Tripura High Court
Haripada Choudhury vs The State Of Tripura on 31 January, 2025
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.233 of 2024
Haripada Choudhury,
Son of Lt. Naresh Bandhu Choudhury, resident of C/o Hemalata
Bhavan, Vill Madhya Badharghat, Behind R.T. College, P.O Siddhi
Ashram, Agartala, West Tripura 799003.
......... Petitioner(s)
-Versus-
1. The State of Tripura,
To be represented by the Secretary, Department of Agriculture &
Farmer's Welfare, Govt. of Tripura, New Secretariat Building, New
Capital Complex, Kunjaban, Agartala, West Tripura, PIN 799010.
2. The Director of Agriculture & Famers Welfare,
Govt of Tripura, Krishi Bhavan, Agartala, West Tripura, Pin 799001.
3. The Superintendent of Agriculture,
Dukli Agri Sub. Division, Agartala, West Tripura.
4. The Accountant General (A&E), Tripura,
PO Kunjaban, PS New Capital Complex, Sub-Division Sadar, District
West Tripura.
5. The Senior Accounts Officer,
Office of the Accountant General (A&E), Tripura, PO Kunjaban, PS
New Capital Complex, Sub-Division Sadar, District West.
6. The Union of India,
To be represented by the Secretary, Department of Expenditure,
Ministry of Finance, Government of India, New Delhi, Pin 110001.
........ Respondent(s)
Archana Deb,
Wife of Tapas Ranjan Das, Resident of Ramnagar Road No.7, PO
Ramnagar Road No.5, Agartala, Tripura.
.........Petitioner(s)
-Versus-
1. The State of Tripura,
To be represented by the Secretary, Department of Agriculture &
Farmer's Welfare, Govt. of Tripura, New Secretariat Building, New
Capital Complex, Kunjaban, Agartala, West Tripura, PIN 799010.
2. The Director of Agriculture & Farmers Welfare,
Govt. of Tripura, Krishi Bhavan, Agartala, West Tripura, PIN
799001.
3. The Superintendent of Agriculture,
Bishalgarh Agri Sub. Division, Agartala, West Tripura.
4. The Accountant General(A&E),
Tripura, PO Kunjaban, PS New Capital Complex, Sub-Division
Sadar, District West Tripura.
5. The Senior Accounts Officer,
Office of the Accountant General (A&E), Tripura, PO Kunjaban, PS
New Capital Complex, Sub-Division Sadar, District West.
6. The Union of India,
To be represented by the Secretary, Department of Expenditure,
Ministry of Finance, Government of India, New Delhi, Pin 110001.
........Respondent(s)
For the Petitioner(s) : Mr. P. Roy Barman, Senior Advocate.
Mr. S. Bhattacharjee, Advocate.
Ms. A. Debbarma, Advocate.
For the Respondent(s) : Mr. B. Majumder, Dy. SGI.
Mr. D. Bhattacharya, Senior Advocate.
Mr. Kohinoor N. Bhattacharya, G.A.
Mr. D. Sarma, Addl. G.A.
Pintu Das,
Son of Lt. Jagneswar Das, Resident of Mohanpur, PO Majlishpur, PS
Ranirbazar, PIN 799035.
.........Petitioner(s)
-Versus-
1. The State of Tripura,
To be represented by the Secretary, Department of Agriculture &
Farmer's Welfare, Govt. of Tripura, New Secretariat Building, New
Capital Complex, Kunjaban, Agartala, West Tripura, PIN 799010.
2. The Director of Agriculture & Farmers Welfare,
Govt of Tripura, Krishi Bhavan, Agartala, West Tripura, Pin 799001.
3. The Executive Engineer,
Department of Agriculture & Farmer's Welfare, Agartala, West
Tripura.
4. The Accountant General (A&E),
Tripura, PO Kunjaban, PS New Capital Complex, Sub-Division
Sadar, District West Tripura.
5. The Senior Accounts Officer,
Office of the Accountant General (A&E), Tripura, PO Kunjaban, PS
New Capital Complex, Sub-Division Sadar, District West.
6. The Union of India,
To be represented by the Secretary, Department of Expenditure,
Ministry of Finance, Government of India, New Delhi, Pin 110001.
.........Respondent(s)
For the Petitioner(s) : Mr. P. Roy Barman, Senior Advocate.
Mr. S. Bhattacharjee, Advocate.
Ms. A. Debbarma, Advocate.
For the Respondent(s) : Mr. B. Majumder, Dy. SGI.
Mr. D. Bhattacharya, Senior Advocate.
Mr. Kohinoor N. Bhattacharya, G.A.
Mr. D. Sarma, Addl. G.A.
Mr. PS Roy, Advocate.
Rekha Rani Das,
Wife of Sudhir Ch. Das, Resident of Mudda Para, PS Old Agartala,
Khayerpur, Pin 799008.
.........Petitioner(s)
-Versus-
1. The State of Tripura,
To be represented by the Secretary, Department of Agriculture &
Farmer's Welfare, Govt. of Tripura, New Secretariat Building, New
Capital Complex, Kunjaban, Agartala, West Tripura, PIN 799010.
2. The Director of Agriculture & Farmers Welfare,
Govt. of Tripura, Krishi Bhavan, Agartala, West Tripura, Pin
799001.
