Calcutta High Court (Appellete Side)
Nibaran Chandra Sarkar vs The State Of West Bengal And Ors on 25 August, 2022
25.08.2022
Court No.13
Item No.662
AP
WPA 12790 of 2022
Nibaran Chandra Sarkar
Vs.
The State of West Bengal and Ors.
Mr. Anirban Chakraborty
... For the Petitioner.
Ms. Tapati Samanta
... For the State.
Affidavit-of-service filed in Court today is
taken on record.
The writ petitioner served as an clerk in a
school and retired on 30.06.2012. As pre-condition for
disbursal of the retiral benefits, the petitioner was
required to deposit a sum of Rs.37,184/- by way of
Treasury Challan on the ground of alleged 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.37,184/- 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.)
