Sri Kajal Ch. Deb vs The State Of Tripura Represented ...
2021 Latest Caselaw 1114 Tri

                    HIGH COURT OF TRIPURA
                          AGARTALA
                             WA 258/2021
1.Sri Kajal Ch. Deb, son of Late Jatindra Ch. Deb, resident of village and
PO- West Champamura, PS- Bodhjungnagar, Sub-Division- Sadar,
District- West Tripura.
2.Sri Bikash Ch Dey, son of Late Birendra Ch. Dey, resident of village-
Kacharghat, Ward No.2, PO and PS- Kailashahar, District- Unakoti
Tripura.

3.Sri Suresh Chandra Debnath, son of Late Harkumar Debnath, resident
of village- jatanbari, PO- Gomati Project, Jatanbari, District- Gomati
Tripura.
4.Sri Santosh Kr. Majumder, son of Late Mahendra Kr Majumder,
resident of village- Bijoyna, PS- Bodhjungnagar, Sub-Division- Sadar,
District- West Tripura.

                                                      ------Appellant(s)
                                Versus

1.The State of Tripura represented by the Secretary, Department of PWD
(R and B), Government of Tripura, New Secretariat Complex, PO-
Kunjaban, PS- New Capital Complex, District- West Tripura, Pin-
799010.
2.The Chief Engineer, PWD (R and B), Government of Tripura,
Agartala, District- West Tripura.
3.The Secretary, Department of Finance, Government of Tripura, New
Secretariat Complex, PO- Kunjaban, PS- New Capital Complex,
District- West Tripura, Pin- 799010.

                                                        -----Respondent(s)

BEFORE

HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY

HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For Appellant(s) : Mr. S. Bhattacharjee, Adv. For Respondent(s) : Mr. D.Bhattachajree, GA.

Judgment & Order (Oral) Date: 16.11.2021 [1] This Writ Appeal is directed against the judgment and order

dated 08.03.2021 delivered by the learned Single Judge in WP(C)

No.1265 of 2019.

[2] Factual background of the case may be reproduced from the

impugned judgment which is as under:

"By means of this writ petition, the petitioners have urged

this court to direct the respondents to quash the office order dated

06.08.2019 [Annexure-7 to the writ petition] whereby the benefit of

higher scale of pay of Rs.3050-5910/- as granted in favour of the

petitioners has been cancelled and their pay scale has been reduced to

Rs.2900-5660/-. Further, it has been urged that the consequential order

dated 14.12.2018 as issued by the Executive Engineer be quashed. It has

been urged that the respondents be directed to refund the amount that has

been recovered from the petitioners as consequence of the said order

dated 06.08.2019. Finally, the petitioners have urged that the decision as

communicated by the letter dated 07.08.2009 [Annexure-7A to the writ

petition] be quashed by this court.

[3] By the communication dated 07.08.2009, the petitioners

who are serving in the post of Senior Helper were given the scale of pay

of Rs.850-2130/- (the highest scale, in the graded scale No.12) which got

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revised to the pay scale of Rs.2750-4925/-. Thereafter, the petitioners got

one scale advancement to the scale of pay of Rs.2900-5660/- for their

completion of seven years of service in the same grade pay scale before

01.01.1999. The petitioners have canvassed that the scale upgradation

cannot be treated as the last scale advancement for their consumption of

3(three) scale upgradation in terms of the Tripura State Civil Services

(Revised Pay) Rules, 1999."

