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2018 DIGILAW 259 (CAL)

Jayanta Choudhury v. State of West Bengal

2018-02-15

SAMBUDDHA CHAKRABARTI

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JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. The petitioner was an employee of North Bengal State Transport Corporation (Corporation, for short). He retired from his service on December 31, 2016. 2. The Corporation issued a departmental circular to its employees for exercising their options for either the Contributory Provident Fund (CPF, for short) Scheme or the General Provident Fund (GPF, for short) Scheme. The petitioner exercised his option under the CPF. However, the accounts officer used to deduct an amount from the salary of the petitioner under the GPF and it continued from May, 2000 till December, 2016. It is the allegation of the petitioner that after he had exercised his option under the CPF the accounts officer could not deduct the amount under the GPF which is clearly against the option exercised by him. It is all the more so as the respondent Corporation deducted the amount under the GPF without giving any notice to the petitioner rendering such deduction for the GPF to be entirely arbitrary and mala fide. 3. On April, 10 and April, 17, 2017, the petitioner made representations before the Managing Director of the Corporation, i.e, the respondent no. 4 as well as to the Chairman, i.e, the respondent no. 3 to pay the GPF amount as early as possible. After his retirement the Corporation did neither make any payment under the CPF or the GPF and as such the authority is withholding the retiral benefits in violation of his rights protected under the Constitution of India. The petitioner has further alleged that in April, 2014, he joined the Islampur Depot as Mechanic-in-Charge and he discharged his duty till his retirement. The petitioner is entitled to get all the benefits for discharging his duties there as per the Service Rules which the respondents did not pay. 4. Since the representations made by the petitioner did not produce any result he had approached this Court, inter alia, praying for a direction upon the respondents to make payment of the retiral benefits under the GPF with interest, a writ in the nature of mandamus commanding the respondents to make payment to the petitioner for discharging duties as Mechanic-in-Charge for the period he did his duties at the Islampur bus depot and for other ancillary reliefs. 5. The respondent Corporation has contested this petition by filing a report in the form of an affidavit affirmed by its Managing Director. 5. The respondent Corporation has contested this petition by filing a report in the form of an affidavit affirmed by its Managing Director. The stand of the respondents as reflected in the said affidavit is that initially there was no Pension Scheme in the Corporation and all the employees were under the CPF. The pension regulation of the employees of the Corporation was notified in the Gazette on August 29, 2000. The employees were asked to exercise their option to come under the purview of the said regulation and in response to the same the petitioner did not opt for the GPF and thus remained in the CPF Scheme. 6. Upto April, 2000, deductions from the salary of the petitioner was made treating him as a member of the CPF and the amount was deducted at the rate admissible under the CPF Scheme. In the year 2002, the petitioner was transferred to Siliguri for a brief period of three months as prayed for by him. He joined there on June 10, 2002. The pay card was sent to Siliguri by mistake. From June, 2002, deductions towards CPF was made at the rate of 6% which is admissible for pension holders under the GPF, instead of 12% which is admissible for CPF holders till their retirement. This was due to the mistake of the then dealing clerk. 7. It is the further contention of the respondents that monthly pay slips containing the statement of the CPF account had been received by the petitioner in regular manner but he never brought it to the notice of the authorities about the short deduction made from his salary nor did he take any corrective measure. On the contrary, he remained silent. The yearly statement of provident fund account of each CPF holder is supplied to each employee covered under that Scheme with an intimation to contact with the authorities of the Corporation in the event of any objection. The petitioner received such statements on a regular basis but never raised any objection regarding the short deduction. 8. A further defence of the respondent Corporation is that with the introduction of the pension scheme at the time of segregating the employees who had opted for pension an alternative marking i.e, the GPF was inserted in the pay slip. The petitioner received such statements on a regular basis but never raised any objection regarding the short deduction. 8. A further defence of the respondent Corporation is that with the introduction of the pension scheme at the time of segregating the employees who had opted for pension an alternative marking i.e, the GPF was inserted in the pay slip. The said alternative arrangement should have been CPF/GPF difference in the bracket after quoting the CPF account number. At the time of development of the software the letters CPF were not inserted in the bracket. The petitioner has tried to take advantage of the same as well as an inadvertent mistake committed by a dealing clerk. 9. Immediately after his retirement all the retiral benefits of the petitioner were made ready. By a letter dated March 10, 2017, written by the respondent no. 4, the petitioner was informed that a cheque for disbursement of the same towards his provident fund dues had been kept ready with a request to collect the same within the period of validation of the cheque. Since the petitioner did not turn up another cheque towards the said provident fund dues in the CPF Scheme was drawn in favour of the petitioner. The petitioner was again requested to receive the said cheque. 10. The respondent no. 4 by another letter dated November 8, 2017, requested the petitioner to receive the provident fund dues. The respondents prayed for dismissal of the writ petition. 11. Thus, two things stand out very clearly. First, the petitioner opted for the CPF Scheme and secondly, there has been a persistent short deduction from the salary of the petitioner at a rate which was admissible to those who had opted for the Pension Scheme. The respondents have mentioned that this was due to a mistake committed by a dealing clerk of the respondent organization. For the petitioner the argument is that since this continued for a fairly long period he should get the benefit of the GPF and that is precisely why he did not accept the cheque towards the provident fund dues in the CPF Scheme. 12. The sole question to be decided is whether merely because deductions had been made at the GPF rate the respondents are bound to confer any advantage towards that on the petitioner. 13. 12. The sole question to be decided is whether merely because deductions had been made at the GPF rate the respondents are bound to confer any advantage towards that on the petitioner. 