Calcutta High Court (Appellete Side)
Aparna Chakraborty vs State Of West Bengal And Others on 18 July, 2022
18.07.2022
Court No.13
Item No.29
pk
WPA 13521 of 2009
Aparna Chakraborty
Vs.
State of West Bengal and others
Mr. Ekramul Bari
Ms. Tanuja Basak
... For the Petitioner.
Ms. Munmun Tewary
....for the State
The writ petitioner served as an Assistant Teacher
in a School and retired on 31.10.2008. As pre-condition
for disbursal of the retiral benefits a sum of Rs.68,360/-
was deducted from 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. 68,360/- 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.)
