Petitioner driver sought writ to quash order rejecting his 2010 refund representation regarding salary deductions for income shortfall. Court held delay of 10 years precluded fresh cause of action. Representation based on 2006 letter did not support refund claim. Petition dismissed.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2762 of 2011
Ramakant Singh son of Late Buddhu Singh, resident of Quarter No. D/3, Transport Colony, SiramToli, P.O. and P.S.- Chutia, DistrictRanchi
Currently working as Driver of Bihar State Road Transport Corporation, Ranchi Depot, Ranchi Division, P.O. and P.S. Ranchi, District- Ranchi-Jhakhand … … Petitioner
Versus
1.Bihar State Road Transport Corporation, Parivahan Bhavan, Patel Marg, P.O. and P.S. Patna, Bihar.
3.Transport Commissioner, Bihar State Road Transport Corporation, Jharkhand Region, Ranchi, P.O. and P.S. Ranchi, District- Ranchi.
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Petitioner : Mr. Arshad Hussain, Advocate For the Resp.- State : Mr. Manish Mishra, Advocate For the Resp. Nos. 1 & 2 : Mr. Pankaj Kumar, Advocate
Through Video Conferencing
of the petitioner.
2. Heard Mr. Manish Mishra, learned counsel appearing on behalf of the respondent- State.
3. Heard Mr. Pankaj Kumar, learned counsel appearing on behalf of the respondent nos. 1 & 2.
4. The present petition has been filed for the following reliefs: “For issuance of an appropriate writ(s)/order(s)/direction(s) in the nature of certiorari for quashing the order dated 29.12.2010 (Annexure-6) passed by the Respondent No. 5, whereby and whereunder the Respondent has rejected the petitioner’s representation dated 19.5.2010 (Annexure-5 series) in which the petitioner has prayed to stop the recovery of the difference of deficit of minimum fixed target income fixed by the Respondents in Deluxe
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schedule Bus No. BR-11H-2227 from the salary of the petitioner in the absence of any undertaking furnished by the petitioner and in view of the order dated 7.1.2004 passed by Hon’ble Patna High Court in C.W.J.C. No. 1080 of 2003 and also in view of the circular memo No. 1283/Patna, dated 4.4.2006 issued by the Headquarter.
AND
For further direction to the Respondent to pay back the amount which has been recovered so far in-contravention of the law, with penal interest, cost and compensation.”
Arguments of the Petitioner
5. Learned counsel for the petitioner submits that the petitioner is a driver in Ranchi Depott. under respondent-Corporation and was allotted Delux Bus BR 11 (H) 2227 for plying between Ranchi and Patna. He submits that a number of such appointed drivers /conductors had given written undertaking to the department ensuring fixed income through bus service and agreed that shortfall in the amount could be recovered from their monthly salary. He further submits that vide Memo dated 19.09.1996, the Chief of the operation directed the depot Superintendent to make recovery of the difference of deficit of fixed target income from the drivers or conductors who had given written undertaking, but the recovery was made from the petitioner also, although the petitioner had never given any such undertaking and accordingly, no deduction could have been made from his salary.
6. The learned counsel has referred to Annexure-1 to the writ petition to submit that upon detailed scrutiny of the files, it was clear that the petitioner had not submitted any such undertaking, but in the allotment letter, it was clearly mentioned that the allottee driver has to give minimum fixed amount and a copy of such order was also displayed on the notice Board.
7. The learned counsel has also submitted that even if such condition was a part of his letter of allotment, the same being unilateral and unconscionable term of contract is against public policy and therefore, in view of the judgement passed by the Hon’ble Supreme Court reported in (1986) 3 SCC 156 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath
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Ganguly and Another), the same is neither binding on the petitioner nor it can be enforced against the petitioner.
8. The learned counsel for the petitioner referred to Annexure- 4 to the writ petition to submit that pursuant to certain orders passed in other writ petitions, a communication dated 04.04.2006 was issued to ensure that prior to deduction of amount from salary, natural justice is required to be complied with. The learned counsel referred to Para 20 of the writ petition to submit that the recovery made against the petitioner is arbitrary and violative of the principles of natural justice as no opportunity of hearing has been given to the petitioner.
9. The learned counsel also submits that the petitioner had filed a writ petition before this Court being C.W.J.C. No. 2990 of 1997(R) challenging the recovery being made from the salary of the petitioner. He submits that although the petitioner had withdrawn the writ petition vide order dated 24.03.1999, but a liberty was granted to the petitioner to file application before the Managing Director, BSRTC for stay of recovery of the amount from the petitioner. The learned counsel submits that thereafter a representation was made before the respondent no. 5 vide Annexure- 5 which is dated 19.05.2010 raising his grievance against recovery, which has been rejected vide order dated 29.12.2010 which is impugned in the present case. He submits that the impugned order is non-speaking. He also submits that the petitioner has already retired.
Arguments of the State
10. The learned counsel appearing on behalf of the State, on the other hand, has opposed the prayer and has submitted that the recovery from the salary of the petitioner has been made right from 1996 to April, 1999 and the same has also been remitted to the Bihar State Road Transport Corporation and there has been no deduction from the salary of the petitioner from November, 2000 onwards.