3. The Executive Engineer,
Department of Agriculture & Farmer's Welfare, Agartala, West
Tripura.
4. The Accountant General (A&E),
Tripura, PO Kunjaban, PS New Capital Complex, Sub-Division
Sadar, District West Tripura.
5. The Senior Accounts Officer,
Office of the Accountant General (A&E), Tripura, PO Kunjaban, PS
New Capital Complex, Sub-Division Sadar, District West.
6. The Union of India,
To be represented by the Secretary, Department of Expenditure,
Ministry of Finance, Government of India, New Delhi, Pin 110001.
........Respondent(s)
For the Petitioner(s) : Mr. P. Roy Barman, Senior Advocate.
Mr. S. Bhattacharjee, Advocate.
Ms. A. Debbarma, Advocate.
For the Respondent(s) : Mr. B. Majumder, Dy. SGI.
Mr. D. Bhattacharya, Senior Advocate.
Mr. Kohinoor N. Bhattacharya, G.A.
Mr. D. Sarma, Addl. G.A.
Mr. R.G. Chakraborty, Advocate.
Bina Das,
Wife of Badal Ch. Malakar, Resident of Chanban, Udaipur, Gomati,
Tripura.
......... Petitioner(s)
-Versus-
1. The State of Tripura,
To be represented by the Secretary, Department of Agriculture &
Farmer's Welfare, Govt of Tripura, New Secretariat Building, New
Capital Complex, Kunjaban, Agartala, West Tripura, Pin 799010.
2. The Director of Agriculture & Farmers Welfare,
Govt. of Tripura, Krishi Bhavan, Agartala, West Tripura, Pin
799001.
3. The Executive Engineer,
Department of Agriculture & Farmer's Welfare, Agartala, West
Tripura.
4. The Accountant General (A&E),
Tripura, PO Kunjaban, PS New Capital Complex, Sub-Division
Sadar, District West Tripura.
5. The Senior Accounts Officer,
Office of the Accountant General (A&E), Tripura, PO Kunjaban, PS
New Capital Complex, Sub-Division Sadar, District West.
6. The Union of India,
To be represented by the Secretary, Department of Expenditure,
Ministry of Finance, Government of India, New Delhi, Pin 110001.
........Respondent(s)
For the Petitioner(s) : Mr. P. Roy Barman, Senior Advocate.
Mr. S. Bhattacharjee, Advocate.
Ms. A. Debbarma, Advocate.
For the Respondent(s) : Mr. B. Majumder, Dy. SGI.
Mr. D. Bhattacharya, Senior Advocate.
Mr. Kohinoor N. Bhattacharya, G.A.
Mr. D. Sarma, Addl. G.A.
Ms. Riya Chakraborty, Advocate.
Date of hearing : 4th December, 2024.
Date of delivery of : 31st January, 2025.
Judgment & order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
The common question of facts and identical nature of
disputes being involved, all the writ petitions were heard together
and are being disposed of by this common judgment . All the
petitioners were employees of Agriculture Department under
Government of Tripura.
[2.1] In WP(C) No.233 of 2024, the petitioner retired from
service attaining the age of superannuation on 30.06.2023 from
the post of UDC. On his retirement, 75% of his gratuity amount
was released and rest 25% was withheld. Initially, the petitioner
joined as LDC on 15.06.1987 in the service under respondent No.2
and after completion of 10 years of service, he was given first
gradation i.e. CAS-I on 15.06.1997 and on completion of 17 years
of service in the same post, he was also granted second gradation
i.e. CAS-II on 15.06.2004 and lastly, he was given third ACP
benefit on 01.04.2015. He was, thereafter, promoted to the post of
UDC (Ad-hoc) vide office order dated 23.09.2021. At the time of
retirement, his last basic pay was shown to be Rs.62,600/-.
[2.2] It is alleged that for fixation of his pensionary benefits,
his service book was sent to the office of AG (A&E), Agartala and
vide letter dated 10.08.2023 (Annexure 5), the Senior Accounts
Officer of the office of Accountant General (A&E), it was stated that
on scrutiny of service book, his fixation of pay w.e.f. 01.01.1998 to
31.03.2017 was found to be incorrect. It was also further reflected
in the said letter that pension and commutation of pension were
already released in his favour on the basis of his last pay of
Rs.62,600/- as per their calculation without the benefit of ad-hoc
promotion and it was also stated that 25% of gratuity would be
released on reply received from the office of Superintendent of
Agriculture, Dukli Agri Sub-Division, Agartala. On 09.10.2023,
another letter (Annexure 6) was sent by said Senior Accounts
Officer to said Superintendent of Agriculture whereby service book
of the petitioner was returned from the office of the Accountant
General with a request to review the matter and to make revised
regulation of pay in the service book under proper attestation and
with preparation of due and drawn statement of overdrawal of pay,
allowances, leave salary by the petitioner.
