Dismissed

The Jharkhand State Electricity Board Now Jharkhand Urja Vikas Nigam Ltd. Thr Arun Kumar Srivastava v. Rukaiya Khatoon

Jharkhand HC11 Jun 2024LPA/256/2022

Case brief

AI extract

What is this about?

Board appealed against quashing of recovery of excess pension payment from a widow's family pension; delay condoned citing Covid-19 limitation waiver; appeal dismissed holding recovery from family pension harsh and impermissible under Rafiq Masih condition (v).

What did the court decide?

Delay in filing the appeal condoned; appeal dismissed and Single Judge's order quashing recovery from family pension affirmed.

The Jharkhand State Electricity Board Now… — Pension and Retirement Benefits | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 256 of 2022

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The Jharkhand State Electricity Board, Ranchi

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The Secretary, Jharkhand State Electricity Board, now Jharkhand Urja Vikas Nigam Ltd., Ranchi

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The Joint Secretary-II, Jharkhand State Electricity Board, now Jharkhand Urja Vikas Nigam Ltd., Ranchi

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The Director, Jharkhand State Electricity Board, now Jharkhand Urja Vikas Nigam Ltd., Ranchi

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Deputy Director, Jharkhand State Electricity Board, now Jharkhand Urja Vikas Nigam Ltd., Ranchi

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... ... ... Respondents/Appellants

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Versus

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Rukaiya Khatoon, W/o. Late Wahihuddin, R/o- Nadraganj, Teli Tola, P.O. & P.S., District Gaya, State - Bihar

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… ... Petitioner/Respondent --------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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--------For the Appellants: Mr. Sachin Kumar, Advocate

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--------- 06/Dated: 11^th June, 2024

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Per Sujit Narayan Prasad, J.

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I.A. No. 5142 of 2022

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1) This Interlocutory Application has been filed for condoning the delay of 444 days which has occurred in filing the instant appeal.

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2) It has been contended on behalf of the appellants by giving explanation in the delay condonation application that the order impugned has been passed during the period when pandemic Covid19 was prevalent. It has been contended by referring to the judgment passed by the Hon’ble Apex Court in Miscellaneous Application No.21 of 2022 in Suo Motu Writ Petition (C) No.03 of 2020, whereby and whereunder the period of limitation during pandemic Covid-19 period has been waived and by taking into consideration the aforesaid

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judgment, the appeal is said to be filed after delay of about 16 days only. The learned counsel for the appellants in view of the aforesaid explanation has submitted that the delay in filing the instant appeal may be condoned.

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3) This Court is conscious with the issue that the delay irrespective of the period is to be condoned depending upon the sufficient cause if shown by the litigant concerned.

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4) The “sufficient cause” has been defined by the Hon’ble Apex Court in the case of in Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013) 14 SCC 81 , wherein, it has been held by the Hon’ble Apex Court that “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. For ready reference the relevant paragraph of the aforesaid judgment are being quoted as under:-

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“9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that

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the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .)

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10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.

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11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002)

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1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201]

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12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

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13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have

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been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537]and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448]

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14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 ] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225].

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15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”

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5) Thus, it is evident that the sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted deliberately” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover the ulterior purpose as has been held in Manindra Land and Building Corporation Ltd. Vrs. Bhutnath Banerjee & Ors., AIR 1964 SC 1336, Lala Matadin Vrs. A. Narayanan, (1969) 2 SCC 770, Parimal Vrs. Veena @ Bharti, (2011) 3 SCC 545 and Maniben Devraj Shah Vrs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 .

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6) It has further been held in the aforesaid judgments that the expression ‘sufficient cause’ should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in Ram Nath Sao @ Ram Nath

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Sahu & Ors. Vrs. Gobardhan Sao & Ors., (2002) 3 SCC 195 ,

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wherein, at paragraph-12, it has been held as hereunder:-

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“12. Thus, it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between

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resultant effect of the order it is going to pass upon the parties either way.”

