Calcutta High Court (Appellete Side)
Chanchal Kumar Chatterjee vs State Of West Bengal & Ors on 29 August, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
1
29.08.
g.b. 2018 W. P. 4398 (W) of 2018
Ct. No.12
44
Chanchal Kumar Chatterjee
Vs.
State of West Bengal & ors.
Mr. Saktipada Jana
Mrs. Ujani Pal (Samanta)
... For the petitioner
Mr. Biswabrata Basu Mallick
Mr. Sanjib Das
... For the State
1. This is an application under Article 226 of
the Constitution of India wherein the writ
petitioner is aggrieved by an order dated
December 27, 2017 passed by the District
Inspector of Schools (S.E.), Jalpaiguri, wherein he
has held that in the case of the petitioner,
pensionary benefits cannot be recalculated on the
basis of erroneously mentioned last drawn salary
of the petitioner and therefore, revised pension
payment order cannot be issued.
2. By an order dated April 8, 2011, a co-
ordinate bench of this Court had passed an order
in favour of the petitioner directing the respondent
authorities to refund the amount deducted from
2
the overdrawn amount indicated in the pension
payment order. This part of the order has been
implemented by the State authorities.
3. The order also contained a direction on the
concerned authority to recalculate the retiral dues
of the petitioner by taking into consideration the
last drawn salary of the petitioner and to issue a
revised pension payment order, so that, the arrear
dues as per such recalculation together with
interest at the rate of 8% per annum could be
paid to the petitioner. However, the process of
recalculation of the revised pension payment
order was not completed till the year 2016 and
when the matter came up before the Assistant
Director, Pension, Provident Fund and Group
Insurance, West Bengal, the authorities directed
the concerned District Inspector of Schools to
consider the case of the petitioner in the light of
the judgement passed in a similar case of State
of West Bengal and ors. Vs. Amalendu Sekhar
Bera & anr. (M.A.T. 98 of 2015 with C.A.N.
1659 of 2015 with C.A.N. 1821 of 2015)
[Coram: Pranab Kumar Chattopadhyay and
3
Ishan Chandra Das, JJ.].
4. On consideration of the same, the District
Inspector of Schools passed the impugned order.
The relevant portion of the Division Bench order
in Amalendu Sekhar Bera (supra) is delineated
below for the sake of clarity :-
" The respondent No.1/writ petitioner
cannot receive excess pensionary benefits
on account of the wrong fixation of last
drawn salary. After detection of the error in
fixation of pay of the respondent No.1/writ
petitioner, the authorities concerned
namely, the appellants/petitioners herein
had rightly corrected the last drawn salary
of the said respondent No.1/writ petitioner
so that the respondent no.1/writ petitioner
herein cannot receive any excess
pensionary benefit in future.
We do not find any error in the
aforesaid act and/or decision of the
appellants/petitioners herein.
Therefore, we modify the impugned
judgment and order under appeal passed by
the learned Single Judge by permitting the
appellants/petitioners herein to fix the last
drawn salary of the respondent No.1/writ
petitioner by deducting the excess amount
which was earlier addd with the last pay on
account of the wrong fixation of the pay of
the said respondent No.1/writ petitioner.
Since the appellants/petitioners herein
have already corrected the last drawn salary
of the respondent No.1/writ petitioner by
deducting the excess amount from the last
pay of the said respondent No.1/writ
petitioner and issued the revised Pension
Payment Order on the basis of the corrected
last pay, we are of the opinion that the said
appellants/petitioners are not required to
recalculate the retiral dues of the
4
respondent No.1/writ petitioner on the
basis of the erroneously mentioned last
drawn salary of the said respondent
No.1/writ petitioner and no further revised
Pension Payment Order should also be
issued as directed by the learned Single
Judge."
5. The principle laid down by the Division
Bench in Amalendu Sekhar Bera & anr.
(supra) is that no revision of the pension payment
order can be made on the basis of erroneously
mentioned last drawn salary. The Hon'ble Division
Bench had reversed the order of the learned
Single Judge directing the authorities to make
such correction.
6. Counsel for the petitioner submits that the
order passed in favour of the writ petitioner by a
Coordinate Bench still stands and the same was
accepted by the authorities. In fact, he submits
that part of the order was complied with and
accordingly, there is no reason for the authorities
to take a contrary stand after a gap of seven
years. He further submits that if the order of the
Coordinate Bench was followed, he should have
been paid in the year 2011-12 itself.
