Calcutta High Court (Appellete Side)
Indranil Dutta Gupta) vs West Bengal Comprehensive Area ... on 21 September, 2023
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE JUSTICE RAJA BASU CHOWDHURY
W.P.A. 29429 of 2013
CAN 1 of 2020 (Old CAN 2402 of 2020)
CAN 2 of 2020 (Old CAN 5622 of 2020)
CAN 3 of 2020 (Old CAN 5624 of 2020)
Tapati Dutta Gupta & Anr.
(substituted in place and stead of
Indranil Dutta Gupta)
Versus
West Bengal Comprehensive Area Development Corporation & Ors.
For the petitioner : Mr. Pratik Dhar, Sr. Adv.
Mr. Ritwik Pattanayak
Mr. Samir Halder
Mr. Aritra Roychowdhury
Ms. Cardina Roy
For the State : Mr. Subir Kumar Bhattacharya
For the respondent no. 7 : Mr. S.Basu
Heard on : 21.09.2023
Judgment on : 21.09.2023
Raja Basu Chowdhury, J:
1. The present writ petition has been filed, inter alia, challenging the
memoranda dated 11th April 2013 & 27th May 2013 and the office
order dated 23rd August 2012. It is the petitioners' case that the
original petitioner, on the basis of his application was appointed as a
Junior Accountant on 2nd February 1977 with the respondent no.1 (
herein after the Corporation). Subsequently, he was appointed by an
office order dated 1st February 1980 on a temporary basis for 2
years with effect from the date of joining, as an accountant with the
Corporation at the scale of pay of Rs.450/- - Rs.625/- along with
usual allowances as admissible under the rules of the State
Government, which were being followed by the Corporation.
Subsequently, however, by an office order dated 30th July 1987, the
original petitioner was confirmed as an accountant in the pay scale
of Rs.425/- - 1050/- with effect from 1st August 1984.
2. In usual course, the original petitioner having reached the age of
superannuation, was issued a release order dated 31st January
2011, on completion of 60 years. Subsequently, on the
implementation of the ROPA Regulations, 2009 for the employees of
the corporation, vide an office order dated 2nd June 2011, the
competent authority of the corporation accorded sanction for
payment of unpaid arrear salary, admissible under the ROPA
Regulations 2009 in respect of the original petitioner which, inter
alia, included arrear, salary amounting to Rs.55,819/-.
3. Subsequently, however, the original petitioner received a
communication dated 11th April 2013, whereunder, the respondent
no. 2 had called upon the original petitioner to refund a sum of
Rs.2,93,076/- on account of refixation of pay with retrospective
effect, as per the office order dated 23rd August 2012, from 9th
March 1978 to 31st January 2011. The aforesaid direction for refund
was issued to recover the payment made to the original petitioner in
usual course, which became excess by reasons of retrospective
revision of the original petitioner's pay. The original petitioner was
taken aback, by letter dated 7th May 2013 while expressing shock,
had informed the respondent no.2 that he had not even been
favoured with the order dated 23rd August 2012, based on which the
purported refixation of his pay was made. It is in response to such
communication that the respondent no.2 had served the original
petitioner the communication dated 27th May 2013, enclosing
therewith the order dated 23rd August 2012, and while reiterating its
contention had called upon the original petitioner to refund the
aforesaid amount of Rs.2,93,076/-. It is the case of the original
petitioner that by the aforesaid orders the respondents had informed
the original petitioner that the refund of the aforesaid amount would
help them to facilitate the processing of the payments in relation to
disbursal of pensionary benefits and other retiral benefits.
4. Challenging both the aforesaid orders, inter alia, including the order
dated 23rd August 2012, whereby the original petitioner's pay had
been refixed, the present writ petition has been filed. At the interim
stage, a Coordinate Bench of this Hon'ble Court, by an order dated
2nd December, 2013, by arriving at a prima facie conclusion that the
Administrative Secretary of the corporation, having exceeded its
jurisdiction, was, inter alia, pleased to stay the operation of the
memo dated 11th April, 2013, until further orders and further
observed that the petitioner shall be entitled to payment of
provisional pension at the same rate that was released in his favour
lastly on 28th January, 2011 without prejudice to the rights and
contention of the parties. Notwithstanding such observation/
direction provisional pension was not released until the time
mentioned herein after.
