Calcutta High Court (Appellete Side)
Biswanath Paul vs The State Of West Bengal & Ors on 28 March, 2023
28.03.2023 IN THE HIGH COURT AT CALCUTTA
DL-139 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 23626 of 2019
Biswanath Paul
Vs.
The State of West Bengal & Ors.
Ms. Susmita Dey (Basu)
...for the petitioner.
Ms. Sonal Sinha
......for WBSMICL.
Report in the form of an affidavit 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 March 31, 2019.
The retiral benefits of the petitioner was belatedly paid
on October 25, 2019. From the retiral benefits due
and payable to the petitioner, a sum of Rs.8,43,465/-
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 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
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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."
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
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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.
(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.
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In the light of the discussions above, this Court
finds that the petitioner who has superannuated from
service on March 31, 2019 will suffer extreme
hardship in the event the said amount of
Rs.8,43,465/- 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
October 25, 2019 is quashed and/or set aside.
The respondent authorities are directed to pay
the said overdrawn amount of Rs.843,465/- along
with the interest @ 6% p.a. from April 1, 2019 (being
the date succeeding the date of retirement) till the
date of actual payment within six weeks from date to
the petitioner.
The petitioner will be entitled to interest @ 6%
p.a. on the sum of Rs.6,35,250/- from April 1, 2019
(being the date succeeding the date of retirement) till
October 25, 2019 (being the date when the said
amount was released to the petitioner).
With the directions aforesaid, W.P.A. 23626 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.)
