Tripura High Court
Swapan Roy Choudhury vs The State Of Tripura on 7 March, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 1098 of 2022
Swapan Roy Choudhury,
son of late Sukhendra Roy Choudhury,
resident of Pyari Babur Bagan, Joynagar,
P.O. Agartala. P.S. West Agartala,
District- West Tripura, PIN- 799001.
............... Petitioner(s)
Versus
1. The State of Tripura,
represented by the Commissioner & Secretary to the
Department of Agriculture, Government of Tripura,
New Secretariat Complex, Gurkhabasti, Agartala,
P.O. Kunjaban, P.S. New Capital Complex,
Sub-Division- Sadar, District- West Tripura.
2. The Commissioner & Secretary,
Finance Department, Government of Tripura,
New Secretariat Complex, Gurkhabasti, Agartala,
P.O. Kunjaban, P.S. New Capital Complex,
Sub-Division- Sadar, District- West Tripura.
3. The Director,
Department of Agriculture, Government of Tripura,
Krishi Bhawan, Akhaura Road, P.O. Agartala,
P.S. West Agartala, Sub-Division- Sadar,
District- West Tripura.
4. The Accountant General (A & E),
Tripura, P.O. Kunjaban, P.S. New Capital Complex,
Sub-Division- Sadar, District- West Tripura.
5. The Senior Accounts Officer,
Office of the Accountant General (A&E), Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
Sub-Division- Sadar, District- West Tripura
............... Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.
Mr. Koomar Chakraborty, Advocate.
For Respondent(s) : Mr. B. Majumder, Dy. SGI
Mr. D. Sarma, Addl. G.A.
Date of hearing : 26.02.2024.
Date of pronouncement
of Judgment and order : 07.03.2024.
Whether fit for reporting: YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment and Order
Heard Mr. P. Roy Barman, learned senior counsel assisted
by Mr. Koomar Chakraborty, learned counsel appearing for the petitioner.
Also heard Mr. B. Majumder, learned Dy. SGI for the respondent Union of
India and Mr. D. Sarma, learned Addl. G.A. representing the State
respondents.
[2] The present writ petition has been filed under Article 226 of
the Constitution of India for issuance of writ of mandamus and/or in the
nature thereof, for mandating/directing the respondents to
revoke/rescind the impugned letter dated 23.08.2022 and further for
mandating/directing the respondents, not to recover any amount from
the pensionary benefits of the petitioner on account of alleged excess
payment.
[3] The case of the petitioner in brief is that on 05.10.1988, he
joined the post of Junior Engineer (Civil) Grade-II (Group-C), Department
of Agriculture. On completion of 4 years of service, the petitioner was
accorded with the benefit of gradation/auto movement to the post of
Junior Engineer (Civil) Grade-I (Group-B) with effect from 05.10.1992
and from 01.01.1999, the petitioner was accorded with the CAS-II
benefit. Thereafter, on completion of 25 years of service, the petitioner
was accorded with the benefit of ACP-III, with effect from 05.10.2013.
On attaining the age of superannuation, the petitioner was retired from
service on 28.02.2022 and subsequently, by a letter dated 23.08.2022,
recovery was proposed by the respondents from the pentionary benefits
of the petitioner contending that he was wrongly given the benefit of
CAS-II on 01.01.1999 instead of 05.08.2000. On 24.08.2022, PPO was
issued to the petitioner reducing his last pay from Rs.1,17,000/- to
Rs.1,10,300/-. Thereafter, on 15.11.2022, petitioner submitted a
representation with a prayer for not making any recovery, but the same
did not get any response.
