Madhya Pradesh High Court
Jagdish Prasad Bansal vs The State Of Madhya Pradesh Thr on 18 December, 2018
1
THE HIGH COURT OF MADHYA PRADESH
WP 3990/2016
Jagdish Prasad Bansal vs. State of MP
Gwalior, Dated 18/12/2018
Shri DP Singh, counsel for the petitioner.
Shri Ajay Bhargav, Govt. Advocate for the respondents/ State.
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
''7.(i) That, the remark regarding recovery of amount of Rs. 85,617/- or the merger of increment made by the respondent No.3 in service roll (Annexure P-1) may kindly be quashed with a further direction to quash the consequential orders Annexure P-2 to P-4 with a further direction to the respondents to refund the recovered amount along with interest @ 15% p.a. with a further direction to the respondents not to merge the additional increment of sterilization operation in the pay scale which is causing loss to the petitioner.
(ii) That, any other relief which is suitable in the facts and circumstances of the case in favour of the petitioner including the costs throughout may also be granted.'' The necessary facts for the disposal of the present petition in short are that the petitioner was initially appointed as Sub-Engineer on 29/12/1979 and had undergone sterilization operation in the year 1991, which resulted in grant of benefit of additional two increments.
On 02/11/2010, in the service book of the petitioner, a remark was put up by the respondent No.3, thereby mentioning that two additional increments are not payable for undergoing the TT operation. Therefore, the salary of the petitioner may be re-fixed and the excess payment made to the petitioner from 01/07/1989 and onwards may be recovered.
During the arguments, it was submitted by the counsel for the 2 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP petitioner that at present, the petitioner is a Class-II Officer. The Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334 has held as under:-
''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, summarise 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.'' It is submitted that the case of the petitioner is covered by Clause
(iii) of the paragraph 18 of the judgment because the excess payment was made prior to the period of five years before the order of recovery was issued. It is submitted that in compliance of the note appended in the service book dated 02/11/2010(Annexure P1), Executive Engineer, Water Resources Department, Joura, Morena by order dated 31/1/2011 (Annexure P-2) has re-fixed the salary of the petitioner and by order dated 30/07/2011 (Annexure P4), has held that from 29/12/1979 till 28/02/2011, total amount of Rs. 85,617/-3
THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP has been paid in excess, accordingly, the same shall be recovered in six installments. It is submitted that the incorrect fixation was done by the respondents without there being any misrepresentation on the part of the petitioner. Even no undertaking was obtained from the petitioner before fixation of his salary and accordingly, the amount so erroneously paid by the respondents without there being any misrepresentation on the part of the petitioner cannot be recovered as the excess payment was made prior to five years of the order of recovery.
Per contra, it is submitted by the Government Advocate for the State that the Supreme Court in the case of High Court of Punjab and Haryana and Others vs. Jagdev Singh, reported in (2016) 14 SCC 267 has held that where the undertaking has been given by the employee, then the law laid down in the case of Rafiq Masih (supra) would not apply. It is submitted that being an obedient employee the petitioner must return the excess payment, which was erroneously made to him on the ground of miscalculations and wrong fixation of salary. It is further submitted that the petition suffers from delay and laches as order passed in the year 2011 has been challenged in 2016.
Heard the learned counsel for the parties. Before considering the facts of the case, it would be appropriate to consider the question of delay and laches.
The Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K. Thangappan, reported in (2006) 4 SCC 322 has held as under :-
''6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right 4 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports (1969) 1 SCC 185. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (1874) 5 PC 221 (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher AIR 1967 SC 1450 and Maharashtra SRTC v. Shri Balwant Regular Motor Service AIR 1969 SC 329 Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India AIR 1970 SC 470 that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should 5 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal AIR 1987 SC 251 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.'' The Supreme Court in the case of M.P. Ram Mohan Raja Vs. State of T.N. reported in (2007) 9 SCC 78 has held as under:-
''11. So far as the question of delay is concerned, no hard- and-fast rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8-10-1996 an order was passed by the Collector in pursuance of the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.'' The Supreme Court in the case of Shiv Dass Vs. Union of India reported in (2007) 9 SCC 274 has held as under :6
THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP ''6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports AIR 1970 SC 769. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, PC at p. 239 was approved by this Court in Moon Mills Ltd. v.
M.R. Meher and Maharashtra SRTC v. Balwant Regular Motor Service. Sir Barnes had stated:
"Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
8. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and 7 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.'' The Supreme Court in the case of Nadia Distt. Primary School Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has held as under :-
''11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision** in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and courts cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.'' The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported in (2006) 11 SCC 464 has held as under:-
''12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows: "In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, 8 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
The Supreme Court in the case of Jagdish Lal Vs. State of Haryana reported in (1997) 6 SCC 538 has held as under :
''18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution.
The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007) 9 SCC 278 has held as under :
''16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v.
Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan.)
17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p. 277, paras 9-10) "9. It has been pointed out by this Court in a number of 9 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.)
10.In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
In this case, there is no interim order on the recovery of excess payment. Therefore, it appears that the respondents must have recovered the entire amount in compliance of the order dated 30/07/2011. This petition was filed after five years of passing of the impugned order. The petitioner has not explained the delay in filing the writ petition. Even otherwise, it does not appear that the petitioner had ever made any representation to the respondents against the order dated 30/07/2011.
It is submitted by the counsel for the petitioner that as the recovery was made in installments, therefore, it gives recurring cause of action.
Considered the submission made by the counsel for the petitioner.
10THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP The Supreme Court in State of Orissa and another vs. Mamata Mohanty, reported in (2011) 3 SCC 436 has held as under:-
''52. In the very first appeal, the respondent filed Writ Petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter. (See: Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors., AIR 1944 Privy Council 24; and Kamlesh Babu & Ors. v. Lajpat Rai Sharma & Ors, (2008) 12 SCC 577).
53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f.1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.
54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See:M/s Rup Diamonds & Ors., v. Union of India & Ors., (AIR 1989 SC 674; State of Karnataka & Ors. v. S.M. Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal & Ors.v. State of Haryana & Ors., AIR 1997 SC 2366).
If the facts of this case are considered, it is clear that against the order of recovery, the petitioner even did not make any 11 THE HIGH COURT OF MADHYA PRADESH WP 3990/2016 Jagdish Prasad Bansal vs. State of MP representation. It appears that only after the judgment was passed by the Supreme Court in Rafiq Masih's case (supra), the petitioner, decided to approach the Court directly without approaching the Department for the obvious reason that by that time, the entire excess payment must have been recovered. Further, merely because the benefit of recovery in installments was given, would not make the cause of action as recurring.
Thus, it appears that the petition has been filed after expiry of five years from the date of initiation of recovery. Therefore, it is clear that this petition suffers from delay and laches.
In absence of any explanation to the delay and laches, this Court is of the considered opinion that this petition is liable to be dismissed on this count only. Accordingly, this petition is dismissed on the ground of delay.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2018.12.20 16:57:26 +05'30'