Prabir Kumar Bose vs The South-Eastern Coal Fields ...
2023 Latest Caselaw 1146 Bom

WP-7571-2019                                    1                     Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.

                  WRIT PETITION NO. 7571 OF 2019

Shri Prabir Kumar Bose,
aged about 65 years, Occ. Retired,
R/o Flat No. 502, Swapnil Sharva Apartment,
61, Shivaji Nagar, Nagpur - 10.
                                                                  PETITIONER
                                .....VERSUS.....
1.   The South - Eastern Coal Fields Limited,
     A subsidiary of Coal India Limited,
     Seepath Road, Bilaspur - 495006,
     through its Chairman-cum-Managing Director.

2.   The Director (Personnel),
     The South - Eastern Coal Fields Limited,
     Seepath Road, Bilaspur - 495006.

3.   The General Manager (P & A),
     The South - Eastern Coal Fields Limited,
     Seepath Road, Bilaspur - 495006.
                                                               RESPONDENTS

                 Shri S.S. Sanyal, Advocate for the petitioner.
               Shri C.S. Samudra, Advocate for the respondents.


CORAM : A. S. CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.

ARGUMENTS WERE HEARD ON : JANUARY 2, 2023 JUDGMENT IS PRONOUNCED ON : FEBRUARY 3, 2023 JUDGMENT :(PER : A.S. CHANDURKAR, J.)

In view of notice for final disposal issued earlier, the learned

Counsel for the parties have been heard at length by issuing Rule and

making it returnable forthwith.

2. The petitioner who was in service with the Western WP-7571-2019 2 Judgment

Coalfields Limited (WCL), a subsidiary of the Coal India Limited has

raised a challenge to the order dated 12/4/2022 that has been passed by

the General Manager (Pay & Accounts) deciding the petitioner's

representation and holding that the recovery of House Rent Allowance

(HRA) from the amount of arrears received towards Performance Related

Pay was justified.

3. The petitioner who initially joined services with the WCL as

an Accountant was promoted from time to time. In January - 2009, the

petitioner was posted at Bilaspur on the post of Deputy Chief Manager

(Finance). According to the WCL, for the period from 28/9/2010 till his

superannuation on 30/9/2014, the petitioner stayed at the guest house of

the WCL and did not avail any accommodation. For that reason, he

received HRA for the entire period. On his superannuation, the petitioner

received No Due Certificate along with most of his retiral dues. The issue

with regard to payment of Performance Related Pay came to be approved

by the Central Government after the petitioner's retirement. Since the said

amount was not paid to the petitioner, he made a representation on

4/4/2016. Despite the said representation, since there was no response to

the same, a fresh representation was made on 10/6/2016. On 3/7/2019,

the Functional Director, South Eastern Coalfields Limited considered the

matter but refused to grant any relief to the petitioner. In that backdrop,

the petitioner filed the present Writ Petition seeking a direction that WP-7571-2019 3 Judgment

amount of approximately Rs.3,90,000/- recovered from the Performance

Related Pay of the petitioner be directed to be re-paid.

4. In the present proceedings on 16/3/2022, it was noticed

that the petitioner's representations dated 4/4/2016 and 24/10/2016 in

the matter of releasing of amounts towards Performance Related Pay

were pending. The WCL was therefore directed to take a decision on the

said representations within a period of four weeks. Accordingly, on

12/4/2022, the WCL held that under Rule 4.7 of the Coal India

Executives House Rent Allowance Rules, 2010 (for short "Rules of

2010"), guest house facility could be availed only for a period of six

months and not more. The period of six months could be extended after

seeking fresh approval of the Competent Authority. Since no such

approval was taken, the petitioner was not entitled to receive House Rent

Allowance and hence deduction of that amount from the amount of

Performance Related Pay was justified. By amending the Writ Petition,

challenge is also raised to the order dated 12/4/2022.

5. Shri S.S. Sanyal, learned Counsel for the petitioner

submitted that the action on part of the WCL in seeking to deduct an

amount of approximately Rs.3,90,000/- from the amount of Performance

Related Pay was illegal and unjustified. The petitioner having been issued

No Due Certificate prior to his superannuation, there was no justification WP-7571-2019 4 Judgment

on part of the WCL to deduct the said amount. Referring to Rules 4.1 and

4.2 of the Rules of 2010, it was submitted that the petitioner was never

provided any company accommodation and therefore his continuation at

the guest house could not be faulted. The fact that the petitioner was not

provided company accommodation was admitted by the WCL in

paragraph 9 of its reply. The petitioner therefore had no option but to

continue to reside in the guest house. There was no question of any

misrepresentation by the petitioner and hence the allegations made by the

WCL in that regard were unjustified. He thereafter referred to the Office

Memorandum dated 10/9/2016 in the matter of amounts to be paid

towards Performance Related Pay. This issue having been decided after

the petitioner's superannuation, he was entitled for the entire benefits

and deduction of any amount therefrom was not permissible. In any

event, it was submitted that the petitioner having superannuated prior to

the action of recovery, the ratio of the decision in State of Punjab and

others Vs. Rafiq Masih (White Washer) and others [(2015) 4 SCC 334]

was attracted. It was thus submitted that the impugned communication

dated 12/4/2022 be set aside and the amount deducted from the

petitioner's Performance Related Pay be released along with interest.