[4] Aggrieved thereby, the petitioner has preferred the present
writ petition seeking following reliefs:
"(i) Issue Rule, calling upon the Respondents and each
one of them, to show cause as to why a Writ of
Mandamus and/or in the nature thereof, shall not be
issued, mandating/directing them to revoke/rescind the
impugned Letter dated 23.08.2022;
(ii) Issue Rule, calling upon the Respondents and each
one of them, to show cause as to why a Writ of
Mandamus and/or in the nature thereof, shall not be
issued, mandating/directing them, not to recover any
amount from the pensionary benefits of the Petitioner, on
account of alleged excess payment;
(iii) Issue Rule, calling upon the Respondents and each
one of them, to show cause as to why a Writ of
Mandamus and/or in the nature thereof, shall not be
issued, mandating/directing them, to release the
remaining Gratuity amount, Commuted value of pension
and other outstanding pensionary benefits, in favour of
the Petitioner;..........."
[5] Mr. P. Roy Barman, learned senior counsel assisted by Mr.
Koomar Chakraborty, learned counsel appearing on behalf of the
petitioner submits that it is not the fault of the petitioner that the benefit
of CAS-II was granted to him w.e.f. 01.01.1999 instead of 05.10.2000
and hence, he cannot be subjected to any manner of recovery at this
stage. It is submitted that whatever excess payment has been made by
the respondents, the petitioner could not be penalized on account
thereof. He further submits that if any excess payment is made to a
pensioner, it cannot be recovered from his pensionary benefits unless
there is any fraud or misrepresentation on his part. In support of his
submission, Mr. Roy Barman, learned senior counsel has placed reliance
on the following decisions of the Hon'ble Supreme Court:
I. State of Punjab and others vs. Rafiq Masih
(White Washer) and others reported in
(2015) 4 SCC 334
II. Civil Appeal No.7115 of 2010 (Thomas
Daniel vs. State of Kerala & others) reported
in AIR 2022 Supreme Court 2153
[6] On the other hand, Mr. D. Sarma, learned Addl. G.A.
opposes the submission made by the learned senior counsel appearing
for the petitioner. He contends that in the present case, the officer to
whom the payment was made in the first instance was clearly placed on
notice that any payment found to have been made in excess would be
required to be refunded. The officer furnished an undertaking while
opting for the revised pay scale. So, he is bound by the undertaking.
[7] Mr. Sarma, learned Add. G.A. further contends that every
government employee of the State has to submit option form for coming
to revised pay scale and give undertaking that he will refund to the
Government if any amount drawn by him in excess of what is admissible
to him on account of erroneous fixation of pay in the revised pay
structure as soon as the fact of such excess drawal brought to his notice.
In support of his contention, learned Addl. G.A. has placed reliance on
the judgment of Hon'ble Supreme Court in High Court of Punjab &
Haryana and others vs. Jagdev Singh reported in (2016) 14 SCC
267.
[8] Heard learned counsel for the respective parties. Perused
the record.
[9] To examine the case of the petitioner whether the excess
amount of pay would be recovered from him by the Government, the
relevant paragraphs of the judgments of Hon'ble Supreme Court in State
of Punjab and others vs. Rafiq Masih (White Washer) and others
reported in (2015) 4 SCC 334 and in High Court of Punjab &
Haryana and others vs. Jagdev Singh reported in (2016) 14 SCC
267 are quoted hereunder for the purpose of reference:
State of Punjab and others vs. Rafiq Masih (White Washer) and
others reported in (2015) 4 SCC 334
"........18. It is not possible to postulate all situations of hardships
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:
(i) Recovery from the employees belonging to Class III and
Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees
who are due to retire within one year, of the order of recovery.
(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.
(iv) Recovery in cases where as 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......."
High Court of Punjab & Haryana and others vs. Jagdev Singh
reported in (2016) 14 SCC 267
"...4. The Respondent was placed under suspension on 19-08-
2002 and eventually, was compulsorily retired from service on
12-2-2003.
5. In the meantime, this Court in Civil Writ (C) 1022 of 1989
accepted the recommendations of the First National Judicial Pay
Commission (Shetty Commission). Thereupon, the Haryana Civil
Services (Judicial Branch) and Haryana Superior Judicial Service
Revised Pay Rules 2003 were notified on 7-05-2003.
6. In view thereof the pay scales of judicial officers in Haryana
were once again revised with effect from 1-1-1996. An exercise
was undertaken for adjustment of excess payments made to
judicial officers, following the notification of the revised pay rules.