[4] Relying on the judgment dated 26.02.2021 rendered by this

Court in WP(C)1266 of 2019, [Sri Kanai Saha and Ors vs. State of

Tripura and Ors.], the learned Single Judge held that the petitioners

could not make out any difference between the 02 cases and therefore,

applying the analogy of the case of Kanai Saha, the learned Single

Judge by the impugned judgment dismissed the Writ Petition observing

as under:

[11] Mr. K. Nath, learned counsel has in his fairness produced before this court a judgment of the coordinate Bench of this court in the similar circumstances. In the judgment dated 26.02.2021 delivered in W.P.(C) No.1266 of 2019 titled as Sri Kanai Saha and Ors. vs. The State of Tripura and Ors., it had been observed as follows:

"7.The movement of the petitioners from a pre-revised scale of Rs.370-650/- to 400-775/- at the time of implementation of ROP 1988 upon re-designation of their post from Khalasi to Sr. Helper, was thus clearly an availment of scale advancement. If, including such upward movement the petitioners had already availed 3 scale advancements by the time ROP 1999 were

WA258 of 2021

promulgated, they did not have a right for further CAS benefit under ROP [Rules] 1999."

The said writ petition had been dismissed on the said analogy.

[12] Mr. Nath, learned counsel has failed to make out any difference for the case in hand to advance a new analogy to claim the reliefs as urged in this petition. The analogy based on which the said writ petition was dismissed is sound and as such it can be applied to the facts of the present writ petition.

In the result, this writ petition stands dismissed as the petitioners were not entitled to further movement and the upgradation /movement as allowed to the petitioners is an act of bona fide mistake."

[5] The judgment passed in the case of Kanai Saha (supra) was

challenged by the petitioners in Writ Appeal No.256 of 2021 which has

been decided by this court by a separate judgment delivered today which

reads as under:

" [10] We have perused the entire record and considered the submissions made at the bar. We agree with the findings of the learned Single Judge that upon re-designation of the post from Khalasi to senior helper, the appellants moved to a higher scale of pay which clearly amounted to their availing of a scale advancement. Therefore, the learned Single Judge rightly held that if including such upward move, the appellants had already availed 03 scale advancements by the time ROP, 1999 were promulgated, they were not entitled to further ACP benefit under ROP, 1999.

[11] But insofar as the recovery of excess pay and allowances is concerned, we are of the view that such recovery would be improper and unfair. It will cause serious hardship to the appellants all of whom are stated to have retired from Group-D posts. In the case of STATE OF PUNJAB AND OTHERS VS.

RAFIQ MASIH(WHITE WASHER) AND OTHERS reported in (2015) 4 SCC 334, the Apex Court examined similar issue where the employees were beneficiaries of a mistake committed by their employer and on account of such unintentional mistake, the employees were in receipt of some monetary benefits beyond their

WA258 of 2021

due. After examining the earlier decisions rendered on the said issue, the following parameters were laid down by the Apex Court which would govern the issue of recovery where payments have mistakenly been made by the employer. Observation of the Apex Court in paragraph 18 of the judgment is 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."

[12] We have considered the instant case in the light of the said judgments of the Apex Court and in our considered view, the impugned order for recovery of excess pay and allowances mistakenly paid to the appellants would amount to a harsh and arbitrary action against the appellants who are stated to have retired from Group-D posts and therefore the impugned order of recovery is hereby quashed. Amount already recovered from the appellants under the said order, shall be refunded to them within a period of 03 months from today and further recovery, if any, shall be stopped. It is however, made clear that their pension and other retiral benefits shall be calculated on the basis of the pay they were actually entitled to at the time of their retirement. In other words,

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the pay mistakenly granted to them shall not be taken as the basis for determination of their pension and retiral benefits.

In terms of the above, the Writ Appeal is disposed of."

[6] The facts and law being similar in both the cases, the

present appeal is also similarly decided.

[7] For the same reasons as in WA 256 of 2021, the impugned

order of recovery is hereby quashed. Amount already recovered from the

appellants under the said order, shall be refunded to them within a period

of 03 months from today and further recovery, if any, shall be stopped. It

is however, made clear that their pension and other retiral benefits shall

be calculated on the basis of pay they were actually entitled to at the time

of their retirement. In other words, the pay mistakenly granted to them

shall not be taken as the basis for determination of their pension and

retiral benefits.

In terms of the above, the Writ Appeal is disposed of

(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ

Saikat Sarma

WA258 of 2021