Delhi High Court

Sh. Santanu Sur vs Gail India Limited on 27 August, 2014

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 27th August, 2014.

+      LPA No. 531/2014 & CM.No. 13281/2014 (for condonation of 11
       days' delay in refiling)

       SH. SANTANU SUR                                       ..... Appellant
                    Through:             Mr. Tarkeshwar Nath with Mr.
                                         Saurabh Kumar Tuteja, Advs.
                                     versus
       GAIL INDIA LIMITED                                   ..... Respondent

                     Through:            Mr. Vikas Mehta,Adv. for Mr.
                                         Sandeep Prabhakar, Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW,J

1. This intra court appeal impugns the order dated 22 nd May, 2014 of the

learned Single Judge of this Court of dismissal in limine of W.P.(C)

No.3315/2014 filed by the appellant.

2. The appellant had filed the said writ petition, i) seeking a direction

to the respondent to release the agreement/bond money of Rs.2,60,000/- with

interest @ 18% per annum; ii) for setting aside the reply dated 5th October,

2012 of the respondent; and iii) for a direction to the respondent to make the

payment of salary amount of ten days from 4th to 12th November, 2007 with

interest @ 18% per annum, pleading :-

a. that the appellant while serving as the Senior Manager

(Enterprises Resource Planning) of the respondent, signed

an agreement dated 13th July, 2005 with the respondent inter

alia to, in consideration of the respondent providing training

to the appellant at Siemens Information Systems Ltd., serve

the respondent till the implementation of the Enterprises

Resource Planning (ERP) in the respondent or for a period

of two and a half years from the date of execution of the

agreement, whichever is earlier and to, if in breach thereof,

pay an amount of Rs.2,60,000/- to the respondent;

b. that the implementation of the ERP was completed in

December, 2005 and in accordance with the agreement

aforesaid, the appellant was not bound to serve the

respondent thereafter;

c. however the appellant continued to serve the respondent for

a period of two years and four months i.e. till 31 st July, 2007

when the appellant resigned;

d. however the respondent wrongfully insisted upon the

appellant paying the bond money of Rs.2,60,000/-;

e. that the appellant protested, contending that the respondent

had relieved two other employees similarly situated as the

appellant, without insisting the payment of bond money;

f. that the respondent however ignoring the protest of the

appellant, deducted the bond money from the dues of the

appellant while relieving the appellant vide Office Order

dated 22nd July, 2008 and requiring the appellant to work till

12th November, 2007;

g. that the respondent also did not pay the salary from 3rd

November, 2007 to 12th November, 2007 also to the

appellant;

h. that the appellant thereafter also continued to protest and

represent to the respondent and the respondent in response

to the RTI queries of the appellant admitted having waived

off the condition of the bond in the case of one of the two

other employees aforesaid;

i. that the appellant finally got a legal notice dated 20 th

September, 2007 issued to the respondent;

j. the respondent vide reply dated 5th October, 2012 thereto

rejected the demand of the appellant for refund of the bond

amount wrongfully deducted.

3. The learned Single Judge dismissed the writ petition holding:-

i. that the bond money had been forfeited prior to March, 2008 i.e.

nearly six years prior to the institution of the petition and the writ

petition was barred by laches; reliance was placed on State of

Madhya Pradesh Vs. Bhailal Bhai AIR 1964 SC 1006 and on

Banda Development Authority, Banda Vs. Moti Lal Agarwal

(2011) 5 SCC 394;

ii. that for recovery of money, a civil suit is the appropriate remedy

as a number of disputed questions arise for consideration viz.

whether the Enterprises Resource Planning Project stood

completed by December, 2005; reliance was placed on

Suganmal Vs. State of M.P. AIR 1965 SC 1740 holding that no

writ of mandamus be entertained for the purpose of merely

ordering a refund of money.

4. Aggrieved from the aforesaid, this appeal has been filed relying on

ABL International Ltd. Vs. Export Credit Guarantee Corporation of India

Ltd. (2004) 3 SCC 553.

