Supada Bhaumik vs State Of West Bengal & Ors

Amrita Sinha, J

Affidavit-of-service filed in Court today be taken on record.

The petitioner was an employee of the West Bengal State Minor Irrigation Corporation Limited. He retired from service on 31st January, 2018. At the time of retirement the petitioner was serving in Group-C post.

When the petitioner was in service, he was granted the benefit of the 2001 Modified Career Advanced Scheme.

After his retirement, by an order dated 25th July, 2019, the Managing Director of the Company intimated the petitioner that the confirmation of the benefit under the Modified Career Advanced Scheme was not inconformity with the G.O. No. 3015-F dated 13th March, 2001 of the Finance Audit Department. The said respondent directed that the benefit of 25 years Modified Career Advanced Scheme, 2001 with effect from 1st July, 2007 awarded to the petitioner stands cancelled as per the G.O. No. 318/WI/0/2P-3/2018 dated 13th February, 2019, G.O. No.1022/WI/0/2P-03/2018 dated 17th May, 2018 and G.O. No.594/WI/P/31-3/18 dated 14th March, 2019 of the W.R.I. & D. Department.

The pay of the petitioner has been re-fixed and on account of such re-fixation a sum of Rs.1,69,543/- was shown as overdrawn amount by the petitioner.

The petitioner is aggrieved by the re-fixation of his pay and deduction of the alleged overdrawn amount from the retiral benefit which was disbursed in his favour in July 2019.

The petitioner prays for a direction upon the respondent authorities to refund the amount that was deducted on account of alleged overdrawn and for payment of interest on account of the delayed payment of his retiral dues.

The petitioner submits that the action on the part of the respondents in deducting the aforesaid amount on account of overdrawn is impermissible in view of the order passed by the Hon'ble Supreme Court of India in the matter of State of Punjab & Ors. -vs- Rafiq Masih (White Washer) & Ors. reported in (2015) 4 Supreme Court Cases 334. The Supreme Court categorically held that recovery by the employer would be impermissible in law in respect of the employees belonging to Class III and Class IV or Group C and Group D service.

The Supreme Court further held that recovery from the retired employees who are due to retire within one year of the order of recovery is impermissible.

The Court held that 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 was also impermissible.

The petitioner further relies upon a judgement delivered by this Court in the matter of Ashis Kumar Bhowmik -vs- State of West Bengal & Ors. reported in 2019(2) CLJ(Cal) 511 wherein the Court held that the deduction of the money from the retiral benefits was illegal. The Court directed the employer to refund the deducted amount along with interest.

The learned advocate appearing on behalf of the respondent authorities submits that the benefit of Modified Career Advanced Scheme vide memo no. MIC/Estab/290/Part-II/2010/1805 dated 14th July, 2010 issued by the Managing Director, West Bengal State Minor Irrigation Corporation Limited was extended to the petitioner by inadvertence.

The Finance Department of the Government opined that the employees of the Corporation are not entitled to the aforesaid benefit and the opinion of the Finance Department was communicated to the Corporation by the Water Resource Investigation and Development Department vide their meme no. 318-WI/0/2P-3/2018 dated 13th February, 2019.

The petitioner was not entitled to the said amount and accordingly, money has been rightly deducted from the retiral dues of the petitioner.

I have heard the submissions made on behalf of both the parties.

The Hon'ble Supreme Court in the matter of Rafiq Masih (Supra) has laid down certain instances where the employer would be debarred from recovery of the amount from the retiral dues of an employee.

In the instant case, the petitioner belonged to the Group C service and the recovery has been admittedly made long after the petitioner retired from service.

The payment which was allegedly paid in excess to the petitioner was admittedly for more than five years at a stretch.

On all the aforesaid three grounds, the Hon'ble Supreme Court held, that recovery is not permissible in law. The same principle was followed by this court in the matter of Ashis Kumar Bhowmik (supra).

In view of the above the impugned order passed by the Managing Director of the Corporation whereby the amount has been recovered on account of alleged overdrawn is accordingly, set aside.

The respondent No.3 being the Managing Director of Corporation is directed to refund the overdrawn amount that has been deducted from the retiral benefit of the petitioner along with interest @8% per annum from the date of issuance of the PPO till the date of refund.

The said respondent is directed to pay interest to the petitioner @8% per annum on account of the delayed payment of his retiral benefits. The said interest shall be calculated from the date on which the same became due and payable till the date of actual payment.

The aforesaid payment shall be made to the petitioner within a period of eight weeks from the date of communication of a copy of this order.

W.P. 18683 (W) of 2019 is disposed of accordingly.

The instruction given by the respondent authorities to their learned advocate is retained with the record.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.