[2.3] Thereafter, the petitioner sent one representation to the
respondents dated 26.12.2023 (Annexure 7) requesting them to
release his rest amount of gratuity with interest. The Senior
Accounts Officer also forwarded said representation to the
Superintendent of Agriculture vide his letter dated 25.01.2024
(Annexure 8) for appropriate action from his end with further
reflection of the fact that the pension and commutation of pension
were already authorized by the office of AG to the petitioner on the
basis of last pay of Rs.62,600/- and that withholding of DCRG
would be settled on receipt of reply from the department. Under
such circumstances, the petitioner has filed this writ petition for
release of said 25% of gratuity i.e. Rs.2,50,000/- with interest
@9% per annum and also to quash the letters dated 10.08.2023
and 09.10.2023.
[3.1] In WP(C) No.234 of 2024, similarly the petitioner
retired from the service on 31.01.2023 from the post of UDC (Ad-
hoc basis) and on her retirement, 75% of the gratuity was released
but rest 25% of gratuity amounting to Rs.2,50,000/- was withheld
on the ground, as reflected by Senior Accounts Officer vide his
letter dated 07.08.2023 (Annexure 6), that fixation of her pay
w.e.f. 15.06.1997 under ROP 1999 was found to be incorrect. By
said letter, the Senior Accounts Officer requested the
Superintendent of Agriculture, Bishalgarh Agri Sub-Division to
review the matter and to prepare necessary due drawn statement
of overdrawal. It was however, stated also that the commutation of
pension in favour of said petitioner was released on the basis of her
last pay of Rs.62,600/- as per calculation of the office of
Accountant General without giving the benefit of ad-hoc promotion.
[3.2] The petitioner, thereafter, similarly sent her
representation dated 21.12.2023 (Annexure 7) for releasing such
withheld gratuity amount. Said representation was also forwarded
by the Senior Accounts Officer to the concerned Superintendent of
Agriculture vide his letter dated 25.01.2024 (Annexure 8). Under
such circumstances, she preferred this writ petition for quashing
said letter dated 07.08.2023 of Senior Accounts Officer and to
release the rest 25% of her gratuity amount.
[4.1] In WP(C) No.235 of 2024, the petitioner retired from
the service on attaining his age of superannuation on 28.02.2023
from the post of Office Superintendent (ad-hoc basis) and similarly
25% of his gratuity amount was withheld and at the time of his
retirement, his last basic pay was Rs.64,500/-. But, the Senior
Accounts Officer vide his letter dated 29.05.2023 (Annexure 6)
pointed out that fixation of pay of the petitioner w.e.f. 15.01.1997
under ROP 1999 was incorrect and matter was sent to the
Executive Engineer (West), Department of Agriculture and Farmers
Welfare, Agartala to review the matter and to prepare necessary
due and drawn statement of overdrawal as regards the pay,
allowances and leave salary of the petitioner and to make revised
LPC but simultaneously it was also mentioned that pension was
already released in his favour determining his last pay as
Rs.62,600/- and that rest amount of DCRG and commutation of
pension would be released on receipt of reply from the concerned
Executive Engineer.
[4.2] Another similar letter was also sent by Senior Accounts
Officer on 20.10.2023 (Annexure 7) reflecting that the last pay of
the petitioner to the tune of Rs.62,600/- was found to be correct
and with such observation the service book of the petitioner was
returned to the said Executive Engineer (West) for necessary action
including preparation of said due and drawn statement. It was also
stated therein that commutation of pension was released in favour
of the petitioner (Retd. Head Clerk) on the basis of superannuation
pension of Rs.31,300/- withholding the DCRG.
[4.3] Petitioner, thereafter, sent a representation on
21.12.2023 (Annexure 9) to the respondents with a request to
treat his last basic pay to be Rs.64,500/- instead of Rs.62,600/-
and to provide him all pensionary benefits as arrear on that basis
with interest and also to release 25% of the gratuity amount. Said
representation was forwarded by the Senior Accounts Officer to
said Executive Engineer (West) vide his letter dated 25.01.2024.
Under such circumstances, the petitioner filed the writ petition with
a prayer for releasing rest amount of gratuity, for a direction to
issue revised PPO treating his last basic pay to be Rs.64,500/- and
to release all arrears with interest and also to quash the said letters
dated 29.05.2023 and 20.10.2023.
[5.1] In WP(C) No.236 of 2024, the petitioner retired from
service on attaining the age of superannuation on 30.04.2023 from
the post of Office Superintendent (Ad-hoc). On his retirement, 75%
of his gratuity amount was released and rest 25% amounting to
Rs.2,50,000/- was withheld. Initially, the petitioner joined as LDC
on 15.06.1987 in the service under respondent No.2 and after
completion of 10 years of service, she was benefitted with first
gradation i.e. CAS-I on 15.06.1997 and on completion of 25 years
of service, she was granted second gradation i.e. CAS-III on
15.06.2012. Petitioner was, thereafter, promoted to the post of
Officer Superintendent vide office order dated 17.11.2022 on ad-
hoc basis. At the time of retirement, her last basic pay was shown
to be Rs.64,500/-.
[5.2] It is stated that for fixation of her pensionary benefits,
when her service book was sent to the office of AG (A&E), Agartala,
the Senior Accounts Officer in his letter dated 28.07.2023
(Annexure 7) pointed out that on scrutiny of service book, her
fixation of pay w.e.f. 15.06.1997 under ROP 1999 was found to be
incorrect. It was further noted that the pension and commutation of
pension were already released in her favour determining her last
pay as Rs.62,600/- as per their calculation without any ad-hoc
promotion and that DCRG would be released on receipt of reply
from the concerned Superintendent of Agriculture, Dukli Agri Sub-
Division, Agartala.