5. We heard the counsel for the appellant and the counsel for the

respondent appearing on advance notice finally, at the stage of admission

only, and reserved order.

6. It is not in dispute that the monies which according to the appellant

were not due to the respondent from the appellant were wrongfully deducted

by the respondent from the monies payable by the respondent to the

appellant, vide order dated 22nd July, 2008. The cause of action if any to the

appellant thus accrued on the said date. The writ petition was filed on 20th

May, 2014. We had thus enquired from the counsel for the appellant as to

what is wrong with the judgment of the learned Single Judge holding the

writ petition to be barred by laches.

7. All that the counsel for the appellant could muster was that since the

appellant has been discriminated against and the bond money payable by

another employee similarly situated as the appellant had been waived, the

respondent, even if held entitled to the bond money ought to have waived

the same vis-a-vis the appellant also. It is further stated that confirmation of

the said fact was received by the appellant only vide letter dated 27th

October, 2009 in response to query under the RTI Act. It was further

contended that the respondent denied the demand of the appellant for

payment of the bond money illegally deducted, only vide letter dated 5th

October, 2012.

8. We are afraid neither of the said facts show that the cause of action for

the relief claimed by way of writ petition had not first accrued to the

appellant on 22nd July, 2008. The tool of the RTI Act has been available to

the appellant since the year 2005 i.e. much prior to 22nd July, 2008 and the

appellant could have very well invoked the said tool immediately after 22 nd

July, 2008. Merely because the appellant chose to defer the use of the said

tool would not entitle the appellant to count the limitation from the date

which he unilaterally chose. Moreover, even if we are to count the limitation

from 27th October, 2009, the writ petition was still filed nearly five years

thereafter and the same does not help the case of the appellant. Yet further,

it is not as if the information made available to the appellant in response to

the query made under the RTI Act was not available to the appellant prior

thereto. It is the pleaded case of the appellant that the appellant, even prior to

22nd July, 2008, had opposed the demand of the respondent for payment of

the bond amount on the same grounds.

9. As far as the plea, of the demand for refund made in the legal notice

dated 20th September, 2011 got issued by the appellant having been rejected

by the respondent only on 5th October, 2012 is concerned, it is the settled

principle of law (See S.S. Rathore Vs. State of M.P. (1989) 4 SCC 582

followed by the Division benches of this Court in judgment dated 7th

August, 2012 in LPA 559/2012 titled Indian Hydraulic Industries (P) Ltd.

Vs North Delhi Power Limited and in judgment dated 30th January, 2012 in

WP(C) No. 586/2012 titled Rifleman Ram Bahadur Thapa Vs. Union of

India and by us in judgment dated 12th August, 2014 in WP(C) No.

3821/2014 titled Rosa Power Supply Co. Ltd.Vs. Union of India and by a

Single Judge of this Court in T.K. Bhardwaj Vs. Director General of Audit

MANU/DE/2127/2011 and Karnataka Power Corp. Ltd. Vs. K.

Thangappan (2006) 4 SCC 322) that repeated representations and rejection

thereof, neither extend the period of limitation nor is a satisfactory

explanation of the delay.

10. There is thus nothing wrong, requiring interference in the finding of

the learned Single Judge of the claim of the appellant in the writ petition

being barred by laches.

