Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 555 (CAL)

Adhir Kumar Jana v. State of West Bengal

2019-05-01

MOUSHUMI BHATTACHARYA

body2019
JUDGMENT : 1. All the writ petitioners before this court pray for a Mandamus commanding respondents, to repay the alleged overdrawn amounts to the petitioners along with interest and for interest on the delayed disbursement of pensionary benefits. 2. These writ petitions have been clubbed together since a point of delay has been taken by the State and a refusal to repay the amounts overdrawn by reason of the petitioners not making any attempt to cure the delay by way of an explanation in the writ petition. Although matters involving repayment of overdrawn amounts are ordinarily disposed of overlooking the delay on the part of the petitioners approaching this court (if any), this court considered it important to deal with the issue in the light of judicial pronouncements of this court as well as of the Hon'ble Supreme Court in similar matters. 3. Learned counsel appearing for the State has relied on three decisions for the proposition that courts would be reluctant to afford relief to a petitioner where there has been inexplicable laches on the part of the writ petitioner in seeking such relief. These decisions are; State of Maharashtra Vs. Digambar reported in AIR 1995 Supreme Court 1991, Karnataka Power Corpn. Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 and Chandi Prasad Uniyal Vs. State of Uttarakhand reported in (2012) 8 SCC 417 . Counsel places emphasis on paragraph 14 of the last decision. According to counsel, the petitioners in all these cases retired from service as teachers of their respective schools sometime in the late 90's. Their Pension Payment Orders (PPOs) were issued in the late 90's when the petitioners found that amounts have been shown as over drawals and the same was deducted from the gratuity amounts payable to the petitioners. The petitioners approached this court by filing their writ petitions in 2018-2019. Counsel submits that the writ petitions are singularly devoid of any averment explaining the reason for the petitioners failing to seek redress during the intervening twenty years (an approximate figure has been taken for convenience). 4. Learned counsel appearing for the petitioners relies on Shyam Babu Verma Vs. Union of India reported in (1994) 2 SCC 521 , Syed Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475 , State of Punjab Vs. 4. Learned counsel appearing for the petitioners relies on Shyam Babu Verma Vs. Union of India reported in (1994) 2 SCC 521 , Syed Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475 , State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 as well as two decisions of co- ordinate Benches of this court in Rajkumar Jana Vs. The State of West Bengal reported in 2018(3) CLJ (Cal) 58 and Niladri Kumar Choudhury Vs. State of West Bengal (WP 24231(W) of 2017) to urge that barring a few exceptions, courts have repeatedly held that overdrawn amounts will have to be repaid by the employer in disbursing the retirement benefits to the employee. 5. The decisions rendered by this court first. In Rajkumar Jana, it was held, inter alia, that the Pension Sanctioning Authority cannot withhold the disbursement of the petitioner's pensionary benefits or revise the pay fixation to the detriment of the employee (petitioner before the court) after the date of retirement of the petitioner. The reason for coming to this conclusion was that the petitioner had not participated in the process of re- fixation of the scale of pay and was hence not responsible for such re- fixation. In Niladri Kumar Choudhury, after considering the relevant case law on the subject, the court rejected the plea of recovery from the retirement benefits of the petitioner or withholding the amount complained of as being contrary to law. In that case, the delay of eleven years was condoned by taking recourse to several decisions of this court and Union of India Vs. Tarsem Singh reported in (2008) 8 SCC 648 . 6. According to counsel representing the petitioners in these writ petitions, the law on the subject has been settled in Rafiq Masih, which summarised the instances where recovery by the employers would not be permissible. Counsel urges that paragraph 14 of Chandi Prasad Uniyal Vs. State of Uttarakhand has been explained in a decision of the Hon'ble Supreme Court in Rafiq Masih reported in (2014) 8 SCC 883 , which sought to resolve the apparent difference of opinion expressed in Shyam Babu Verma Vs. Union of India reported in (1994) 2 SCC 521 and Sahib Ram Vs. State of Haryana reported in (1995) Supp (1) SCC 18 on the one hand and Chandi Prasad Uniyal Vs. Union of India reported in (1994) 2 SCC 521 and Sahib Ram Vs. State of Haryana reported in (1995) Supp (1) SCC 18 on the one hand and Chandi Prasad Uniyal Vs. State of Uttarakhand reported in (2012) 8 SCC 417 on the other. 7. Although the issue for consideration in these cases is whether unexplained delay on the part of the petitioner would disentitle such petitioner to the relief sought in proceedings of this nature, it may be useful to re-visit the law as has been settled by the Supreme Court and this court in cases of over drawal by the employer. 