[5.3] The petitioner also sent one representation dated
13.07.2023 (Annexure 8) to the Superintendent of Agriculture
requesting him to review her last basic pay and the same was
forwarded by the Superintendent of Agriculture to the Accountant
General (A&E) vide letter dated 13.07.2023 (Annexure 8). Another
letter dated 20.10.2023 (Annexure 10) was also communicated by
the Senior Accounts Officer to Superintendent of Agriculture
whereby service book of the petitioner was returned from their
office with a request to review the matter and to make revised
regulation of pay in the service book under proper attestation and
for preparation of due and drawn statement of overdrawal of pay,
allowances and leave salary by the petitioner. Thereafter, the
petitioner sent another representation to the respondents dated
21.12.2023 (Annexure 11) requesting them to release her rest
amount of gratuity with interest @9% per annum from due date till
actual payment is made.
[5.4] Under such circumstances, the petitioner filed this writ
petition praying for release of her rest amount of gratuity with 9%
interest, and for a direction to issue revised PPO treating her last
basic pay to be Rs.64,500/- and to release all arrears with interest.
The petitioner further prayed to quash the letters dated 28.07.2023
and 20.10.2023.
[6.1] In WP(C) No.237 of 2024, the petitioner retired from
service on attaining the age of superannuation on 31.01.2023 from
the post of Office Superintendent (Ad-hoc). On her retirement,
75% of her gratuity amount was released and rest 25% amounting
to Rs.2,50,000/- was withheld. Initially, the petitioner joined as
LDC on 15.06.1987 in the service under respondent No.2 and after
completion of 10 years of service, she was allowed the benefit of
first gradation i.e. CAS-I on 15.06.1997 and on completion of 25
years of service, she was given the benefit of Grade pay fixed
@Rs.4200/- on 15.06.2012. She was promoted to the post of UDC
vide office order dated 28.07.2003. At the time of retirement, her
last basic pay was shown to be Rs.64,500/-.
[6.2] The Senior Accounts Officer, Accountant General (A&E)
issued a letter to the Superintendent of Agriculture, Kakraban
Agriculture Sub-Division for wrong fixation of basic pay of the
petitioner w.e.f. 01.04.2015 as it appears from the counter affidavit
filed by the State respondents and the letter dated 12.09.2023 of
Superintendent of Agriculture, Kakraban to the Director of
Department of Agriculture and Farmers Welfare (Annexure 9 as
well as Annexure R/4). After her superannuation, a letter dated
14.08.2023 (Annexure 7) was sent to her by the Superintendent of
Agriculture, Kakraban Agri Sub-Division informing that an excess
amount totalling Rs.1,65,921/- of pay/allowances and leave salary
have been drawn by her. In the said letter, she was further asked
to submit a confirmation letter regarding mode of such deduction of
excess amount for final settlement of her claim. In reply to the said
letter, the petitioner submitted a representation dated 23.08.2023
(Annexure 8) to the Superintendent of Agriculture stating that all
her pay and salary have been sanctioned with approval of the
competent authority and as such, liability of overdrawal payment
could not come upon her. Said Superintendent of Agriculture sent a
letter to the Director, Department of Agriculture & Farmers Welfare,
Govt. of Tripura on 12.09.2023 (Annexure 9) as stated above,
seeking decision regarding follow-up course of action to be taken
up against the representation submitted by the petitioner towards
exemption from recovery of excess drawal of pay etc.
[6.3] Thereafter, the petitioner sent another representation to
the respondents dated 22.12.2023 (Annexure 11) requesting them
to release her rest amount of gratuity with interest @9% per
annum. She further pleaded for recalculating all her pensionary
benefits considering her last basic pay to be Rs.64,500/- instead of
Rs.62,600/-. The Senior Accounts Officer also forwarded said
representation of the petitioner to the Superintendent of Agriculture
vide letter dated 09.02.2024 (Annexure 12) for obtaining legal
views from the Finance Department. In the said letter, it was
further reflected that pension and commutation of pension were
already released to the petitioner on the basis of last pay of
Rs.62,600/- and that withholding of DCRG would be settled on
receipt of reply from the department. In that event, the petitioner
has filed this writ petition for release of rest amount of gratuity i.e.
Rs.2,50,000/- with interest @9% per annum and also to quash the
letter dated 14.08.2023 (Annexure-7).
[7] Mr. P. Roy Barman, learned senior counsel appearing for
the petitioners reiterating the facts of the writ petitions argues that
the pension of the petitioners was finalised by the Accountant
General (AG) in W.P(C) No.233 of 2024 and WP(C) No.234 of 2024
and therefore, except for arithmetical or clerical error, now the
basic pension cannot be reduced. Mr. Roy Barman, learned senior
counsel also contends that in the W.P(C) No.235 of 2024, W.P(C)
No.236 of 2024 and W.P(C) No.237 of 2024, the basic pay of the
petitioners was even reduced by the AG without issuing any show
cause notice to the petitioners and without their knowledge, in
gross violation of the principles of natural justice. Therefore, all the
impugned memorandum/letters issued by the AG for re-fixation of
pay of the petitioners and consequent fixation of basic pension, are
illegal. The next point as raised by learned senior counsel is that
the recovery of any amount consequent to any re-fixation is not
permissible inasmuch as all the petitioners were Group-C
employees. Learned senior counsel further contends that though
two of the petitioners were given promotion to the post of Office
Superintendent but such promotion was on ad-hoc basis and no
financial benefit thereupon was given to the petitioners and
therefore, all the practical and legal purposes, they are to be
treated as Group-C employees.