On 18-2-2004, a letter for the recovery of an amount of Rs.
1,22,003/- was served upon the Respondent pursuant to the
direction of the Registrar of the High Court.
7. The Respondent challenged the action for recovery in writ
proceedings under Article 226. The petition was allowed by the
impugned judgment of the High Court. The High Court found
substance in the grievance of the Respondent that the excess
payment made to him towards salary and allowance prior to his
retirement could not be recovered at that stage, there being no
fraud or misrepresentation on his part.
8. The order of the High Court has been challenged in these
proceedings. From the record of the proceedings, it is evident
that when the Respondent opted for the revised pay scale, he
furnished an undertaking to the effect that he would be liable to
refund any excess payment made to him. In the counter affidavit
which has been filed by the Respondent in these proceedings,
this position has been specifically admitted. Subsequently, when
the rules were revised and notified on 7-5-2003 it was found that
a payment in excess had been made to the Respondent. On
18.02.2004, the excess payment was sought to be recovered in
terms of the undertaking.
9. The submission of the Respondent, which found favour with
the High Court, was that a payment which has been made in
excess cannot be recovered from an employee who has retired
from the service of the state. This, in our view, will have no
application to a situation such as the present where an
undertaking was specifically furnished by the officer at the time
when his pay was initially revised accepting that any payment
found to have been made in excess would be liable to be
adjusted. While opting for the benefit of the revised pay scale,
the Respondent was clearly on notice of the fact that a future re-
fixation or revision may warrant an adjustment of the excess
payment, if any, made.
10. In State of Punjab & Ors etc. vs. Rafiq Masih this Court held
that while it is not possible to postulate all situations of hardship
where payments have mistakenly been made by an employer, in
the following situations, a recovery by the employer 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."
(emphasis supplied).
11. The principle enunciated in Proposition (ii) above cannot
apply to a situation such as in the present case. In the present
case, the officer to whom the payment was made in the first
instance was clearly placed on notice that any payment found to
have been made in excess would be required to be refunded. The
officer furnished an undertaking while opting for the revised pay
scale. He is bound by the undertaking......"
[10] It is seen from record that on 12.05.2009, the petitioner
has furnished an undertaking to the respondent, which is quoted
hereunder:
"Declaration:- I here by undertake to refund to the Government
any amount which may be drawn by me in excess of what is
admissible to me on account of erroneous fixation of pay in the
revised pay structure as soon as the fact excess drawal
comes/brought to my notice."
[11] Upon hearing the submissions made at the Bar by the
learned counsel for the respective parties and on perusal of record, this
Court is of the view that the petitioner had signed undertaking with the
declaration that he would reimburse the amount in the event, if any
wrong fixation is made. The petitioner was retired on 28.02.2022 and
subsequently, by a letter dated 23.08.2022, recovery was proposed by
the respondents from the pentionary benefits of the petitioner
contending that he was wrongly given the benefit of CAS-II on
01.01.1999 instead of 05.08.2000. On 24.08.2022, PPO was issued to
the petitioner reducing his last pay from Rs.1,17,000/- to Rs.1,10,300/.
Having executed an undertaking, it is not open for the petitioner to
wriggle out. Thus, this Court is of the opinion that there are no laches
on the part of the respondents. In the judgments of the Hon'ble
Supreme Court in State of Punjab and others vs. Rafiq Masih(White
Washer) and others and High Court of Punjab & Haryana and others vs.
Jagdev Singh (cited supra), the matter has been categorically dealt with
and keeping in view of the said judgments of the Hon'ble Supreme
Court, it is held that any payment found to have been made in excess
would be required to be refunded by the employee in view of the
undertaking executed.
In view of the above, the present writ petition is dismissed
and the same is accordingly disposed of.
As a sequel, miscellaneous application(s), pending if any,
shall also stand closed.
JUDGE
Sabyasachi G.
SABYASACHI Digitally signed by SABYASACHI
GHOSH
GHOSH Date: 2024.03.07 15:16:50 +05'30'
