Calcutta High Court (Appellete Side)
Sankar Chandra Paul vs The State Of West Bengal & Ors on 5 December, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
1
05.12.2019
Ct. No. 24
Item No. 57
pk.
W. P. No. 19202 (W) of 2019
Sankar Chandra Paul
-vs-
The State of West Bengal & Ors.
Mr. Manas Kumar Ghosh,
Mrs. Susmita Dey (Basu),
Mr. Arabinda Maiti for the petitioner
Ms. Sonal Sinha,
Miss. Sarda Sha for the respondent nos. 3-5
Mr. P. K. Bhattacharyya for the State The petitioner is a retired Class-III employee of the West Bengal State Minor Irrigation Corporation Limited, hereinafter referred to as "the Company".
The grievance of the petitioner is that long after his retirement, the Company has sought to re-fix his pay. The Company on the plea of re-fixation has recovered certain amount on the ground of excess payment received by the petitioner. The same is impermissible in law and also in view of the order passed by the Hon'ble Supreme Court in the matter of State of Punjab & Ors. - vs- Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334.
The learned advocates representing the respondents submit that the pay of the petitioner was fixed erroneously. The petitioner was paid certain benefits on account of modified career advancement scheme, which the petitioner was not entitled to. The learned advocate appearing for the West Bengal State Minor Irrigation Corporation Limited submits that they were not aware that the petitioner was not entitled to the said benefits and, accordingly, the benefit of the modified career advancement scheme was erroneously extended to the petitioner.
2The action of the respondents in recovery of the excess amount, which was allegedly paid erroneously is absolutely contrary to the order passed by the Hon'ble Supreme Court of India in the matter of Rafiq Masih (supra).
In the said order, the Supreme Court has specifically laid down the instances where recovery by the employers would be impermissible in law. It says that recovery from the employees belonging to Class-III and Class-IV service or Group- "C" and "D" service and the recovery from the retired employees as well as 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 is impermissible.
In the instant case, the petitioner is a Class-III employee, who has retired from service long ago and the recovery is sought to be made for a period in excess of five years, the same is against the letter and spirit of the order that has been passed by the Supreme Court.
In view of the above, the impugned order seeking recovery of the overdrawn amount is liable to be set aside and, is accordingly, set aside.
The respondent authority is directed to refund the amount, which has been recovered on account of excess payment from the petitioner.
The respondent shall pay the gratuity and leave salary to the petitioner calculated on the basis of his correct pay scale, which the petitioner is entitled to in accordance with law.
As the petitioner retired long ago and the retiral dues were disbursed in his favour at a delayed date, he will be entitled to interest on account of delayed payment of his retiral dues including the amount which was recovered on account of 'overdrawn'. The respondent No. 4, the Managing Director, West Bengal State Minor Irrigation Corporation Limited shall pay interest to the petitioner at the rate of 6 per cent per annum calculated from the date of its accrual till the date of actual payment.
All payments shall be cleared within a period of five months from the date of communication of a copy of this order.
W.P. No. 19202 (W) of 2019 is disposed of.
3Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.
(Amrita Sinha, J.)