Calcutta High Court (Appellete Side)
Unnati Biswas vs The State West Bengal & Ors on 12 March, 2021
04 12.03.2021. W.P.A. 983 of 2021
ab
Ct.
15
Unnati Biswas Vs The State West Bengal & Ors.
Ms. Arpita Saha
... For the Petitioner.
Affidavit of service filed in Court today is kept with the
record.
The husband of the writ petitioner served as an
Assistant Teacher in the concerned school and retired
from service on 20.09.1999 and died on 25.06.2006. The
writ petitioner is aggrieved by reason of deduction in his
basic pay by pension payment order issued by the
concerned authority on 21.12.2001. The amount
deducted is Rs. 9742/- 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 the case of 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. V. State of Bihar & Ors. reported
in (2009) 3 SCC 475 and also in the case of State of
Punjab and Ors. V. Rafiq Masih (White Washer) and
Ors., reported in (2015) 4 SCC 334. A judgement of a
co-ordinate Bench of this court in the case of Shiba Rani
Maity V. The State of West Bengal in W.P. 29979(W)
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of 2016 as well as Biswanath Ghosh V. 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 grounds 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 over-drawal. Accordingly
the Division Bench set aside the order o
the Learned Single Judge by which the writ
petition had been dismissed only on the
ground of delay.
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(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
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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
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Mandamus is prayed for is maintainable in the facts of
the present case.
The respondent authorities being the
respondent nos. 2 and 3 are accordingly directed to
release the amount of Rs. 9742/- to the petitioner along
with interest @ 4% per annum with effect from the date
of issuance of the pension payment order, within a
period of eight weeks from the date of communication of
this order.
W.P.A. 983 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.)
