The State Of West Bengal & Ors vs Ashok Ranjan Chandra
2023 Latest Caselaw 6702 Cal

Form No. J(2)
                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi


                                   WP.ST 143 of 2016

                            The State of West Bengal & ors.
                                          Vs.
                                Ashok Ranjan Chandra



For the State/writ petitioners :    Mr. Tapan Kr. Mukherjee,
                                          Senior Advocate & Ld. A.G.P.
                                    Mr. Pinaki Dhole, Advocate
                                    Mr. Somnath Naskar, Advocate


For the Respondent No.1        :    Mr. Kanailal Samanta, Advocate

Mr. Milan Kumar Maity, Advocate

For the Respondent No.5 : Mr. Suman Basu, Advocate

Hearing on : 04.10.2023

Judgment on : 04.10.2023

DEBANGSU BASAK, J.:-

1. The writ petition is at the behest of the State. State

assails an order dated June 12, 2015 passed by the learned

Administrative Tribunal in O.A.1358 of 2014.

2. By the impugned order, the Tribunal, relied upon the

decision of the Supreme Court rendered in (2015) 4 Supreme

Court Cases 334 [State of Punjab and ors. vs. Rafiq Masih

(White Washer) & ors] and directed refund of a sum of

Rs.1,20,828/- which was deducted from the entitlement of the

private respondent.

3. Learned Senior Advocate appearing for the State, draws

the attention of the Court to the supplementary affidavit filed

by the State pursuant to the order dated August 28, 2023 and

the response thereto by the private respondent. He submits

that, the private respondent was appointed as a Group-D staff

on ad hoc basis on June 17, 1986. He was promoted as an

Assistant Cashier on September 30, 1994 on temporary basis

on and from October 21, 1994. He was reverted to his original

post of Peon on June 9, 1998. The order of reversion dated

June 9, 1998 was challenged by the private respondent before

the Tribunal in O.A.3124 of 1998. By an order dated June 3,

1999, the Tribunal set aside the order of reversion. State

approached the High Court by way of WPST 1 of 1999

challenging the order of the Tribunal. By an order dated

August 18, 1999, the High Court allowed the writ petition and

set aside the order dated August 18, 1999.

4. Learned Senior Advocate appearing for the State submits

that, the private respondent gave two undertakings in writing

with regard to his pay. He refers to the supplementary affidavit

and submits that, the private respondent gave undertakings

on September 31, 2009 and on December 18, 2012. He

submits that, the private respondent, in his affidavit dealing

with the supplementary affidavit of the State, did not dispute

that the signatures of the private respondent in the two

undertakings were his. He submits that, the authorities

passed an order dated October 3, 2012 with regard to the

excess payment made to the private respondent. Such order

was communicated to the private respondent as will inter alia

appear from the undertaking dated December 18, 2012 issued

by the private respondent.

5. Learned Senior Advocate appearing for the State relies

upon (1999) 2 Calcutta High Court Notes 387 (State of

West Bengal and others vs. Ashoke Ranjan Chandra) in

support of the contention, that the private respondent was

directed to be reverted to his original post of Peon.

6. So far as overdrawal is concerned, learned Senior

Advocate appearing for the State relies upon an unreported

judgment of this Court dated August 2, 2023 passed in WP.ST

12 of 2023 (The State of West Bengal & ors. vs. Sri

Soumen Banerjee & anr.), (2016) 14 Supreme Court Cases

267 (High Court of Punjab and Haryana and others vs.

Jagdev Singh), (2012) 8 Supreme Court Cases 417 (Chandi

Prasad Uniyal and others versus State of Uttarakhand

and others), (2015) 4 Supreme Court Cases 334 [State of

Punjab and others versus Rafiq Masih (White Washer) and

others] and (2014) 8 Supreme Court Cases 883 [State of

Punjab and others versus Rafiq Masih (Whitewasher)].

7. Referring to Rafiq Masih (White Washer) (I) (Supra),

learned Senior Advocate appearing for the State submits that,

the Supreme Court held that Chandi Prasad Uniyal (Supra)

considered two previous authorities of the Supreme Court on

the subject of overdrawal. He submits that, in Rafiq Masih

(White Washer) (I) (Supra) Supreme Court held that (1994) 2

SCC 521 (Shyam Babu Verma versus Union of India) and

1995 Supp (1) SCC 18 (Sahib Ram versus State of

Haryana) were rendered under Article 142 of the Constitution

of India whereas Chandi Prasad Uniyal (Supra) was under

Article 141 of the Constitution of India.

8. He submits that, therefore, the ratio laid down in Chandi

Prasad Uniyal (Supra) should be applied in the facts and

circumstances of the present case.

9. Learned Senior Advocate appearing for the State submits

that, the private respondent gave two undertakings and is

bound thereby. The writ petitioner, therefore, should not be

granted the protection as afforded by the impugned order of

the Tribunal. Moreover, the Tribunal passed the impugned

order without granting an opportunity of filing affidavits to the

State.

