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2024 DAILYLAW 2470 (CAL)

Lieutenant Governor v. Tarun Kanti Roy

2024-12-11

Amrita Sinha, Uday Kumar

body2024
JUDGMENT : AMRITA SINHA, J. 1. The writ petition is at the instance of the official respondents in the original application filed by an employee inter alia, seeking for quashing the impugned orders dated 14 th January, 2008, 05 th December, 2014 and all consequential orders passed pursuant thereto. Prayer in the original application was also made for awarding first financial upgradation under ACP Scheme with effect from 30 th October, 2004 and MACP with effect from 29 th October, 2012 when he completed 12 years and 20 years respectively in the appropriate scale of pay. Arrears and interest were also sought for. 2. The learned Tribunal vide impugned order dated 11th January, 2024 allowed the prayer of the employee and set aside and quashed the orders dated 04th January, 2008 and 05th December, 2014 and consequently directed the authority to pay the arrears with effect from 30 th October, 2004 to the date of actual payment within forty- five days from the date of receipt of the certified copy of the order failing which interest at the rate as applicable to GPF deposits will be payable to the employee. 3. According to the petitioners, revision of pay of the employee was necessitated on detection of an error in his pay fixation. The authority contends that certain financial benefit, not available to the employee, was inadvertently granted to him. On detection of the error, the said benefit had to be withdrawn for which the revision was called for. 4. It has been argued that the employee does not have any right to receive payment which was made to him by mistake and the authority made the necessary amendments by revising the pay of the employee upon detection of the same. 5. Learned senior counsel representing the petitioners has painstakingly placed before the Court the various documents in support of the submission that certain financial benefit which was given to the employee was not meant for him and, as such, it was proper for the authority to rectify the mistake and pay the employee his rightful due. 6. Prayer has been made to set aside the impugned order of the Tribunal and consequently direct the authority to make payment in accordance with the revised pay as calculated by the employer. 7. Learned advocate representing the employee strongly opposes the prayer of the petitioners. 6. Prayer has been made to set aside the impugned order of the Tribunal and consequently direct the authority to make payment in accordance with the revised pay as calculated by the employer. 7. Learned advocate representing the employee strongly opposes the prayer of the petitioners. It has been submitted that the writ petition is liable to be dismissed with costs on the ground of suppression of material facts. 8. It has been submitted that a miscellaneous application seeking extension of time for making payment has been filed by the petitioners before the learned Tribunal in the month of July, 2024 which was considered by the learned Tribunal and an order has been passed on 19 th November, 2024 granting four weeks’ time for implementing the direction passed in the order dated 11 th January, 2024. 9. It has been submitted that the instant writ petition has been filed on 11 th September, 2024 completely suppressing the fact of filing the miscellaneous application seeking extension of time to comply the Tribunal’s order. The petitioners deliberately suppressed the fact of filing the miscellaneous application solely to mislead this Hon’ble Court. 10. It has been argued that the instant writ petition has been filed by four petitioners and the same has been affirmed by the petitioner no. 4 being the Administrative Officer of the Institute where the employee served. The petitioner no. 4 has not been authorized by the petitioner nos. 1 to 3 to file the instant writ petition. The Union of India being the respondent no.1 in the original application has been impleaded as proforma respondent in the writ petition. 11. It has been submitted that the communication dated 18 th July, 2006 revising the pay was communicated to the employee only in the month of September, 2015. The authority merely passed order in the official file but never cared to communicate the same to the employee despite an order to that effect. 12. It has been pleaded that the employee retired from service nearly four years ago and at this stage the authority ought not to be permitted to revise his pay by deducting the financial benefit which the employee is receiving for so many years. 13. It has been argued that the employee has been appointed in the year 1992 and his pay stood revised with effect from 30th October, 2000. 13. It has been argued that the employee has been appointed in the year 1992 and his pay stood revised with effect from 30th October, 2000. The alleged pay which was drawn by the employee in excess had already been refunded in the year 2008 by withdrawing the money from his GPF account. Any further deduction will cause severe prejudice to the employee. 14. It has been argued that the writ petition has been filed long after the time to comply the order of the Tribunal expired. The intention to file the writ petition is only to stall execution of the order of the Tribunal and delay and drag the matter which is due to be taken up for consideration by the Tribunal in the third week of December, 2024. 15. Prayer has been made to dismiss the writ petition on the ground of suppression of material fact and on the ground of delay. 