Tripura High Court

Sri Pratul Ranjan Sarkar vs The State Of Tripura on 16 September, 2021

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                            WP(C) No.820/2018
Sri Pratul Ranjan Sarkar, S/o. Sri Swadesh Ch. Sarkar, Vill & P.O.
Indranagar, P.S. NCC, Dist. West Tripura, Pin - 799 006. The General
Secretary, Tripura Judicial Employees' Association, District Court Premises,
Agartala.
                                                    .............. Petitioner(s).

                                  - Vs. -
1. The State of Tripura,
   represented by the Chief Secretary to the Government of Tripura, having
   his office at New Secretariat, P.O. New Capital Complex, Agartala,
   District- West Tripura.

2. The Principal Secretary to the Government of Tripura,
   Finance Department, New Secretariat, P.O. New Capital Complex,
   Agartala, West Tripura.

3. The District & Sessions Judge, West Tripura District, Agartala.

4. The District &Sessions Judge, North Tripura District, Dharmanagar.

5. The District &Sessions Judge. Unakoti Tripura District, Kailashahar
   Tripura.
6. The District &Sessions Judge Gomati District, Udaipur Tripura.
7. The District &Sessions Judge South Tripura District, Belonia.
                                                  .............. Respondent(s).

                            _B_E_ F_O_R_E_
     HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
        For Petitioner(s)            : Mrs. S Deb(Gupta), Advocate,
                                       Ms. S Nandy, Advocate.
        For Respondent(s)            : Mr. D Sharma, Addl. Govt. Adv.
        Date of hearing & judgment : 16th September 2021.
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        Whether fit for reporting      : Yes.


                       JUDGMENT(ORAL)

Petitioner, though an individual, has raised issues of larger

ramifications.

[2] Brief facts are as under :

Petitioner is an employee of District Court and I am informed, he is

working as Personal Assistant - II to Additional Chief Judicial Magistrate,

West Tripura, Agartala which his counsel states is a Group-C post. One

Tarun Kumar Sinha filed WP(C) No.617/2015 and raised issues of pay

parity of the District Court's ministerial staff with that of the Government

servants. One of the questions considered by the Court in the judgment dated

31st August 2016 while disposing of the writ petition was "whether the

employees of the subordinate judiciary of Tripura is entitled to the arrear

benefits, meaning the difference of pay and allowances, if the employees of

the subordinate judiciary is considered to be entitled to the revised pay

structure in terms of the 6th Central Pay Commission recommendations

w.e.f. 01.01.2006?" Answer to this question framed by the Court in the said

judgment was "Yes, the employees of the subordinate judiciary are entitled

to the arrear in terms of the 6th Central Pay Commission recommendations Page - 3 of 12

benefits such as the difference of pay and allowances in terms of the

direction as above."

[3] In I.A. No.216/2017 in WP(C) No.617/2015 filed by the State

Government, the learned Judge in a detailed order dated 11 th April 2017

observed as under :

"[8] It has been clearly observed there that implementation of the 6th Central Pay Commission recommendation will hold good even for implementation of any future pay commission recommendation. There is no difficulty in understanding the meaning and purport of such direction. The respondents in the writ petition [the petitioners in this petition for clarification] are put under obligation to implement the 6th Central Pay Commission recommendation, which are not restricted to the pay scales only. It was observed in the judgment dated 31.08.2016 as under:

„The other benefits shall also be released in terms of the 6th Central Pay Commission recommendation.‟ [Emphasis added]

When the „other benefits‟ are delinked from the pay scales, those shall invariably mean and imply the allowances those are extended to the Central Government employees and hence the employees of the subordinate judiciary shall get all such allowances, emanating from 6th Central Pay Commission recommendation as the „other benefits‟ in terms of the said judgment.

[9] This court is of the considered view that this petition filed by the respondents in the writ petition is superfluous and should not evoke any response from this court. The learned Advocate General has quite candidly submitted that the „other benefits‟ can have a Page - 4 of 12

meaning in the context but since there is some „confusion‟ they filed this petition seeking clarification so that they can implement the said judgment dated 31.08.2016 within time. If the respondents in the writ petition are so desirous of external aid, they would be at liberty to utilise the observations made hereunder."

[4] Pursuant to such orders of the High Court, the State Government

issued a notification dated 2nd December 2017 which reads as under :

"Subject :- Implementation of order dated 11.04.2017 of the Hon‟ble High Court of Tripura delivered in I.A. No.216 of 2017 arising out of Writ Petition(Civil) No.617 of 2015 and order dated 31.08.2016 in WP(C) No.617/2015.

In view of the direction of the Hon‟ble High Court of Tripura in its order dated 11.04.2017 delivered in I.A No.216 of 2017 arising out of Writ Petition(C) No.617 of 2015 and order dated 31.08.2016 in WP(C) No.617 of 2015 and in partial modification of the Notification of even number dated 10.09.2015, the Governor is pleased to order that the employees of the subordinate judiciary shall be entitled to the benefits of allowances in terms of judgment and order dated 31.08.2016 delivered in WP(C) No.617 of 2015 besides those mentioned in the Notification dated 10.09.2015 subject to outcome of the Special leave Petition.