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7) This Court considering the interpretation so made by the Hon’ble Apex Court in the case of Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer (supra) interpreting the “sufficient cause” is of the considered view that the explanation so furnished by the appellants to the effect that the impugned judgment was passed during the period when pandemic Covid-19 was prevalent is sufficient. In this regard, the Hon’ble Apex Court has passed order in Miscellaneous Application No.21 of 2022 in Suo Motu Writ Petition (C) No.03 of 2020, wherein the period of limitation during the period of pandemic Covid-19 has been waived.

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8) Considering the aforesaid fact, this Court is of the view that the reason which has been shown for the purpose of condoning the delay in filing the appeal is sufficient explanation and hence, the delay in filing the appeal is condoned.

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9) Accordingly, the delay condonation application is allowed.

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10) I.A. No.5142 of 2022 stands disposed of.

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L.P.A. No. 256 of 2022

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Prayer

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11) This intra-court appeal filed under Clause 10 of the Letters Patent is directed against the judgment/order dated 30.06.2020 passed by the learned Single Judge in W.P. (S) No. 7344 of 2012, whereby and whereunder the decision taken in letter No.1644 dated 06.11.2012 issued by respondent No.5 i.e. the Deputy Director (Accounts), Jharkhand State Electricity Board, Ranchi, by which an amount of Rs.2,69,567/- has been sought to be recovered from the

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family pension of the writ petitioner along with interest, has been quashed and set aside.

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Brief Facts of the Case

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12) The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:

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Writ petitioner is the widow of late Md. Wahihuddin who was an employee of the appellants-Board and had subscribed to Family Pension Scheme as per which the deductions were made towards the employee’s contribution for the pension fund.

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The pension was fixed, in terms of which Rs.5259/- with other admissible allowances was payable to the petitioner from 06.03.2004 to 15.01.2009 and thereafter, Rs.3171/- with other admissible allowances with effect from 16.10.2009 till the date of remarriage.

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The writ petitioner in pursuant to the aforesaid decision had started receiving her family pension as per the PPO. While so, the writ petitioner received a letter bearing No.1644 dated 06.11.2012 whereby an amount of Rs.2,69,567/- has been directed to be deposited by way of demand draft in favour of DDA (Sect.) by 15.11.2012, alternatively, the amount shall be recovered from the PRC arrears and monthly family pension with interest on the ground that excess payment to the tune of Rs.2,69,567/- has been made to the writ petitioner.

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13) It is evident from the factual aspects of the case that the writ petitioner is the widow of late Md. Wahihuddin who was an employee of the appellants-Board and had subscribed to Family Pension Scheme as per which the deductions were made towards the employee’s contribution for the pension fund. The pension was fixed,

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in terms of which Rs.5259/- with other admissible allowances was payable to the petitioner from 06.03.2004 to 15.01.2009 and thereafter, Rs.3171/- with other admissible allowances with effect from 16.10.2009 till the date of remarriage.

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14) The writ petitioner in pursuant to the aforesaid decision had started receiving her family pension as per the PPO. While so, the writ petitioner received a letter bearing No.1644 dated 06.11.2012 whereby an amount of Rs.2,69,567/- has been directed to be deposited by way of demand draft in favour of DDA (Sect.) by 15.11.2012, alternatively, the amount shall be recovered from the PRC arrears and monthly family pension with interest on the ground that excess payment to the tune of Rs.2,69,567/- has been made to the writ petitioner.

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15) The writ petitioner being aggrieved by the said decision has approached this Hon’ble Court by filing W.P. (S) No. 7344 of 2012. The learned Single Judge after taking into consideration the ratio laid down by the Hon’ble Apex Court in the case of State of Punjab vs. Rafiq Masih (whitewasher) & others, (2015) 4 SCC 334 , has quashed the decision so taken by the respondents-authorities of making recovery of an amount of Rs.2,69,567/-, against which the present appeal.

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Argument on behalf of the learned counsel for the appellant

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16) Mr. Sachin Kumar, learned Counsel appearing for the appellants, has submitted that it is a case where the decision was taken for recovery of the said amount from the family pension of the writ petitioner since the same has been paid exceeding to the entitlement of the writ petitioner and as such, the judgment rendered

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by the Hon’ble Apex Court in the case of Rafiq Masih (Supra) will not be applicable.

