Calcutta High Court (Appellete Side)
Jaba Chandra vs The State Of West Bengal & Ors on 9 August, 2018
Author: Shampa Sarkar
Bench: Debasish Kar Gupta, Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Shampa Sarkar
W.P.S.T. No. 21 of 2018
Jaba Chandra
-Versus-
The State of West Bengal & Ors.
For the Petitioner : Mr. Sourav Mitra.
For the State respondent
: Mr. Tapan Kr. Mukherjee, Ld. A.G.P.,
Ms. Sulekha Bhattacharyya.
For the respondent no. 2 and added
Respondent no. 5 : Mr. Pinaki Bhattacharyya.
For the respondent nos. 3 & 4 : Mr. Gautam Chakraborty.
Heard on : 04/06/2018, 16/07/2018 & 23/07/2018.
Judgment on: 09/08/2018
Shampa Sarkar, J. :
This writ petition has been filed challenging the order dated February 8, 2018 passed by the West Bengal Administrative Tribunal in an Original Application being no. 1008 of 2017.
2. By the aforementioned order the original application was dismissed as being not maintainable under the Administrative Tribunals Act as, in the opinion of the learned Tribunal the application did not fulfil the conditions of Section 21 of the Administrative Tribunals Act. The original application was filed before the Tribunal by the writ petitioner, inter alia, for a direction upon the Central Bank of India, Belgachia Branch, (hereinafter referred to as the said 'Bank') to stop the recovery of excess payment of family pension paid to the writ petitioner as the wife of a deceased Government employee by deducting 1/3rd amount from the amount payable.
3. The petitioner's husband retired on January 31, 2001 as an Inspector of the Office of the Director of the Department of DDP and Supply, Government of West Bengal and breathed his last on January 5, 2004 at the age of 62 years. The pension payment order of the deceased was issued on November 26, 2001 and the pension was sanctioned on July 20, 2001. A monthly pension was sanctioned to the tune of Rs.3825/- which was regularly paid to her late husband. In the pension payment order dated July 22, 2001, it has been stated that, in the event of the death of the deceased employee, family pension to the tune of Rs.3825/- per month would be paid to the petitioner from the day following the death of the Prasanta Kumar Chandra till expiry of 7 years or on the completion of the 65 years, had the retiree further survived, whichever is earlier and thereafter at the rate of Rs.2295/- per month.
4. Upto January 2017 the petitioner continued to get the family pension but on and from January 2017 the said pension was stopped.
5. Thereafter by a letter dated February 17, 2017 the branch manager of the said bank informed the petitioner that according to the Government audit of the pension account it was detected that, an excess payment of Rs.3,08,003/- for the period between January 14, 2007 to March 31, 2016 had been made to the petitioner on, that is, account of family pension at the rate of Rs.3458/- for 110 months, February 2007 to March 2016 and in addition to the said amount dearness relief in excess was also paid, all totalling to Rs.6,11,522/-. The manager further requested the petitioner to find out ways for adjustment of the excess payment made.
6. Thereafter another letter was issued by the Branch Manager of the said bank dated August 19, 2017, by which the petitioner was asked to come out with a complete proposal for repayment of the amount, and failing which, recovery of the excess payment would be made by deducting 1/3rd of the amount payable to the petitioner every month. According to the petitioner, she had been released family pension at the deducted rate, together with 1/3rd further deduction towards recovery, after the above communications on and from July 2017. The family pension amount payable to her ought to be Rs.10, 011/- and the bank authorities were deducting Rs.3304/- per month.
7. Thereafter, the bank authorities informed the petitioner by a letter dated September 21, 2017, that the bank was recovering the excess payment every month as per the rules.
8. The bank authorities as also the respondent, Accountant General West Bengal contested the proceedings before the Tribunal.
9. Upon contested hearing the learned Tribunal was pleased to dismiss the original application, finding the same not to be maintainable on account of non-compliance of Section 21 of the Administrative Tribunals Act.
10. Learned Advocates for the bank authorities as also the state respondents filed their respective affidavit-in-opposition before us. Pursuant to our order dated June 4, 2018, the Principal Director of Audit (Central) Kolkata, Indian Audit and Accounts was added as respondent no. 5 in the instant writ application. A copy of the writ application was served upon the added state respondent and affidavits-of-service has been filed.
