Sk. Abdul Wahid v. The State of West Bengal & Ors.

#4. Mr. Krishna Pada Santra, learned Advocate for the petitioner submits that the amount of the first deposit, that is Rs.1,34,260/- pertains to period from 1st April, 2008 to 30th November, 2017, which is more than five years from the date of order of recovery. Relying on the decision of Hon’ble Supreme Court in State of Punjab & ors versus Rafiq Masih (White Washer) & Ors reported in (2015) 4 SCC 334 he submits that such recovery of alleged overdrawn amount is impermissible in law. He seeks for refund of amount of Rs.1,34,260/. He concedes that the other portion of the overdrawn salary in respect of the period from 1st January, 2020 to 31st July, 2021 amounting to Rs.51,019/- is correct and petitioner does not claim for its refund.

#5. On the contrary, Mr. SM Samim Ullah, learned Advocate appearing on behalf of the State submits that upon verification it was detected that the petitioner has received excess amount of salary and therefore, the 3 petitioner was directed to deposit the overdrawn amount of salary. The petitioner without any objection has deposited the same and as such, the prayer for release of alleged overdrawn amount of salary is not sustainable in law. He seeks for dismissal of the writ petition.

#6. Upon hearing the learned Advocates for the respective parties, the only issue which falls for consideration is whether the respondent authorities particularly, the respondent no.4, the District Inspector of Schools (SE), North 24-Parganas was justified in directing the petitioner to deposit the alleged overdrawn amount of salary or not.

#7. In order to examine such issue it would be apposite to reproduce the relevant portion of paragraph 18 of Rafiq Masih (supra) as follows : It recoveries the decisions of “18. 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 payment. Be that as it may, based on 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 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 though he should have accordingly, even 4 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 employees, 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.”

#8. Reverting back to the facts of this case, as far as the first deposit of Rs.1,34,260/- is concerned, it pertains to the period from 1st April, 2008 to 31st November, 2017, which is in excess of five years before the order of recovery was issued. As per the proposition laid by the Hon’ble Supreme Court in Rafiq Masih (supra), the direction to deposit the alleged overdrawn amount salary Rs.1,34,260/- is impermissible in law. So far as the second deposit of overdrawn amount of salary amounting to Rs.51,019/- is concerned, it pertains to the period from 1st January, 2020 to 31st July, 2021, which is less than five years from the date of order of recovery and is not within one year prior to retirement of the employee and therefore, it is sustainable.

#9. Accordingly, the respondent no.2, the Director of Pension, Provident Fund and Group Insurance, Government of West Bengal, the respondent no.3, the Treasury Officer, Basirhat and the respondent no.4, the District Inspector of Schools (PE), North 24-Parganas are directed to refund the overdrawn amount of salary of Rs. 1,34,260/- pertaining to the period from 1st April, 2008 to 31st November, 2017 5 along with interest at the rate of 8% per annum to the petitioner from the date of deposit of the aforesaid amount till the date of actual payment. Such payment shall be made within a period of eight weeks from the date of communication of this order.

#10. Learned advocate for the petitioner is directed to communicate this order to the respondent nos.2, 3 and 4 for necessary action.

#11. With the above direction, the writ petition being WPA 28578 of 2025 stands disposed of.

#12. Since no affidavits have been called for, the allegation made in the writ petition is deemed to be not admitted.

#13. Interim order, if any, stands vacated.

#14. All connected applications, if any, stand disposed of.

#15. There shall be no order as to costs.

#16. All concerned parties shall act in terms of the copy of the order duly downloaded from the official website of this Court.

#17. Urgent Photostat certified copy of the order, if applied for, be given to the parties on compliance of all necessary legal formalities. (Bivas Pattanayak, J.)