5. Mr. Dhar, learned senior advocate appearing for the petitioners by
drawing attention of this Court to the office order dated 23rd August
2012 submits that the initial pay of the original petitioner was
Rs.570/- as on 1st April 1981, in the scale of pay of Rs.425/-
Rs1050/-, which pay was revised to Rs.510/-. Proceeding on the
basis of the aforesaid refixation, there had been consequential
refixation of the original petitioner's pay and based on the aforesaid
refixation of the pay, a sum of Rs.2,93,076/- was treated as
overdrawal on account of pay and allowances and was directed to be
reimbursed by the original petitioner. He says that the mode and
manner in which the refixation had been made subsequent to the
original petitioner having retired from service is unknown in law.
6. He says that the original petitioner had no role in his initial fixation
of the pay. Based on the initial fixation, the corporation had
disbursed the salary in favour of the original petitioner which had
been realized by him over a span of three and half decades. The
respondent no 2, while issuing the office order dated 11th April 2013
and while directing the original petitioner to refund a sum of
Rs.2,93,076/- chose not to give any opportunity of hearing to the
original petitioner. The decision to refix the original petitioner's pay
after his retirement is arbitrary. The office orders dated 11th April
2013 and 27th May 2013 had been issued without giving any
opportunity of hearing to the original petitioner and are based on
the arbitrary refixation of the original petitioner's pay. The aforesaid
refixation if given effect to, would not only create an anomalous
situation but would create huge financial burden on the petitioners.
The aforesaid memoranda dated 11th April, 2013 and 27th May, 2013
and the refixation order of the original petitioner's pay by office order
dated 23rd August, 2012 cannot be sustained. The same should be
set aside and quashed.
7. By placing reliance on a judgment delivered by the Hon'ble Supreme
Court in the case of State of Punjab and others v. Rafiq Masih
(White Washer), reported in (2015) 4 SCC 334, it is submitted that
ordinarily, a recovery of this nature is impermissible. The Hon'ble
Supreme Court has even categorized in paragraph 18 of the said
judgment the circumstances under which it is impermissible to
make any recovery. The present case specifically falls under the
category of impermissible recovery, as provided in the aforesaid
judgment. It is still further submitted that from a perusal of the
aforesaid office memoranda dated 11th April 2013 and 27th May
2013, it would not appear that there are any other reasons based on
which the aforesaid direction for refund has been issued. He
submits that it is well settled that an order issued by the authority
must be adjudged on the grounds provided in such order and
cannot be supplemented by fresh reasons. In support of his
aforesaid contention, he places reliance on the judgment delivered in
the case of Mohinder Singh Gill & Anr. v. Chief Election
Commissioner New Delhi & Ors., reported in (1978) 1 SCC 405.
8. It is still further submitted that during pendency of the present writ
petition, in terms of the order passed by the Coordinate Bench of
this Court on 22nd January 2015, the provisional pension has been
released in favour of the original petitioner. However, such
provisional pension has been computed on the basis of his refixed
pay which is impugned. By placing reliance on an undated
computation sheet, counter signed by the Law cell in charge of the
corporation which is taken on record, it is submitted that the
Corporation has, sometimes in the month of November 2020, has
disbursed provisional pension and other retiral benefits in favour of
the original petitioner. However, such payments had been made
based on the revised and/or refixed pay of the original petitioner in
terms of the office order dated 23rd August 2012. Since, the office
order, itself, cannot be sustained, the corporation should be directed
to re-compute the same and disburse the arrears along with interest
as per the statutory rate.
9. Mr. Bhattacharya, learned advocate appearing for the Corporation,
on the other hand, submits that there is no irregularity on the part
of the respondent no. 2, in refixing the original petitioner's salary or
in directing the original petitioner to reimburse the over drawn pay.
In any event, it is submitted that although, the order dated 11th
April 2013 had been passed, the same could not be given effect to,
in view of the order of injunction passed by the Coordinate Bench of
this Court. It is submitted that during pendency of the writ petition
not only the provisional pension, but the other entitlements of the
original petitioner had also been disbursed. It is submitted that by
reasons of the failure on the part of the original petitioner to comply
with the office order dated 11th April 2013, the respondents could
not finally settle the pension in favour of the original petitioner.