16. In support of the submission that the writ petition is liable to be dismissed on the ground of suppression of material facts reliance has been placed on the judgment delivered by the Hon’ble Supreme Court on 22 nd April, 2024 in petition for Special Leave for Appeal (C) No. 20026/2022 with SLP (C) No. 23157/2022 (XIV) in the matter of Union of India and others vs. Sudipta Lahiri wherein the Court was pleased to dismiss the Special Leave Petition with costs for sheer abuse of the process of law. 17. Reliance has also been placed on the order passed by the Hon’ble Supreme Court in the matter of K.D. Sharma vs. Steel Authority of India Limited and others, (2008) 12 SCC 481 wherein the Court observed that the appellant has not come forward with all facts. The appellant chose to state facts in the manner suited to him. That is not proper and on this ground alone the appellant cannot claim equitable relief. 18. The Court held that as per settled law, the party who invokes the extra ordinary jurisdiction of the Court is supposed to be truthful, frank and open. He must disclose all material fact without any reservation even if they are against him. He cannot be allowed to play ‘hide and seek’ or to ‘pick and choose’ the facts he likes to disclose and to suppress and not to disclose other facts. He must disclose all material fact without any reservation even if they are against him. He cannot be allowed to play ‘hide and seek’ or to ‘pick and choose’ the facts he likes to disclose and to suppress and not to disclose other facts. The very basis of the writ petition rests in disclosure of true and complete facts. If material facts are suppressed or distorted, the very functioning of writ court and exercise would become impossible. The petitioner must disclose all facts having a bearing on the relief sought without any qualification. 19. Reliance has also been placed on the order dated 24th February, 2022 passed by a coordinate Bench of this Court in WPA No. 1725/2022 (Md. Jarif Ali vs. The State of West Bengal and others) wherein the Court was pleased to dismiss the writ petition with costs on account of gross suppression of material facts. 20. We have heard and duly considered the submissions made on behalf of both the parties and have perused the materials on record. 21. In the instant case, it is seen that the financial benefit which was given to the employee relates back to the year 2000 and thereafter in the year 2008 and 2014. At the initial stage when an anomaly with regard to pay of the employee was detected in the year 2008 he refunded a sum of Rs. 63,684/- by withdrawing the said amount from his General Provident Fund account. On refund of the aforesaid amount, the pay of the employee stood re-fixed with effect from 30 th October, 2004 in the reduced scale of pay. 22. The authority again reduced the pay of the employee in the year 2014, but this time the employee approached the Tribunal challenging such action by filing original application in the year 2015. The said original application stood disposed of by the Tribunal on 11 th January, 2024 by setting aside the impugned orders reducing the scale of pay of the employee with further direction to pay the arrears with effect from 30th October, 2000 till the date of actual payment within forty-five days from the date of receipt of the certified copy of the order. 23. 23. Long after the time period to comply the direction was over, the authority filed miscellaneous application before the Tribunal in the month of July 2024 seeking extension of time to comply the direction of the Tribunal. In the said application averment was made that the time period to comply the order expired on 25 th March, 2024. It was also averred that as suggested by the personnel department action has been initiated to take the approval of the competent authority to send proposal to the Ministry of Expenditure for seeking approval and the proposal may take considerable period of time for complying with the judgment/order dated 11 th January, 2024. 24. It was further averred that the authority is duty bound to comply the order of the Tribunal and sought extension of time for a period of six months to comply the direction passed by the Tribunal. 25. The said application was taken up for consideration by the Tribunal on 08th July, 2024, 08th August, 2024, 22nd August, 2024, 06 th September, 2024 and order was passed by the Tribunal on 19 th November, 2024 extending time for four weeks to comply the direction passed in the order dated 11 th January, 2024. The matter is due to appear in the list in the third week of December, 2024. 26. In the order passed by the Tribunal in the miscellaneous application filed by the petitioners it has been clearly recorded that the application has been filed seeking extension of time for implementing the order. The writ petition has been filed by the authority in September, 2024 but there is no whisper in the writ petition as regards filing and pendency of the miscellaneous application seeking extension of time for complying with the order passed by the Tribunal. At the same time, there is no mention of the pending writ petition in any of the orders passed by the Tribunal. 27. It appears that the petitioners, on one hand, are giving an impression to the Tribunal that the order will be complied with within the extended time period and, on the other hand, challenging the correctness of the order by filing the present writ petition. The stand of the petitioners appears to be contradictory before two different fora. The authority ought not to take such inconsistent stands. 