[8] Mr. Roy Barman, learned senior counsel relies on a
decision of the Apex Court rendered in Thomas Daniel vs. State
of Kerala and others, AIR 2022 SC 2153, wherein at Para 9, it
was observed that if the excess amount was not paid on account of
any misrepresentation or fraud on the part of the employee
concerned or if such excess payment was made by the employer by
applying a wrong principle for calculating the pay/allowance or on
the basis of a particular interpretation of rule/order which is
subsequently found to be erroneous, such excess payment of
emoluments or allowances were not recoverable. It was also
further held that if in a given case, it was proved that an employee
had knowledge that the payment received was in excess of what
was due or wrongly paid, or in cases where error is detected or
corrected within a short time of wrong payment, the matter being
in the realm of judicial discretion, the courts may on the facts and
circumstances of any particular case order for recovery of amount
paid in excess.
[9] Mr. Roy Barman, learned senior counsel also relies on
earlier decision of the Apex Court in a case in between State of
Punjab and others vs. Rafiq Masih (White Washer) and
others, (2015) 4 SCC 334, wherein certain parameters were laid
down by the Apex Court where recovery of excess amount, paid
mistakenly to an employee, was not permissible. The relevant
paragraph of the said decision is extracted hereinbelow:
"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:
(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 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."
[10] Mr. Roy Barman, learned senior counsel also relies on
another decision of the Apex Court rendered in Jagdish Prasad
Singh vs. State of Bihar and others, [Civil Appeal No(S).1635
of 2013] and the relevant Para No.20 as referred is extracted
hereunder:
"20. Without prejudice to the above findings, we are of the
view that no departmental action could have been initiated by
the State against the appellant after eight years following his
superannuation because the employer employee relationship
had come to an end after the appellant's superannuation. The
order directing reduction in pay scale and recovery from the
appellant was manifestly not preceded by any show cause
notice and was thus, passed in gross violation of the principles
of natural justice. Pursuant to the order dated 20th July, 2009
passed in the Writ Petition No. 6714 of 2009 filed by the
appellant, he submitted a representation to the Secretary,
Food and Consumer Protection Department, Government of
Bihar, which vide order dated 8th October, 2009 was rejected,
preceded by a personal hearing. A perusal of the said order
would indicate that the Secretary took a view that as per
paragraph 11(supra) of the Government Resolution, the
first/second time bound promotion of the appellant had come
to an end automatically w.e.f. on 1st January, 1996 and thus,
the appellant was required to be re-designated to the post of
Marketing Officer and would be entitled to the revised pay of
Rs.5500-9000 w.e.f. 1st January, 1996 as recommended by
the Fitment Committee. Thus, even in this order, the
promotion conferred to the appellant to the post of ADSO on
10th March, 1991 is not doubted."
[11] Mr. Roy Barman, learned senior counsel also submits
that in all the cases the allegation of wrong fixation was for a
period much earlier than 5(five) years from the date of retirement
of the petitioners or from the date of passing the impugned
direction for recalculation or re-fixation of their pay and on that
score also, such recovery was not permissible.
[12] The last point as argued by Mr. Roy Barman, learned
senior counsel is that following the principle of provisions of Section
14 of the Payment of Gratuity Act, 1972, no such gratuity amount
can be withheld for the purpose of recovery of any arrears from the
said gratuity amount and therefore, 25% of the gratuity amount as
withheld by the department is required to be immediately released
in favour of the petitioners.
[13] Mr. D. Bhattacharya, learned senior counsel appearing
for the respondents No.4 & 5 referring to Rule 70 of Central Civil
Services (Pension) Rules, 1972 submits that as per provision of
Rule 70 that even after final assessment of the pension, the
department has the authority to recalculate the same. For useful
reference, said Rule 70 of CCS (Pension) Rules, 1972 is excerpted
hereunder:
Revision of pension after authorization-
(1) Subject to the provisions of Rules 8 and 9, pension once
authorized after final assessment shall not be revised to the
disadvantage of the Government servant, unless such revision
becomes necessary on account of detection of a clerical error
subsequently:
Provided that no revision of pension to the disadvantage
of the pensioner shall be ordered by the Head of Office
without the concurrence of the Department of Personnel and
Administrative Reforms if the clerical error is detected after a
period of two years from the date of authorization of pension.
[(1-A) The question whether the revision has become
necessary on account of a clerical error or not shall be decided
by the administrative Ministry or Department.]
(2) For the purpose of sub-rule (1), the retired Government
servant concerned shall be served with a notice by the Head of
Office requiring him to refund the excess payment of pension
within a period of two months from the date of receipt of
notice by him.
