Jogesh Giri v. The State Of West Bengal And ORS

05.01.2023 Item No.21 Court No.2 AJ/SK.

In the High Court at Calcutta Circuit Bench at Jalpaiguri Appellate Side W.P.A. 3281 of 2022 Jogesh Giri -Vs- The State of West Bengal & Ors.

Mr. Debajit Kundu.

.....for the petitioner.

Mr. Bikramaditya Ghosh, Mr. Pretom Das.

.....for the State.

The brother of the petitioner was the Assistant Teacher of a primary school, on April 05, 2019, he died-in-harness. The First Pension Payment Order was issued to the petitioner after deducting the overdrawal amount of Rs.23,743/- There is nothing on record to suggest that the concerned teacher was responsible for the payment of such amount.

In view of the several decisions of the Hon‟ble Supreme Court e.g SHYAM BABU VERMA -VS- UNION OF INDIA reported in (1994) 2 SCC 521; UNION OF INDIA & ORS. - VS- TARSEM SINGH reported in (2008) 8 SCC 648 and STATE OF PUNJAB & ORS. -VSRAFIQ MASIH (WHITE WASHER) & ORS. reported in (2015) 4 SCC 334, the issue whether such overdrawn amount can be adjusted against the retiral benefits of an employee is no longer res integra.

However, to clarify the issue, paragraph „18‟ of the decision of the Hon‟ble Supreme Court in the case of Rafiq Masih (supra) is quoted below :- "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 II 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."

In view of the discussion made above, this Court is of the opinion that the petitioner is entitled to the relief as prayed for.

Accordingly, the concerned Director of Pension, Provident Fund and Group Insurance, Government of West Bengal and also the concerned Treasury Officer are directed to release

the said amount of Rs.23,743/- along with interest @8% per annum thereon in favour of the petitioner from the date of issuance of the pension payment order till the date of payment, such payment is to be made within a period of eight weeks from the date of communication of this order.

W.P.A. 3281 of 2022 is disposed of with the terms. There shall however be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(Biswajit Basu, J.)