7. Counsel for the petitioner further submits
5
that the Doctrine of Election and the Doctrine of
Approbate and Reprobate applies and State
authorities having proceeded to comply with one
part of the order of the Coordinate Bench cannot
at this stage play hot and cold and refuse to
recalculate the retiral dues of the petitioner by
taking into consideration the last drawn salary as
had been directed by the Coordinate Bench.
8. Mr. Basu Mallick, learned counsel
appearing on behalf of the respondent authorities
submits that the order of the Co-ordinate Bench
dated April 8, 2011 has directed the concerned
authority to recalculate the retiral dues of the writ
petitioner and as such the recalculation has to be
on the basis of the 'correct last drawn salary' and
not simpliciter the 'last drawn salary'. He submits
that after the Division Bench judgement in
Amalendu Sekhar Bera and Anr. (supra), the
authorities cannot calculate the revised pension
payment order taking into consideration the
erroneously 'last drawn salary'. It is his
submission that for calculation of the revised
6
pension payment order it is the correct salary that
has to be taken into account.
9. I have heard learned counsel for both the
parties and perused the materials on record.
10. The arguments of the counsel on behalf of
the petitioner with regard to the fact that once the
state authorities have acted on one portion of the
order and therefore, they cannot renegade from
acting upon the second part of the order is based
on the principles of the Doctrine of Approbate and
Reprobate. It is to be noted that the phrase
"Approbate and Reprobate" is apparently
borrowed from the Scotch Law, where it is used to
express the principle accepted in the Doctrine of
Election - namely, that no party can accept and
reject the same instrument. Our Supreme Court
has time and again examined the principles
relating to the Doctrine of Approbate and
Reprobate.
11. In State of Punjab and Others -v-
Dhanjit Singh Sandhu reported in 2014 (15)
SCC 144 [Coram: Dr. B.S. Chauhan and M.
Yusuf Eqbal, JJ.], held that a person may be
7
precluded, by way of his actions or conduct, or
silence, when it is a duty to speak from asserting
a right which she would have otherwise had. The
relevant paragraphs are provided below:
"22. The doctrine of "approbate and
reprobate" is only a species of estoppel,
it implies only to the conduct of parties.
As in the case of estoppel it cannot
operate against the provisions of a
statute. (Vide CIT v. V. MR. P. Firm
Muar [CIT v. V. MR. P. Firm Muar, AIR
1965 SC 1216] .)
23. It is settled proposition of law that
once an order has been passed, it is
complied with, accepted by the other
party and derived the benefit out of it,
he cannot challenge it on any ground.
(Vide Maharashtra SRTC v. Balwant
Regular Motor Service [Maharashtra
SRTC v. Balwant Regular Motor Service,
AIR 1969 SC 329] .) In R.N.
Gosain v. Yashpal Dhir [R.N.
Gosain v. Yashpal Dhir, (1992) 4 SCC
683] this Court has observed as under:
(SCC pp. 687-88, para 10)
"10. Law does not permit a person to
both approbate and reprobate. This
principle is based on the doctrine of
election which postulates that no party
can accept and reject the same
instrument and that 'a person cannot
say at one time that a transaction is
valid and thereby obtain some
advantage, to which he could only be
entitled on the footing that it is valid,
and then turn round and say it is void
for the purpose of securing some other
advantage'."
24. This Court in Babu Ram v. Indra Pal
Singh [Babu Ram v. Indra Pal Singh,
(1998) 6 SCC 358] and P.R.
8
Deshpande v. Maruti Balaram
Haibatti [P.R. Deshpande v. Maruti
Balaram Haibatti, (1998) 6 SCC 507] ,
has observed that: (P.R. Deshpande
case [P.R. Deshpande v. Maruti Balaram
Haibatti, (1998) 6 SCC 507] , SCC p.
511, para 8)
"8. The doctrine of election is based
on the rule of estoppel--the principle
that one cannot approbate and
reprobate inheres in it. The doctrine of
estoppel by election is one of the species
of estoppel in pais (or equitable
estoppel) which is a rule in equity. By
that law, a person may be precluded by
his actions or conduct or silence when
it is his duty to speak, from asserting a
right which he otherwise would have
had."
25. The Supreme Court in Rajasthan
State Industrial Development and
Investment Corpn. v. Diamond and Gem
Development Corpn. Ltd. [Rajasthan
State Industrial Development and
Investment Corpn. v. Diamond and Gem
Development Corpn. Ltd., (2013) 5 SCC
470 : (2013) 3 SCC (Civ) 153] , made an
observation that a party cannot be
permitted to "blow hot and cold", "fast
and loose" or "approbate and
reprobate". Where one knowingly
accepts the benefits of a contract or
conveyance or an order, is estopped to
deny the validity or binding effect on
him of such contract or conveyance or
order. This rule is applied to do equity,
however, it must not be applied in a
manner as to violate the principles of
right and good conscience.
