Chabbi Paul v. The State Of West Bengal And ORS

Court No. 2

IN THE HIGH COURT AT CALCUTTA

Circuit Bench At Jalpaiguri Constitutional Writ Jurisdiction Appellate Side W.P.A. 1293 of 2024 Chhabi Paul VS The State of West Bengal & Ors.

Mr. Debajit Kundu ... for the petitioner.

Ms. Pretom Das, Mr. Sourav Sarkar ... for the State-respondents.

Affidavit-of-service filed in Court today be kept 02.07.2024 Item No.8 (dc) with the record.

The writ petition has been preferred against Memo No. 5351/S dated 3.9.2004 which was issued by the Assistant Director of Pension, Provident Fund and Group Insurance, West Bengal wherein it was contended that there is overdrawal in pay of Rs.46415/-. In view of the judgement of the Hon'ble Supreme Court in State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC 334, the case of the petitioner squarely falls within paragraph 18 of the said judgement which is as follows :

"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 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 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." Having considered the law settled by the Hon'ble Supreme Court, the direction of the respondent No.2 upon the respondent No.4 for overdrawal in pay to the extent of Rs.46415/- is hereby quashed.

The petitioner would be entitled to the said amount and the Treasury Officer being the respondent No.4 has no jurisdiction in view of the observations made by the Hon'ble Apex Court (as above).

With the aforesaid observations, the writ petition being WPA 1293 of 2024 is disposed of. Pending connected application, if any, is consequently disposed of.

There shall be no order as to costs.

All concerned parties shall act on the server copy of this order duly downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

(Tirthankar Ghosh, J.)