Calcutta High Court (Appellete Side)
Uday Chand Choudhury vs The State Of West Bengal & Ors on 8 November, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
08.11.16
Sl. No.68
akd
W.P. 23315(W) of 2016
[Uday Chand Choudhury -Vs- The State of West Bengal & Ors.]
Mr. Sourav Mitra,
Ms. Sanchayita De
... ... for the petitioner
Mr. Kartik Kumar Ray
... ... for the State
Affidavit-of-service filed in Court today be kept with the record.
The petitioner was a Head Teacher of Sagarpur F.P. School, District: Burdwan. He
retired from service with effect from 30th November, 1992. The Pension Payment Order
was issued by the respondent authorities on 8th April, 2000. An amount of Rs.
1,16,471.00 was deducted on account of alleged overdrawal. Being aggrieved, the petitioner has approached this Court by way of the present writ petition.
It is settled law that recovery of excess payment cannot be made from the retiral benefits of an employee after his retirement unless such excess payment was made to the concerned employee because of some misrepresentation or fraud on his part. In this connection reference may be made to the Apex Court decisions in the cases of Shyam Babu Verma & Ors. Vs. Union of India & Ors. reported in (1994) 2 SCC 521 and Syed Abdul Qadir & Ors Vs. State of Bihar & Ors. reported in (2009) 3 SCC 475. The most recent decision in this regard is that in the case of State of Punjab & Ors. Vs. Rafiq Masih reported in 2015 (1) CLJ (SC) 192, in paragraph 12 whereof the Hon'ble Supreme Court observed as follows :
2
" 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 hat as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :
i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service)
ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
iii) Recovery from 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."
The only question is that whether the writ petition should be entertained in spite of delay of about sixteen years in approaching this Court. Learned Counsel for the petitioner has drawn my attention to judgment and order dated 6th September, 2010 passed by a Division Bench of this Court in MAT 1933 of 2010. Learned counsel for the respondents in his usual fairness submits that in view of the settled law appropriate orders may be passed by this Court. In that case the Hon'ble Division Bench 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 overdrawal. 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.
I have heard the learned counsel for the parties. It is nobody's case that the alleged excess payment was made to the petitioner by reason of any fraud or misrepresentation on his part. Hence, according to the principle laid down in the Hon'ble Supreme Court decisions referred to above, no recovery could be made from the retiral 3 benefits of the petitioner. The withholding of the sum or Rs. 1,16,471.00 was clearly contrary to law.
Further, following the Division Bench judgment of this Court adverted to above, I am inclined to hold that it is only the petitioner who has suffered by reason of the wrongful withholding of the aforesaid sum from his retiral benefits. Although there has been a delay of sixteen 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 was observed by the Hon'ble Supreme Curt decision in the case of Union of India Vs. Tarsem Singh reported in (2008) 3 SCC 648, relief may be granted to a writ petitioner in spite of delay if it does not affect the right of third parties.
In view of the aforesaid this writ petition is allowed. The respondent no. 5 is directed to release the amount of Rs. 1,16,471.00 to the petitioner along with interest at the rate of 6% per annum with effect from the date of deduction. Such payment is to be made to the petitioner within a period of six weeks from the date of communication of this order.
Since no affidavit-in-opposition has been invited, the allegations contained in the writ petition are deemed not to be admitted.
WP No. 23315 (W) of 2016 is, accordingly, disposed of.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Arijit Banerjee, J.)