26. It is evident that the doctrine of
election is based on the rule of estoppel,
the principle that one cannot approbate
and reprobate is inherent in it. The
doctrine of estoppel by election is one
among the species of estoppel in pais
(or equitable estoppel), which is a rule
9
of equity. By this law, a person may be
precluded, by way of his actions, or
conduct, or silence when it is his duty
to speak, from asserting a right which
he would have otherwise had."
12. The Supreme Court in Shyam Telelink
Ltd. -v- Union of India reported in 2010 (10)
SCC 165 [Coram: Markandey Katju and T.S.
Thakur, JJ.] had also examined the principles
relating to Doctrine of Approbate and Reprobate
and had held that a person cannot accept and
reject the same instrument. The relevant
paragraphs are delineated below:
"23. The maxim qui approbat non
reprobat (one who approbates cannot
reprobate) is firmly embodied in English
common law and often applied by
courts in this country. It is akin to the
doctrine of benefits and burdens which
at its most basic level provides that a
person taking advantage under an
instrument which both grants a benefit
and imposes a burden cannot take the
former without complying with the
latter. A person cannot approbate and
reprobate or accept and reject the same
instrument.
24. In Ambu Nair v. Kelu Nair [(1932-33)
60 IA 266 : AIR 1933 PC 167] the
doctrine was explained thus: (IA p. 271)
"Having thus, almost in terms,
offered to be redeemed under the
usufructuary mortgage in order to get
payment of the other mortgage debt, the
appellant, Their Lordships think,
cannot now turn round and say that
redemption under the usufructuary
10
mortgage had been barred nearly
seventeen years before he so obtained
payment. It is a well-accepted principle
that a party cannot both approbate and
reprobate. He cannot, to use the words
of Honyman, J. in Smith v. Baker [1873
LR 8 CP 350] LR at p. 357:
'... at the same time blow hot and
cold. He cannot say at one time that the
transaction is valid, and thereby obtain
some advantage, to which he could only
be entitled on the footing that it is valid,
and at another time say it is void for the
purpose of securing some further
advantage.' "
25. The view taken in the above
decision has been reiterated by this
Court in City Montessori School v. State
of U.P. [(2009) 14 SCC 253] To the same
effect is the decision of this Court
in New Bihar Biri Leaves Co. v. State of
Bihar [(1981) 1 SCC 537] where this
Court said: (New Bihar case [(1981) 1
SCC 537] , SCC p. 558, para 48)
"48. It is a fundamental principle of
general application that if a person of
his own accord, accepts a contract on
certain terms and works out the
contract, he cannot be allowed to
adhere to and abide by some of the
terms of the contract which proved
advantageous to him and repudiate the
other terms of the same contract which
might be disadvantageous to him. The
maxim is qui approbat non reprobat (one
who approbates cannot reprobate). This
principle, though originally borrowed
from Scots law, is now firmly embodied
in English common law. According to it,
a party to an instrument or transaction
cannot take advantage of one part of a
document or transaction and reject the
rest. That is to say, no party can accept
and reject the same instrument or
transaction (per Scrutton,
L.J., Verschures Creameries Ltd. v. Hull
11
& Netherlands Steamship Co.
Ltd. [(1921) 2 KB 608 : 1921 All ER Rep
215 (CA)] ; ...)."
26. The decision of this Court in R.N.
Gosain v. Yashpal Dhir [(1992) 4 SCC
683 : AIR 1993 SC 352] brings in the
doctrine of election in support of the
very same conclusion in the following
words: (SCC pp. 687-88, para 10)
"10. Law does not permit a person to
both approbate and reprobate. This
principle is based on the doctrine of
election which postulates that no party
can accept and reject the same
instrument and that:
'... A person cannot say at one time
that a transaction is valid and thereby
obtain some advantage, to which he
could only be entitled on the footing
that it is valid, and then turn round and
say it is void for the purpose of securing
some other advantage.'
(See Verschures Creameries Ltd. v. Hull
and Netherlands Steamship Co.
Ltd.[(1921) 2 KB 608 : 1921 All ER Rep
215 (CA)] KB at p. 612, Scrutton, L.J.)
According to Halsbury's Laws of
England, 4th Edn., Vol. 16:
"1508. Examples of the common law
principle of election.--After taking an
advantage under an order (for example
for the payment of costs) a party may be
precluded from saying that it is invalid
and asking to set it aside.' "
27. In America estoppel by acceptance
of benefits is one of the recognised
situations that would prevent a party
from taking up inconsistent positions
qua a contract or transaction under
which it has benefited. American
Jurisprudence, 2nd Edn., Vol. 28, pp.