11. The learned counsel for the State has also submitted that the petitioner earlier filed writ petition being C.W.J.C. No. 2990 of 1997(R), and had withdrawn the same vide order dated 24.03.1999 and was granted liberty to file an application before the Managing Director, BSRTC for stay of recovery of the amount, but thereafter, he approached the authority in the year 2010 for refund of the deducted
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amount and there has been no explanation for such gap of 10 years. He submits that otherwise also the case of the petitioner suffers from delay and laches.
12. The learned counsel for the State has relied upon Judgement passed by Hon’ble Supreme Court reported in (2012) 3 SCC 727 (Bangalore City Corporation Housing Society Limited Vs. State of Karnataka and Others) (para 45 and 47) to submit that the present case of the petitioner suffers from delay and laches and the recovery having been made till the month of April, 1999, the petitioner withdrew the writ petition filed in the year 1997 and again filed the writ petition in the year 2011. He submits that filing of representation in the year 2010 and its rejection vide impugned order does not give him fresh cause of action.
Findings of this Court
13. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the petitioner had filed a writ petition earlier being C.W.J.C. No. 2990 of 1997(R) which was withdrawn by the petitioner vide order dated 24.03.1999 and liberty was given to the petitioner to file application before the Managing Director of BSRTC for stay of recovery of the amount from the petitioner. It further appears that pursuant to such order, the last deduction was made only in the month of April, 1999 and thereafter, no further deduction was made. It further appears that the petitioner had filed a representation before the respondent no. 5 vide Annexure- 5 of the present writ petition.
14. This Court finds that it is not in dispute that the petitioner was allotted a bus for plying between Ranchi and Patna with a condition that petitioner would provide fixed minimum income though the petitioner did not give any separate undertaking for such condition. However, during the period from 1996 onwards, deduction of differential amount was made from his salary. The petitioner has not brought the allotment order of the bus on record. However, being aggrieved by deduction from his salary he filed a writ petition being C.W.J.C. No. 2990 of 1997(R) which was ultimately withdrawn vide order dated 24.03.1999 with a liberty to the petitioner to file a representation before the Managing Director of BSRTC for stay of
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recovery of amount from the salary of the petitioner. The record of the case shows that after April, 1999 no deduction was made from the salary of the petitioner. In the said writ petition, no order was passed for refund of the amount already deducted as it was withdrawn and no such liberty was granted to the petitioner to claim refund. In the meantime, certain orders were passed by this Court pursuant to which a letter dated 04.04.2006 (Annexure-4) was issued by the respondents directing that no deduction be made without complying the principles of natural justice. Taking advantage of letter dated 04.04.2006 (Annexure-4) the petitioner filed a representation dated 19.05.2010 and claimed refund which has been rejected by the impugned order which is non-speaking. However, from the perusal of the representation which has been filed by the petitioner, it appears that the representation is based on letter dated 04.04.2006 which only indicated that natural justice is required to be complied with before making any deduction from the salary. The said letter dated 04.04.2006 does not contemplate that no deduction at all can be made pursuant to such conditional letter of appointment which imposed a condition upon bus drivers/conductors to ensure a fixed return.
15. This Court finds that the petitioner had taken his chance by filing a writ petition earlier being C.W.J.C. No. 2990 of 1997(R) raising his grievance with respect to the deduction and subsequently withdrew the same on 24.03.1999. This Court is of the view that after a gap of 10 years from the date of withdrawal of the writ petition, filing of the representation dated 19.05.2010 on the basis of the letter dated 04.04.2006 cannot give a fresh cause of action to the petitioner. 16. This Court also finds that argument has been advanced on behalf of the petitioner by referring to the judgement passed in case reported in (1986) 3 SCC 156 (Supra), but in the present case neither any clause of appointment of the petitioner is under challenge, nor such clause has been brought on record by filing the letter of appointment of the petitioner and the only grievance of the petitioner is for quashing of order dated 29.12.2010 whereby the petitioner’s representation has been rejected.
17. This Court is of the considered view that considering the letter dated 04.04.2006 which is Annexure- 4 to the present petition, the
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same does not contemplate refund of the amount already deducted. It only contemplates that, principles of natural justice are required to be followed prior to making deduction.
18. In view of the aforesaid facts and circumstances, the impugned order dated 29.12.2010 does not require interference in writ jurisdiction. This Court is not inclined to grant any relief to the petitioner in exercise of power under Article 226 of the Constitution of India and accordingly, the present writ petition is hereby dismissed.
(Anubha Rawat Choudhary, J.)
Pankaj
3 issues framed by the court
Whether the petitioner can claim refund of deducted salary amounts after a delay of 10 years.
Whether the representation filed in 2010 constitutes a fresh cause of action after the petitioner withdrew the earlier writ petition in 1999.
Whether the letter dated 04.04.2006 contemplates refund of amounts already deducted or only mandates compliance with natural justice prior to future deductions.
Colour shows how this judgement treated each authority
Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and AnotherReferred¶31
(1986) 3 SCC 156 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another) · Who else cites this
Bangalore City Corporation Housing Society Limited Vs. State of Karnataka and OthersRelied on¶41
(2012) 3 SCC 727 (Bangalore City Corporation Housing Society Limited Vs. State of Karnataka and Others) · Who else cites this
Ramakant Singh
Bihar State Road Transport Corporation
The Administrator, Bihar State Road Transport Corporation
Transport Commissioner, Bihar State Road Transport Corporation, Jharkhand Region
Government of Jharkhand
Transport Commissioner, Government of Jharkhand
ANUBHA RAWAT CHOUDHARY
As recorded by the court registry
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