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2023 DIGILAW 1647 (CAL)

Binoy Bhusan Mondal v. State Of West Bengal

2023-12-22

ARINDAM MUKHEREJEE

body2023
JUDGMENT : Arindam Mukherjee, J. 1. In this writ petition, the petitioner, a retired employee of the West Bengal State Minor Irrigation Corporation Limited (hereinafter for the sake of convenience referred to as the WBSMICL), a Government of West Bengal undertaking has prayed for release of his withheld retiral benefits with interest as also interest for a delayed payment of a portion of retiral benefit which has been already paid to him. 2. The case of the petitioner is that he joined as an operator, a class III post in WBSMICL on 25th August, 1982 and retired from the services on superannuation on having attained the age of 60 years with effect from 30th April, 2017. The petitioner has relied upon his discharge memorandum dated 2nd May, 2017 issued by the Sub-Divisional Engineer, WBSMICL, Suri, Birbhum to show that no disciplinary action was there against the petitioner. At the time of superannuation, the petitioner was also in the post of operator which continued to remain as Class III post in WBSMICL. The petitioner says that on his superannuation, he was entitled to receive a sum of Rs. 11,89,950/-as his retiral benefits on account of gratuity and leave salary amounts. The petitioner received a sum of Rs.9,10,696/-on 9th April, 2019. The balance sum of Rs.1,94,897/-was deducted by dint of a memo dated 2nd July, 2019 issued by the Managing Director of WBSMICL bearing number MIC/Accts-Gratuity/175/2017/302. 3. The petitioner says that the recovery of Rs.1,94,897/-was made after two years from superannuation and it is illegal and unlawful. That apart and in any event no recovery could have been made after two years from the date of petitioner’s retirement when his service tenure with WBSMICL was totally unblemished and no departmental proceedings was ever initiated against him. 4. The petitioner has relied upon the judgment reported in 2015 (4) SCC 334 State of Punjab & Ors. vs. Rafiq Masih (Whitewashers) & Ors. and a Single Bench judgment delivered in WP no. 15856(W) of 2019 Prodosh Kumar Kundu and Ors. vs. State of West Bengal and Ors. delivered on 12th December, 2019 which was upheld by an Hon’ble Division Bench of this Court in MAT 750 of 2020 in West Bengal State Minor Irrigation Corporation Limited and Ors. vs. Prodosh Kumar Kundu and Ors. delivered on 4th July, 2022 in support of his contention. vs. State of West Bengal and Ors. delivered on 12th December, 2019 which was upheld by an Hon’ble Division Bench of this Court in MAT 750 of 2020 in West Bengal State Minor Irrigation Corporation Limited and Ors. vs. Prodosh Kumar Kundu and Ors. delivered on 4th July, 2022 in support of his contention. Relying upon these judgments, the petitioner says that the recovery on the ground of alleged overdrawn money is wholly illegal and could not have been done in respect of benefits given in the year 2001 and 2007 after two years from superannuation. 5. On behalf of the respondents, it is submitted that the Managing Director of WBSMICL by an order dated 14th July, 2010 allowed Modified Career Advancement Scheme to the petitioner with the following stipulation:- “2. The Divisional Engineer/Sub-Divisional Engineer shall make it clear to the employees that the pay fixation under this rule is provisional and overdrawal if any shall be recovered forthwith. This will be effected in case of the employees of head Office also. 3. Any complication classification regarding pay fixation may be referred to the Head Office. 4. Before granting the benefit of modified C.A.S. to the employees it may be ensured that there is no Vigilance Case Department Enquiry against the employees concerned. All conditions of eligibility as mentioned in G.A. 3015-F, dtd.13.01.2001 (copy enclosed) and clarifications issued from time to time will apply mutatis – mutandis. 5. The fixation of D.E./S.D.Es under the Modified Career Advancement Scheme will be done by the Head Office. In case of other employees the fixation will be done by the Office of the Divisional Engineer. All fixation statement shall be sent to the Head Office for ratification.” 6. It is further submitted by the respondent that the petitioner received the benefit of 16years of service under Modified Career Advancement Scheme, 2001 (MCAS’ 01) with effect from 1st August, 2001 under the order of WBSMICL dated 14th July, 2010. The pay fixation of the petitioner under MCAS’ 01 was, therefore, provisional and with the stipulation that any overdrawn amount would be recovered forthwith. The writ petitioner received 25 years’ MCAS’ 01 benefit with effect from 1st August, 2007 under the same order with the same stipulation. The pay fixation of the petitioner under MCAS’ 01 was, therefore, provisional and with the stipulation that any overdrawn amount would be recovered forthwith. The writ petitioner received 25 years’ MCAS’ 01 benefit with effect from 1st August, 2007 under the same order with the same stipulation. The respondent further submits that by dint of the memos/ guidelines issued from the Department of Water Resources Investigation and Development, Government of West Bengal and the memoranda dated 17th May, 2018 bearing No.1022/WI/0/2P/03/2018, 13th February, 2019 bearing no. 318/WI/0/2P-03/2018, and 14th March, 2019 bearing no. 594/WI/0/2P-03/2018 and 14th March, 2019 the benefit of MCAS’ 01 extended to the employees of this corporation has been withdrawn. As a consequence thereto, the basic pay of the petitioner was recalculated which naturally got reduced. The retiral benefits were fixed on the basis of such re-calculated basic pay. On such re-fixation of pay, the petitioner is entitled to gratuity amount Rs.7,37,403/-and leave salary Rs.3,68,190/-. The petitioner had by virtue of such MCAS’01 benefits overdrawn a sum of Rs.1,94,897/-which was adjusted from the amount payable on account of gratuity and leave salary and as such was paid Rs.9,10,696/-towards his retiral benefit on 30th July, 2019. The petitioner, therefore, is not entitled to any amount in excess of Rs.9,10,696/-which has already been paid to the petitioner. The petitioner is also not entitled to any interest. 