Calcutta High Court (Appellete Side)
Union Of India & Others vs Madhusudan Mukhopadhyay on 24 August, 2023
24.08.2023
rpan/04
IA No.: CAN 1 of 2023 [Restoration]
in
WPCT 13 of 2023
Union of India & Others
- Versus -
Madhusudan Mukhopadhyay
Mr. Nilanjan Bhattacharya,
Mr. Rahul Sarkar,
Ms. Dipika Sarkar
... for the Petitioners.
Mr. Madhusudan Mukhopadhyay
... Respondent in-person.
The present writ petition has been preferred
challenging an order dated 30 th September, 2022 passed
by the learned Tribunal in the original application, being
O.A. 350/01234/2020.
Records reveal that the writ petition was dismissed
for default by a co-ordinate Bench of this Court on 1 st
March, 2023. For restoration of the writ petition, the
petitioners have filed an application, being IA No.: CAN 1
of 2023.
Upon hearing the parties and considering the
materials on record, we are satisfied with the explanation
given towards the absence of the learned advocate for the
petitioners before the Court on 1 st March, 2023 when the
matter was dismissed for default. Accordingly, the order
dated 1st March, 2023 is recalled and the writ petition is
restored to its original file and number and the same is
taken up for final hearing.
The application for restoration, being IA No.: CAN 1
of 2023 is disposed of.
Mr. Bhattacharya, learned advocate appearing for
the petitioners submits that the learned Tribunal erred in
law in observing that the respondent was a regular
Console Operator and was drafted/deployed to perform
duties of an Instructor and that such arrangement is as
good as deputation.
According to him the respondent was holding the
post of Console Operator, which is a single cadre post and
that as such he was not entitled to training allowance and
that the petitioners have mistakenly granted the training
allowance to the respondent for the period from 15 th
February, 1993 till 9th July, 2014.
Drawing our attention to the letter dated 9 th July,
2013 issued by the Vigilance Officer (A) addressed to the
Principal, ZRTI / Bhuli, Mr. Bhattacharya submits that
the respondent was originally selected for the higher post
of Console Operator, ZRTI/ Bhuli, redesignated as
Computer Instructor and that he was neither in ex-cadre
post nor in deputation at training institute. As such, he
was not entitled to training allowance at any stage since
induction in ZRTI/Bhuli with effect from 18th February,
1992. The leaned Tribunal had glossed over such
arguments, as advanced and has not returned a finding
on the said issues and such infirmity on the face of the
records warrants interference in the present writ petition.
Mr. Mukhopadhyay, the respondent appearing in-
person submits that the petitioners themselves granted
training allowance and thereafter illegally recovered the
same from his salary from August, 2014 till his retirement
in the year 2019. The petitioners did not respond to the
repeated representations submitted by the respondent
and such illegal recovery was a continuing wrong.
He further submits that the Railway Board
Vigilance sought for clarifications from the General
Manager Vigilance as to how Mr. Mukhopadhyay was
responsible in getting training allowance which he was
supposedly not entitled to. The training allowance was
allowed to him the month of February, 1993, however, no
reason was disclosed as to why the Eastern Railway
Vigilance advised deduction from his pay from the month
of February, 1992. The said clarifications, as sought for,
were, however, not answered by the competent authority.
He argues that he had neither misrepresented nor
suppressed any material fact and he cannot be held
responsible towards such payment. The recovery was
iniquitous and harsh and as such there is no infirmity in
the directions contained in the order impugned. In
support of such contention he has placed reliance upon
the judgment delivered in the case of State of Punjab
and Ors. vs. Rafiq Masih (White Washer) & Ors.,
reported in (2015) 4 SCC 334.
Heard Mr. Bhattacharya, learned advocate for the
petitioners and the respondent, appearing in person and
considered materials on record.
Upon considering the detailed arguments, as
advance and taking into consideration the materials on
record, the learned Tribunal came to a finding that the
action of the petitioners herein was contrary to the
Railway Board Circular No. RBE 21 of 2003 which
conferred right upon the respondent towards training
allowance and as such the training allowance was rightly
granted and recovery of the same was unreasonable,
arbitrary and bad.
The petitioners have not come out with a case that
the respondent was in any way responsible for
disbursement of the training allowance. Records do not
reveal that there was any fault or misrepresentation on
the part of the respondent. The training allowance for the
period from 15th February, 1993 till 9th July, 2014, which
had been recovered, was granted to the respondent by the
competent authority upon being satisfied about the
respondent's entitlement and as such the learned
Tribunal rightly held that the recovery was unreasonable
and arbitrary.
Upon dealing with all the factual issues, the learned
Tribunal arrived at specific findings and we do not find
any error, least to say any patent error of law in the order
impugned. The scope of judicial review is very narrow and
limited and such jurisdiction should be exercised
sparingly and only in appropriate cases where the judicial
conscience of the Court dictates. The impugned order
does not suffer from any jurisdictional error or any
substantial failure of justice or any manifest injustice
warranting interference of this Court.
For the reasons discussed above, the writ petition,
being WPCT 13 of 2013 is dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon compliance of
all requisite formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