2. Further as per direction of the Hon‟ble High Court of Tripura in its order dated 04.09.2017 in Contempt Case vide No.Cont. Cas(C) No.31/2017, if any decision is taken in the superior form contrary to what has been delivered in judgment and order dated 31.08.2016 in WP(C) No.617 of 2015, the employees who would be receiving such benefits in term of judgment and order dated 31.08.2016 delivered in Page - 5 of 12

WP(C) No.617 of 2015, shall remain obligated to refund the entire amount to the State Government."

[5] It is undisputed that the ministerial staff of the District Courts

started receiving certain additional benefits at par with the State Government

employees. One such order granting the benefits passed by the District and

Sessions Judge, West Tripura dated 2nd January 2018 would show that such

benefits were being paid subject to the outcome of Special Leave

Petition(SLP). We may recall, in the notification dated 2nd December 2017

also, the Government had agreed to pay such benefits subject to outcome of

the SLP. In this order dated 2nd January 2018, the employees were granted

two allowances namely, Special Compensatory(Remote Locality)

Allowances and Special Compensatory (Hill Area) Allowances both w.e.f

29th August 2008. All the eligible employees received such benefits and the

arrears thereof also.

[6] The administration, however, soon realised that it was an error to

pay both the allowances to the employees since an employee would be

entitled to receive only one of the two and not both. The district

administration, therefore, initiated recoveries of the overpayments. One such

recovery order passed by District and Sessions Judge, Gomati on 15th June

2018 reads as under :

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"In continuation of this office order vide No.F.10(31)(10)- DJ/G/2018/3501-25, dated 25th May of 2018 in regard to extending the benefits of 6th Central Pay Commission and as per decision taken in the Video Conference held on 30/05/2018 with the District & Sessions Judges of Tripura, the employees of this judgship are entitled to only one Allowance i.e. either Special Compensatory (Remote Locality) Allowance or Special Compensatory (Hill Areas) Allowance on exercising option by them. Arrear(s) admissible/ recoverable, if any, shall be prepared/recovered after taking their option in this regard.

All the DDOs under the Judgeship of Gomati Judicial District are hereby directed to act accordingly."

[7] Pursuant to these developments the petitioner also was liable to

refund excess payment received by way of both allowances instead of only

one which he was entitled to. He, therefore, filed this petition and sought

protection against such recoveries. Learned counsel for the petitioner

submitted that all the persons who have received such double benefits are

Group - C and D employees. She referred to the decision of Supreme Court

in case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and

Ors. reported in (2015) 4 SCC 334 in which it was observed that under

certain circumstances of extreme hardship recovery of overpayment of

Government servant should not be permitted, one of them being, when the

recoveries from Group - C and D staff is to be made. My attention was

drawn to an office memorandum dated 2nd March 2016 by the Government Page - 7 of 12

of India, Ministry of Personnel, Public Grievances & Pensions, in which in

tune with the decision of Supreme Court in case of Rafiq Masih(supra) it is

clarified that such recoveries from employees belong to Group - C and

Group - D services should not be affected.

[8] On the other hand, the State Government has opposed the petition

contending that overpayments were made. The mistake was detected within

short time and recovery should, therefore, be permitted.

[9] Facts are not seriously in dispute. The petitioner and several other

colleagues who are the employees of the District Courts, have been

wrongfully paid both the allowances namely, Special Compensatory

(Remote Locality) Allowances and Special Compensatory (Hill Areas)

Allowances instead of their entitlement of only one of the two. Counsel for

the petitioner admitted that these double payments are now stopped and with

respect to which the petitioner has no legal dispute. However, according to

her, allowing recovery would amount to great difficulties.

[10] The principles for allowing recovery of overpayments are well laid

down through series of judgments of the Supreme Court. The earlier view

that such recoveries should not be permitted unless over payment can be

attributed to fraud or misrepresentation on part of the employee, has Page - 8 of 12

undergone major changes. In case of Col. B. J. Akkara(Retd.) Vs.

Government of India and ors. reported in (2006) 11 SCC 709 it was

observed as under :

"28. Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."

[11] In case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors.

reported in (2009) 3 SCC 475 it was observed as under :

"59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the Page - 9 of 12

result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made."

[12] Both these decisions in cases of Col. B. J. Akkara and Syed Abdul

Qadir (supra) were noted by the Supreme Court in case of Chandi Prasad

Uniyal and Ors. Vs. Stae of Uttarakhand and Ors. reported in (2012) 8

SCC 417 and it was observed as under :

"14. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount Page - 10 of 12

paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."

[13] The entire case law was reviewed by the Supreme Court in later

decision in case of Rafiq Masih(supra) in which the Court made following

observations :

"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 Page - 11 of 12

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." (emphasis supplied by me)

[14] As noted, in tune with the said decision of Supreme Court in case

of Rafiq Masih(supra), the Union of India has also issued a circular

specifying that recoveries from employees of Group - C and D posts should

not be affected. It is not the case of the respondents that there was any

misrepresentation or fraud committed by the petitioner or other similarly

situated employees which led to the overpayments. In view of such

circumstances and in view of the decision of Supreme Court in case of Rafiq

Masih(supra) and considering that the petitioner belongs to Group-C post,

the recovery would have to be quashed. Since there would be large number

of similarly situated Group-C and D staff members of the district, this

direction shall apply to all of them. In the other words, it will not be

necessary for them to file individual petitions for the same purpose.