it appears that the Corporation

sought to introduce the Modified Career Advancement

Scheme (MCAS), for its employees by its 144th Meeting held on

May 3, 2010. Vide the Memo dated July 14, 2010, such MCAS

benefits were introduced for the employees of the Corporation

in terms of the Finance Department's Memo dated March 13,

2001 vide the Notification No. 3015. The MCAS was held to be

effected with effect from July 1, 2010. The notional benefits

were to be paid with effect from January 1, 2001.

It is argued on behalf of the respondent Corporation

that the sum of Rs.2,63,363/- was recovered since it was an

overdrawn amount by the petitioner. Such recovery was

permissible pursuant to the undertaking given/Form of

Option filled by the petitioner. Upon perusal of the Form of

Option/the undertaking given by the petitioner, it appears that

the said undertaking was given for benefits received under

CAS that was effective from December 6, 2008. Therefore, the

said Option Form cannot be held to be given for the benefits

disbursed to the employees under MCAS which were actually

given to the employees with effect from July 1, 2010.

Mr. Ghosh, learned counsel appearing on behalf of the

petitioner submits that the overdrawn amount could not be

recovered from the petitioner after his retirement on March

31, 2019 from his gratuity dues. He draws the attention of

this Court to Section 4 of the Payment of Gratuity Act, 1972 in

support of his contentions that no amount can be recovered

from the gratuity dues payable to the petitioner unless the

petitioner comes under the exception of Section 4(6) of the

1972 Act.

Section 4(6) of the 1972 Act reads as thus:-

"Notwithstanding anything contained in sub-section (1),-

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;

(b) the gratuity payable to an employee [may be wholly or partially forfeited]-

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."

He also contends that the 1972 Act has an overriding

effect on any other enactment. He refers to Section 14 of the

1972 Act. Reliance is placed on a decision of the Apex Court

reported in (2015) 4 SCC 334 (State of Punjab and Ors. vs.

Rafiq Masih (White Washer & Ors.) to show the

circumstances when the recovery cannot be made for an

overdrawn amount. The five conditions laid down in Rafiq

Masih (supra) are as follows:-

"(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 cases 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 also draws the attention of this Court to an

unreported judgment of the Division Bench of this Hon'ble

High Court passed in F.M.A. 1269 of 2021 (Chandra Nath

Bandyopadhyay vs. State of West Bengal & Ors.) to contend

that the conditions enumerated in Rafiq Masih's case can be

read disjunctively.

Mr. Siddiqui, learned counsel appears on behalf of the

WBSMICL and submits that the case of the petitioner is not a

case of a simpliciter retired employee covered under

condition (ii) of Rafiq Masih (supra). In the present case, the

petitioner had given an undertaking whereby he undertook

to refund to the Government any amount which may be

drawn in excess to the admissible amount due to him on

account of erroneous payment of CAS benefits. He refers to a

decision reported in (2016) 14 SCC 267 (High Court of

Punjab and Haryana and Ors. vs. Jagdev Singh) to contend

that once an undertaking has been given by an employee, the

employee would have to refund any payment found to have

been made in excess since the employee was clearly placed

on notice that any overdrawn amount has to be refunded.

Once an officer furnished an undertaking while opting for

revised pay scale, he would be bound by such undertaking.

Considering the rival submissions of the parties and the

materials placed on record, this Court finds that the

petitioner was a retired employee. He retired from his

service on March 31, 2019 and the recovery was sought to be

made from him by an impugned order vide No.MIC/608.

The overdrawn amount has been sought to be recovered

from the gratuity dues payable to the petitioner. As such,

there is a statutory bar to the same. Unless an employee

comes under the provisions of Section 4(6) of the 1972 Act, no

amount can be withheld/deducted from the gratuity dues

payable to the retired employee/petitioner.

Upon consideration of the unreported judgment of

Chandra Nath (supra), this Court finds that the said case

cannot be relied upon for the proposition that even if the

condition no. (ii) of Rafiq Masih (supra) is not fulfilled, the

other conditions can be considered for disallowing the

recovery of the overdrawn amount as there is no finding of

the Court to that effect. The said case is also distinguishable

on facts.

In Jagdev Singh (supra), the retired employee was a

judicial officer who was appointed as a Civil Judge, Junior

Division on July 16, 1987 and promoted as an Additional

Civil Judge on August 28, 1997. The only issue that was

under consideration was whether a payment which has been

made in excess can be recovered from an employee who has

already retired from the service of the State. In such a case,

the Hon'ble Apex Court held that an officer to whom the

payment has been made would be clearly bound by his

undertaking. An exception was carved out to condition nos.

(ii) of Rafiq Masih (supra). However, the other conditions

laid down in Rafiq Masih (supra) were not touched by the

Hon'ble Apex Court. The employee in question in that case

was a judicial officer. The question whether the excess

payment has been made for more than 5 years was also not

under consideration as in that case. The revised pay scale in

the selection grade was allowed to the retired employee on

and from January 7, 2002 and the employee/officer was placed

under suspension from August 19, 2002 and was

compulsorily retired from service (after one year of receiving

the revised pay scale) on February 12, 2003.

This Court is of the view that the facts of Jagdev Singh

(supra) are completely distinguishable from the facts of the

present case. This is a case of a retired employee who has

received the benefits of pay fixation for more than 5 years

and recovery, if made from the employee after his retirement

would be extremely harsh and would far outweigh the

equitable balance of the employer's right to recover.

Therefore, this Court also finds that all the conditions of

Rafiq Masih (supra) can be read disjunctively to determine

whether an overdrawn amount can be recovered from an

employee who neither mis-represented nor committed any

fraud for payment of such amount. Reliance is placed on

Sahib Ram vs. State of Haryana and Ors. reported in 1995

Supp (1) SCC 18.

Accordingly, the Office Order vide Memo No.MIC/608

is quashed and/or set aside.

The respondent/WBSMICL is directed to refund the

overdrawn amount of Rs.2,63,363/- within three months from

the date of this order along with interest @ 6% p.a. from April

1, 2019 ( being the date subsequent to the date of retirement)

till the date of actual disbursal of the said amount.

Furthermore, the petitioner will be entitled to 6% interest p.a.

on the retiral benefits aggregating Rs.11,36,333/- from April 1,

2019 till August 8, 2019 (the date on which the actual amount

disbursed).

With the directions aforesaid, W.P.A. 26777 of 2022 is

disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official 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.)