Gauhati High Court
Durgeswar Dutta vs The State Of Assam And 4 Ors on 27 September, 2021
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/10
GAHC010237382019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7355/2019
DURGESWAR DUTTA
S/O. LT. BAPUKON DUTTA, R/O. KALYANI NAGAR, HOUSE NO.12, P.O.
KAHILIPARA, P.S. DISPUR, DIST. KAMRUP (M), ASSAM, PIN-781019.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM, THE HOME AND
POLITICAL DEPTT., SACHIVALAYA, DISPUR, ASSAM-781006.
2:THE DIRECTOR
DIRECTORATE OF FORENSIC SCIENCE
KAHILIPARA
GUWAHATI
ASSAM-781019.
3:THE SR. ACCOUNTS OFFICER
OFFICE OF ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
ASSAM-781029.
4:THE ASSTT. ACCOUNTS OFFICER
OFFICE OF ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELGOLA
ASSAM-781029.
Page No.# 2/10
5:THE TREASURY OFFICER
DISPUR
ASSAM-781006
Advocate for the Petitioner : MR. S BORTHAKUR
Advocate for the Respondent : GA, ASSAM
WP(C)/7399/2019
MIR YOUSUF HUSSAIN
S/O- LT. NAKIDUR RAHMAN
R/O- HATIGAON CHARIALI
SAMGRAM PATH
P.S. DISPUR
DIST- KAMRUP(M)
ASSAM
PIN- 7871019.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
THE HOME AND POLITICAL DEPARTMENT
SACHIVALAYA
DISPUR
ASSAM- 781006.
2:THE DIRECTOR
DIRECTORATE OF FORENSIC SCIENCE
KAHIPARA
GUWAHATI
ASSAM- 781019.
3:THE SENIOR ASSISTANT ACCOUNTS OFFICER
OFFICE OF THE ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
ASSAM- 781029.
4:THE ASSISTANT ACCOUNTS OFFICER
OFFICE OF THE ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
Page No.# 3/10
GUWAHATI- 781029.
5:THE TREASURY OFFICER
DISPUR
ASSAM- 781006.
------------
Advocate for : MR. S BORTHAKUR
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 4 ORS.
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 27-09-2021 An identical question being involved in the both the writ petitions, the same are taken up together for disposal by this common judgment and order.
2. The petitioners (one in each of the writ petitions) have filed the applications under Article 226 of the Constitution of India being aggrieved by the action of the respondent authorities in recovering the excess drawal from their pensionary dues. In brief the admitted case of the petitioners is that due to wrong calculation at the time of revision of pay scale, a higher pay was given to the petitioners till they had retired. However, after detection of the said anomaly, the recovery orders have been passed and the recoveries made which is the subject matter of challenge.
3. Before going into the issue to be decided, the facts of the respective cases are required to be stated in brief.
4. The petitioner in WP(C)/7355/2019 is one Shri Durgeswar Dutta, who was initially appointed as a Laboratory Bearer vide an order dated 01.08.1979 in the office of the Director, Forensic Science Laboratory. In the course of employment, he was promoted to the post of Laboratory Technician and subsequently, in the year 2004, to the post of Scientific Assistant, vide an order 15.06.2004. Thereafter, the petitioner was further promoted to the post of Senior Scientific Assistant in the year 2010. After serving more than 38 years, the petitioner had retired on attaining the age of superannuation on Page No.# 4/10 31.08.2017. On such retirement, the petitioner has submitted his papers for pension and post retirement benefits. It is the case of the petitioner that Pension Payment Order was issued vide PPO No. 905411243562 and was granted regular pension. However, vide the impugned communication dated 19.04.2018 issued by the office of the Accountant General, the Treasury Officer, Dispur was directed to recover an amount of Rs. 2,38,216/- from the petitioner, which was accordingly done.
5. Likewise, the petitioner in WP(C)/7399/2019 (Mir Yousuf Hussain) was initially appointed as a Laboratory Bearer in the same office as the petitioner no. 1 on 01.08.1979 and thereafter promoted to the post of Laboratory Technician from which post, he had retired from service on attaining the age of superannuation on 30.05.2018. After his retirement, the pension was processed and regular pension was being paid, however, vide the impugned communication dated 27.02.2019 issued by the office of the Accountant General, Assam, the Treasury Officer, Dispur has been directed to recover an amount of Rs. 2,36,855/- from the pensionary dues of the petitioner which was accordingly done.
