Calcutta High Court (Appellete Side)
Jaba Rani Ghosh vs The State Of West Bengal & Ors on 11 February, 2021
31 11.02.2021. WPA 1481 of 2021
jks
Ct.
Jaba Rani Ghosh.
Vs
The State of West Bengal & Ors.
Mr. Banshi Badan Maity,
...For the Petitioner.
Mr. Malay Kumar Singh,
Mr. Bhaskar Chakraborty,
...For the State.
Affidavit of service filed in Court today is kept with
the record.
The writ petitioner's husband served as an
Assistant teacher in a school and retired from the said
school on 31.07.1994. The writ petitioner is aggrieved by
reason of deduction in basic pay by pension payment order
issued by the concerned authority on 07.03.2000. The
amount deducted is Rs. 61,272/- under the category of
"overdrawal in pay etc".
The issue whether overdrawal of pay can be
adjusted against retirement dues of an employee has been
settled in Shyam Babu Verma & Ors. Vs. Union of India
& Ors. reported in (1994) 2 SCC 521 and also in a later
decision in the case of Syed Abdul Qadir & Ors. Vs. State
of Bihar & Ors. reported in (2009) 3 SCC 475 and also in
the case of State of Punjab and Ors. Vs. Rafiq Masih
(White Washer) & Ors. reported in (2015) 4 SCC 334. A
judgement of a co-ordinate Bench of this court in the case
of Shiba Rani Maity Vs. The State of West Bengal in
W.P. 29979(W) of 2016 as well as Biswanath Ghosh Vs.
The State of West Bengal in W.P. 27562 (W) of 2016 has
categorically held that in a case where no rights have
accrued in favour of a third party, the petitioner who has
suffered by reason of non-payment of amount withheld on
the ground of an alleged overdrawal has a right to
approach this court for appropriate relief. The relevant
paragraphs from W.P. 29979(W) of 2016 are set out below:-
"(15) The only other question is that whether the
writ petition should be entertained in spite of
delay of about 17 years in approaching this
Court. In a judgment and order dated 6
September, 2010 delivered in MAT 1933 of
2010 passed by a Division Bench of this
Court and held that although the petitioner
had approached the Court after a lapse of
nine years, no third party right had accrued
because of the delay and it was only the
petitioner who suffered due to non-payment
of the withheld amount on account of alleged
overdrawal. Accordingly the Division Bench
set aside the order of the Learned Single
Judge by which the writ petition had been
dismissed only on the ground of delay.
(16) Following the Division Bench judgement of
this Court adverted to above, I hold that it is
only the petitioner who suffered by reason of
the wrongful withholding of the aforesaid
sum from his retiral benefits. Although there
has been a delay of about 17 years in
approaching this Court, the same has not
given rise to any third party right and
allowing this writ application is not going to
affect the right of any third party. It may also
be noted that the Hon'ble Apex Court
observed in its decision in the case of Union
of India Vs. Tarsem Singh, (2008) 3 SCC 648
that relief may be granted to a writ petitioner
in spit of the delay if it does not affect the
right of third parties".
Paragraph 18 of "State of Punjab Vs. Rafiq
Masih"(Supra) is also required to be set out".
"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".
It is clear from the above that a Writ of Mandamus
is prayed for is maintainable in the facts of the present
case.
The Director of Pension, Provident Fund and
Group Insurance and the Government of West Bengal as
also the concerned Treasury Officer are accordingly
directed to release the amount of Rs. 61,272/- to the
petitioner along with interest @ 4% per annum with effect
from the date of issuance of the pension payment order
which should be made to the petitioner within a period of
eight weeks from the date of communication of this order.
WPA 1481 of 2021 is disposed of with the above
directions.
Urgent certified copy of this order, if applied for,
be made available to the parties upon compliance of the
requisite formalities.
(Rajarshi Bharadwaj, J.)