11. In addition to the judgments referred to by the learned Single Judge,

mention may also be made of A.Venkatasubbarao v. State of Andhra

Pradesh AIR 1965 SC 1773 holding that the limitation for a suit for

recovery of money illegally appropriated by the Government is governed by

Article 62 of the Schedule to the Limitation Act, 1908 (which is equivalent

to Article 24 of the Limitation Act, 1963), prescribing the limitation of three

years commencing from the date when the money is received, for a suit for

money payable by the defendant to the plaintiff for the money received by

the defendant for the plaintiff's use. The argument, that the residuary Article

(120 of the 1908 Act and 113 of the 1963 Act) providing a limitation of six

years under the 1908 Act would be applicable, was rejected. It was generally

observed that a suit for recovery of tax illegally collected is governed by the

said Article 62 and has to be brought within three years from when the tax

was illegally collected. The said view was followed in M/s Tilokchand

Motichand Vs. H. B. Munshi (1969) 1 SCC 110. There is no doubt that the

right to sue in the present case accrued on 22 nd July, 2008 and thus Article

24 would apply which prescribes limitation of three years from the date

when the right to sue accrues. The challenge to the office order dated 22nd

July, 2008 could have been made within three years i.e. on or before 21 st

July, 2011. The writ petition from which the instant appeal arises has been

filed after nearly three years therefrom. We may further add that the

distinction which existed in the 1908 Act between Article 62 thereof

providing limitation of three years and Article 120 thereof providing

limitation of six years, also does not exist under the 1963 Act. Thus even if

Article 113 thereof were to be held to apply, the limitation would not

change.

12. As far as the contention of the appellant on the basis of ABL

International Limited (supra) is concerned, the Supreme Court in Godavari

Sugar Mills Ltd. v. State of Maharashtra (2011) 2 SCC 439, after a

consideration of the entire case law on the subject including Suganmal

(supra), U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. (2001) 2

SCC 549 and ABL International Ltd. supra, has made the legal position as

to the maintainability of the writ petition clear as under:-

(i) Normally, a petition under Article 226 of the Constitution of

India will not be entertained to enforce a civil liability arising

out of a breach of contract or a tort to pay an amount of money

due to the claimants. The aggrieved party will have to agitate

the question in a civil suit. But an order for payment of money

may be made in a writ proceeding, in enforcement of statutory

functions of the State or its officers;

(ii) If a right has been infringed--whether a fundamental right or a

statutory right and the aggrieved party comes to the Court for

enforcement of the right, it will not be giving complete relief if

the Court merely declares the existence of such right or the fact

that existing right has been infringed. The High Court, while

enforcing fundamental or statutory rights, has the power to give

consequential relief by ordering payment of money realized by

the Government without the authority of law;

(iii) A petition for issue of writ of mandamus will not normally be

entertained for the purpose of merely ordering a refund of

money, to the return of which the petitioner claims a right. The

aggrieved party seeking refund has to approach the Civil Court

for claiming the amount, though the High Courts have the

power to pass appropriate orders in the exercise of powers

conferred under Article 226 for payment of money;

(iv) There is a distinction between cases where a claimant

approaches the High Court seeking the relief of obtaining only

refund and those where refund is sought as a consequential

relief after striking down the order of assessment etc. While a

petition praying for mere issue of writ of mandamus to the State

to refund the money alleged to have been illegally collected is

not ordinarily maintainable, if the allegation is that the

assessment was without a jurisdiction and the tax collected was

without authority of law and therefore the respondents had no

authority to retain the money collected without any authority of

law, the High Court has the power to direct refund in a writ

petition;

(v) It is one thing to say that the High Court has no power under

Article 226 to issue a writ of mandamus for making refund of

the money illegally collected. It is yet another thing to say that

such power can be exercised sparingly depending on facts and

circumstances of each case. For instance, where the facts are not

in dispute, where the collection of money was without authority

of law, there is no good reason to deny a relief of refund to the

citizens;

(vi) Where the lis has a public law character or involves a question

arising out of public law functions on the part of the State or its

authorities, access to justice by way of a public law remedy will

not be denied.

13. Applying the aforesaid principles also, the writ petition from which

this appeal arises, making grievance of the respondent having illegally

deducted monies claiming the same to be due under an agreement with the

appellant, out of the dues of the appellant and claiming the relief of refund

thereof is not maintainable. Reference in this regard may also be made to the

judgments of the Division Benches of this Court in Steel Authority of India

Ltd. Vs. Punjab & Sind Bank MANU/DE/6261/2012 and in Chakradar

Auto Udyog Pvt. Ltd Vs. Engineering Export Promotion Council

MANU/DE/4248/2012 and the judgment of one of us (Rajiv Sahai Endlaw,

J) in KLA India Public Ltd Export Credit Guarantee Corporation of India

Ltd 183 (2011) DLT 591.

14. We therefore do not find any error in the reasoning given by the