Biswanath Paul v. State Of West Bengal & ORS

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

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 employer/WBSMICL submits that 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 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 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 service on March 31, 2019 will suffer extreme hardship in event said amount 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.)