677-80 discusses "estoppel by
acceptance of benefits" in the following
passage:
12
"Estoppel by the acceptance of
benefits.--Estoppel is frequently based
upon the acceptance and retention, by
one having knowledge or notice of the
facts, of benefits from a transaction,
contract, instrument, regulation which
he might have rejected or contested.
This doctrine is obviously a branch of
the rule against assuming inconsistent
positions.
As a general principle, one who
knowingly accepts the benefits of a
contract or conveyance is estopped to
deny the validity or binding effect on
him of such contract or conveyance.
This rule has to be applied to do
equity and must not be applied in such
a manner as to violate the principles of
right and good conscience."
13. On a thorough study of these above noted
judgments, the principles that emerges is that a
person cannot at the same time accept and reject
an instrument. Such acceptance has to be judged
by his conduct and actions. If the person has
chosen to accept a particular instrument and/or
order, he cannot at a latter point agitate against
the same instrument and/or order. Carrying the
analogy further, if a person acts on a part of an
order passed by a Court, he cannot choose to
ignore and/or reject the other part of the order
unless the same has been challenged by him
13
under the process established in law. In the
present case, the authorities accepted the order
passed on April 8, 2011 and proceeded to carry
out the first point of the order that is of refunding
the overdrawn amount. With regard to the second
part of the order for recalculation of the pension
payment order steps were taken by the authorities
to comply with the same. It is only after five years
that the Assistant Director, Pension, Provident
Fund and Group Insurance objected to the order
and directed the authorities below to act in
consonance with another order passed by the
Calcutta High Court. The very fact that the
respondent authorities did not file any appeal
against the order dated April 8, 2011 lends
credence to the fact that they had accepted the
order and had in fact complied with part of the
same. Apropos, having accepted the same, it did
not lie in their mouth at a latter date to not
comply with another part of the order.
14. Apart from the fact that the state authorities
are clearly hit by the Doctrine of Approbate and
Reprobate, I am of the view that the State
14
Authorities are also prevented from re-agitating
the issue relating to the manner in which
recalculation has to be carried out, as the issue
has been settled and reached a finality. The
Supreme Court in Indian Council for Enviro-
Legal Action Vs. Union of India and Ors.
reported in (2011) 8 SCC 161 [Coram: Dr.
Dalveer Bhandari and H.L. Dattu, JJ.]
discussed the entire issue of finality of judgement
in paragraphs 103 to 142. The principle on which
the 'Doctrine of Finality' is based has been
delineated in paragraphs 103 and 142 that are
provided below:-
"103. The maxim interest reipublicae ut sit
finis litium says that it is for the public good
that there be an end to litigation after a long
hierarchy of appeals. At some stage, it is
necessary to put a quietus. It is rare that in an
adversarial system, despite the Judges of the
highest court doing their best, one or more
parties may remain unsatisfied with the most
correct decision. Opening door for a further
appeal could be opening a floodgate which will
cause more wrongs in the society at large at the
cost of rights.
104. It should be presumed that every
proceeding has gone through infiltration several
times before the decision of the Apex Court. In
the instant case, even after final judgment of
this Court, the review petition was also
dismissed. Thereafter, even the curative petition
has also been dismissed in this case. The
controversy between the parties must come to
15
an end at some stage and the judgment of this
Court must be permitted to acquire finality. It
would hardly be proper to permit the parties to
file application after application endlessly. In a
country governed by the rule of law, finality of
the judgment is absolutely imperative and great
sanctity is attached to the finality of the
judgment. Permitting the parties to reopen the
concluded judgments of this Court by filing
repeated interlocutory applications is clearly an
abuse of the process of law and would have far-
reaching adverse impact on the administration
of justice.
...........
..............
142. The applicants certainly cannot be provided an entry by back-door method; and permit the unsuccessful litigants to reagitate and reargue their cases. The applicants have filed these applications merely to avoid compliance with the order of the Court. The applicants have been successful in the endeavour and have not permitted the judgement delivered on 13-2-1996 to acquire finality till date. It is strange that other respondents did not implement that final order of this Court without there being any order or direction of this Court. These applications being devoid of any merit deserve to be dismissed with heavy costs."