8. In Shyam Babu Verma, the Supreme Court held that it would not be just and proper to recover any excess amount which had already been repaid to the petitioners on the ground that the petitioners had received a higher scale of pay for no fault of theirs. In Syed Abdul Qadir, the relief against recovery was held to be founded on equity calling for judicial discretion for relieving employees from the potential hardship in the event recovery was permitted. An exception was however made in Abdul Qadir in cases where the employee had knowledge of the excess payment or where the error was detected and corrected within a short time. The Supreme Court finally directed refund of the excess amounts recovered from the teachers of the secondary schools by reason of the fact that the excess payment made was a result of a wrong interpretation of a Rule and the teachers were not responsible for the same. Paragraph 59 of Abdul Qadir is set out below: "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellant6s also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in vie the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant6 teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." 9. In Chandi Prasad Uniyal, the Supreme Court tightened the outlook shown in earlier decisions by clarifying that any amount paid or received without authority of law can always be recovered barring cases of extreme hardship but not as a matter of right. Paragraphs 14 and 15 of Uniyal are set out; "14. We are concerned with the 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. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. 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 law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered." 10. In Col. B.J. Akkara (Retd.) Vs. Government of India reported in (2006) 11 SCC 709 , it was held that the relief granted against recovery of excess payment wrongly made to an employee where such excess payment was not on account of any misrepresentation of fraud on the part of the employee, is a relief in equity to relieve the employee from the hardship in the event recovery is permitted. But it the employee was aware that the payment received was in excess of what was due or wrongly paid or where the error is corrected within a short time, courts will not grant relief against recovery. 11. The law was finally settled in State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 . After considering the ratio of the earlier Rafiq Masih ( (2014) 8 SCC 883 which was in answer to a reference in relation to the apparent conflict in the views expressed in Shyam Babu Verma, Sahib Ram on the one hand and Chandi Prasad Uniyal on the other), Syed Abdul Qadir, Shyam Babu Verma, Sahib Ram and B.J. Akkara, the Supreme Court laid down the principle that recovery cannot be permitted where it is "iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bare the financial burden, offer refund of payment received wrongfully for a long span of time" (paragraph 13 of Rafiq Masih). The court found support from the decisions of B.J. Akkara, Shyam Babu Verma and for coming to the aforesaid proposition and placed particular emphasis on paragraph 59 of Syed Abdul Qadir set out above. The Supreme Court held that recovery of excess payments made from the employees who have retired from service or were close to retirement would entail extremely harsh consequences outweighing the monetary gains by the employer. The court made a distinction between a retired employee or one who is about to retire from those who had sufficient service left before retirement. The Supreme Court held that recovery of excess payments made from the employees who have retired from service or were close to retirement would entail extremely harsh consequences outweighing the monetary gains by the employer. The court made a distinction between a retired employee or one who is about to retire from those who had sufficient service left before retirement. The court concluded that recovery would be iniquitous and arbitrary if it is sought to be made after the death of retirement or soon before retirement and that a period within one year from the date of superannuation should be accepted as the period during which the recovery should be treated as iniquitous. 12. The Supreme Court finally enumerated the instances in paragraph 18 of the decision where recovery by the employer would be impermissible in law. Paragraph 18 of the decision is set out below: "18. 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, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." 13. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." 13. All the writ petitioners before this court are teachers who have retired from their respective schools and would therefore come under the second instance enumerated under paragraph 18 of Rafiq Masih which hold that recovery from retired employees or employees who are due to retire within one year, cannot be permitted in law. 14. The later decision of High Court of Punjab and Haryana Vs. Jagdev Singh reported in (2016) 14 SCC 267 was concerned with an officer who had availed of the revised pay scale by furnishing a specific undertaking to the effect that any excess payment which may be found to have been made will be refunded to the Government either by adjustment against future payment or otherwise. The letter for recovery of excess payment was served on the officer one year after he was made to retire from service. The Supreme Court upheld the recovery process holding that the principle laid down in Rafiq Masih would not apply in view of the specific undertaking given by the officer. 