7. The respondents have relied upon the judgment reported in (2012) 8 SCC 417 Chandi Prasad Uniyal vs. State of Uttarakhand in support of their contentions that in case of an undertaking being given by the employee for recovery of overdrawn money while receiving a benefit debars the said employee from challenging the action of the employer in recovering the overdrawn money if it is subsequently found that additional amounts were disbursed due to some mistake. 8. In response to such argument it is submitted on behalf of the petitioner that no specific undertaking was obtained from the petitioner regarding recovery of any overdrawn amount. In absence of the petitioner having signed any undertaking the unilateral decision as in the order dated 14th July, 2010 cannot be pressed against the petitioner for the alleged re-fixation of pay and recovery of overdrawn amount. The petitioner was given the benefit of MCAS’ 01 at the right time and in the proper manner. In absence of the petitioner having signed any undertaking the unilateral decision as in the order dated 14th July, 2010 cannot be pressed against the petitioner for the alleged re-fixation of pay and recovery of overdrawn amount. The petitioner was given the benefit of MCAS’ 01 at the right time and in the proper manner. The petitioner cannot be unilaterally reverted back to a position where MCAS’ 01 did not exist. The withdrawal is unilateral and has been made on 9th July, 2019, after more than 2 years from the petitioner’s retirement and after 9 years from having given such benefits. All the letters referred to by the respondents for the purpose of withdrawing the benefits of MCAS’ 01 are post-petitioner’s retirement. These post-retirement circulars cannot be also implemented against the petitioner. 9. The petitioner also says that the respondent are trying to confuse the Court, if possible by referring to the benefit under Revision of Pay and Allowance, 1998 (ROPA 1998) and ROPA 2009. The benefit of MCAS’ 01 is different from the benefits under the ROPA. ROPA is the general revision of pay and allowance which is extended to all categories of employees unless excluded specifically, pursuant to recommendations made by the Pay Commission. Modified Career Advancement Scheme (in short MCAS) is given to a particular class of employee entitled to after having served the organisation for a particular period of time without any career advancement i.e., promotion. The petitioner joined the services of WBSMICL on 25th August, 1982 as an operator. He did not get any promotion and as such his career advancement was stagnated. Taking into account this aspect the organisation gave him career advancement benefits after expiry of 16 years and after expiry of 25 years from his joining. Benefits under MCAS’ 01 are different from ROPA benefits. The petitioner, therefore, should be given the benefits. 10. The petitioner has also relied upon the judgment reported in 2016 (14) SCC 267 (High Court Punjab & Haryana and Ors. vs. Jagdev Singh. Benefits under MCAS’ 01 are different from ROPA benefits. The petitioner, therefore, should be given the benefits. 10. The petitioner has also relied upon the judgment reported in 2016 (14) SCC 267 (High Court Punjab & Haryana and Ors. vs. Jagdev Singh. The petitioner has also relied upon the judgment reported in 1994 (2) SCC 521 Shyam Babu Verma v. Union of India, 1995 Supp (1) SCC 18 Sahib Ram v. State of Haryana, 2009 (3) SCC 475 Syed Abdul Qadir v. State of Bihar, Chandi Prasad (supra) in support of his contention that the recovery from the petitioner’s retirement benefit by the respondent No.3 is illegal and not tenable. 11. After hearing the parties and considering the materials on record as also the judgments cited at the bar, it is apparent that the recovery from an employee of any amount passed on to him by mistake cannot be made under the conditions as held in paragraph 18 of Rafiq Masih (supra) at SCC page 345. “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 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 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.” 12. In the instant case, the petitioner belongs to Class-III employee. (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.” 12. In the instant case, the petitioner belongs to Class-III employee. The benefits have been recovered after two years from the date of retirement on the ground of mistake in connection with a benefit given for more than 5 years. No intimation of recovery was also given to the petitioner one year prior to his retirement. 13. The exception to such recovery has been carved out in Jagdev Singh (supra). In Jagdev Singh (supra) there was a departmental proceedings against the employee concerned which resulted on the compulsory retirement which is not in case of the petitioner. The petitioner’s case also does not come under the exceptions provided in Rafiq Masih (supra) where an employee on having given a specific undertaking for recovery of excess amount cannot later on question such recovery. That is also not so in this case in absence of specific undertaking. 