Calcutta High Court (Appellete Side)
Dr. Niharika Ranjan Lal vs Union Of India And Others on 28 July, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
The Hon'ble Justice Madhuresh Prasad
And
The Hon'ble Justice Supratim Bhattacharya
W.P.C.T. 69 of 2025
Dr. Niharika Ranjan Lal
Versus
Union of India and others
With
W.P.C.T. 70 of 2025
Dr. Susmita Chaudhuri
Versus
Union of India and Others
With
W.P.C.T. 71 of 2025
Dr. Bijita Dutta
Versus
Union of India and Others
With
W.P.C.T. 72 of 2025
Dr. Subhabrata Sengupta
Versus
Union of India and Others
With
W.P.C.T. 96 of 2025
The Dean In charge, ESI-PGIMSR, ESIC Medical College
and ESIC Hospital and ODC(EZ) and Others
Versus
Dr. Susmita Chaudhuri and Others
With
1
W.P.C.T. 97 of 2025
The Dean In charge, ESI-PGIMSR, ESIC Medical College
and ESIC Hospital and ODC(EZ) and Others
Versus
Dr. Niharika Ranjan Lal and Others
With
W.P.C.T. 98 of 2025
The Dean In charge, ESI-PGIMSR, ESIC Medical College
and ESIC Hospital and ODC(EZ) and Others
Versus
Dr. Subhabrata Sengupta and Others
With
W.P.C.T. 99 of 2025
The Dean In charge, ESI-PGIMSR, ESIC Medical College
and ESIC Hospital and ODC(EZ) and Others
Versus
Dr. Bijita Dutta and Others
For the Petitioner : Mr. M.N. Roy,
In WP.C.T. 69 of 2025, WP.C.T. 70 of 2025 Mr. B. Nandy.
WP.C.T. 71 of 2025, WP.C.T. 72 of 2025
For the Respondent/E.S.I. Corporation : Mr. Shiv Chandra Prasad.
In WP.C.T. 69 of 2025, WP.C.T. 70 of 2025,
WP.C.T. 71 of 2025, WP.C.T. 72 of 2025
For the Petitioner No. 1/U.O.I. : Mr. Kumaresh Dalal,
In WP.C.T. 69 of 2025, WP.C.T. 70 of 2025, Mr. Falguni Bandyopadhyay.
WP.C.T. 71 of 2025, WP.C.T. 72 of 2025
For the Petitioners : Mr. Shiv Chandra Prasad.
In WP.C.T. 96 of 2025, WP.C.T. 97 of 2025,
WP.C.T. 98 of 2025, WP.C.T. 99 of 2025
For the Private Respondent No. 1 : Mr. M.N. Roy,
In WP.C.T. 96 of 2025, WP.C.T. 97 of 2025, Mr. B. Nandy.
WP.C.T. 98 of 2025, WP.C.T. 99 of 2025
Judgment on : July 28, 2025
Madhuresh Prasad, J.:
1. Four applicants before the Tribunal who have filed writ petitions separately raise a common issue of fact and law. The four 2 applicants/petitioners are aggrieved by an order of recovery in respect of their excess salary paid on account of wrong fixation by the authorities at the time of their initial entry in service, after a long period of seven years from the date of the grant of benefit.
2. The four applicants/petitioners do not dispute the rectified fixation of pay after 7 years but are aggrieved by a consequential recovery. They have thus approached Central Administrative Tribunal, Kolkata Bench in OA Nos. 516 of 2024, 571 of 2024, 664 of 2024 and 1665 of 2024 for reliefs in this regard.
3. The Tribunal has allowed only partial reliefs to the four applicants; and allowed some recovery, challenging which the four applicants/petitioners have filed four Writ Petitions, separately. The respondent authorities have also filed four Writ Petitions separately, being aggrieved by the orders of the Tribunal, in so far as the partial relief allowed to the four applicants by the Tribunal. There is no dispute that common issue of fact and law arise and therefore, the cases were considered together.
4. The applicants before the Tribunal are doctors posted as Assistant Professor at the ESI-PGIMSR & ESIC Medical College & ESIC Hospital, Joka. They entered service in the year 2016. At the time of their joining their pay was fixed as Rs. 7,400/-. The said pay earned annual increments and reached the pay of Rs. 91,100/- on 1st January, 2023. It appears from the records and the office order 3 dated 27.09.2023 that some internal audit was done by the regional office from which it was detected that the pay granted to the applicants at the time of their joining should have been Rs. 6,700/-, instead of Rs. 7,400/-. Such an error in their pay fixation at the time of their initial entry in service is not in dispute.
5. The authorities upon discovery of such erroneous fixation have issued the office order dated 27.09.2023 notifying the correct fixation, and thereafter issued an order on 05.03.2024 with a clear intention of making recovery of excess payment made for the period of about 7 years. It is under such circumstances that the applicants have approached the Tribunal by filing an Original Application/s.
6. Keeping in background the fact that the fixation was wrongly done without any suppression, or misrepresentation on their part, the applicants are aggrieved by the decision to make recovery. They have no role to play in the wrong fixation of pay, and therefore, they cannot be made to suffer the consequence of recovery, since the mistake was allowed to perpetuate for a period of 7 years.