15. The principle which emerges from these decisions, including those rendered in Asitosh Bhattacharya Vs. The State of West Bengal reported in (2015) 2 CLT 339, Kalyan Kumar Chattopadhyay Vs. The State of West Bengal reported in (2006) 1 WBLR (Cal) 591 and Sachindra Nath Maiti Vs. The State of West Bengal is that recovery of excess payment cannot be permitted from the retirement dues of an employee unless the employee had knowledge of the fact that all such excess payments were being wrongly made and where the error was corrected within a short period of time; or where the employee had undertaken to render the payment made in excess upon coming to know of it by due adjustment or otherwise; or where the employee had participated in the process of re-fixation of his scale of pay and was thus aware that he was not entitled to the excess payment made and particularly, where there has been misrepresentation or fraud on the part of the employee. These principles would have to be read in tandem with the cases where recovery would not be permitted as laid down in paragraph 18 of Rafiq Masih, particularly sub-paragraph 5, which considers cases where a court may conclude that recovery would result in extreme hardship and outweigh the equitable balance of the employer's right to recovery. It may be said that the courts have consistently given primacy to providing a measure of financial security to an employee in the remaining years of his life after retirement. 16. It may also not be out of place to mention that paragraph 15 of Uniyal recognizes the ratio of Abdul Qadir and B.J. Akkara as exceptions to the recovery of excess payment made due to irregular pay fixation. Second, the appellants in Uniyal were serving as teachers when the proceeding was brought to the court, unlike the petitioners in the present writ petitions who are all retired teachers. This factual distinction has been brought in paragraph 13 of Uniyal and can also be distinguished from paragraph 18 of Rafiq Masih. It may be mentioned that an exception to what the Supreme Court held in Uniyal, has been stated in paragraph 14 of Uniyal itself, namely, that an amount paid or received without the authority of law can be recovered barring cases of extreme hardship but not as a matter of right. The construction of this would be that a court will consider instances where recovery of excess payment would result in extreme hardship. In all the writ petitions before this court, the petitioners have retired from service in the late 90's and have hence been without salaried service for more than twenty years. Permitting the State to continue to withhold the alleged overdrawn amount would entail financial consequences to all the writ petitioners. 17. The issue which has been raised by the State respondent opposing the relief for payment of overdrawn amounts to the petitioners along with interest from the date of retirement till the date of actual disbursement of the amount is that of the delay in filing these writ petitions for such relief. 17. The issue which has been raised by the State respondent opposing the relief for payment of overdrawn amounts to the petitioners along with interest from the date of retirement till the date of actual disbursement of the amount is that of the delay in filing these writ petitions for such relief. The contention of the counsel appearing for the State is that the discretionary jurisdiction of proceedings of this nature should not be exercised in favour of a litigant who fails to act with promptitude or explain the reason for the palpable delay in approaching the court after a considerable length of time. In most of the cases under consideration, the petitioners retired as Assistant Teachers from their respective schools in the late 90's, the Pension Payment Orders (PPOs) were issued in the late 90's or soon thereafter. Pursuant to re-fixation of the scale of pay under the respective ROPA Rules, the petitioners came to know of the amounts deducted/shown as over drawals from the said PPOs and the writ petitions were filed in 2018/2019. From a perusal of the writ petitions, it is found that there are no averments explaining the delay of the number of years in the intervening period. The only averment is to the effect of the delay on the part of the State in disbursing the pensionary benefits to the petitioners despite the PPOs being issued in 1999 or thereabouts. For dealing with the question of whether the writ petitions should be entertained by reason of such delay, this court has considered several judgments in identical matters. In Shiba Rani Maity Vs. The State of West Bengal reported in (2017) Lab IC 806, a co-ordinate Bench of this court relied on a judgment delivered in MAT 1933 of 2010 passed by a Division Bench of this court and held that although the petitioner had approached the court after a substantial delay, the petitioner could not be denied his pension or retirement dues since no third party rights had accured in the intervening period. It