Calcutta High Court (Appellete Side)
Smt. Jaya Ghosh vs The State Of West Bengal & Ors on 9 January, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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09.01.2014.
d.p.
M.A.T. 1829 of 2013
(CAN 12040 of 2013)
Smt. Jaya Ghosh
Versus
The State of West Bengal & Ors.
Mr. Sourav Mitra,
Mr. Chandan Dutta.
...For the Appellant.
Mr. Debabrata Chatterjee.
...For the Council.
This mandamus appeal is directed against an order passed
by the Learned Single Judge of this court on 19th September, 2013
in W.P. No. 29096(W) of 2013 by which the writ petition filed by the
petitioner, was rejected by the Learned Trial Judge primarily on the
ground of delay in approaching the court.
Here is the case where we find that the petitioner was an
Assistant Teacher of Sishu Kalyan Patshala, Asansol. She retired
from service with effect from 31st October, 2007. Pension Payment
Order was issued by the concerned authority on 24th June, 2008.
The said Pension Payment Order is annexed to the stay petition at
page 50 thereof. It appears from the said Pension Payment Order
that a sum of Rs. 94,750/- was deducted from her retiral benefits
on account of overdrawal in pay.
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The petitioner filed the writ petition challenging such illegal
adjustment of the said sum of Rs. 94,750/- against her retiral
dues. The Learned Single Judge rejected the petitioner's said
application on the ground of delay in approaching the court for the
relief claimed by the petitioner in the writ petition.
The legality and/or propriety of the said order is under
challenge in this writ petition at the instance of the said retired
teacher.
The issue as to whether overdrawal in pay can be adjusted
against the retiral dues of a retired employee is no longer res
intergra in view of the following decisions of the Hon'ble Supreme
Court:-
i) In the case of Shyam Babu Verma & Ors. -vs- Union of
India & Ors. reported in (1994) 2 Supreme Court
Cases, 521 and
ii) In the case of Syed Abdul Qadir & Ors. -vs- State of
Bihar & Ors. reported in (2009) 3 Supreme Court
Cases, 475
It was uniformly held by the Hon'ble Supreme Court in those
cases that to avoid any hardship to the retired teachers, recovery of
any overdrawal in pay by way of adjustment against the retiral
dues of such retired teacher should not be made.
It was however, held therein that in the event any excess
payment was made to any teacher during the tenure of his/her
service on account of any misrepresentation or fraud on the part of
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the employee, such excess payment can be adjusted even against
the retiral dues of the employee after his/her retirement.
No case has been made out by the State-respondents that
such excess payment was made to the petitioner due to any misrepresentation or fraud on the part of the employee. Thus, at best such payment might have been made due to erroneous pay fixation of the petitioner by the concerned authority. There is nothing on record to show that the petitioner had any role to play in the process of her such pay fixation.
As such, we can safely conclude that this is a case where such excess payment was made due to wrong pay fixation made by the concerned authority during the tenure of her service but in view of the aforesaid decisions of the Hon'ble Supreme Court, such excess payment cannot be realised from the petitioner by way of adjustment of such overdrawal in pay against her retiral dues after her retirement. Even the Hon'ble Supreme Court while dealing with the case of Chandiprasad Uniyal & Ors. -vs- State of Uttarakhand & Ors. reported in (2012) 8 SCC, page 417 did not take any contrary view with regard to realisation of the overdrawal in pay from the retiral benefits of such retired person.
As such, we are of the view that the concerned authority was not justified in deducting a sum of Rs. 94,750/- from the retiral dues of the petitioner on account of overdrawal in pay and that too without giving her any opportunity of hearing before adjusting such overdrawal in pay against her retiral dues.
In our view, the writ petition ought not to have been dismissed on the ground of delay alone, as the State-respondents 4 did not suffer any loss due to the delay in approaching the court by the petitioner for the relief claimed by her in the writ petition. On the contrary, the State-respondents were benefited for such delay in approaching the court by the petitioner, as the State- respondents merrily enjoyed the petitioner's money which ought to have been paid to the petitioner by the State-respondents immediately after her retirement.
Thus, we cannot maintain the impugned order. The impugned order thus, stands set aside.
The concerned authority is thus, directed to refund a sum of Rs. 94,750/- which was deducted on account of overdrawal in pay from the retiral benefits of the petitioner, positively within a period of four weeks from the date of communication of this order.
It is made clear that in the event the said amout of Rs. 94,750/- is not refunded to the petitioner within four weeks from the date of communication of this order, the State-respondents will be liable to pay interest on the aforesaid amount @6% per annum from the date of retirement of the petitioner upto the date of actual payment thereof.
The appeal stands allowed.
Both the appeal and application are disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner immediately.
( Jyotirmay Bhattacharya, J ) 5 ( Ishan Chandra Das, J.)