10. Learned Advocate appearing for the private respondent

submits that, the private respondent discharged duties of the

Assistant Cashier on and from October 21, 1994 till he was

sought to be reverted. The private respondent was not involved

in the fixation and the grant of pay. The private respondent is

a Group-D staff and that the overdrawal should not be

recovered on the basis of Rafiq Masih (Whitewasher)-II

(Supra).

11. Referring to the documents annexed to the

supplementary affidavit, learned advocate appearing for the

private respondent submits that, the first undertaking dated

March 31, 2009 is not attracted since the private respondent

played no role in pay fixation. Private respondent cannot be

made liable for the alleged overdrawal in view of Rafiq Masih

(Whitewasher)-II (Supra).

12. Learned advocate appearing for the private respondent

submits that, the order dated October 3, 2012 was never

served upon the private respondent. The private respondent

did not set and subscribe any signature in the service book.

No entry in the service-book therefore, can be held as against

the private respondent.

13. Referring to the undertaking dated December 18, 2012,

learned advocate appearing for the private respondent submits

that, although the signature appearing thereon is that of the

private respondent, his client is not aware of the contents

thereof. The language used therein is not his. The private

respondent was a Peon and was incapable of writing such a

letter. He refers to the averments made in the affidavit filed by

the private respondent particularly to paragraph-9 thereof. He

submits that the private respondent should not be bound by

an undertaking which was obtained by the State at the time

when, the private respondent was about to superannuate.

14. Learned advocate appearing for the private respondent

submits that, the private respondent is governed by the ratio

laid down by Rafiq Masih (Whitewasher) (II) (Supra). The

private respondent is a Group-D staff and that the so-called

overdrawal should not be adjusted against the entitlement of

the private respondent particularly when, the private

respondent superannuated from service.

15. The records made available to the Court demonstrate

that, the private respondent was appointed as a Group-D staff

on ad hoc basis under the Director of Commercial Tax on June

17, 1986. He was promoted to the post of Assistant Cashier on

temporary basis from October 21, 1994 and was paid the scale

in respect of the post of Assistant Cashier for the period of

time that he discharged duties and functions of an Assistant

Cashier.

16. The private respondent was reverted to his original post

of Peon by an office order dated June 9, 1998. This office order

was assailed by the private respondent by way of an Original

Application being O.A.3124 of 1998 which was allowed by the

Tribunal by an order dated June 3, 1999. The order of

reversion dated June 9, 1998 was set aside. State challenged

the order dated June 3, 1989 of the Tribunal before the High

Court in WPST 1 of 1999 which was allowed by a judgment

and order dated August 18, 1999 reported at Ashoke Ranjan

Chandra (Supra).

17. West Bengal Services (Revision of Pay and Allowance)

Rules, 2009 came into being. The private respondent

submitted an option under Schedule II Part A of the Rules of

2009 and elected to the revised pay structure with effect from

January 1, 2006. The Form is dated March 31, 2009 and

contains the following declaration :-

"I hereby undertake to refund to the Government any amount which may be drawn be me in excess of

what is admissible to me on account of erroneous fixation of pay in the revised pay structure as soon as the fact of such excess drawal comes/brought to my notice"

18. Pursuant to his election and submission of form of option

as noted above, pay in respect of the private respondent was

fixed by an order dated October 3, 2012.

19. By an office order dated December 18, 2012, the

authorities calculated a sum of Rs.1,20,828/- covering three

several periods of time to be overdrawn by the private

respondent.

20. The private respondent superannuated from service on

June 30, 2013. Prior thereto, he submitted a letter dated

December 18, 2012 referring to the over drawal amount and

the intimation thereof to him. In such letter, he prayed for

adjustment of the sum of Rs.1,20,828/- by deducting such

sum from the amount of gratuity receivable by him on his

superannuation. Consequently, the authorities proceeded to

act on the basis of his acceptance of overdrawal and his

request for adjustment.

21. The private respondent approached the Tribunal by way

of OA 1358 of 2014, in which the impugned order was passed.

Before the Tribunal the private respondent prayed for refund

of the deducted amount of gratuity along with interest.

22. In such factual background, the authorities cited at the

bar with regard to overdrawal are required to be considered.

23. Ashoke Ranjan Chandra (Supra) is the decision of

the High Court in relation to the order of reversion of the

private respondent from the post of Assistant Cashier to Peon.

It does not speak about any overdrawal and is silent on such

issue.

24. In Sri Soumen Banerjee and another (Supra), the

employee concerned approached the High Court for pay

fixation. His writ petition was disposed of on the undertaking

that he would refund excess drawal. He went missing. He

was declared dead by the Civil Court. His heir withdrew the

death benefits after allowing the deductions of the overdrawn

amount.

25. Sri Soumen Banerjee and another (Supra) notes Rafiq

Masih (Whitewasher) (II) (Supra) as well as Chandi Prasad

Uniyal and others (Supra) and Rafiq Masih (White Washer)

(I) (Supra). In the facts of that case, it was held that, Chandi

Prasad Uniyal and others (Supra), Rafiq Masih (White

Washer) (II) (Supra) and in the facts of that case, held that,

Chandi Prasad Uniyal and others (Supra), Rafiq Masih

(White Washer)-II (Supra) were not applicable to the facts and

circumstances of that case and that the undertaking given

were valid.