6. It is this action of recovery which is the subject matter of dispute in the present writ petitions.
7. I have heard Shri S Borthakur, learned counsel for the petitioners whereas the State respondents are represented by Shri Rahul Dhar, learned Addl. Senior Government Advocate, Assam. The Accountant General, Assam and its officials are represented by the learned Standing Counsel, Shri Rupak Dhar and Shri RK Talukdar in the respective cases.
8. Shri Borthakur, learned counsel for the petitioners submits that the impugned action is not at all justified in view of the fact that the revision was effected from the year 2010 and the petitioners had retired in the year 2017 and during these long period, no action, whatsoever was forthcoming for such recovery and not even an indication was given that any excess payments were being made to the petitioners. At the same time, it is submitted that the exercise of revision was a process exclusively within the domain of the respondent authorities in which, the petitioners did not and cannot have any role. It is further submitted that it is neither the allegation of the respondent authorities that in the process of making excess payment to the petitioners, there was any connivance or collusion. It is submitted that no action for recovery being made during the service period of the petitioners and rather, regular pension was also being paid and it is only from the pension amount that the impugned recovery Page No.# 5/10 was made, the action of the authorities are barred by the principle of estoppel and waiver. The learned counsel submits that the petitioners being Grade-III employees, they are otherwise, covered by the settled principles laid down by the Hon'ble Supreme Court in matters of similar nature.
9. In support of his submissions, the learned counsel for the petitioner has relied upon a decision of the Supreme Court in the case of Shyam Babu Verma Vs. Union of India, (1994) 2 SCC 521 and the subsequent decision in the case of State of Punjab and Ors. Vs. Rafiq Masih & Ors., reported in (2015) 4 SCC 334.
10. In the case of Shyam Babu Verma (supra), it was held that in the situation where some benefits have been given to an employee under some mistake in which he had no role, such excess benefits should not be recovered from the employees.
11. However, the said view was later on doubted in the case of Chandi Prasad Uniyal Vs. State of Uttarakhand, reported in (2012) 8 SCC 417 wherein an issue had arisen which was worded in the following manner:
"4. Merely on account of the fact, that the release of these monetary benefits was based on a mistaken belief at the hands of the employer, and further, because the employees had no role in the determination of the employer, could it be legally feasible, for the private respondents to assert, that they should be exempted from refunding the excess amount received by them? Insofar as the above issue is concerned, it is necessary to keep in mind that the following reference was made by a Division Bench of two Judges of this Court, for consideration by a larger Bench:
"2. In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. v. Union of India & Ors. [JT 1994 (1) SC 574] and Sahib Ram Verma v. State of Haryana [JT 1995 (1) SC 24]; and on the other hand in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand & Ors. [JT 2012 (7) SC 460], we are of the view that the remaining special leave petitions should be placed before a Bench of Three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of three Judges, to adjudicate upon the present controversy.""
12. Accordingly, the matter was placed before a larger Bench of three judges. The three judges Page No.# 6/10 Bench in the first of case of Rafiq Masih, reported in (2014) 8 SCC 883 had held that there was no conflict of opinion and the matter were remanded back to the Division Bench for appropriate disposal. On such remand, the Hon'ble Supreme Court has held that a retired employee or an employee about to retire is a class apart from those who had sufficient service to their credit before their retirement. It has, accordingly, been held that a period of one year from the date of superannuation should be accepted as the period during which recovery should be treated as iniquitous. After discussing the various facets including the aspect of bargaining power of the State, the Hon'ble Supreme Court has laid down the following guidelines:
"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 herein above, we may, as a ready reference, summaries the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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."
13. Per contra, the learned counsel for the respondents have submitted that the facts of the cases in hand are distinguishable from the facts in the case of Rafiq Masih & Ors. (supra). By referring to the affidavits-in-opposition filed in the respective cases, attention of this Court has been drawn to the Consent Letter in which both the petitioners have given consent for refund of any excess drawal that may occur due to wrong fixation of their pay on account of revision of pay as per the ROP Rules, 2010, and such recovery, can be made in lump sum basis or instalments from their salaries. It is argued that in Page No.# 7/10 view of such clear and unambiguous consent, the petitioners are estopped from raising the present grievance whereby the recovery has been made on a lump sum basis.
14. Additionally, Shri Rahul Dhar, learned Addl. Senior Govt. Advocate submits that both the petitioners though serving in Grade-III were in the office for a sufficiently long period of time and therefore, it cannot be presumed that they were not aware of the excess benefits which were accruing to them after revision of pay in the year 2010 and in spite of having such knowledge, the petitioners did not come forward to point out the same before the authorities.
