Research › Search › Judgment

Delhi High Court · body

2014 DIGILAW 2293 (DEL)

Santanu Sur v. Gail India Limited

2014-08-27

G.ROHINI, RAJIV SAHAI ENDLAW

body2014
Judgment : Rajiv Sahai Endlaw, J: 1. This intra court appeal impugns the order dated 22nd May, 2014 of the learned Single Judge of this Court of dismissal in limine of W.P.(C) No.3315/2014 filed by the appellant. 2. Judgment : Rajiv Sahai Endlaw, J: 1. This intra court appeal impugns the order dated 22nd May, 2014 of the learned Single Judge of this Court of dismissal in limine of W.P.(C) No.3315/2014 filed by the appellant. 2. The appellant had filed the said writ petition, i) seeking a direction to the respondent to release the agreement/bond money of Rs.2,60,000/- with interest @ 18% per annum; ii) for setting aside the reply dated 5th October, 2012 of the respondent; and iii) for a direction to the respondent to make the payment of salary amount of ten days from 4th to 12th November, 2007 with interest @ 18% per annum, pleading :– a. that the appellant while serving as the Senior Manager (Enterprises Resource Planning) of the respondent, signed an agreement dated 13th July, 2005 with the respondent inter alia to, in consideration of the respondent providing training to the appellant at Siemens Information Systems Ltd., serve the respondent till the implementation of the Enterprises Resource Planning (ERP) in the respondent or for a period of two and a half years from the date of execution of the agreement, whichever is earlier and to, if in breach thereof, pay an amount of Rs.2,60,000/- to the respondent; b. that the implementation of the ERP was completed in December, 2005 and in accordance with the agreement aforesaid, the appellant was not bound to serve the respondent thereafter; c. however the appellant continued to serve the respondent for a period of two years and four months i.e. till 31st July, 2007 when the appellant resigned; d. however the respondent wrongfully insisted upon the appellant paying the bond money of Rs.2,60,000/-; e. that the appellant protested, contending that the respondent had relieved two other employees similarly situated as the appellant, without insisting the payment of bond money; f. that the respondent however ignoring the protest of the appellant, deducted the bond money from the dues of the appellant while relieving the appellant vide Office Order dated 22nd July, 2008 and requiring the appellant to work till 12th November, 2007; g. that the respondent also did not pay the salary from 3rd November, 2007 to 12th November, 2007 also to the appellant; h. that the appellant thereafter also continued to protest and represent to the respondent and the respondent in response to the RTI queries of the appellant admitted having waived off the condition of the bond in the case of one of the two other employees aforesaid; i. that the appellant finally got a legal notice dated 20th September, 2007 issued to the respondent; j. the respondent vide reply dated 5th October, 2012 thereto rejected the demand of the appellant for refund of the bond amount wrongfully deducted. 3. The learned Single Judge dismissed the writ petition holding:- i. that the bond money had been forfeited prior to March, 2008 i.e. nearly six years prior to the institution of the petition and the writ petition was barred by laches; reliance was placed on State of Madhya Pradesh Vs. Bhailal Bhai AIR 1964 SC 1006 and on Banda Development Authority, Banda Vs. Moti Lal Agarwal (2011) 5 SCC 394 ; ii. that for recovery of money, a civil suit is the appropriate remedy as a number of disputed questions arise for consideration viz. whether the Enterprises Resource Planning Project stood completed by December, 2005; reliance was placed on Suganmal Vs. State of M.P. AIR 1965 SC 1740 holding that no writ of mandamus be entertained for the purpose of merely ordering a refund of money. 4. Aggrieved from the aforesaid, this appeal has been filed relying on ABL International Ltd. Vs. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553 . 5. We heard the counsel for the appellant and the counsel for the respondent appearing on advance notice finally, at the stage of admission only, and reserved order. 6. It is not in dispute that the monies which according to the appellant were not due to the respondent from the appellant were wrongfully deducted by the respondent from the monies payable by the respondent to the appellant, vide order dated 22nd July, 2008. The cause of action if any to the appellant thus accrued on the said date. The writ petition was filed on 20th May, 2014. We had thus enquired from the counsel for the appellant as to what is wrong with the judgment of the learned Single Judge holding the writ petition to be barred by laches. 7. All that the counsel for the appellant could muster was that since the appellant has been discriminated against and the bond money payable by another employee similarly situated as the appellant had been waived, the respondent, even if held entitled to the bond money ought to have waived the same vis-a-vis the appellant also. It is further stated that confirmation of the said fact was received by the appellant only vide letter dated 27th October, 2009 in response to query under the RTI Act. It is further stated that confirmation of the said fact was received by the appellant only vide letter dated 27th October, 2009 in response to query under the RTI Act. It was further contended that the respondent denied the demand of the appellant for payment of the bond money illegally deducted, only vide letter dated 5th October, 2012. 8. We are afraid neither of the said facts show that the cause of action for the relief claimed by way of writ petition had not first accrued to the appellant on 22nd July, 2008. The tool of the RTI Act has been available to the appellant since the year 2005 i.e. much prior to 22nd July, 2008 and the appellant could have very well invoked the said tool immediately after 22nd July, 2008. Merely because the appellant chose to defer the use of the said tool would not entitle the appellant to count the limitation from the date which he unilaterally chose. Moreover, even if we are to count the limitation from 27th October, 2009, the writ petition was still filed nearly five years thereafter and the same does not help the case of the appellant. Yet further, it is not as if the information made available to the appellant in response to the query made under the RTI Act was not available to the appellant prior thereto. It is the pleaded case of the appellant that the appellant, even prior to 22nd July, 2008, had opposed the demand of the respondent for payment of the bond amount on the same grounds. 