Calcutta High Court (Appellete Side)
Malay Kumar Datta vs The State Of West Bengal And Others on 28 April, 2026
43 28.04. IN THE HIGH COURT AT CALCUTTA
2026 CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE.
Ct. No. 24
Ab
WPA 6418 of 2026
Malay Kumar Datta
Vs.
The State of West Bengal and others.
---------------
Ms. Sreyasree Choudhury.
… for the petitioner.
Mr. Nilanjan Adhikari.
… for the State.
1. Affidavit of service, as filed, be kept with the record.
2. The writ-petitioner served as an Assistant Teacher
in a School and retired on January 31, 2022. As
pre-condition for disbursal of the retiral benefits,
the petitioner was required to deposit a sum of
Rs.3,58,135/- by way of Treasury Challan on the
ground of alleged overdrawal. Being aggrieved, the
petitioner has approached this Court by way of the
present writ petition.
3. The issue whether overdrawal of pay can be
adjusted against retirement dues of an employee
have been settled in the case reported in (1994) 2
SCC 521 (Shyam Babu Verma & Ors. v. Union of
India & Ors.), and also in a later decision in the
case reported in (2009) 3 SCC 475 (Syed Abdul
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Qadir & Ors. v. State of Bihar & Ors.) and also in
the case reported in (2015) 4 SCC 334 (State of
Punjab and Ors. v. Rafiq Masih (White Washer) &
Ors.) and in the case reported in AIR 2022 SC 2153
(Thomas Daniel V. State of Kerala). A judgment of
a co-ordinate Bench of this Court in the case of
Shiba Rani Maity v. The State of West Bengal in
W.P. No. 29979 (W) of 2016 as well as Biswanath
Ghosh v. The State of West Bengal in W.P. No.
27562 (W) of 2016 has categorically held that in a
case where no rights have accrued in favour of a
third party, the petitioner who has suffered by
reason of non-payment of amount withheld on the
grounds of an alleged overdrawal has a right to
approach this court for appropriate relief. The
relevant paragraphs from W.P. No. 29979 (W) of
2016 are set out below:
“(15) The only other question is that whether the writ
petition should be entertained in spite of delay of about 17
years in approaching this Court. In a judgment and order
dated 6 September, 2010 delivered in MAT 1933 of 2010
passed by a Division Bench of this Court and held that
although the petitioner had approached the Court after a
lapse of nine years, no third party right had accrued
because of the delay and it was only the petitioner who
suffered due to non-payment of the withheld amount on
account of alleged over-drawal. Accordingly the Division
Bench set aside the order of the Learned Single Judge by
which the writ petition had been dismissed only on the
ground of delay.
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(16) Following the Division Bench judgment of this Court
adverted to above, I hold that it is only the petitioner who
suffered by reason of the wrongful withholding of the
aforesaid sum from his retiral benefits. Although there has
been a delay of about 17 years in approaching this Court,
the same has not given rise to any third party right and
allowing this writ application is not going to affect the right
of any third party. It may also be noted that the Hon’ble
Apex Court observed in its decision in the case of Union of
India vs. Tarsem Singh, (2008) 3 SCC 648 that relief
may be granted to a writ petitioner in spite of the delay if it
does not affect the right of third parties.”
Paragraph 18 of “State of Punjab v. Rafiq
Masih” (supra) is also required to be set out:
“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
4extent, as would far outweigh the equitable balance of
the employer’s right to recover.”
4. It is clear from the above that a Writ of Mandamus
as prayed for is maintainable in the facts of the
present case.
5. The Director of Pension, Provident Fund and
Group Insurance, Government of West Bengal,
concerned District Inspector of Schools and also
the concerned Treasury Officer are accordingly
directed to release the amount of Rs.3,58,135/- to
the petitioner along with interest @ 8% per annum
with effect from the date of issuance of the
pension payment order, within a period of eight
weeks from the date of communication of this
order.
6. With these directions, WPA 6418 of 2026 is
disposed of. No order as to costs.
7. Urgent certified website copy of this order, if
applied for, be made available to the petitioner
upon compliance with the requisite formalities.
(Reetobroto Kumar Mitra, J.)
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