14. In the instant case no such specific undertaking was obtained from the petitioner while granting him the benefits under MCAS’ 01 though, the order dated 14th July, 2010 provides that recovery of overdrawn amounts. The undertaking contained in the said order should be construed as a general undertaking and in absence of any specific undertaking the employee is not bound by it even though he has received the benefit in terms of the said order. The order dated 14th July, 2010 also provides for forthwith recovery. In Jagdev Singh (supra) the recovery was made within few months from the date of the employee’s compulsory retirement which is also not in the case in hand where recovery has taken place after 2 years from retirement. In the instant case, no recovery was also made prior to one year from the date of the petitioner’s retirement although the benefit was given from 2010. The recovery has been sought to be made in the instant case after two years from the date of retirement which cannot comply the requirement of forthwith recovery. In the instant case, no recovery was also made prior to one year from the date of the petitioner’s retirement although the benefit was given from 2010. The recovery has been sought to be made in the instant case after two years from the date of retirement which cannot comply the requirement of forthwith recovery. Moreover, mistake alleged by the respondents is in respect of MCAS’ 2001 being the foundation of recovery is on the basis of the letters and policy guidelines issued in 2019 i.e. subsequent to the petitioner’s retirement. At the time of retirement, the benefits under MCAS’ 2001 the benefits under MCAS’ 2001 was a valid conferment to the petitioner. It was also the obligation of the WBSMICL to pay the retiral benefits to the petitioner in time i.e. immediately after retirement. Had this been done then the question of operation of the policy guidelines and the letters issued in 2019 would have had no impact on the petitioner’s retiral benefits. The factual difference between the case considered by the Hon’ble Supreme Court in Jagdev Singh (supra) and the exceptions in Rafiq Masih (supra) from that in hand makes the ratio of Jagdev Singh (supra) or the exceptions in Rafiq Masih (supra) in applicable to the case of the petitioner. 15. In the aforesaid facts and circumstances, the writ petition is allowed. 16. The petitioner is entitled to interest @ 10 per cent of Rs.9,10,696/-from the next date from his date of retirement i.e., 1st May, 2017 till 30th July, 2019 being the date on which such amount was paid. The petitioner is also entitled to receive Rs.2,79,254/-(Rs.11,89,950-9,10,696) being the unpaid retiral benefit with interest @ 10 per cent per annum from 1st May, 2017 until repayment . The interest rate awarded is on the basis of the prevalent interest rate in respect of delayed payment of gratuity as per the provisions of Payment of Gratuity Act, 1972. Since, the major portion of the petitioner’s retiral benefit is on account of gratuity, the leave salary is also treated as a retiral benefit which attracts the same rate as in case of gratuity and as such 10% interest is also granted in respect of such amount. The writ petition is accordingly disposed of. Since, the major portion of the petitioner’s retiral benefit is on account of gratuity, the leave salary is also treated as a retiral benefit which attracts the same rate as in case of gratuity and as such 10% interest is also granted in respect of such amount. The writ petition is accordingly disposed of. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis after compliance with all necessary formalities. Later: After pronouncement of the judgment on behalf of the respondents an order dated 12th December, 2023 passed in WPA 14288 of 2023 (Sikha Dutta vs. The State of West Bengal & Ors.) has been placed before this Court in support of the payment of the retiral benefits without interest. Considered the judgment. I am not inclined to refuse the interest to the petitioner in as much as the retiral benefits are not bounty and has to be paid in time. The major portion of the retiral benefit in the instant case comprises of gratuity which is required to be paid within a time frame as provided under the Payment of Gratuity Act, 1972 and the Rules framed thereunder, failing which the statute provides for payment of interest. The present interest rate as I have already held in respect of delayed payment of gratuity is 10% per annum, so the judgment and order remains unaltered. It is further submitted by the respondent that in the alternative the interest rate should be reduced as the respondents are willing to pay the entire amount with interest within a month from the service of the server copy of this order, in default, the rate of interest shall be 10% per annuam. Considering the prayer for reduction of the interest, the respondent shall pay interest @ 7% per annum on Rs.9,10,696/-from the date immediately succeeding to the petitioner’s retirement, that is, 1st May, 2017 till 31st July, 2019 within a month from the service of the server copy of this order without insisting upon production of a certified copy thereof failing which the interest to be paid will be 10 % per annum on the said sum for the aforesaid period. The petitioner shall also be entitled to receive Rs.2,79,254/-along with interest @ 7% per annum from 1st May, 2017 till repayment, if such payment is made within one month from the service of the server copy of this order failing which the interest will be @ 10 % per annum for the same period. Let this alteration as to the interest be read and meant with the judgment delivered.