Calcutta High Court (Appellete Side)
Angad Ojha vs State Of West Bengal And Ors on 15 January, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 35433 of 2013
Angad Ojha
-Vs-
State of West Bengal and Ors.
For the Petitioner: Mr. Bhagabat Chowdhury, Adv.,
Mr. Subrata Mukherjee, Adv.
Hearing concluded on: 13.01.2025.
Judgment on: 15.01.2025.
PARTHA SARATHI SEN, J. : -
1. In this writ petition the writ petitioner has prayed for issuance of
appropriate writ for cancellation of the memo no.640/ law dated October
24, 2013 as passed by the D.I of Schools (S.E) Kolkata, the respondent
no.6 herein.
2. By the said memo the respondent no.6 found that the allegation of
the writ petitioner regarding his service book as agitated in an earlier
round of litigation being WP no.2679 (W) of 2013 has got no leg to stand
upon and accordingly the said D.I transmitted the service book of the writ
petitioner to the D.I of Schools (S.E), Hooghly, for taking next course of
action at his end.
3. For effective adjudication of the instant lis the relevant portion of
the order dated 11.07.2013 as passed by a Co-ordinate Bench in WP
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no.2679 (W) of 2013 is required to be looked into and the same is
reproduced hereunder in verbatim:-
"Having heard the learned Counsel appearing for the respective
parties as also after considering the fact and circumstances of this
case, I find that the grievance of the petitioner is two folds. Firstly,
the proper service book in connection with his service as an assistant
teacher of the former school was not sent to the authority by the
respondent no.8. Secondly, the provisional pension has not been
released in favour of the petitioner in compliance of the order passed
in the matter of Angad Ojha Vs. State & Ors. (In re: W.P.20279 (W) of
2011).
Since the first issue involved in this writ application relates to a
disputed question of facts the respondent no.6 is the appropriate
authority to resolve the above issue. So far as the second issue is
concerned, the respondent no. 5 is the appropriate authority to take
necessary steps.
In view of the above, I direct the respondent no.6 to take decision
with a regard to the first issue as recorded hereinabove by passing a
reasoned order in accordance with law after giving opportunity of
hearing to the petitioner and the authorized representative of the
respondent no.8 and forward the above decision to respondent по.5
weeks within two thereafter."
4. On careful consideration of the entire materials as placed before
this Court and after hearing the learned advocate for the writ petitioner it
appears to this Court that while passing the order under challenge dated
October 24, 2013 the respondent no.6 noticed that initially the writ
petioner joined his service as an assistant teacher on 06.09.1972 in
Adarsha Madhyamick Vidyalaya, Kolkata. Immediately after joining in the
said school as an assistant teacher his service book was opened but for
3
the reason best known to the writ petitioner, the writ petitioner did not
put his signature on his service book after 1989 although several requests
were made to him by all the previous head of the institution.
5. It further appears that in course of an enquiry conducted earlier on
the basis of a complaint made by the writ petitioner in the year 2011 the
service book of the writ petitioner was updated and the writ petitioner was
granted his entire leave as admissible to him and even some special leave
without proper approval from the West Bengal Board of Secondary
Education in order to give maximum relief to the writ petitioner.
6. The said reasoned order discloses further that the writ petitioner
took unauthorized leave without submitting any proper leave application
and prior intimation to the school authority which is against the leave
rules. The respondent no.6 further noticed that the said school authority
also found excess drawal of Rs.1,41,736/-. However, after calculation of
the adjustment of leave including some special leave beyond the
provisions of leave rules the excess drawal was calculated to the tune of
Rs. 65, 453/- and the writ petitioner was directed to refund the same.
7. In course of hearing learned counsel appearing on behalf of the writ
petitioner submits before this Court that the finding as arrived by the
respondent no.6 is faulty since the same is not based on any cogent
documents. It is submitted that since the writ petitioner retired long back
i.e. on 31.01.2011 the proposed recovery as intended to be made by the
respondent no.6 cannot be permitted in view of the ratio of decision in the
case of State of Punjab and Ors. vs. Rafiq Mashi (White Washer) and
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Ors. reported in (2015) 4 SCC 334 and in view of a Co-ordinate Bench
judgement and order dated 11.04.2022 as passed in WPA 1758 of 2024.
The relevant portion of the reported decision of Rafiq Mashi (supra) is as
under:-
"10. In view of the afore-stated constitutional mandate, equity and
good conscience, in the matter of livelihood of the people of this
country, has to be the basis of all governmental actions. An action of
the State, ordering a recovery from an employee, would be in order,
so long as it is not rendered iniquitous to the extent, that the action of
recovery would be more unfair, more wrongful, more improper, and
more unwarranted, than the corresponding right of the employer, to
recover the amount. Or in other words, till such time as the recovery
would have a harsh and arbitrary effect on the employee, it would be
permissible in law. Orders passed in given situations repeatedly,
even in exercise of the power vested in this Court under Article 142 of
the Constitution of India, will disclose the parameters of the realm of
an action of recovery (of an excess amount paid to an employee)
which would breach the obligations of the State, to citizens of this
country, and render the action arbitrary, and therefore, violative of
the mandate contained in Article 14 of the Constitution of India.
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12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly 5 paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."
8. In considered view of this Court the reported decision of Rafiq Mashi (supra) is no way helpful to the writ petitioner. From the reasoned order under challenge it reveals that the cause of overdrawal by the writ petitioner is completely attributable to the writ petitioner in view of the fact that in spite of several requests made to the writ petitioner he had not put his signature in his service book as opened in his first place of employment i.e. Adarsha Madhyamick Vidyalaya, Kolkata. It further appears to this Court that on careful scrutiny of the entire materials as placed before the respondent no.6/authority he came to a factual finding that the writ petitioner availed unauthorized leaves without submitting appropriate leave application as well as without taking prior leave of his erstwhile employer. Materials have been placed before this Court that while passing the reasoned order the respondent no.6/authority have also noticed that the managing committee of Adarsha Madhyamick Vidyalaya, Kolkata granted benefit to the writ petitioner by regularizing his 6 unauthorized absence with leaves to which he is entitled and the same managing committee went further in regularizing the further unauthorized absence with the leaves to which he is not entitled to.
9. This Court further finds that in doing so, the excess drawal amount of Rs.1,41,736/- was reduced to Rs.65,453/-. This Court considers that while passing the reasons order the respondent no.6 assigned sufficient reason while calculating the excess drawal of Rs.65,453/ by the writ petitioner. The writ petitioner cannot be permitted to take advantage of his own wrong/fault taking recourse to the salutary principles of law as decided in the case of Rafiq Mashi and he is thus not entitled to any equitable relief as prayed for.
10. Admittedly, that the writ petitioner was not an employee belonging to class III or class IV service. He retired as a head master of a school. Even holding a higher post that too in a school, he had acted in such a manner which is completely derogatory to his post and position.
11. This Court finds no error of law in the decision making process of the respondent no.6/authority.
12. The writ petition is thus devoid of any merit and is hereby dismissed.
13. There shall be no order as to costs.
14. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)