11. It was urged on behalf of the petitioner that pursuant to a direction of the Indian Audit and Accounts Accountant General (A.E. West Bengal) the bank could not recover the excess amount of family pension and dearness relief amounting to Rs.6,11,522/- from the petitioner after having paid the enhanced amount for over 13 years. It was further submitted on behalf of the petitioner that, it was not due to any fault or mis- representation by her that the excess amount had been paid and she did not have any role to play in the matter.
12. The learned Advocate for the petitioner relied on several judgments of the Apex Court wherein similar issues have been decided. In Shyam Babu Verma & Ors. Vs. Union of India & Ors., reported in (1994) 2 SCC 521 it has been held that as the revised higher scale of pay was given to the petitioners therein on and from 1973, the same could not be reduced after 10 years with retrospective effect as the petitioners were in no way responsible for such excess payment. The Apex Court directed that no steps for recovery of the amount should be taken.
13. In Syed Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475 the Apex Court held that recovery of excess amount of the emoluments/allowances could not be made if the excess amount was paid, not on account of any mis-representation or fraud on the part of the employee but, by applying a wrong principle for calculating the pay allowance or on the basis of a particular interpretation of rule or order which was subsequently found erroneous. This relief was granted to employees not because of any particular right of the employee, but on the principles of equity and in exercise of judicial discretion in order to relieve the employees from the hardship that would be caused if the recovery was ordered. According to the Apex Court if in the circumstances of a particular case the over-payment was detected within a short period, the order for recovery of the amount paid in excess could be made. In Syed Abdul Qader (supra) the payment was made wrongly because of inaction, negligence and carelessness of the officials of the Government of Bihar and the Hon'ble Apex Court keeping in view of these facts did not allow the recovery.
14. Reliance was next placed on the decision in the State of Punjab and Others Vs. Rafiq Masih (White Washer and Others) reported in (2015) 4 SCC 334 wherein the Hon'ble Apex Court in Paragraph 18 held as follows:-
"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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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 again an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitus or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recovery. Placing heavy reliance on the aforesaid decision of the Apex Court, it is submitted that the impugned order is liable to be quashed and the pension already recovered needs to be refunded in favour of the petitioner. So also, placing reliance on a decision of this Court in the case of D. Susairaj vrs. District Treasury Officer, reported in 2016 SCC Online Mad. 21903, it is submitted that the petitioner is also entitled to refund of the recovered pension, inasmuch as this Court in the similar facts and situation when a pension was wrongly fixed at a higher rate which was later on audit objection was reduced and the higher amount of pension already paid was ordered to be recovered, taking note of the case of Rafiq Masih (supra), directed refund of the amount already recovered, though did not interfere with the recovery of pension."
15. Our attention has been next drawn to the decision in Kalyan Kumar Chattopadhyay -Vs.-The State West Bengal and Others reported in (2006) 1 WBLR (Cal) 591, where the recovery of excess payment was not allowed by this Court, upon holding that equitable considerations could not be held irrelevant, even where a claim for refund was made under Section 72 of the Indian Contract Act.
16. The learned Advocate for the petitioner relied on an unreported decision of the Madras High Court in J. Kasthuri vs. The Commissioner of Chennai Municipal Corporation passed in W.P. 19611 of 2013 and M.P. 1 of 2014 dated February 22, 2018. The said judgment, of course, does not bind us but has a persuasive value. It has been held that even if the petitioner was made aware of the amount of pension to be paid the excess amount paid to her could not be recovered as the payment of higher amount was made not because of any active contribution on her part and in such cases the primary consideration should be the hardship that would be caused to the petitioner.
17. Mr. Tapan Kumar Mukherjee, learned Additional Government Pleader, who appeared on behalf of the state respondents relied on the decision in Sales Tax Officer-Vs.-Kanhaiyalal reported in AIR 1959 SCC 135 wherein it has been decided that in case of excess payment the recovery was permissible under Section 72 of The Contract Act, although on a different set of facts. According to Mr. Mukherjee in view of the provisions of Section 72 of Indian Contract Act equitable consideration could not come into play and the bank had every right to recover the excess payment made.
