Calcutta High Court (Appellete Side)
Chandi Charan Mondal vs State Of West Bengal & Ors on 19 March, 2021
19.03.2021
(A.Deb)
Sl.No 303
WPA 7347 of 2021
Chandi Charan Mondal
Vs.
State of West Bengal & ors.
Mr. Uttam Kumar Roy
... for the petitioner.
Mr. Swapan Kumar Pal
..for the State
Affidavit of service filed in court today is taken on
record.
The writ petitioner served as an assistant teacher in
the concerned school and retired from the said school on
29.02.1996. The writ petitioner is aggrieved by reason of
deduction in his basic pay by pension payment order
issued by the concerned authority on 11.03.2002. The
amount deducted is Rs. 9497/- 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. v. 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) & 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.
2
No. 29979 (W) of 2016 as well as Biswanath Ghosh v. The
State of West Bengal in W.P. No. 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 WP No. 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 of the Learned
Single Judge by which the writ petition had been
dismissed only on the ground of delay.
(16) Following the Division Bench judgment 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
3
648 that relief may be granted to a writ petitioner in
spite of the delay if it does not affect the right of third
parties."
Paragraph 18 of "State of Punjab v. 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."
4
It is clear from the above that a Writ of Mandamus
is prayed for is maintainable in the facts of the present
case.
The contention raised by learned Counsel for the
State should be mentioned that there has been delay of
seven years on the part of the writ petitioner in filling the
writ petition and that no grounds have been taken in the
petition to explain the delay. Although this Court is
bound by the decision in Tarsem Singh, it should be
mentioned that there has been a substantial delay on the
part of the writ petitioner, the writ petition should contain
statement referring to a reason for such delay.
The respondent authorities being the respondent
nos. 2 and 4 are accordingly directed to release the
amount of Rs. 9497/- 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 7347 of 2021 is disposed of with the above
directions.
Urgent certified website copy of this order, if applied
for, be made available to the petitioner upon compliance
with the requisite formalities.
(Rajarshi Bharadwaj, J.)
