Calcutta High Court (Appellete Side)
Nirmala Mondal vs The State West Bengal & Ors on 19 March, 2021
13 19.03.2021. W.P.A. 6275 of 2021
ab
Ct.
15
Nirmala Mondal Vs The State West Bengal & Ors.
Mr. Goutam Kumar Maity
... For the Petitioner.
Mr. Rajendra Chaturvedi
... For the State.
Affidavit of service filed in Court today is kept
with the record.
The petitioner served as an Assistant Teacher in
a school and retired from the said school on 31.10.2003.
The writ petitioner is aggrieved by reason of deduction in
his basic pay by pension payment order issued by the
concerned authority on 28.06.2005. The amount
deducted is Rs. 20,508/- 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) of
2016 as well as Biswanath Ghosh V. The State of West
2
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.
(16) Following the Division Bench judgement of
this Court adverted to above, I hold that it is
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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:
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(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 respondent authorities being respondent
nos. 2 and 4 are accordingly directed to release the
amount of Rs. 20,508/- 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. 6275 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.)
