Calcutta High Court (Appellete Side)
Smt. Kalpana Bhakta vs The State Of West Bengal & Ors on 2 August, 2022
02.08.2022.
Item no. 17.
pk
W.P.A. No. 13281 of 2022
Smt. Kalpana Bhakta
Versus
The State of West Bengal & Ors.
Mr. Sakti Pada Jana,
Mr. S. Das.
..For the petitioner.
Affidavit-of-service and further notice filed in
Court today are taken on record.
The writ petitioner served as an Assistant
Teacher in a School and retired on 31.07.2016. As pre-
condition for disbursal of the retiral benefits, a sum of
Rs.3,39,225/- was deducted from the petitioner as
overdrawal. Being aggrieved, the petitioner has
approached this Court by way of the present writ
petition.
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. 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 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."
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, Government of West Bengal,
concerned District Inspector of Schools and also the
concerned Treasury Officer are accordingly directed to
release the amount of Rs.3,39,225/- to the petitioner
along with interest @8% 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.
With the aforesaid directions, the instant writ
petition is disposed of.
Urgent certified website copy of this order, if
applied for, be made available to the petitioner upon
compliance with the requisite formalities.
(Rajasekhar Mantha, J.)