9. As far as the plea, of the demand for refund made in the legal notice dated 20th September, 2011 got issued by the appellant having been rejected by the respondent only on 5th October, 2012 is concerned, it is the settled principle of law (See S.S. Rathore Vs. State of M.P. (1989) 4 SCC 582 followed by the Division benches of this Court in judgment dated 7th August, 2012 in LPA 559/2012 titled Indian Hydraulic Industries (P) Ltd. Vs North Delhi Power Limited and in judgment dated 30th January, 2012 in WP(C) No. 586/2012 titled Rifleman Ram Bahadur Thapa Vs. Union of India and by us in judgment dated 12th August, 2014 in WP(C) No. 3821/2014 titled Rosa Power Supply Co. Ltd.Vs. Union of India and by a Single Judge of this Court in T.K. Bhardwaj Vs. Union of India and by us in judgment dated 12th August, 2014 in WP(C) No. 3821/2014 titled Rosa Power Supply Co. Ltd.Vs. Union of India and by a Single Judge of this Court in T.K. Bhardwaj Vs. Director General of Audit MANU/DE/2127/2011 and Karnataka Power Corp. Ltd. Vs. K. Thangappan (2006) 4 SCC 322) that repeated representations and rejection thereof, neither extend the period of limitation nor is a satisfactory explanation of the delay. 10. There is thus nothing wrong, requiring interference in the finding of the learned Single Judge of the claim of the appellant in the writ petition being barred by laches. 11. In addition to the judgments referred to by the learned Single Judge, mention may also be made of A.Venkatasubbarao v. State of Andhra Pradesh AIR 1965 SC 1773 holding that the limitation for a suit for recovery of money illegally appropriated by the Government is governed by Article 62 of the Schedule to the Limitation Act, 1908 (which is equivalent to Article 24 of the Limitation Act, 1963), prescribing the limitation of three years commencing from the date when the money is received, for a suit for money payable by the defendant to the plaintiff for the money received by the defendant for the plaintiff’s use. The argument, that the residuary Article (120 of the 1908 Act and 113 of the 1963 Act) providing a limitation of six years under the 1908 Act would be applicable, was rejected. It was generally observed that a suit for recovery of tax illegally collected is governed by the said Article 62 and has to be brought within three years from when the tax was illegally collected. The said view was followed in M/s Tilokchand Motichand Vs. H. B. Munshi (1969) 1 SCC 110 . There is no doubt that the right to sue in the present case accrued on 22nd July, 2008 and thus Article 24 would apply which prescribes limitation of three years from the date when the right to sue accrues. The challenge to the office order dated 22nd July, 2008 could have been made within three years i.e. on or before 21st July, 2011. The writ petition from which the instant appeal arises has been filed after nearly three years therefrom. The challenge to the office order dated 22nd July, 2008 could have been made within three years i.e. on or before 21st July, 2011. The writ petition from which the instant appeal arises has been filed after nearly three years therefrom. We may further add that the distinction which existed in the 1908 Act between Article 62 thereof providing limitation of three years and Article 120 thereof providing limitation of six years, also does not exist under the 1963 Act. Thus even if Article 113 thereof were to be held to apply, the limitation would not change. 12. As far as the contention of the appellant on the basis of ABL International Limited (supra) is concerned, the Supreme Court in Godavari Sugar Mills Ltd. v. State of Maharashtra (2011) 2 SCC 439 , after a consideration of the entire case law on the subject including Suganmal (supra), U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. (2001) 2 SCC 549 and ABL International Ltd. supra, has made the legal position as to the maintainability of the writ petition clear as under:- (i) Normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers; (ii) If a right has been infringed--whether a fundamental right or a statutory right and the aggrieved party comes to the Court for enforcement of the right, it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law; (iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the Civil Court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of powers conferred under Article 226 for payment of money; (iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. While a petition praying for mere issue of writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the tax collected was without authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition; (v) It is one thing to say that the High Court has no power under Article 226 to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without authority of law, there is no good reason to deny a relief of refund to the citizens; (vi) Where the lis has a public law character or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy will not be denied. 13. Applying the aforesaid principles also, the writ petition from which this appeal arises, making grievance of the respondent having illegally deducted monies claiming the same to be due under an agreement with theappellant, out of the dues of the appellant and claiming the relief of refund thereof is not maintainable. Reference in this regard may also be made to the judgments of the Division Benches of this Court in Steel Authority of India Ltd. Vs. Punjab & Sind Bank and in Chakradar Auto Udyog Pvt. Ltd Vs. Reference in this regard may also be made to the judgments of the Division Benches of this Court in Steel Authority of India Ltd. Vs. Punjab & Sind Bank and in Chakradar Auto Udyog Pvt. Ltd Vs. Engineering Export Promotion Council and the judgment of one of us (Rajiv Sahai Endlaw, J) in KLA India Public Ltd Export Credit Guarantee Corporation of India Ltd 183 (2011) DLT 591. 14. We therefore do not find any error in the reasoning given by the learned Single Judge qua maintainability of the writ petition on this ground. 15. Resultantly the appeal is dismissed. No costs.