15. The respondents have accordingly submitted that under the aforesaid facts and circumstances, no interference is called for.
16. Rejoining his submissions, Shri Borthakur, learned counsel for the petitioners submits that no doubt, there is a Consent Letter, by that itself, the authorities cannot unilaterally undertake a recovery process. It is submitted that the concerned letter is in a particular format applicable to all employees in which only the name and designation of a particular employee is to inserted by hand. It is further submitted that in case such Consent Letter is not signed, an employee would not get the benefit of revision of pay and therefore, the question of free consent is not at all present.
17. On the issue of Consent Letter, the learned counsel for the petitioners has placed reliance in the case of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguli & Ors., reported in (1986) 3 SCC 156. In the said case, the Hon'ble Supreme Court was dealing with unconscionable terms in a contract of employment. While holding such contract as void, the Hon'ble Court had made the following observations:
"76. Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. No case of the type before us appears to have fallen for decision under the law of contracts before any court in India nor has any case on all fours of a Court in any other country been pointed out to us. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288, when used with reference to actions etc. as "showing no regard for conscience; irreconcilable with what is right or reasonable". An Page No.# 8/10 unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable.
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89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art. 14. This principle is that, the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its, own facts and circumstances."
18. The rival contentions of the parties have been duly considered and the materials placed before this Court have been carefully examined.
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19. So far as the principal issue is concerned, after the authoritative pronouncement by the Hon'ble Supreme Court in the case of Rafiq Masih & Ors. (supra), there is hardly any scope to take different view as both the petitioners meet the criteria laid down in paragraph 18 of the judgment. Both the petitioners belong to Grade-III; the recovery has been made after their retirement; the recovery has been made for a period in excess of five years before the orders of recovery issued and, in any case, recovery from the pension is absolutely iniquitous, harsh and arbitrary. The only issue which requires a further determination is the Consent Letter. Apart from the fact that the employees and the Department cannot, by any stretch of imagination, be treated to be at par in a bargain, the Consent Letter forms a kind of 'dotted line contract' which is signed as a formality. In any case, it is an admitted position that without signing the said Consent Letter, the benefit of the revision of pay could not have been availed of and the said letter has to be signed in a routine manner by all the employees. Further, as has been held by the Hon'ble Supreme Court in the case of Brojo Nath Ganguli & Ors. (supra), unconscionable terms of a contract are void and this Court holds that the present consent obtained by which an unfettered right has been given to the employee to make recovery is nothing but an unconscionable term.
20. However, there is another aspect which would require some attention. Though this aspect has neither been pleaded nor even argued, in the opinion of this Court exercising equitable jurisdiction, the said aspect is relevant which would have a material bearing in the present case. A minute examination of the Consent Letter gives the right to the employer to recover any excess drawal in a lump sum basis or in instalment from the salary. The exact language used in the Consent Letter is as follows:
"................, the Govt. of Assam shall have full right to recover those amounts in one lump sum or inconvenient instalments from my salary.............."
21. However, what has been recovered in the present cases is not from the salary of the petitioners but from their pension. Thus even assuming for arguments sake that there were some substances in the plea of the respondents that the facts are distinguishable because of the Consent Letter (which plea has already been rejected above), the reading of the Consent Letter would also make clear that the same would not justify the impugned action. In any case, even with the Consent Letter existing, this Court has already held that the action of recovery from the pension of the petitioner who are Grade-III Page No.# 10/10 employees is holly iniquitous and are squarely covered by the guidelines laid down by the Hon'ble Supreme Court in the case Rafiq Masih & Ors. (supra).
22. In view of the aforesaid facts and circumstances and the discussions made, the action of recovery from the petitioners from their pension which is Rs. 2,38,216/- from the petitioner, Durgeswar Dutta in WP(C)/7355/2019 and Rs.2,36,855/- from the petitioner, Mir Yusuf Hussain in WP(C)/7399/2019 is declared to be unsustainable in law. Consequently, the amount recovered should be refunded to the petitioners expeditiously and within an outer limit of 45 days from the date receipt of a certified copy of this order. The amount would also carry interest @ of 6 percent per annum from the date of recovery till the date of payment and if the payment is further delayed beyond 45 days, the rate of interest would be @ of 12 percent per annum.
23. Both the writ petitions are accordingly allowed.
JUDGE Comparing Assistant