STATE OF WEST BENGAL Vs. ILA GIRI

JUDGEMENT

(1.) The instant Mandamus Appeal was filed beyond the prescribed period of limitation. The last date for filing the instant appeal expired on 9th June, 2010. The instant appeal was in fact, filed on 2nd June, 2012. Thus, there was 744 days delay in filing this appeal before this Court. The reason for the delay has been sufficiently explained by the petitioners in its application for condonation of delay.

(2.) Slow movement of file from one table to another was the primary cause for the delay in filing this appeal. Even the lawyer who was engaged by the State -respondents for preferring this appeal, returned the brief for his personal reason and as such, another lawyer had to be engaged by the State -respondents. Even the newly engaged lawyer could not file the appeal due to change in the panel in which he was not retained. Accordingly, another lawyer had to be engaged by the State - respondents for filing this appeal. In this process, delay was caused. We find that such long delay has not been satisfactorily explained by the appellants in its application for condonation of delay. However, a meritorious appeal cannot be dismissed by the court merely because of insufficiency of the explanation given by the appellants for the delay in its application for condonation of delay. As such, we venture to consider the merit of the appeal also while considering the appellants' application for condonation of delay.

(3.) Here is the case where we find that while settling the retiral dues of the appellant's husband who was an Assistant Teacher of a Secondary School, it was detected that the he was not entitled to honours graduate scale of pay from 16th May, 1967 though such scale of pay was given to him by the concerned authority. There is nothing on record to show that the husband of the writ petitioner was in any way responsible for grant of honours graduate scale to him during the tenure of his service. Had it been a case that such honours graduate scale was granted to him on account of any fraudulent misrepresentation made by the husband of the writ petitioner with regard to his educational qualification before the concerned authority, then certainly the excess payment which was made to the husband of the writ petitioner could have been recovered even after his retirement. But if it is found that any excess payment was made to the husband of the writ petitioner due to his erroneous pay fixation by the concerned authority such excess payment cannot be recovered from the retiral dues of such retired employee after his retirement. As a matter of fact, the Learned Single Judge while disposing of the said writ petition relied upon a decision of the Hon'ble Supreme Court in Syed Abdul Qadir & Ors. vs. State of Bihar & Ors., 2009 1 Supreme 163 wherein it was held that if any excess payment is made to an employee due to his wrong pay fixation by the concerned authority during the tenure of his service such excess payment cannot be recovered from such retired employee after his retirement. Relying upon the said decision, the Learned Single Judge set aside the decision of the ADA ordering recovery of over payment and directed the Director of Pension, Provident Fund & Group Insurance, West Bengal to refund the recovered amount. The Director of Pension, Provident Fund & Group Insurance was further directed to recalculate the retiral benefits on the basis of the teacher's pay at the date of his retirement and pay the writ petitioner his admissible retired benefits with interest at the rate of 8% per annum from 1st December, 1999 till the date of actual payment thereof.