18. Mr. Mukherjee emphatically submitted that in the pension payment order issued, the pension was fixed at the last pay drawn by the employee, that is, Prasanta Kumar Chandra deceased husband of the petitioner. According to the pension payment order the employee had received reduced pension that is Rs.2295/- as Rs.1530/- been commuted. It was further contended on behalf of the respondent no.1 that on the basis of the pension payment order issued by the Principal Accountant General (A.E. West Bengal) the petitioner was getting the family pension after the death of her husband through the Central Bank of India and that the petitioner was aware of the amount to which she was entitled and even knowing that excess amount had been paid to her, she quietly enjoyed the said amount without informing the authorities and this amounted to passive contribution. The amount of pension to be paid was within her knowledge but she did not raise any query before the authorities when she received the excess amount over the period of 13 years and as such she was liable to refund the over payment.
19. It was urged on behalf of the bank authorities, the respondent nos.3 and 4 herein that during the course of audit of the pension accounts, by the Government Audit Department excess payment of pension amounting to Rs. 3, 80,380/- and dearness allowance, all totalling to Rs.6,11,522/- was detected to have been made to the petitioner and the same was intimated to the petitioner on February 17, 2017. The petitioner was asked to find out ways for adjustment of the said amount. Emphasis has been laid on the contents of the letters dated August 19, 2017, and September 8, 2017, issued by the Indian Audit and Accounts Department, Accountant General (A & E West Bengal) by which, the petitioner was informed about the excess payment and had been requested to adjust the same. By a letter dated September 8, 2009, the Bank Manager informed the petitioner that the amount paid in excess would be recovered by deducting 1/3rd of the pension, every month as per the undertaking given by the petitioner dated March 17, 2004.
20. We have considered the submissions made on behalf of the parties. The first question to be decided is whether the proceeding before the learned Tribunal was barred under Section 21 of the Administrative Tribunals Act 1985 as held by the learned Tribunal. As per the record we find that the bank authorities, pursuant to directions of the Inter Audit and Account Department West Bengal finally passed the order on September 21, 2017. The original application before the learned Tribunal was filed in November 2017 and as such the Original Application was well within the period of limitation as stated in Section 21 of the Administrative Tribunals Act 1985. Section 21 of the Administrative Tribunals Act, 1985 is quoted herein below.
Section 21. Limitation. - "(1) A Tribunal shall not admit an application, -
(a) In a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made,
(b) In a case where an appeal or representation such as is mentioned in clause (b) of sub-
section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six month."
21. On the issue as to whether the bank could recover the excess amount by deducting 1/3rd of the pension amount paid to the petitioner, we hold that such recovery is impressible in law. The excess amount has been paid for more than 13 years and the ratio of the judgment in Rafiq Masih (supra) squarely applies. We further find that the petitioner will be caused irreparable hardship if such recovery is made and the recovery would be iniquitous. The petitioner was not responsible for the excess payment made and did not misrepresent before the authorities. It was due to the mistake, carelessness and negligence of the authorities that such excess payment was made and the ratio of the judgment in Syed Abdul Qadir (supra) comes to the aid of the petitioner.
22. While dealing with the question of bankers lien as argued by the respondent we find that in Kalyan Kumar Chattopadhyay (supra) it has been categorically held that Section 72 of the Contract Act does not apply in cases where equitable considerations are paramount. The decision of Kanhaiyalal (supra) has been distinguished in the facts of the case.
23. We hold that recovery of the amount of Rs. 6, 11, 522/- will cause hardship to the petitioner and the same cannot be allowed on equitable considerations.
24. Hence it is directed that the amount deducted so far towards adjustment of Rs.6,11,522/- shall be refunded to the petitioner along with interest at the highest prevailing rate payable on fixed deposits per annum by a Nationalised Bank payable, from the date of deduction of 1/3rd of the pension amount upto the date of refund. The petitioner shall be paid the actual amount of pension payable as per the pension payment order on and from the month of April, 2016.
25. With the aforesaid directions the writ application is allowed. The order impugned dated February 8, 2018, passed by the learned Tribunal is quashed and set aside.
26. There shall be no order as to costs.
27. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree.
(Debasish Kar Gupta, J.) (Shampa Sarkar, J.)