(3) In case the Government servant fails to comply with the
notice, the Head of Office shall, by order in writing, direct that
such excess payment, shall be adjusted in instalments by
short payments of pension in future, in one or more
instalments, as the Head of Office may direct.
[14] However, the pari materia provision of the said Rule 70
is available in Rule 61 of said CCS Pension (Rules), 1972 as
adopted in Tripura with necessary amendments and the said
provision of Rule 61 is as follows:
61. Revision of pension after sanction.
(1) Subject to the provisions of rules 8 and 9, pension once
sanctioned after final assessment shall not be revised to the
disadvantage of the Government servant unless such revision
becomes necessary, on account of a clerical error,
subsequently:
Provided that no revision of pension to the disadvantage
of the pensioner shall be ordered by the pension sanctioning
authority without the sanction of the Finance Department if
the clerical error is detected after a period of two years from
the date of sanction of pension.
(2) For the purpose of sub-rule (1), the Government servant
concerned shall be served with a notice by the pension
sanctioning authority requiring him to refund the excess
payments of pensions within a period of two months from the
date of receipt of notice by him.
(3) In case the Government servant fails to comply with the
notice, the pension sanctioning authority shall, by order in
writing direct that such excess payment shall be adjusted by
short payments of pension in future, in one or more
installments, as the said authority may direct.
[15] Mr. D. Bhattacharya, learned senior counsel also refers
to Rule 64 of the CCS Pension (Rules), 1972 which deals with the
matter of provisional pension and envisages in sub-rule (1) of said
Rule that where in spite of following the procedure as laid down in
Rule 59, it is not possible for the Head of Office to forward the
pension papers referred to Rule 61(1) to the Accounts Officer within
the period specified in sub-rule (4) of that rule or where the
pension papers were forwarded to the Accounts Officer within the
specified period but the Accounts Officer may have returned the
pension papers to the Head of Office for eliciting further information
before issuing pension payment order and order for the payment of
gratuity and the Government servant is likely to be retired before
his pension and gratuity or both can be finally assessed and settled
in accordance with the provisions of said Rule, the Head of Office
shall rely upon the information as may be available in the final
official records and without delay, determine the amount of
provisional pension and the amount of provisional retirement
gratuity. The sub-rule (3) of said Rule 64 further provides that
where the amount of pension and gratuity cannot be determined
for reasons other than the Departmental or Judicial proceedings,
the Head of Office shall issue a letter of sanction addressed to the
Government servant endorsing a copy thereof to the Accounts
Officer authorising 100% of pension as provisional pension for a
period not exceeding six months to be reckoned from the date of
retirement of the Government servant and 100% of the gratuity as
provisional gratuity withholding 10% of gratuity. The Head of Office
shall also in that case specify in the letter of sanction the amount
recoverable from the gratuity under sub-rule (1) of Rule 63 and
after issuing the letter of sanction, the Head of Office shall draw the
amount of provisional pension and the amount of provisional
gratuity after deducting therefrom the amount specified in sub-
clause (ii) of clause (a) and the dues, if any, specified in Rule 71, in
the same manner as pay and allowances of the establishment are
drawn by him.
[16] As per sub-rule (4) of the said Rule, as referred by Mr.
Bhattacharya, learned senior counsel, the amount of provisional
pension and gratuity payable under sub-rule (2) or sub-rule (3)
shall, if necessary, be revised on completion of the detailed scrutiny
of the records. Mr. Bhattacharya, learned senior counsel also refers
sub-Rule (5) which is as under:
(5) (a) The payment of provisional pension shall not continue
beyond the period of six months from the date of retirement of
a Government servant or from the date of submission of Form
5 by the Government servant, whichever is later, and if the
amount of final pension and the amount of final gratuity had
been determined by the Head of Office in consultation with the
Accounts Officer before the expiry of the said period of six
months, the Accounts Officer shall -
(i) issue the pension payment order; and
(ii) direct the Head of Office to draw and disburse the
difference between the final amount of gratuity and the
amount of provisional gratuity paid under sub-clause
(ii) of clause (b) of sub rule (3) after adjusting the
Government dues, if any, which may have come to
notice after the payment of provisional gratuity.
(b) If the amount of provisional pension disbursed to a
Government servant under sub-rule (3) is, on its final
assessment, found to be in excess of the final pension
assessed by the Accounts Officer, it shall be open to the
Accounts Officer to adjust the excess amount of pension out of
gratuity withheld under sub- clause (ii) of clause (a) of sub-
rule (3) or recover the excess amount of pension in
instalments by making short payments of the pension payable
in future.
(c) (i) If the amount of provisional gratuity disbursed
by the Head of Office under sub-rule (3) is more than
the amount finally assessed, the retired Government
servant shall not be required to refund the excess
amount actually disbursed to him.
(ii) The Head of Office shall ensure that chances of
disbursing the amount of gratuity in excess of the
amount finally assessed are minimized and the officials
responsible for the excess payment shall be
accountable for the over-payment.
According to Mr. Bhattacharya, learned senior counsel,
under above said provisions the Department has it's authority to
withhold a part of the gratuity subject to final assessment.