7. In support of his submission the learned counsel has relied upon decisions of the Apex Court in the case of Syed Abdul Qadir Vs. State of Bihar reported in 2009 (3) SCC 475, the case of Shyam Babu Verma Vs. Union of India reported in 1999 (2) SCC 521 as also decision of the Apex Court in the case of State of Punjab & 4 Ors. Vs. Rafiq Masih reported in 2015 (4) SCC 334. Referring to these judgments it is submitted that taking into consideration decision in the case of Syed Abdul Qadir (supra) and Shyam Babu Verma (supra) the Apex Court in Rafiq Masih (supra) held that if payment is made in excess of 5 years, though mistaken, would still be open to rectification but any recovery sought to be made under the circumstances would be extremely iniquitous and arbitrary and as such violative of Article of 14 of the Constitution of India. Relevant extract of paragraph 13 and 14 of the judgment Rafiq Masih (supra) are being extracted hereinbelow:
"13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir case recognised, that the issue of recovery revolverd on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, if a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. (emphasis ours).
14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma V. Union of India, wherein this Court observed as under: (SCC pp. 525-26, para 11) 5 "11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1-1-1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1-1-1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis supplied) It is apparent, that in Shyam Babu Verma case, the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984 i.e. after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India."
8. Under such circumstances it is submitted that the Tribunal has erred in directing that a recovery can be made even though the payments have been made in excess of 5 years; in this case, for about 7 years. It is further submitted that based on decisions of the Apex Court which have been considered, there is no justification for the Tribunal to fix a date (01.01.2020) up to which no recovery was permissible and to hold that thereafter a recovery is permissible.
9. The decision of the Tribunal according to the learned advocate for the applicants is in contravention of the settled legal position as apparent from the decision in the case of Rafiq Masih (supra).
10. Learned advocate on behalf of the respondent Corporation submits that the inadvertent wrong pay fixation of the petitioners who are doctors would not vest any right in favour of the applicants to retain the benefits of such a mistake, which is not in dispute. The amounts 6 which have been paid as a result of such bona fide mistake is public money and the taxpayers money and the applicants cannot be permitted to indulge in unjust enrichment.
11. It is submitted that the judgment relied upon by the learned counsel for the applicants are not applicable to the facts and circumstances of the case. The applicants are not Group C or D employee. They are Doctors in a higher bracket of salary and therefore, they cannot claim any kind of hardship. A plea of any hardship is unsustainable in case of the petitioners.
12. Upon consideration of the legal position based on decisions of the apex Court, considered above we find no substance in the submission of the respondents Government that since the applicants are not Group-C or Group -D employees and since they are Doctors in higher bracket of salaries, they cannot claim any hardships arising out of the recovery sought to be made.
13. Our conclusion is founded on consideration of the fact that when the four applicants entered in service in the year 2016, they were new in the establishment. It is nobody's case that they at such a nascent stage in their carrier had any role whatsoever to play in fixation of their pay. The pay was fixed at Rs. 74,000/- by the authorities on their own. Thereafter the four applicants/petitioners have been given benefits of annual increment and benefits arising out of pay revision for a period of seven years. Such grant of benefits has been given every year after due 7 consideration of the entitlement of the four applicants/petitioners by the respondent authorities. No objection whatsoever has been raised at any time for a period of seven years.
14. It is only when an internal audit was conducted that the discrepancy has come to light, that also seven years after. Initial pay fixation was done in the year 2016. The petitioners cannot be made to suffer iniquitous and onerous consequences of recovery because wrong fixation has been overlooked by the authorities for seven years. If the respondents are allowed to proceed to recover, the petitioners would be faced with recovery of a substantial amount which was paid to them for 7 years by the respondent authorities on account of their lack of diligence and not because of any fault whatsoever on the part of the four petitioners/applicants. In our opinion under the circumstances as above it would be iniquitous to saddle the four petitioners/applicants with such recovery.
15. Our opinion is guided and fortified by the decision of the apex Court in the case of Rafiq Masih & Ors (supra).The apex Court has held that it is not possible to postulate all situation of hardship arising out of a recovery of payments mistakenly made by an employer, and proceeded to summarize certain situations wherein recovery would be impermissible being iniquitous, harassing or arbitrary. One such situation specified by way of illustration in paragraph 18 (iii) reads as under:
"(iii) Recovery from the employees, when the excess payment has been made for period in excess of five years, before the order of recovery is issued."8
16.In the instant case the excess payment has been made for a period of about seven years, i.e. in excess of 5 years as contemplated in the judgment. We, therefore, have no hesitation in concluding that though the authorities were right in rectifying four applicants'/petitioners' pay scales as per entitlement they cannot be permitted to make any recovery.
17. We, therefore, find the order of the Central Administrative Tribunal, Kolkata Bench, passed in the case of the four applicants allowing recovery upto 01.01.2020 to be unsustainable. Such a direction, if allowed to sustain, would be contrary to the law laid down in the decision of the apex Court in the case of Rafiq Masih & Ors (supra) taken note of above. The order of the Tribunal is set aside.
18. The Writ petitions being Nos. WPCT 69 of 2025, WPCT 70 of 2025, WPCT 71 of 2025 and WPCT 72 of 2025 are allowed and OA being Nos.516 of 2024 (WPCT 69 of 2025), OA 571 of 2024 (WPCT 70 of 2025), OA 664 of 2024 (WPCT 71 of 2025) and OA 1665 of 2024 (WPCT 72 of 2025) are also allowed.
19. The Writ Petitions being Nos. WPCT 96 of 2025, WPCT 97 of 2025, WPCT 98 of 2025 and WPCT 99 of 2025, filed by the respondent authorities are accordingly dismissed and disposed of by this common judgment and order.
20. Interim order, if any, stands vacated.
21. There will be no order as to costs.
9
22. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities.
(Madhuresh Prasad, J.) I agree.
(Supratim Bhattacharya, J.) (A.D.) 10