26. Chandi Prasad Uniyal (Supra) is of the view that,

amount paid due to irregular/wrong fixation of pay can always

be recovered from the recipients.

27. Rafiq Masih (Whitewasher)-I (Supra) is a reference with

regard to the so-called conflict of views between Sham Babu

Verma (Supra) and Sahib Ram (Supra) on one part and

Chandi Prasad Uniyal (Supra) on the other. It is of the view

that Sham Babu Verma (Supra) and Sahib Ram (Supra) was

rendered under Article 142 of the Constitution of India and

that, Chandi Prasad Uniyal (Supra) was under Article 141

thereof.

28. Thereafter, in Rafiq Masih (Whitewasher)-II (Supra),

the Supreme Court laid down the following with regard to

overdrawal :-

"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 employment. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise 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 have 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.

29. In Jagdev Singh (Supra) the incumbent concerned was

a Civil Judge (Junior Division) promoted to the post of

Additional Civil Judge. The incumbent there furnished an

undertaking to refund the excess payment, if deducted and

demanded subsequently. In such context, the Supreme Court,

after noticing Rafiq Masih (Whitewasher)-II (Supra) found

that, sub-paragraph (ii) of paragraph 18 would not apply to

the facts and circumstances of that case.

30. In the impugned order the Tribunal referred to Rafiq

Masih (Whitewasher) (II) (Supra) and arrived at the finding

that, the deduction of the over drawal amount from the

gratuity was not permissible and, therefore, directed refund.

31. Rafiq Masih (Whitewasher) (II) (Supra) tabulates few

situations where recoveries by the employers would be

impermissible. It however, does not consider a situation

where, the employee concerned obtained the pay fixation on

the basis of an undertaking as made in by the private

respondent herein. In Rafiq Masih (Whitewasher) (II) (Supra)

the employees were not guilty of furnishing any incorrect

information and that the payment were not on account of any

misrepresentation or fraud committed by them. Participation

of the employees in the mistake committed by the employer in

extending undeserved monetary benefits was totally ruled out.

The employees were innocent as also employers in the

wrongful determination of the inflated emoluments.

32. Rafiq (Whitewasher) (II) (Supra) did not lay down that

an employee can act in breach of his undertaking given with

regard to overdrawal or that such undertaking does not bind

him. It cannot be construed to be a licence to act in breach of

an undertaking regarding overdrawal.

33. In the facts of the present case, there is an invitation at

the behest of the private respondent, in the exercise of option

that the private respondent submitted on March 31, 2009 for

fixation of revised pay structure under ROPA 2009. Such

writing also contains an undertaking as noted above. The

undertaking that the private respondent gave was to the

extent that, if there was any erroneous fixation of pay in the

revised pay structure he would refund the sum as soon as

such facts of excess drawal is brought to his notice. The

private respondent accepts that he submitted the option form

dated March 31, 2009 with the undertaking recorded therein.

34. The private respondent however, disputes that he received

the office order dated December 18, 2012 stating that there

was an erroneous fixation or knowing the contents of his letter

dated December 18, 2012.

35. In the affidavit used by the private respondent, he denied

receiving the office order dated December 18, 2012 and being

aware of the contents of the writing dated December 18, 2012

although, he acknowledges that he signed the writing dated

December 18, 2012.

36. As noted above, signature of the private respondent on

the writing dated December 18, 2012 is admitted. Claim is

that the private respondent is not aware of the contents of that

letter and he signed the same while it was blank. We are

unable to subscribe to the contention of the private

respondent in this regard. Firstly, the signature on the

document dated December 18, 2012 is admitted. Secondly, the

private respondent discharged duties and functions as

Assistant Cashier for a period of time. Therefore, he was

discharging functions of a far more responsible post than that

of a Peon for a period of time and, therefore, he is expected to

understand the consequences of signing a blank document or

the contents of the document dated December 18, 2012. In

any view of the matter, since the signature of the private

respondent on the document concerned is admitted, we are

unable to take a view that, the private respondent cannot be

held responsible for the contents of such letter.

37. The letter dated December 18, 2012 is an unconditional

undertaking to refund the overdrawal as quantified by the

order dated December 3, 2012 of the authorities.

38. In our view, the private respondent does not fall within

the categories tabulated by Rafiq Masih (Whitewasher) (II)

(Supra) as being exempted from the process of recovery of the

overdrawn amount.

39. In such circumstances, the learned Tribunal erred in

setting aside the order dated October 3, 2012 and relying upon

the ratio of Rafiq Masih (Whitewasher)-II (Supra) in order to

arrive at the finding that the overdrawal amount cannot be

adjusted.

40. In view of the discussions above, we set aside the

impugned order of the learned Tribunal.

41. WP.ST 143 of 2016 is allowed without any order as to

costs.

(Debangsu Basak, J.)

42. I agree.

(Md. Shabbar Rashidi, J.)

CHC/KAUSHIK