was further held that it was the petitioner who had suffered by reason of the non-payment of the amount withheld on account of alleged overdrawal. Biswanath Ghosh Vs. The State of West Bengal (27562(W) of 2016) referred to in the same Report was also allowed on the aforesaid basis. Niladri Kumar Choudhury Vs. State of West Bengal in WP. It was further held that it was the petitioner who had suffered by reason of the non-payment of the amount withheld on account of alleged overdrawal. Biswanath Ghosh Vs. The State of West Bengal (27562(W) of 2016) referred to in the same Report was also allowed on the aforesaid basis. Niladri Kumar Choudhury Vs. State of West Bengal in WP. No. 24231(W) of 2017 followed the reasoning of Shiba Rani Maity on the aspect of delay. A paragraph from the decision of the Hon'ble Supreme Court in Union of India Vs. Tarsem Singh reported in (2008) 8 SCC 648 is relevant for coming to a decision on the issue of delay set out below; "To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition." 18. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition." 18. It is clear from the above that relief can be granted despite delay if there is a continuing wrong giving rise to a continuing injury to the person aggrieved who has come to the court for redressal of his grievance. In this case, despite the PPOs being issued in the late 90's, the State has failed to take action thereon and disburse the retirement benefits to the petitioners. The petitioners claim that they are not responsible for the erroneous fixation of their respective scales of pay and the respondents therefore cannot be allowed to recover the said amount from the retirement dues of the petitioners who had all retired from service before issue of their respective Pension Payment Orders. It is evident that in the intervening period of time, before these writ petitions were filed, there has been no accrual of third party rights or any infraction thereto by reason of the delay. The "exception to the exception" carved out in paragraph 7 of Tarsem Singh does not apply to the writ petitioners since a) no order or administrative decision is involved in these cases, b) rights of third parties will not be affected and c) the claim of the petitioners do not involve issues relating to seniority or promotion which would affect the rights of others. Second, the failure on the part of the State to disburse the amounts to the petitioners is an instance of a continuing wrong, the starting point of which would be the issue of the Pension Payment Order and continue till the date of actual disbursement of the payment of the alleged overdrawn amount along with the applicable rate of interest. 19. For these reasons, the writ petitions are allowed. The concerned respondents are directed to release the amounts overdrawn to the petitioners along with interest at the rates claimed with effect from the date of issuing the PPOs. Such payments are to be made to the petitioners within a period of eight weeks from the date of communication of this order. 20. The concerned respondents are directed to release the amounts overdrawn to the petitioners along with interest at the rates claimed with effect from the date of issuing the PPOs. Such payments are to be made to the petitioners within a period of eight weeks from the date of communication of this order. 20. Notwithstanding the observations made above with reference to the decisions cited, it should however be stated that petitioners who are keen to obtain relief by invoking the discretionary remedies should note that promptitude is expected of a litigant who seeks relief. If a litigant has been tardy, whatever the reasons for such may be, the reasons must be explained. A litigant has the duty to bring to the notice of the court not only the facts relevant for granting relief but also any laches on the part of the litigant which may have a bearing on the exercise of discretion of the court. For balancing the scales of justice, a court must have all facts before it, particularly those which point to the conduct of the one who has come to the court for redressal of his grievance. A statement of the reasons accounting for the delay in the writ petition should be seen as an obligation on the part of a litigant and not as a dispensable requirement. It is expected, therefore, that writ petitions which are filed in future asking for similar relief should at least contain averments explaining the cause of the delay, if any, in approaching the court. 21. It should also be mentioned that the averments in these writ petitions show a singular absence of relevant particulars relating to the knowledge of the petitioner of the PPO, the steps taken by the petitioner following such knowledge (or the absence of such) and what finally led the petitioner to come before the court. It is unfortunate that the writ petitions have been drafted mechanically with repetitive averments and with scant regard to the individual case of the particular petitioner. As an advisory, advocates should not expect that orders will be passed as a matter of course on woefully inadequate writ petitions with "copy-paste" being reflected all over. 22. All the writ petitions are disposed of with these observations. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.