6. On the other hand, Shri C.S. Samudra, learned Counsel for

the respondents opposed the Writ Petition. He submitted that the

petitioner was holding a responsible post of General Manager (Finance) WP-7571-2019 5 Judgment

and hence he was aware of the Rules of 2010. The same had come into

force on 28/9/2010 and under Rule 4.7 thereof, maximum period of stay

permissible in the guest house was for six months. Sanction of the

Competent Authority was necessary in case such accommodation was to

be continued after expiry of six months. It was submitted that during the

entire tenure of the petitioner from 2009 to 2014, he had stayed in the

guest house. Even if No Due Certificate was issued to the petitioner, the

action of recovery from the amount of Performance Related Pay was

justified since that issue was settled only in October - 2016. The said

amount was not in the nature of salary but it was in the nature of

incentive in addition to the amount of salary. It was for that reason that

the WCL proceeded to deduct amounts of Rs.2,99,475/- and Rs.90,000/-

from the said amount. The petitioner being aware of the Rules of 2010, it

could not be said that he was entitled to retain such benefit. Relying upon

the decision in Thomas Daniel Vs. State of Kerala & Ors. [2022 LiveLaw

(SC) 438], it was submitted that in a case where an employee had

knowledge that the payment received was in excess of what was due to

him, the Court could exercise discretion in the matter of challenge to the

recovery of the amount paid in excess. It was thus submitted that there

being no mistake on part of the WCL, it was entitled to recover the excess

amount paid.

7. We have heard the learned Counsel for the parties and we WP-7571-2019 6 Judgment

have perused the documents on record. The facts are mostly undisputed

and they lie in a narrow compass. The petitioner was posted as General

Manager (Finance) at Bilaspur in January - 2009. He availed

accommodation at the guest house of the respondents from January -

2009 to 30/9/2014 on which date he superannuated. In this regard, Rule

4.7 of the Rules of 2010 stipulates that an executive staying in guest

house is entitled for HRA for a maximum period of six months subject to

paying room rent for such accommodation and he does not occupy any

other residential accommodation provided by the Company. However, on

expiry of the said period of six months, if such executive could not be

allotted company's accommodation, he is required to obtain fresh

sanction for continuance of HRA from the Competent Authority. It is not

the case of the petitioner that after expiry of period of six months, he

obtained the approval of the Competent Authority. At the same time, he

continued receiving the amount of HRA till his retirement. According to

the WCL, the petitioner who was holding a responsible post was aware of

the Rules of 2010 and despite that, he continued occupation of the guest

house and also received the amount of HRA. It is clear on reading Rules

4.1, 4.2 and 4.7 of the Rules of 2010 that in absence of sanction on the

expiry of period of six months, continuation of payment of HRA to the

petitioner was not permissible in the absence of approval of the

Competent Authority. It is clear from the record that the petitioner WP-7571-2019 7 Judgment

continued to receive the amount of HRA without obtaining any such

sanction on expiry of period of six months.

8. According to the WCL, the issue with regard to the

Performance Related Pay was not settled when the petitioner

superannuated. The same was resolved only in October - 2016 and said

payments were then made to the eligible employees. The Vigilance

Department of the Company having noticed irregular payments of HRA to

various employees including the petitioner, recovery of such excess

payments was initiated. Thus, when the arrears of Performance Related

Pay were to be paid to the petitioner, amounts of Rs.2,99,475/- and

90,000/- towards the amount of HRA to which he was not entitled came

to be deducted. We find that such action of recovery from the petitioner

cannot be faulted merely on the ground that the petitioner was issued a

No Due Certificate when he superannuated. The deduction as sought to

be made is from the incentive amount towards Performance Related Pay.

There is no deduction from the amount of pension of the petitioner. The

deduction has been made from the amount that the petitioner was

entitled to receive only after resolution of the issue with regard to the

Performance Related Pay in October - 2016. We also find that there is a

distinction between amount paid erroneously without the employee being

responsible for it and the employee receiving excess amount than what is

due to him with the knowledge that such amount was received despite WP-7571-2019 8 Judgment

not being entitled to it. The distinction in that regard has been recognized

in Thomas Daniel (supra). We find that by virtue of Rule 4.7 of the Rules

of 2010 which the petitioner was aware, he was not entitled to receive

HRA after expiry of period of six months of his stay in the guest house

without further sanction of the Competent Authority. The petitioner was

holding a responsible post of the General Manager (Finance) and in these

facts we do not find that the ratio of the decision in Rafiq Masih (supra)

would be attracted.

9. The order dated 12/4/2022 records that on such

irregularity being noticed by the Vigilance Department of the Company,

the excess amount paid to the petitioner was recovered from the amount

of his Performance Related Pay. We thus find that the action of recovery

is neither malafide nor unjustified or illegal for this Court to interfere in

exercise of extraordinary jurisdiction under Article 226 of the

Constitution of India. Consequently, the Writ Petition stands dismissed.

Rule stands discharged. No costs.

(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.) Sumit

Digitally signed bySUMIT CHETAN AGRAWAL Signing Date:04.02.2023 15:41