Calcutta High Court (Appellete Side)
Banshidhar Nayak vs The State Of West Bengal & Others on 16 September, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
W.P. No.9019 (W) of 2019
Banshidhar Nayak
versus
The State of West Bengal & Others
For the Petitioner : Mr. Subrata Bhattacharjee,
Mr. Achintya Chanda.
For the State Respondents : Mr. Swapan Kumar Datta, ld. AGP
Mr. Dipankar Dasgupta.
For the UGC : Mr. Anil Kumar Gupta.
For the College Authority : Mr. Chittaranjan Panda.
Hearing is concluded on : 04.09.2019
Judgment On : 16th September, 2019.
Tapabrata Chakraborty, J.
1. The lis involved in the present writ petition pertains to recovery of an alleged overdrawn amount.
22. Mr. Bhattacharyya, learned advocate appearing for the petitioner submits that during the long tenure of his service since the year 1978 no allegation was ever raised that he had enjoyed excess earned leave and no disciplinary proceeding was initiated. It is only seven months prior to his retirement, the respondent no.9 by a memo dated 3rd May, 2018 directed him to refund an amount of Rs.83,904/- for having enjoyed excess earned leave of 103 days as on 31st March, 2018. After filing of the present writ petition, the respondent no.9 issued a further memo dated 20th June, 2019 taking a new stand that the petitioner had taken excess earned leave of 195 days as on 31st March, 2018 and demanding an amount of Rs.1,74,003/-. In support of the said memo, a leave statement was annexed at page 12 of the affidavit- in-opposition. A perusal of the said leave account would reveal that as on 31st March, 2017 earned leave account was marked as '-106' and the medical leave account was marked as '0' but in a letter issued to the petitioner by the respondent no.9 thereafter on 12th April, 2017, as annexed at page 18 of the affidavit-in- opposition, it was stated that as on 31st March, 2017 "you have Earned Leave (EL) : -102 days and Medical (ML) : 133 days". In paragraph 5 of the supplementary affidavit-in-opposition, the college authorities have themselves admitted that during the period from 1st April, 2017 to 30th April, 2017 and from 1st April, 2018 to 31st December, 2018, the petitioner had taken leave of 11 days and 13 days respectively. Such statement is ex facie contradictory to the leave statement annexed at page 12 of the 3 affidavit-in-opposition. From such contradiction it is explicit that the college authorities have illegally and arbitrarily demanded refund of Rs.1,74,003/- and that too only a few months prior to his retirement.
3. He contends that the petitioner was coerced to refund an amount of Rs.83,904/- as the college authorities threatened that his pensionary benefits would be withheld unless the said amount is refunded. Such refund cannot be construed to be an admission on his part that he had enjoyed excess earned leave and medical leave. The vindictiveness on the part of the college authorities would also be explicit from the fact that upon extracting an amount of Rs.83,904/- they again demanded a further amount of Rs.90,099/- from the petitioner.
4. He submits that the alleged excess amount paid to the petitioner is not on account of any misrepresentation or fraud on his part. No error in the leave account was found by the college authorities on and from the date of his appointment in the year 1978 till 3rd May, 2018 and as such they are estopped from recovering any amount at the fag end of his service career. In support of such contention he has placed reliance upon the judgements delivered in the case of Shyam Babu Verma & Ors. - vs- Union of India & Ors., reported in (1994) 2 SCC 521, in the case of Syed Abdul Qadir & Ors. -vs- State of Bihar & Ors., reported in (2009) 3 SCC 475 and in the case of State of Punjab & 4 Others -vs- Rafiq Masih (White Washer), reported in (2014) 8 SCC
883.
5. Per contra, Mr. Panda, learned advocate appearing for the college authorities submits that the petitioner was a habitual absentee. As he was working in a Group-D post, the college authorities dealt with him sympathetically. He was repeatedly asked to be regular in service and he was issued several letters stating that the college authorities would be constrained to take disciplinary action against him. In support of such contention he has drawn the attention of this Court to the letters annexed at pages 16 and 17 of the affidavit-in-opposition. The excess leave availed by the petitioner was ascertained upon cross checking of the attendance register with the bio metric attendance.