[17] Mr. Bhattacharya, learned senior counsel further refers
to sub-Rule (6) of the said Rule 64 which further provides that if
the final amount of pension and gratuity have not been determined
by the Head of Office in consultation with the Accounts Officer
within a period of six months referred to in clause (a) of sub-rule
(5), the Accounts Officer shall treat the provisional pension and
gratuity as final and issue pension payment order immediately on
the expiry of the period of six months.
[18] Mr. Bhattacharya, learned senior counsel relying on
above said provision submits that the Office of the Accountant
General as per the above said provisions determined the final
pension and issued PPO which is subject to further verification by
the concerned department. Mr. Bhattacharya, learned senior
counsel also submits that the Office of the Accountant General
cannot prepare any corrected fixation rather they can only
communicate such error detected in the fixation of the employee to
the concerned department.
[19] Mr. D. Sarma, learned Addl. GA appearing for the State-
respondents in some of the writ petitions argues that the option
was given by all the petitioners for getting benefit of revised pay
scale as per ROP Rules, 2009 and therefore, such option is binding
upon them. Referring to Rule 6 of the ROP Rules, 1999, learned
Addl. GA also argues that the State can any time re-fix the pay of
an employee and recover any excess amount paid to any employee
even after his retirement and there was no challenge in this regard
about the said application of said provisions in these writ petitions
and therefore, the same is binding on the petitioners. Mr. Sarma,
learned Addl. GA relies on a decision of the Apex Court rendered in
High Court of Punjab and Haryana and others vs. Jagdev
Singh, (2016) 14 SCC 267, wherein the respondent was
appointed as a Civil Judge (Junior Division) on 16.07.1987 and was
promoted as Additional Civil Judge on 28.08.1997 in the judicial
service of the State and by a notification dated 28.09.2001, a pay
scale of Rs.10000-325-15200/- (senior scale) was allowed to him
under the Haryana Civil Service (Judicial Branch) and Haryana
Superior Judicial Service Revised Pay Rules, 2001. Under the rules,
each officer was required to submit an undertaking that any excess
which may be found to have been paid will be refunded to the
Government either by adjustment against future payments due or
otherwise. The respondent accordingly submitted an undertaking
and was granted the revised pay scale and later on, the selection
grade and while opting for revised pay scale, the respondent
undertook to refund any excess payment if it was so detected and
demanded subsequently. In that back ground, the Apex Court held
as under:
"10. In State of Punjab. 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: (SCC pp.334-35)
"(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 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.
12. For these reasons, the judgment of the High Court which
set aside the action for recovery is unsustainable. However,
we are of the view that the recovery should be made in
reasonable instalments. We direct that the recovery be made
in equated monthly instalments spread over a period of two
years."
[20] Relying on above said decision, learned Addl. GA
strenuously argues that the department has the full authority to
recover such excess amount paid to each of the petitioner and
therefore, the challenges made by the petitioners are not
sustainable at law.
[21] Mr. P.S. Roy, learned counsel, Mr. R.G. Chakraborty,
learned counsel and Ms. R. Chakraborty, learned counsel appearing
for the state-respondents in some of the writ petitions also submit
in the same tune like Mr. Sarma, learned Addl. GA.
[22] Mr. B. Majumder, learned Dy. SGI appearing for the
Union of India submits that the Union of India is a formal party and
therefore, their name may be deleted from the proceeding.
[23] After taking into consideration of contentions of all the
sides and also on perusal of the materials as placed in above said
writ petitions, it is found that practically all the petitioners went on
superannuation as Group-C employee. Though the petitioners in
WP(C) No.235 of 2024, WP(C) No.236 of 2024 and WP(C) No.237
of 2024 were given promotion to the post of Office Superintendent
but same was on ad-hoc basis and the policy decision of the
Government as per notification No.F.2(24)-GA(P & T)/2021 dated
22.06.2021 also clarifies that such ad-hoc appointment on
promotion shall not be treated as regular appointment on
promotion and such promotion shall be subject to final outcome of
the decision of the Hon'ble Apex Court in SLP(C) No.19765-19767
of 2015. It is also evident in all the writ petitions that the alleged
wrong fixation of the pay of the petitioners were for a period for
more than 5 years before the order of fresh fixation. It is also not
the case of the respondents that such wrong fixation was done due
to any misrepresentation or fraud exercised by any of the
petitioner, rather according to the respondents, such excess
payment was made applying a wrong principle for calculating the
pay/allowances. Moreover, such steps of revisiting the fixation has
been taken after all of them have gone on retirement and
therefore, the ratio of Rafiq Masih (White Washer) (Supra) and
Thomas Daniel (Supra) are squarely applicable in this case, so
far matter of recovery of overdrawn of any amount is concerned. In
High Court of Punjab and Haryana and others vs. Jagdev
Singh (Supra) as relied on by Mr. D. Sarma, learned Addl. G.A.,
the fact of the case was quite different as noted above and in that
given facts and situations, it was held by the Hon'ble Supreme
Court that the proposition No.(ii) in Rafiq Masih (White
Washer)'s case was not applicable in that case as the officer to
whom the payment was made in the first instance was placed on
notice that any payment found to have been made in excess would
be required to be refunded and he accordingly, furnished an
undertaking while opting for the revised pay scale and therefore, he
was bound by his own undertaking. In that case, the officer
concerned was a Group A officer.