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17) It has further been contended that the judgment rendered in the case of Rafiq Masih (Supra) is not applicable in view of the fact that the condition Nos.(i) to (iv) are not applicable since it is a case where the order of recovery has been passed from the family pension of the writ petitioner.

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18) The argument, therefore, has been made that the learned Single Judge has not taken into consideration the aforesaid aspects before interfering with the impugned decision by putting reliance upon the judgment passed by the Hon’ble Apex Court in the case of Rafiq Masih (Supra). Hence, the judgment passed by the learned Single Judge is not sustainable in the eyes of law.

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Analysis

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19) We have heard the learned counsel appearing for the appellants and have gone through the pleadings made in the writ petition along with the relevant documents.

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20) The sole argument which has been advanced on behalf of the appellants is that the interference which has been shown by the learned Single Judge in the impugned order of making recovery of Rs.2,69,567/- from the family pension of the writ petitioner is based upon the judgment rendered by the Hon’ble Apex Court in the case of Rafiq Masih (Supra) which is not applicable in the facts and circumstances of the present case.

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21) This Court in order to appreciate the aforesaid argument is of the view that paragraph 18 of the judgment rendered by the Hon’ble Apex Court in the case of State of Punjab vs. Rafiq Masih

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(whitewasher) & others , (supra) needs to be referred which is as

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under:-

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“ 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(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. ”

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22) It is evident from the aforesaid judgment that altogether five conditions have been stipulated by the Hon’ble Apex Court by delving upon the judgments rendered in the Sahib Ram Vs. State of Haryana, 1995 Supp (1) SCC 18 , and Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417 .

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23) Condition Nos.(i) to (iv) stipulate about the conditions of making no recovery, i.e., (i) recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service), (ii)

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recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery, (ii) 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, (iii) 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, and (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.”

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24) Condition No.(v) speaks about by conferring power upon the court of law to adjudge the harshness of the iniquitous of the recovery if made by the employer. Condition No.(v) is, therefore, in addition to the condition Nos.(i) to (iv).

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25) The argument which has been advanced by the learned counsel for the appellants is that the case of the writ petitioner is not coming under the fold of condition Nos.(i) to (iv). Even though it is not attracting in the facts and circumstances of the case, but the Court is required to consider as to whether the order of recovery, which has been made by putting reliance upon the judgment rendered by the Hon’ble Apex Court in the case of Rafiq Masih (supra) as per the conditions stipulated in paragraph 18 (v), is applicable or not in the instant case.

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26) Admittedly, the order of recovery has been decided to be made from the family pension of the widow of the deceased-employee.

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Making recovery from the family pension, according to our considered view, will be harsh due to the reason that widow of the deceasedemployee is only getting a meager amount from the family pension and as such, if the order of recovery is being made from the family pension, the harshness cannot be spoken in the words.

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27) Further, it is not the case of the appellants that any amount has been paid by way of family pension by any misrepresentation or fraud. This Court is, therefore, of the view that ground No.(v) is well applicable in the instant case.

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28) This Court, after having discussed the aforesaid facts and coming across to the order passed by the learned Single Judge, is of the view that even though the learned Single Judge in paragraph 8 has made reference of the judgment rendered by the Hon’ble Apex Court in the case of Rafiq Masih (supra), there cannot be any recovery from pension of an employee belonging to Class-III and Class-IV. Even if it is not case of pension, rather family pension, then also, the hardship will be more in terms of money if the order of recovery is being made from the family pension, reason being that pension is always half of the full salary as last drawn as per the pension rules and the family pension is half of the pension as was being paid to the pensioner.

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29) Further, the condition No.(v) will also be equally applicable in view of that recovery from the family pension will put the concerned family pensioner in great hardship.

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30) This Court on the basis of the discussions made above is of the view that if the learned Single Judge has taken into consideration by interfering with the impugned decision by relying upon the judgment

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rendered by the Hon’ble Apex Court in the case of Rafiq Masih (supra), the same cannot be interfered with in the facts and circumstances of the present case by taking a different view.

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