15. Subsequently, in Union of India and Others Vs. Major S. P. Sharma and Others [Coram: Dr. B.S. Chauhan, J. Chelameswar and M.Y. Eqbal, JJ.] reported in (2014) 6 SCC 351 the Supreme Court once again elucidated the principles in paragraphs 75 to 90 with regard to the Doctrine of Finality. M.Y. Eqbal, J. observed in paragraphs 80 to 82 as follows:
16
"80. In M. Nagabhushana V. State of Karnataka this Court held that the doctrine of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause.
81. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such anarcy.
82. In a country governed by the rule of law, the finality of a judgement is absolutely imperative and great sanctity is attached to the finality of the judgement and it is not permissible for the parties to reopen the concluded judgements of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgements of the court and particularly 17 of the Apex Court of a country cannot and should not be unsettled lightly."
16. I would go amiss if I do no not consider the judgement delivered by the Division Bench of this High Court wherein Sanjib Banerjee, J. authoring the judgement on behalf of himself and the Hon'ble the Chief Justice had examined the issue with regard to the Doctrine of Finality and pronounced the principles thereto in Indu Bhusan Jana Vs. Union of India and Ors. reported in AIR 2009 Cal 24; (2009) 1 CHN 27 [Coram: Surinder Singh Nijjar, C.J. and Sanjib Banerjee, J.]. The Principles of Doctrine of Finality have been succinctly captured in the paragraphs delineated below:
"11. Upon an order attaining finality, it matters little as to whether it was erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the Court lacked jurisdiction to pass the order. The hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a 18 lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby.
12. The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgement becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that the issues decided may not be reopened, and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. The principles of res judicata and constructive res judicata apply equally to proceedings under Article 226 of the Constitution.
13. A decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed, by adopting a procedure prescribed by law. It is in the interest of the public at large that finality should attach to the binding decisions pronounced by a Court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over in the assessment of the same matter in issue. Even in case of a judgement passed incuriam which is unchallenged, the efficacy and binding nature of the operative order is conclusive inter parties. The principle applies both to an order from which an appeal lies and no appeal is preferred and to an order from which no appeal is provided."
17. On an analysis of the above judgement on the Doctrine of Finality one concludes that the 19 above Doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. It is clear that once an order attains its finality, that is, it is not challenged in appeal or by way of any procedure established in law, it matters little whether such order was erroneous and bad in law. This order inter se the parties becomes final and is not open to challenge by either of the parties on a subsequent occasion. The only exceptions to the Doctrine of Finality are that the finding of the earlier order was obtained by fraud or the court lacked jurisdiction to pass the order.
18. The authorities cannot now rely on a judgment of the Division Bench passed after four years, in another matter, to overrule the judgment passed by the co-ordinate Bench. The above view 20 of mine is strengthened by the principles laid down by the Supreme Court with regard to the Doctrine of Finality inter se the parties. It is not in dispute that subsequent to passing of the order dated April 8, 2011 the State authorities did not prefer an appeal against the said order. In fact, they proceeded to act on the same and refunded the amount of Rs.28,338/- that had been illegally deducted by the authorities. In fact, they also paid the interest @ 8% per annum as directed by the court. With regard to the second direction of recalculation of the retiral dues taking into consideration the last drawn salary, an order was passed by the D. I. of Schools (S. E.), Jalpaiguri directing the school authorities to submit the pension paper. It is only in the year 2016 that the Assistant Director of Pension, Provident Fund and Group Insurance, Government of West Bengal raised an objection stating that the revised pensionary benefits cannot be calculated on the basis of the 'last pay drawn' erroneously at higher slab in light of the judgement of the Division Bench as indicated above. This change of stance 21 that has now been taken by the respondent authorities in the case of the petitioner is no longer legally tenable as the same is diametrically opposite to the principles of the Doctrine of Finality. In the present case, none of the exceptions to the Doctrine of Finality, that is, fraud or error of jurisdiction come into play in any manner whatsoever.
19. In view of the same, I set aside the Official Memorandum dated December 27, 2017 passed by the District Inspector of Schools (S. E.), Jalpaiguri and direct the District Inspector of Schools to act in terms of the order dated April 8, 2011. It is made clear that the retiral dues of the petitioner shall be calculated by taking into consideration the 'last drawn salary', that is, Rs.9425/- and to issue the revised pension payment order within a period of six weeks from date. The respondent authorities are directed to make payment of the arrear pension amounts within a period of ten weeks from date and to pay the pension as per the revised calculation keeping in mind the 'last drawn salary', that is, Rs.9425/. 22
20. The writ petition being W. P. No. 4398 (W) of 2018 is, accordingly, allowed and disposed of.
21. There will be no order as to costs.
22. Urgent certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Shekhar B. Saraf, J.)