[24] In the present batch of writ petitions, even if the
proposition no. (ii) of Rafiq Masih (Supra) is not applied in view
of the decision of Jagdev Singh's case, still the proposition Nos.
(i) and (iii) of Rafiq Masih's case are applicable as all the
petitioners were treated as group-C employees and the alleged
excess payment was for a period for more than five years, before
the orders of revisiting their fixation were issued. All the petitioners
have gone on retirement and recovery of any amount now on the
ground of any wrong fixation or wrong calculation for a much older
period will be harsh and iniquitous. It is also not the case of the
respondents that there was any outstanding dues recoverable from
the petitioners at the time of retirement in terms of Rule 70 and 75
of CCS (Pension) Rules, 1972 as adopted in Tripura. Therefore,
balance amount of gratuity is required to be released immediately.
Reduction, if any, of gratuity amount already calculated on the
ground of any wrong fixation of a much older period will also
similarly cause hardship to the petitioners in view of the involved
facts and circumstances of the present cases and therefore gratuity
already calculated shall remain unaltered.
[25] In WP(C) No.233 of 2024, the last basic pay of the
concerned petitioner was Rs.62,600/- and his final pension and
commutation were also released on the basis of said last pay of
Rs.62,600/-. Similarly, in writ petition No.234 of 2024 also the PPO
(pension payment order) and CPO (commutation payment order)
are already released by the office of the Accountant General
treating his basic to be Rs.62,600/- which was his last basic pay.
Once the pension is settled by the competent authority, after final
assessment of the pension, same can be revisited under Rule 61 of
CCS (Pension) Rules, 1972 as adopted in Tripura with necessary
amendments. As per said Rule 61, revision of pension once finally
assessed is permissible on account of any clerical error.
[26] The High Court of Delhi in a Division Bench in the case of
K.S. Dhingra vs. Union of India and others [WP(C) No.4473
of 2021 decided on 09.04.2021] observed that the words
"clerical error" as have been used in Rule 70 should be given a
broader meaning, whereby, if it is subsequently realized by the
respondents that the pension has wrongly been fixed on account of
mis-interpretation of Rules, the same would amount to be a clerical
error and the respondents would have the right to revise the same
at a later point of time. Therefore, in the above said two writ
petitions, though the basic pension is finally assessed and PPO are
already issued as mentioned above, revision of the same is
permissible on any such clerical error in terms of Rule 61.
[27] In other three writ petitions i.e. in WP(C) No.235 of
2024, WP(C) No.236 of 2024 and WP(C) No.237 of 2024, the office
of the Accountant General already reduced the basic pay from
Rs.64,500/- to Rs.62,600/- before issuance of pension payment
order and therefore, Rule 61 above has no application in their
cases. But, it is the grievances of the petitioners of above said writ
petitions that before such reduction in the basic pay while
determining the pension, no notice was issued to them giving them
opportunities to be heard. Considering above said factual position,
the Court deems it proper to give the petitioners of above said
three writ petitions bearing nos. WP(C) No.235 of 2024, WP(C)
No.236 of 2024 and WP(C) No.237 of 2024 the liberty to submit
representations to the Accountant General placing their grievances,
if any, against such reduction in the last basic pay, with all
necessary materials they intend to rely upon and the respondent
No.4 will dispose of such representation by a reasoned order within
4(four) weeks of receipt of such representations. Similarly, in
WP(C) No.233 of 2024 and WP(C) No.234 of 2024 also, if the
respondents intend to reduce the last basic pay of the petitioners
revisiting the fixation of their respective pay, opportunities shall be
given to the concerned petitioners of being heard.
[28] In view of above said discussion, it is held that recovery
of any amount from the petitioners of above said cases on the
ground of wrong fixation will be harsh, iniquitous and therefore
impermissible. Consequently, -
(i) The respondents are directed to release the 25%
of the gratuity amount as withheld by them within 8 (eight) weeks
of receipt of copy of this judgment, to the respective petitioners
along with interest @7% per annum w.e.f. 30 days after the
respective date of their retirement till payment is made.
(ii) It is further directed that in WP(C) No. 233 of 2024
and WP(C) No.234 of 2024 if the respondents intend to reduce the
last basic pay of the petitioners revisiting the fixation of their pay,
opportunities shall be given to the concerned petitioners of being
heard.
(iii) The petitioners of WP(C) No.235 of 2024, WP(C)
No.236 of 2024 and WP(C) No.237 of 2024 are given liberty to
submit representations within 4(four) weeks from today to the
Accountant General placing their grievances, if any, against such
reduction in the last basic pay, with all necessary materials they
intend to rely upon, and the respondent No.4 will dispose of such
representation by reasoned order within next 4(four) weeks of
receipt of such representation(s).
(iv) In case of any over payment on the ground of
wrong fixation, no amount shall be recovered from any of the
petitioners.
With such observations and directions, the writ petitions
are disposed of.
Pending application(s), if any, shall also stand disposed
of.
JUDGE
Rudradeep RUDRADEEP BANERJEE Digitally signed by RUDRADEEP BANERJEE
Date: 2025.02.05 15:26:24 +05'30'
