M/L 295

22.01.2025 Court No.19 SD IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION WPA 20466 of 2024 Pabani Saren Vs.

The State of West Bengal & Ors.

Mrs. Sanchayita De … for the Petitioner.

None appears on behalf of the State respondents in spite of service.

The husband of the petitioner was the Assistant Teacher of a Primary School, who died-in-harness on March 6, 2019.

On September 20, 2021, the petitioner had to deposit a sum of Rs.94,128/- as the condition precedent for disbursement of her husband‟s retiral dues since it was alleged that during the tenure of her husband‟s service, he had overdrawn the said amount.

It appears from record that such overdrawn amount was credited to the concerned employee on account of wrong pay fixation, the said employee was not responsible for fixation of such erroneous pay scale. In view of the several decisions of the Hon‟ble Supreme Court e.g SHYAM BABU VERMA –VS- UNION OF INDIA reported in (1994) 2 SCC 521 UNION OF INDIA & ORS. –VS- TARSEM SINGH reported in (2008) 8 SCC 648 and STATE OF PUNJAB & ORS. -VS– RAFIQ MASIH (WHITE WASHER) & ORS. reported in (2015) 4 SCC 334, the issue whether such overdrawn amount can be adjusted against the retiral benefits of an employee is no longer res integra.

However, to clarify the issue, paragraph „18‟ of the decision of the Hon‟ble Supreme Court in the case of Rafiq Masih (supra) is quoted below :-

“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 II 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.”

In view of the discussion made above, this Court is of the opinion that the petitioner is entitled to the relief as prayed for.

Accordingly, the concerned Director of Pension, Provident Fund and Group Insurance, Government of West Bengal and also the concerned Treasury Officer are directed to release the said amount of Rs.94,128/- along with interest @8% per annum thereon in favour of the petitioner from September 20, 2021 till the date of payment, such payment is to be made within a period of eight weeks from the date of communication of this order.

WPA 20466 of 2024 is disposed of with the terms. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties, subject to compliance of all requisite formalities.

(Biswajit Basu, J.)