28. The stand of the petitioners appears to be contradictory before two different fora. The authority ought not to take such inconsistent stands. 28. In the instant writ petition the authority ought to have disclosed the fact of filing the miscellaneous application seeking extension of time before the Tribunal. Once the authority undertakes to comply with the order passed by a competent court of law, the same authority ought not to be permitted to challenge the same in a separate proceeding by completely suppressing the fact of the proposal to obtain approval for implementing the court’s direction. The act of the authority in filling the writ petition by not disclosing the vital fact of approaching the learned Tribunal seeking extension of time to comply its order does amount to gross suppression of material fact and the writ petition is liable to be dismissed on this ground alone. 29. However, since the learned senior counsel representing the petitioners have placed before this Court various documents in support of the submission that the revision of pay of the employee is called for in view of detection of error in calculating his pay, the Court would like to deal with such submission. 30. Admittedly, the error which is sought to be rectified cropped up in the year 2000, 2008 and 2014. It is more than two decades that the initial error is alleged to have cropped up. The employee has long retired from service. The error in question was not because of any fault on the part of the employee and he was no way responsible for the same. He has already enjoyed the benefit for a considerable period of time. 31. It is the duty of the employer to maintain proper accounts of its employee. The employer ought to make payment upon proper verification of the figures and in the correct pay scale. To err is human and it is not absolutely improbable that an error crops up in the process of calculation, but in such a case, immediate steps ought to have been taken to rectify the same. Repeated errors on the part of the authority are not desirable. 32. The employer cannot be permitted to withdraw a particular scale allowed in favour of an employee and enjoyed by him for years together. Repeated errors on the part of the authority are not desirable. 32. The employer cannot be permitted to withdraw a particular scale allowed in favour of an employee and enjoyed by him for years together. The employer cannot, all on a sudden, wake up from its slumber and cry hoarse that the scale granted to the employee was improper. Had it been a case that the incorrect scale was allowed because of some misrepresentation on the part of the employee, then things would have been different. The employer knows best the pay scale which is to be granted in favour of an employee. If the employer fails to maintain proper accounts, then it is the problem of the employer and the employee ought not to suffer for the same. 33. There are several instances when permissions are granted to rectify the mistake in calculation. After all, none has a right to receive pay at an enhanced scale which he is not entitled to. The diligence of the employer in detecting the error and taking steps to amend the same is required to be looked into. Here, the error was detected in the year 2008 and as per the direction of the employer the employee refunded the excess payment received by him by withdrawing lump sum of money from his GPF account. After a few years again he was intimated about the wrong pay fixation. Repeated mistakes by the employer who falls under the category ‘State’ under Article 12 of the Constitution of India can neither be expected nor accepted. 34. The Hon’ble Supreme Court in the matter of State of Punjab & Ors. vs Rafiq Masih (White Washer) & Others, (2015) 4 SCC 334 held that recovery of overdrawal is impermissible in law when excess payment was made for a period in excess of five years before the order of recovery is issued and when Court arrives at the conclusion that the recovery 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. 35. 35. In the case at hand, the employee enjoyed the pay for more than five years before the order of recovery was issued and this Court is of the opinion that permitting the employer to revisit the issue of pay fixation, long after the employee retired from service, would be iniquitous and it may be harsh to direct the employee to refund any amount or to receive pay at a reduced rate. The employee, by this time, must have been used to a particular style of living on the basis of the pay that he withdrew for so many years. Directing him to adopt a different life style with a reduced scale of pay at his advanced age, would infringe his right to life and living with dignity. 36. Had the authority been genuinely aggrieved with the order of the Tribunal, then immediate steps ought to have been taken to challenge the same. In such a circumstance the question of complying with the direction passed by the Tribunal could not have arisen at all. 37. The Tribunal, on consideration of the prayer of the petitioners seeking extension of time, already extended the time for complying its order. The petitioners would be bound to comply with the same within the extended time period. This Court is not satisfied with the intention of the petitioners to proceed with the writ petition. The writ petition does not appear to be a bona fide one. In the facts and circumstances of the instant case the Court is not inclined to interfere with the order passed by the Tribunal. 38. The writ petition fails and is hereby dismissed. 39. No order as to costs. 40. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities. I agree - Uday Kumar, J.