China Pal vs The State Of West Bengal & Ors.

Sabyasachi Bhattacharyya, J.:

Affidavit of service filed today be kept on record.

Since a short point is involved, we take up the appeal itself, upon admitting the same, for being heard along with the connected application.

By the impugned order, the learned Single Judge has dismissed a writ petition filed by the petitioner, a retired employee, where the writ petitioner sought a refund of the excess payment allegedly made to her by the respondents/employers, which was recovered from her.

While dismissing the writ petition, the learned Single Judge observed that the employer has the right to rectify the error in pay fixation of the employee well within the service tenure and once order for refund of the overdrawn amount is accepted and refunded without any objection, then the same ought not to be permitted to be challenged in a subsequent proceeding. The learned Single Judge further observed that the writ petition had been filed by the petitioner more than three years after depositing the amount found to be drawn in excess and as such, the same cannot be allowed.

Learned counsel appearing for the writ petitioner/appellant argues, by placing reliance on State of Punjab and Ors. vs. Rafiq Masih (White Washer) reported at (2015) 4 SCC 334, that in terms of the parameters laid down in paragraph no. 18 thereof, recovery from retired employee or employees who are due to retire within one year of the order of recovery and recovery from employees, when the excess payment has been made for a period in excess of five years before the order of recovery is issued, is impermissible. In the present case, it is submitted that the recovery was done about seven months from the date of retirement.

Moreover, the period for which excess payment was sought to be recovered was much in excess of five years, being for the period between the years 1989 and 2001.

Learned counsel for the petitioner further submits that the petitioner was compelled to pay the amount under the threat that her pension order would not be signed unless she refunded such amount. Thus, such payment of the amount cannot be construed to be waiver on the part of the petitioner of her right to challenge the recovery.

Learned counsel appearing for the State seriously opposes the appeal and cites Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand and Ors. reported at (2012) 8 SCC 417, where it was observed by the Hon’ble Supreme Court that it failed to see why the concept of fraud or misrepresentation is brought in such situations where excess payment of public money, which is often described as “taxpayers’ money”, which belongs neither to the officers who have effected overpayment nor to the recipients, has been made.

The Hon’ble Supreme Court further observed that the question to be asked is whether excess money has been paid or not, which may be due to a bona fide mistake.

It is also contended by learned counsel for the State that the Hon’ble Supreme Court further observed that any amount paid/received without the authority of law can always be recovered, barring few exceptions of extreme hardships, but not as a matter of right; in such situations the law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. Thus, it is submitted that the writ petitioner/appellant, having once paid the amount, preferred the challenge much thereafter and as such, the learned Single Judge was justified in dismissing the writ petition.

Upon hearing learned counsel for the parties, we find that even in Chandi Prasad Uniyal (supra), the Hon’ble Supreme Court observed that there are a few exceptions, including extreme hardships, which carve out an exemption from the general principle that an amount paid/received without the authority of law can always be recovered.

However, the said decision was considered by the Hon’ble Supreme Court, along with other judgments then governing the field, in the subsequent decision of Rafiq Masih (supra). In paragraph no. 18 thereof, the Hon’ble Supreme Court categorically carved out certain exceptions to the rule of recovery of excess payment. As per the said paragraph, 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, the Hon’ble Supreme Court observed, based on the decisions referred to in the said judgment, as a ready reference, certain situations were summarized wherein recoveries by the employers would be impermissible in law. Two of such situations, where recovery is “impermissible”, as laid down in paragraph no. 18 of Rafiq Masih (supra), are as follows:-

In the present case, both the aforesaid criteria are met.

The recovery was effected about seven months prior to the retirement of the petitioner, thus coming within the first above-mentioned clause exempting recoveries within one year from the date of retirement.

Moreover, the period for which the excess payment was recovered was much more than five years, being from the year 1989 to 2001 (covering a span of twelve years).

Insofar as the payment having been already made by the writ petitioner/appellant is concerned, it is evident that under the threat of her pensionary benefits being put on hold unless she paid the sum, the petitioner was obligated under compulsion to make such payment. Although no specific objection might have been raised by the appellant at the relevant point of time, mere non-mentioning of such specific objection does not curtail or take away the legal/Constitutional right of an employee to assail an illegal recovery, in the teeth of the proposition laid down in Rafiq Masih (supra). Payments made under duress, surely, cannot qualify as ‘waiver’, which is a conscious relinquishment of a right.

Moreover, insofar as delay is concerned, the writ petition, we find, was filed within the period of three years from the recovery. Although no limitation period is applicable to a Constitutional remedy under Articles 226 or 227 of the Constitution, even borrowing from the principles embodied in the Limitation Act, 1963, the limitation period for a money claim is three years from the cause of action, which is to be construed as a ‘reasonable period’ for claiming refund of the excess payment recovered from the writ petitioner. The present writ petition was filed within such period.

Thus, we do not find any undue delay on the part of the writ petitioner/appellant in preferring the challenge.

Hence, this Court is of the opinion that the appellant was entitled to refund of the amount recovered from her by way of excess payments, in view of the appellant coming within the ambit of the exceptions as enumerated in Rafiq Masih (supra).

Accordingly, FMA 542 of 2026 is allowed on contest, thereby setting aside the impugned judgment and order dated February 20, 2026 passed in WPA 17564 of 2024 and directing the respondent-authorities to refund the excess payment recovered from the writ petitioner, to the tune of Rs.85,105/-.

However, since the petitioner herself paid the amount, we are inclined to abstain from imposing any interest thereon.

At this juncture, learned counsel for the appellant does not press for interest on the amount. As such, we do not adjudicate upon the entitlement of the appellant to get interest. We also make it clear that this component of our order, in not granting interest, shall not be construed as a precedent and is passed on the basis of the facts of the present case and as the petitioner does not press for interest. Consequentially, CAN 1 of 2026 stands disposed of as well.

Since we have not invited any affidavit in respect of CAN 1 of 2026, it is deemed that none of the allegations made therein are admitted by the respondents.

There will be no order as to costs.

Urgent certified copies of this judgment, if applied for, be supplied to the parties upon compliance of requisite formalities.

I agree. (Sabyasachi Bhattacharyya, J.)