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2010 DIGILAW 181 (CAL)

Jiban Bala Sikder v. Indian Overseas Bank

2010-02-22

I.P.MUKERJI

body2010
JUDGMENT 1. THE writ petitioner was an employee of the respondent bank. THE bank paid her a permanent personal allowance (P.P.A.) from 17th September, 1993. She was paid Rs. 970/- per month. This was a result of a settlement between the bank and its employees. She retired after 30th April, 2006. She was entitled to gratuity of Rs.3,50,000/-. 2. ON 19th May, 2006 a letter was written by the Head Office of the Bank in Chennai to their Manager in Howrah. It said that the writ petitioner ought to have been paid Rs.562/-instead of Rs.970/-. The excess amount may be recovered. This is the dispute in the matter, not the amount, but the right to recover. This excess payment was provisionally calculated at once by the bank. ON 07.06.2006 by a letter they instructed release of Rs. 2,50,000/- out of Rs.3,50,000/- to the writ petitioner, withholding the balance Rs. 1,00,000/-. This withholding was provisionally recovery of the allegedly excess P.P.A. allowance paid. In March, 2007 a further sum of Rs.50,000/- was paid. Therefore, Rs.50.000/- was withheld. Submissions of the parties: The learned Counsel for the writ petitioner as well as the bank have taken me in detail through the above facts. 3. THE learned Counsel for the petitioner first cited the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp. (1) SCC 18. In that case a higher pay was given to a teacher on a misinterpretation of the directives of the Government of India. It was held in that decision there was no misrepresentation by the teacher. THE higher pay given on account of misconstruction of the said directive by the institution could not be recovered till the date of the judgment. 4. HE has also cited the judgment in the case of Punjab State Electricity Board and Ors. v. V.N. Sharma, reported in 1995 Supp. (1) SCC 20 where the Supreme Court noted that excess pay was granted but nevertheless refused recovery on the ground that the person concerned who had received the excess pay, had retired. He has also cited State of Orissa and Ors. v. Adwait Charan Mohanty and Ors., reported in 1995 Supp. (1) SCC 470, for the proposition that the writ petitioner was a 'workman' within the meaning of the Industrial Disputes Act. 5. MR. He has also cited State of Orissa and Ors. v. Adwait Charan Mohanty and Ors., reported in 1995 Supp. (1) SCC 470, for the proposition that the writ petitioner was a 'workman' within the meaning of the Industrial Disputes Act. 5. MR. R. N. Majumdar, learned Counsel for the respondent bank has cited the case of Union of India v. S.R. Dhingra and Ors., reported in 2008 (2) SCC 229 . A two Judges Bench of the Supreme Court said that a calculation error resulted in excess pension. It held "It is well settled that a mistake does not confer any right to any party and can be corrected." He has also cited Dr. S. P. Mishra and Ors. v. Union of India and Ors., reported in 1991 Lab IC 2275, which held in Paragraph-21 that "The authority to exercise such a power to rectify its own mistake is inherent even in every tribunal exercising quasi-judicial authority." Discussion and conclusions; 6. I reject the contention of Mr. R. N. Majumdar, learned Advocate appearing for the respondent bank that because the writ petitioner was a 'workman' within the definition of the Industrial Disputes Act, she should be relegated to the fora under the Act. I also reject his submission that this P.P.A. allowance was further to a settlement between the bank and the employees and any alleged breach of settlement was to be redressed more particularly under Section 36A of that Act. Such contention is rejected first on the ground that when the writ was entertained by this Court no such point was taken. After about 3 years of filing of this writ application and filing of affidavits, the writ petitioner in the facts and circumstances of the case should not be relegated to the alternative remedy. Secondly, after superannuation the writ petitioner ceased to be an employee of the bank. Such recovery was made after she ceased to be an employee or workman of the bank. In the circumstances, I am in great doubt whether the Industrial Disputes Act has any application. The doubt is because submissions in this behalf were not made by the parties. Thirdly, in my opinion, the remedy under the Industrial Disputes Act may not be speedy and efficacious enough for the writ petitioner who after retirement is faced with a loss of Rs.50,000/-. The doubt is because submissions in this behalf were not made by the parties. Thirdly, in my opinion, the remedy under the Industrial Disputes Act may not be speedy and efficacious enough for the writ petitioner who after retirement is faced with a loss of Rs.50,000/-. The Supreme Court decisions Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp (1) SCC 18, Punjab State Electricity Board and Ors. v. V. N. Sharma, reported in1995 Supp (1) SCC 20, State of Orissa and Ors. v. Adwait Charan Mohanty and Ors., reported in 1995 Supp. (1) SCC 470 hold in the facts and circumstances of those cases that excess amounts paid on account of mistake by the employer and for no fault of the employee ought not to be recovered after retirement or with retrospective effect. The case Union of India v. S. R. Dhingra and Ors., reported in 2008 (2) SCC 229 , para 23 relates to a further reduction of pension payable, arising out of a mistake in calculation during the service of the employee. 7. BUT there is an additional point in this case. The P.P.A. allowance was being paid from 1993. It was discovered by the bank on 7th June, 2006, after retirement of the writ petitioner that allegedly excess sum had been paid from 1993. No fraud of the employee is alleged. Apparently there was a mistake by the bank but the bank could have realised that mistake by exercise of due diligence. No ground has been made whatsoever whereby the bank can be permitted to enforce a claim invoking a larger period of limitation on the basis of fraud, mistake etc. Therefore, for this additional ground this claim of the bank is substantially untenable. A substantial part of the claim of the bank is barred by limitation. 8. THE excess payment was with regard to P.P.A. allowance and not pay or pension. This allowance was paid in accordance with a settlement between the bank and the employees. The bank realised its mistake within a period of a little over the month of retirement of the writ petitioner. Hence, the facts of this case are little different from those in Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp. (1) SCC 18, Punjab State Electricity Board and Ors. The bank realised its mistake within a period of a little over the month of retirement of the writ petitioner. Hence, the facts of this case are little different from those in Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp. (1) SCC 18, Punjab State Electricity Board and Ors. v. V. N. Sharma, reported in 1995 Supp (1) SCC 20, State ofOrissa and Ors. v. Adwait Charan Mohanty andOrs., reported in 1995 Supp (1) SCC 470 (supra). However, considering the principles in the above cases, and the law of limitation, I would not allow full recovery. THE bank may in my opinion recover any excess amount paid within a period of 3 years before the demand was made for recovery of excess P.P.A. paid, that is, by the letter dated 07.06.2006. Recovery of this sum is not barred by the laws of limitation. For these reasons the writ application is allowed partly, by restraining the bank from recovering any excess sum paid before 3 years immediately prior to their letter dated 07.06.2006. Recovery may be made, accordingly from Rs.50,000/- held by them. The balance is to be paid immediately. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Later-Stay of operation of this judgment and order is prayed for by the learned Counsel for the respondent which is opposed by the learned Counsel for the petitioner. Considering the decision which I have rendered, which might be tested in appeal, there will be stay operation of this order for a period of 3 weeks from date.