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2016 DIGILAW 365 (CAL)

Kanwal Manmohan Singh Nagra v. Kolkata Port Trust

2016-04-20

MIR DARA SHEKO, SOUMITRA PAL

body2016
JUDGMENT : There are three aspects to this petition. The first relates to the adjustment of the petitioner’s dues on account of the salary paid to the petitioner pursuant to an interim order of a Division Bench of this court. The second aspect covers the adjustment of occupation charges or damages or mesne profits against the terminal dues of the petitioner. The third aspect pertains to the pay scale relevant for the pension that the petitioner is entitled to. 2. Pursuant to a disciplinary action instituted by the Port Trust against the petitioner, an order of punishment of compulsory retirement was passed on December 10, 1987. The petitioner challenged such order in court and on June 1, 1990, the order of punishment was set aside and the petitioner was reinstated in service. The employer preferred an appeal from the order of June 1, 1990. An interim order was passed in the appeal on December 9, 1990, the material part whereof is as follows:- “At the invitation of the Learned Counsel for the appellants and after hearing the Learned Counsel for Respondent No.1 Court passes the following order : Respondent No.1 will be regularly paid his salary and allowances but he shall not join duty till the appeal is heard and decided. The order is passed without prejudice to the rights and contentions of the parties. The application is disposed of in terms of the foregoing order. … ” 3. The appeal ultimately succeeded and, by an order of October 15, 1997, the order of June 1, 1990 was set aside. It is necessary to see the operative part of the final appellate order:- “For the reasons aforementioned the impugned order cannot be sustained which is accordingly set aside. The appeal is allowed and the writ petition of the first respondent is dismissed but there will be no order as to costs.” 4. Thus, not only was the order of punishment of December 10, 1987 upheld upon the dismissal of the writ petition by the appellate order of October 15, 1997, the benefits that the petitioner may have enjoyed pursuant to any interim order were liable to be reversed in view of such order and in view of the interim order having been passed without prejudice to the rights and contentions of the parties. It is elementary that upon an action failing, the interim relief that the suitor may have enjoyed during the course of the proceedings is undone and the benefits have to be disgorged. It is, of course, open to the court to provide at the final stage that the benefits enjoyed by the suitor under any interim order may not be reversed or undone; but unless it is specifically provided for in the order by which the action is dismissed, the effect of the order of dismissal of the action is that the benefits enjoyed pursuant to an interim order which is subsequently vacated ought to be reversed. In other words, if any payments have been received pursuant to an interlocutory order, the payments would have to be refunded. That is the general position in law founded on the maxim that every interim order is subject to the final outcome of the action. 5. Article 226 of the Constitution of India is a complete code in itself. Though the court may look at other laws for the purpose of adjudicating the rights of the parties, the procedure generally adopted is of adjudication on affidavit evidence. The general rules as applicable to other matters in court apply equally to petitions under Article 226 of the Constitution, particularly matters of public policy as res judicata and the like. There is nothing that the petitioner has been able to demonstrate which would detract from the general legal position that recognises the merger of interlocutory orders in a final order, in proceedings under Article 226 of the Constitution. 6. It was open to the appellate court dealing with the employer’s appeal to make its order prospective or to protect the interim relief that the petitioner herein may have enjoyed in course of the appeal. As is evident from the order of October 15, 1997, the appeal was allowed in its entirety and the writ petition was dismissed without providing any relief to the petitioner. The legal effect of the order of October 15, 1997 is that the challenge to the order of punishment was completely repelled and any benefits that the petitioner may have enjoyed in course of the challenge had to be undone. The legal effect of the order of October 15, 1997 is that the challenge to the order of punishment was completely repelled and any benefits that the petitioner may have enjoyed in course of the challenge had to be undone. Since the petitioner received salary in terms of the interim appellate order of December 5, 1990, the petitioner was liable to refund the entire amount received pursuant to such interim order upon the appeal succeeding in full. The petitioner carried the appellate order by way of a petition for special leave to appeal to the Supreme Court. Such petition was summarily rejected. As far as the petitioner is concerned, the appellate order of October 15, 1997 with all the legal baggage that it carries has become final and irreversible and it is not open to the petitioner to argue to the contrary. 7. Since the Port Trust, a statutory body using public money for its expenses, made some payments to the petitioner pursuant to an order of court which ultimately turned out to be unjustified, the petitioner was liable to refund the entire amount. Indeed, it was the obligation of the petitioner to refund the amount and upon the petitioner failing in his obligation, the Port has rightly demanded the refund. If the Port has charged interest on the amount paid to the petitioner pursuant to the interim order, the Port is equally justified in such regard. 