Recovery of alleged over payment from retiral benefits would be iniquitous and arbitrary if sought after retirement or within one year of retirement. The legal provisions of Sec. 13 of the Payment of Gratuity Act, 1972 and Sec. 60 of the CPC protect the gratuity payable to a retired employee from unilateral touch by the employer without adjudication by a competent forum.

ARIJIT BANERJEE, J.

1. The material facts of the case are that the petitioner joined service under the respondent No.1 (in short NICL) in or about October, 1979. He superannuated from service on 30 April, 2016 as Development Officer, Grade - I, (Marketing).

2. By an inter-office communication dated 27 April, 2016 issued by the Administrative Officer of the Accounts Department of NICL, a copy whereof was marked to the petitioner, the terminal dues of the petitioner were assessed at Rs. 18,47,456/- (Rs.11,86,035/- on account of Gratuity and Rs. 6,92,380/- on account of Leave Encashment). After his superannuation, by a letter dated 2 May, 2016, the petitioner requested the respondent No. 2 being the Deputy General Manager, NICL to clear his retiral dues in terms of the communication dated 27 April, 2016.

3. On 4 May, 2016, the petitioner received a communication from the respondents wherein a 'Revised' amount of terminal benefit to the tune of Rs. 10,07,325/- on account of Gratuity and Rs. 5,87,356/- on account of Earned Leave Encashment was stated to be payable to the petitioner. No reason for the 'Revision' was not mentioned in the said communication.

4. On the same day i.e. 4 May, 2016 the respondent No. 3 being the Branch Manager, Ballygunje branch of NICL issued a communication informing the petitioner that a sum of Rs. 7,25,710/- was being recovered from the terminal dues of the petitioner as per direction of the Audit Department.

5. The petitioner made representations to the respondents protesting against such recovery. Not having received any response, the petitioner has approached this Court by way of the present writ petition.

6. Mr. Majumdar, learned counsel for the petitioner submitted that the petitioner has an unblemished service record, no disciplinary action was ever taken against him. The petitioner was never informed as to why the aforesaid recovery was being made from his retiral benefits. No opportunity was given to the petitioner to deal with any purported reason for such recovery. Such recovery has been made in flagrant breach of the principles of natural justice.

7. When the writ petition was moved, by an order dated 4 October, 2018 the Regional Manager (Personnel) of NICL was added as a respondent in the writ petition and he was directed to file a report in the form of an affidavit in response to the allegations made in the writ petition. Such report was filed on 30 January, 2019. The stand of the Insurance Company in the said report may be summarized as follows:-

(a) By an e-mail dated 29.4.2016 the Insurance Company's office to which the petitioner was attached prior to his superannuation, was intimated that as per documents received from the Combined Audit Cell, the basic salary of the petitioner was to be decremented by three stages with effect from 01.04.2016. Accordingly, the gratuity and earned leave encashment payable to the petitioner on his superannuation were reduced proportionately.

(b) The recovery in the instant case pertains to dispute regarding incentive payment to the petitioner in lieu of brokerage. By an e-mail dated 10 July, 2013 the Ballygunge Branch of the Insurance Company to which the petitioner was attached was informed that for the purpose of giving incentive on co-insurance share it was necessary to have a letter from the insured addressed to the leader Insurance Company in connection with placement of percentage of share to another office and clearly mentioning the name of the Development Officer of the said office under whose code the share premium has been booked, failing which, no credit would be given to the Development Officer for incentive purpose. It was further mentioned that if any incentive was released on co-insurance share premium without the said document, the same was to be recovered.

(c) It has come to light that no such letter has been received from the insured in connection with placement of percentage of share of co-insurance business to the petitioner for the