Calcutta High Court (Appellete Side)

Raj Kumar Das vs The State Of West Bengal & Ors on 20 June, 2023

 102
jks  20.06.2023
     Ct. no.22
                                          WPA 4280 of 2018
                                             -----------------

Raj Kumar Das Vs.

The State of West Bengal & Ors.

Mr. Biswarup Biswas ... ... for the petitioner Mr. Pinaki Bhattacharyya ... ... for the respondent nos.1 to 9

This is a hearing matter upon completion of

affidavits.

Today the respondent no.5 had filed its

affidavit-in-opposition affirmed on March 18, 2019,

the same is taken on record.

The petitioner filed its reply thereto affirmed

on September 12, 2019, the same is also taken on

record.

The petitioner retired as an assistant teacher

from Bolpur High School (H.S.), Birbhum. In

October 2016 the pension papers of the petitioner

were sent to the office of the respondent no.3 - the

jurisdictional District Inspector of Schools (in

short, DI). Upon receipt of such pension

documents from the relevant school, the DI on

November 10, 2016 raised certain queries,

annexure P-9 at page 34 to the writ petition.

The school clarified the queries and sent it back to

the DI immediately, annexure P-9 at page 35 to

the writ petition. On January 3, 2017 the DI

forwarded the claim of the petitioner for

disbursement before the respondent no.5,

annexure P10 at page 36 to the writ petition.

On July 11, 2017 the jurisdictional Assistant

Director, Pension, Provident Fund & Group

Insurance raised its objection, annexure P 11 at

page 56 to the writ petition. The said objection

was sent to the DI from the office of the Assistant

Director, Pension, Provident Fund & Group

Insurance which in turn was sent for clarification

before the relevant school authority. The

headmaster of the school/ the school authority

vide its communication dated July 25, 2017 duly

clarified the queries and sent back to the office of

the DI, annexure P 12 at page 57 to the writ

petition. The petitioner then made its

representation dated August 22, 2017 before the DI

seeking preparation of its retiral benefits,

annexure P 13 at page 58 to the writ petition.

The petitioner ultimately retired on August 31,

2017.

Mr. Biswarup Biswas, learned counsel

appeared for the petitioner submits that in the light

of the above facts the petitioner after serving his

employment career for about more than 30 years is

now eligible to receive his superannuation benefits

but the State employer on the alleged plea of

overdrawal amount which was raised for the

first time on November 10, 2016 withheld the

retiral benefit of the petitioner. He submitted that

this alleged overdrawn amount was not received by

the petitioner by practising any misrepresentation

or fraud by the petitioner upon his employer.

Drawing attention to paragraph 8 from the

affidavit-in-opposition filed on behalf of the

respondent no.5, Mr. Biswarup Biswas

demonstrated that the State employer had also

admitted that the alleged anomalies were due to

wrong fixation of pay of the petitioner w.e.f. March

4, 2004. He submitted that for this alleged wrong

fixation of pay scale there was no contribution

made by the petitioner and the petitioner had no

role to play at all. The petitioner at this juncture,

after his retirement after serving the State

employer for more than 30 years cannot made to

suffer by not receiving his retiral benefit on the

alleged ground of amount overdrawn by the

petitioner. The quantum of overdrawn amount

alleged by the State employer was Rs.2, 07, 308/-

as would be evident from paragraph 8 of the

affidavit-in-opposition filed on behalf of the

respondent no.5.

Mr. Biswas then placed reliance upon the

settled law as settled by the Hon'ble Supreme

Court In the matter of : State of Punjab & Ors. -

vs - Rafiq Masih reported in (2015) 4 SCC 334

and submitted that in view of the guideline laid

down specifically in paragraph 18 thereunder, the

respondents in the facts and circumstances of this

case cannot withhold the retirement benefit of the

petitioner on the alleged ground of overdrawn

amount. In addition, he referred to a judgment of a

Co-ordinate Bench In the matter : of Sk. Estahar

Ahmed versus The State of West Bengal, WPA

6991 of 2022 and another judgment of a Co-

ordinate Bench In the matter of Ommey Kulsum

Mullick versus The State of West Bengal, WPA

14214 of 2015 which are in sync with the law laid

down by the Hon'ble Supreme Court In the matter

: of Rafiq Masih (supra).

Learned counsel appeared for the petitioner

submitted that the writ petition deserves to be

allowed and the petitioner shall be paid his retiral

benefit forthwith.

Mr. Pinaki Bhattacharyya, learned counsel

appeared for the respondent nos.1 to 9 had drawn

attention of this Court to the pleadings made in

paragraph 11 of the affidavit-in-opposition affirmed

on behalf of the respondent no.5 and submitted

that no law has created any bar neither the service

condition of the petitioner created any bar for

realizing this overdrawn amount from the

petitioner. Placing the reliefs claimed in the writ

petition he submitted that, the petitioner had not

challenged the decision of the State employer that

due to the amount being overdrawn by the

petitioner the retiral benefit was withheld. He

submitted that, the State employer had rightly

withheld the retiral benefit of the petitioner until

the overdrawn amount is returned by the

petitioner.

The rest of the respondents are not

represented.

Considering the rival contentions of the

parties argued before this Court and materials on

record, it appeared to this Court that to decide the

issue in the writ petition in the light of the law

already settled on the subject two dates are of

extreme importance. The DI for the first time

raised his query as to the amount allegedly

overdrawn by the petitioner on November 10,

2016. The second date is the date of retirement

of the petitioner being dated August 31, 2017. The

law laid down by the Hon'ble Supreme Court

governing the field In the matter of : Rifiq Masih

(supra) is now settled. The relevant observations

from the said judgment is quoted below:-

"Paragraph 18 of "State of Punjab v. Rafiq

Masih" (supra) is also required to be set out:

"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their

entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(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."

Inasmuch as, the law laid down by the two

Co-ordinate Benches as referred to above In the

matter of : Sk. Estahar Ahmed versus The

State of West Bengal, WPA 6991 of 2022 and In

the matter of : Ommey Kulsum Mullick versus

The State of West Bengal, WPA 14214 of 2015

are also in sync with the ratio laid down by the

Hon'ble Supreme Court In the matter of : Rafiq

Masih and this Court is in respectful agreement

with those.

The demand and clarification was raised for

the first time on November 10, 2016 and the