8. As far as the petitioner’s occupation of a property of the Port is concerned, appropriate proceedings were instituted under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It appears that the petitioner enjoyed the premises even after the petitioner reached his age of superannuation. Notwithstanding the interim order of the appellate court of December 5, 1990, it was impermissible for the petitioner to occupy the employer’s premises after the date of his superannuation in the usual course. The final order passed in the proceedings under the said Act of 1971 appears to have been challenged in appeal before the appropriate District Judge. The appeal has failed and a petition under Article 227 of the Constitution challenging the appellate order has also failed. In such circumstances, the Port Trust is entitled to recover the mesne profits or damages or occupation charges as found due to it in terms of the final order passed in the proceedings under the said Act of 1971. The appeal has failed and a petition under Article 227 of the Constitution challenging the appellate order has also failed. In such circumstances, the Port Trust is entitled to recover the mesne profits or damages or occupation charges as found due to it in terms of the final order passed in the proceedings under the said Act of 1971. 9. The only grievance of the petitioner is that the money due to the Port Trust under such head cannot be adjusted out of the retiral or terminal dues of the petitioner. In support of such contention, the petitioner refers to Section 14 of the said Act of 1971 that permits the arrear occupation charges or damages to be recovered as land revenue. 10. As far as the petitioner’s contention qua Section 14 of the said Act of 1971 is concerned, it is evident on a plain reading of such provision that it is an enabling provision and it does not preclude the relevant public authority from adjusting any money available with it to the credit of the unauthorised occupant against an award of mesne profits or damages or occupation charges under the said Act of 1971. 11. The petitioner also refers to a judgment reported at (2015) 8 Supreme 765 (B. Radhakrishnan v State of Tamil Nadu) where the Supreme Court did not permit excess payment erroneously made to some public employees to be adjusted against the future dues of such employees. It is necessary to see the facts pertaining to such case before the Supreme Court since the dictum would not be applicable in the present set of facts. 12. The appellants before the Supreme Court were engaged in the police and were transferred. After their transfer, it was discovered that they ought to have received lower pay than what was paid to employees occupying the transferred post and it is such additional payment that was sought to be recovered from the appellants, which the Supreme Court did not permit. It is evident that the excess payment in that case was not received on account of any representation or appeal or effort on the part of the concerned employees, but the excess payment was made on account of an error of the employer which was not permitted to be corrected at a subsequent stage. 13. It is evident that the excess payment in that case was not received on account of any representation or appeal or effort on the part of the concerned employees, but the excess payment was made on account of an error of the employer which was not permitted to be corrected at a subsequent stage. 13. In the present case, an order of compulsory retirement was passed against the petitioner in a disciplinary action. It was open to the petitioner to accept the order and walk away. The petitioner did not choose such option and approached this court. The salary received by the petitioner during the appellate stage was at the invitation of the petitioner. Such an invitation made for an interlocutory relief always carries an underlying undertaking to refund the benefits received based on the outcome of the action. Since the basis of the interlocutory order was the success of the writ petition and such petition was ultimately found to be unworthy, the petitioner cannot complain of the fact that the petitioner has to disgorge the salary that the petitioner had received pursuant to the interim order. To retain such salary would amount to crass unjust enrichment. 14. The final aspect of the petition is to ascertain the pay-scale that would be applicable for the purpose of the petitioner’s pension. It is beyond question that pension is based, subject to the pension rules of the relevant public employer, on the last drawn salary of the employee. Since the appellate order of October 15, 1997 and its dismissal of the petitioner’s writ petition amounted to the acceptance of the order of compulsory retirement dated December 10, 1987, the petitioner’s pension has to be assessed on the basis of the salary last drawn by the petitioner at the time that the order of punishment was made. Accordingly, if the Port Trust has calculated the petitioner’s pension on the basis of any figure which is less than the salary last drawn by the petitioner as at December 10, 1987, the same cannot be accepted; but that does not appear to be the case. 15. By no stretch of imagination can the petitioner’s entitlement to pension be on the basis of the salary that may have been paid to the petitioner under an interim order of court immediately prior to the petitioner’s superannuation in the usual course. 15. By no stretch of imagination can the petitioner’s entitlement to pension be on the basis of the salary that may have been paid to the petitioner under an interim order of court immediately prior to the petitioner’s superannuation in the usual course. That interim order merged into an order of dismissal of the writ petition and the legal effect of the final appellate order has already been discussed. 16. The petition has been a complete waste of time, particularly in its assertion of the first two grounds. As far as the third ground canvassed, it does not appear that the petitioner has been paid any less pension than what the petitioner is entitled to on the basis of his last drawn salary as at December 10, 1987. 17. WP 6591 (W) of 2016 is dismissed. 18. In view of the considerable punishment rightly suffered by the petitioner, no costs are awarded though this unmeritorious petition deserved exemplary costs otherwise. 19. Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.