10. The Corporation was and is interested to release the terminal
benefits, as are payable to the original petitioner in favour of the
present petitioners and do not intend to stand in the way of
legitimate entitlement of the legal heirs of the original petitioner.
11. Heard the learned advocates appearing for the respective parties
and considered the materials on record.
12. I find that the issue that falls for consideration in the present writ
petition is whether the corporation could have refixed the salary of
the original petitioner, after the original petitioner had retired from
service and whether the respondent no. 2 could have called upon
the original petitioner to refund a sum of Rs.2,93,076/-, which had
already been disbursed in his favour over the years since 1981, by
issuing the memorandum dated 11th April 2013.
13. I find that from the aforesaid memorandum dated 11th April
2013, the only reason provided by the respondent no. 2, for seeking
refund is refixation of pay of the original petitioner with retrospective
effect, as per the office order dated 23rd August 2012. A perusal of
the aforesaid office order would demonstrate that the original
petitioner was allowed initial pay of Rs.570/- on 1st April 1981, at
the scale of pay of Rs.425/- - Rs.1050/-, which pay was ordered to
be refixed to Rs.510/-. Consequentially, the other pay revisions had
been effected, which had cumulative effect of an overdrawal to the
extent of Rs.2,93,076/-.
14. Admittedly, it is the case of the corporation, as would appear
from the aforesaid office order/ memoranda that the original
petitioner had no role in the fixation of his pay. It is also not the
case of the corporation that the original fixation of pay was done at
the behest of the original petitioner. In fact, even when the petitioner
was issued the release order and subsequently, when ROPA 2009
was given effect to by the corporation by office order dated 2nd June
2011, the corporation did not think it fit to take any decision as
regards refixation of the original petitioner's pay. The refixation of
the original petitioner's pay as made, clearly appear to be unjustified
and arbitrary to say the least. Such a refixation of pay with
retrospective effect has created an anomalous situation and is likely
to cause great hardship to the petitioners.
15. It is now well settled that no recovery of this nature can be made
from the employees who have received such payment in good faith.
As rightly pointed out by Mr. Dhar, learned Senior advocate
representing the petitioner, the Hon'ble Supreme Court in the case
of Rafiq Masih (White Washer) (supra) in paragraph 18 has
summarized certain situations which make recovery impermissible.
The relevant paragraph of the judgment is extracted herein 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,
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 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."
16. Having regard to the aforesaid and taking note of the fact that the
aforesaid direction to reimburse Rs. 2,93,076/- had been made after
the original petitioner having already retired from service, by refixing
the initial pay of the original petitioner which dates back to the year
1981, I am of the view that the aforesaid order of pay refixation, if
given effect to, would be iniquitous, harsh and would result in
financial instability.
17. Having regard to the same, I am of the view that the office order
dated 23rd August 2012, whereby the pay of the original petitioner
was refixed and the subsequent communications issued by the
respondent no.2, on 11th April 2013 and 27th May 2013 cannot be
sustained and the same are accordingly set aside and quashed.
18. During pendency of the present writ petition, the original
petitioner has, however, died and by order dated 25th November
2022 passed by this Court, present petitioners have been
substituted in place and stead of the original petitioner.
19. Having regard to the aforesaid, the respondents are directed to
finalize the pension payable in favour of the original petitioner by
recomputing the same in terms of this order and to disburse the
same in favour of the present petitioners for the period from 1st
February 2011 to 27th March 2021 along with interest as applicable
for delayed payment by issuing a revised pension payment order.
20. The respondents are further directed to finalize and disburse
arrears of family pension in favour of the petitioner no. 1 with effect
from 1st April 2021, with a further direction upon the respondents to
re-compute the gratuity and other retiral benefits payable in favour
of the original petitioner in light of the observations made in this
judgment and to disburse the same in favour of the present
petitioners along with interest at the rate of 10 per cent per annum.
21. The entire process of computation, refixation of the pension,
gratuity including the actual disbursal thereof, must be completed
within a period of 10 weeks from the date of communication of this
order.
22. With the above observations and directions, the writ petition
being WPA 29429 of 2013 along with the connected applications
being CAN 1 of 2020, CAN 2 of 2020 and CAN 3 of 2020, stands
disposed of.
23. Urgent photostat certified copy of this judgment, if applied for, be
given to the parties on priority basis upon completion of requisite
formalities.
(Raja Basu Chowdhury, J.)