13. That the petitioner had opted for the CPF and not GPF must have been known to him. If there had been any deduction under the GPF which obviously was wrongly done by the respondents, it was definitely to the knowledge of the petitioner. He received salary slips every month which reflected the amount deducted from his salary towards the provident fund. The petitioner never raised any objection to the same although all employees were required to let the administration know about their grievances or objections or dissatisfaction to any mistake including a mistake deduction, if any, to the authorities. Even the annual statement for the CPF account was given to the petitioner each year. He remained silent and did not raise any objection to the same at any point of time. Thereby he allowed the impression to be so created that the deductions made towards the provident fund were correct and this continued for a pretty long time. If he had informed the respondents about the mistake committed by them a timely action could have been taken and the mistake could be corrected. Now he cannot be heard to say that he was not aware of the differential deductions for the CPF or for the GPF. The pay slips for various months annexed to the writ petition clearly justify the case of the respondents that short deductions were made from his salary at the rate of 6% which could not be the deductions for the CPF which was at the rate of 12%. 14. The initial mistake was at the instance of the respondents. That, however, by itself does not rule out the petitioner's share of responsibility. The case sought to be made out by the petitioner that his category with regard to provident fund accumulation had been altered behind his back cannot be a sustainable allegation and even if it is accepted for the sake of argument that the authorities did it deliberately which it cannot be, he cannot escape from the ultimate obligation of satisfying the Court about what he had done for all these years. If he had considered it to be a deliberate act on the part of the respondents he had all the opportunities, in fact responsibility, to bring it to the notice of the authorities for correcting the mistake. 15. The petitioner by not raising any objection about the wrong deduction cannot now take advantage of the mistake on the part of the respondents to the continuance of which he had his share of responsibility. He is simply estopped from taking a plea contrary to a state of things which he had allowed to continue for years together. It is true that mere silence by itself may not operate as an estoppel. But this is a case where silence of the petitioner was coupled with a duty to speak. This principle was well-settled more than a century ago in Lewis v. Lewis, reported in 1904 (2) Ch 656, that silence may be sufficient where there is a duty to speak. 16. In the present case, annual statements of provident fund account where provided to the petitioner with an intimation to contact the authorities if had any objection. He never raised any objection which leads to two possible, but mutually alternative, inferences: either the petitioner had nothing to object which amounts to a tacit acceptance, if not approval, of the deductions made from his salary towards the provident fund or he was negligent in discharging his part of the responsibility. In both the cases the consequence is the same, i.e, inducing the respondents to believe that what was done by them was done correctly. When there is a duty to speak but nothing has been spoken, when there is a duty to act, but nothing has been acted, the person choosing the latter option is clearly estopped from breaking the silence or bursting forth into sudden activity. Now he cannot turn around and question the impropriety to the steps taken by the respondents. The petitioner owed a duty to the respondents to draw their attention to what he considered to be a mistake. The failure on his part to do so in turn deprived the respondents of the possibility to take corrective measures at an appropriate time. 17. The petitioner owed a duty to the respondents to draw their attention to what he considered to be a mistake. The failure on his part to do so in turn deprived the respondents of the possibility to take corrective measures at an appropriate time. 17. That apart, the petitioner himself having described the deduction made by the respondents to be arbitrary and mala fide in the writ petition cannot now seek an order in terms of the same very arbitrary and mala fide acts of the respondents. If he considers the act of the respondents to be blameworthy, most certainly he cannot simultaneously pray for perpetuation of the same, for less cashing on the same. 18. Mr. Sen the learned Advocate for the Corporation, invoked the doctrine of the contributory negligence as disentitling the petitioner to ask for the benefits of the GPF after his retirement. I find substance in the submission of Mr. Sen. If the initial mistake of the respondents was ascribable to their negligence, for the subsequent continuance of it the petitioner had his share of responsibility in not seeking to getting it corrected. 19. What the petitioner is now trying to take advantage of is a mistake on the part of the respondents. No employee of ordinary prudence could ever have considered of his status being shifted from one category to another in respect of his pension matters without his knowledge. He not having cared to rectify the mistake and in the process having failed to discharge his duty for so many years cannot certainly turn around and take advantage of the mistaken negligence or the negligent mistake of the respondents. It is immaterial whether the petitioner had any role in the initial mistake committed by the respondents. 20. The law on the point is very well settled that a mistake committed by one party confers no right upon the other. The mistake of the sort under consideration does not give the petitioner any extra mileage contrary to the provisions of law and the option he exercised. In the case of Union of India v. Rakesh Kumar, reported in (2001) 4 SCC 309 , the Supreme Court had occasion to re-state the well settled principle of law that mistake cannot confer any right on any party. In the case of Union of India v. Rakesh Kumar, reported in (2001) 4 SCC 309 , the Supreme Court had occasion to re-state the well settled principle of law that mistake cannot confer any right on any party. In Maharshi Dayanand University v. Surjeet Kaur, reported in (2010) 11 SCC 159 , the Supreme Court held that if the authority by mistake has done something it does not confer any right on a person to make a claim against the Rules. There is no estoppel against the statute. 21. What the petitioner is seeking to achieve by the present writ petition is an order which, if granted, would definitely be against the rules relating to the provident fund which stipulate that an employee shall be governed either by the CPF or GPF as the case may be strictly according to the option exercised by him. There is nothing operating against the respondents estopping them from acting in terms of the rules. 22. Thus, seen from all angles, the writ petition does not merit any consideration. The reliefs prayed for are plainly not permissible. 23. The writ petition is dismissed. 24. There shall be no order as to the costs. 25. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.