6. He categorically denies the contention of the petitioner that the he was threatened that his pension would be withheld and his pension papers would not be forwarded unless he refunds the amount of Rs.83,904/-. The said amount was refunded by the petitioner on his own and as such he has waived his right to claim refund. The contents of his letter dated 11th May, 2018 would also reveal that he had given assurance to the college that further absence of duty would not occur in future. The petitioner was aware that he had received excess amount from the college authorities and as such his case does not come under the exceptions stated in the case of Rafiq Masih (supra).
57. Mr. Dutta, learned Additional Government Pleader appearing for the State respondents submits that the petitioner had willingly refunded an amount of Rs.83,904/- prior to his retirement and as such he cannot turn back and claim refund of the same. He had been a habitual absentee and such conduct does not entitle him to any refund and he is also bound to pay the difference amount of Rs.90,099/-. All the judgments upon which reliance has been placed by the petitioner are distinguishable on facts inasmuch as in the present case the petitioner had willingly refunded a part amount.
8. In the case of Rafiq Masih (supra) the following situations were summarised, 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;6
(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.
9. The payment of an amount of Rs.83,904/- by the petitioner cannot be construed to be an admission on his part that the demand was genuine. No such demand was raised during the long tenure of his service spanning over a period of more than four decades. It is about seven months prior to his retirement, the petitioner was asked to refund an amount of Rs.83,904/- by a memo dated 3rd May, 2018. By the said memo the petitioner was also threatened that unless he refunds the said amount, within ten days, the same would be deducted from his salary. Such claim was subsequently enhanced to Rs.1,74,003/- by a letter dated 20th June, 2018 issued after filing of the writ petition. From such fact scenario, it is explicit that the petitioner's claim comes within the purview of the situations summarised in the case of Rafiq Masih (supra). The demand of Rs.1,74,003/- does not stand established through the documents annexed to the affidavit-in-opposition and the supplementary affidavit-in-opposition. The contents of the leave account documents annexed at pages 12 and 13 of the affidavit-in- opposition, the letter dated 12th April, 2017 annexed at page 18 of the affidavit-in-opposition and the averments made in paragraphs 5 to 7 of the supplementary affidavit-in-opposition 7 are contradictory and vague. The fundament of the decision to recover the said amount from the petitioner is, thus, arbitrary and illegal.
10. The college authorities have miserably failed to establish the allegations that the petitioner had been a habitual absentee and had practised fraud. The petitioner was never given any opportunity of showing cause. No disciplinary proceeding was initiated against the petitioner during his long service career. The respondent no.9 had unilaterally held that the petitioner had been paid in excess of his lawful entitlement. No law empowers the governing body or the Principal of a college to review the decisions taken earlier. The present Principal had joined the college on 15th November, 2016. At the fag end of the petitioner's service the decision towards sanction of leave cannot be re- opened and reversed after such grant of leave had attained finality long ago.
11. For the reasons discussed above, the memoranda dated 3rd May, 2018 and 20th June, 2019 issued by the respondent no.9 are set aside.
12. It appears from the averments made in paragraphs 5 and 11 of the affidavit-in-opposition filed by the respondent nos. 8 and 9 that the petitioner's pension papers are ready but only a part of the same has been forwarded. In view thereof, this Court directs the respondent nos.8 and 9 to forward all pension papers of the petitioner to the State respondents within a period of two 8 weeks from the date of communication of this order and the State respondents shall refund the amount of Rs.83,904/- to the petitioner and issue the pension payment order on the basis of the last pay drawn by the petitioner and disburse the pensionary benefits, upon compliance of the necessary formalities, if any, by the petitioner, within a period of two weeks thereafter.
13. With the above observations and directions, the writ petition is disposed of.
14. There shall, however, be no order as to costs.
15. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.)