Tripura High Court
Sri Chittaranjan Das vs The State Of Tripura on 27 March, 2025
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.446 of 2024
Sri Chittaranjan Das,
son of late Jatindra Kumar Das, resident of
village & P.O. Fulkumari, P.S. R.K. Pur,
District- Gomati Tripura, PIN-799013
......... Petitioner (s)
-Versus-
1. The State of Tripura,
represented by the Commissioner &
Secretary to the Department of Agriculture &
Farmers Welfare, Government of Tripura,
New Secretariat Complex, Gurkhabasti,
Agartala, P.O. Kunjaban, P.S. New Capital
Complex, Sub-Division- Sadar, District- West
Tripura
2. The Director,
Department of Agriculture & Farmers
Welfare, Government of Tripura, Krishi
Bhavan, Akhaura Road, P.O. Agartala, P.S.
West Agartala, Sub-Division- Sadar, District-
West Tripura
3. The Deputy Director,
Horticulture, South Tripura, Government of
Tripura, Shantirbazar, District- South 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 the Petitioner (s) : Mr. Koomar Chakraborty, Adv.
For the Respondent (s) : Mr. Kohinoor N. Bhattacharya, GA
Mr. N. Majumder, Adv.
Date of hearing : 07.10.2024
Date of delivery of : 27.03.2025
Judgment & order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
The case of the petitioner, in brief, is that he was
appointed as Lower Division Clerk vide office order dated
25.05.1987 issued by the respondent No.2 in the pay scale of
Rs.430-850/-. Accordingly, he joined to the post on 15.06.1987
and on completion of 10 years of satisfactory service, he was
provided first financial upgradation w.e.f. 15.06.1997. Thereafter,
vide office order dated 13.05.2002 (Annexure-2 to the writ
petition) he was promoted to the post of Upper Division Clerk and
finally he was promoted to the post of Head Clerk vide office
order dated 11.08.2011 (Annexure-3) in the pay scale of
Rs.5000-10300/- (pre-revised). By the lapse of time, on attaining
the age of superannuation, the petitioner ultimately went on
retirement on 31.05.2021 from the post of Head Clerk from the
office of the Deputy Director, Horticulture Department,
Government of Tripura, South Tripura, Shantirbazar with his last
basic pay of Rs.60,800/-.
[2] On his superannuation, the Deputy Director of
Horticulture vide sanction memo dated 28.05.2021 (Annexure-4)
calculated his total gratuity amount to be Rs.10,03,400/- (with
the maximum ceiling limit of Rs.10,00,000/-) and 75% of the
said amount i.e. Rs.7,50,000/- was sanctioned as provisional
gratuity and the rest 25% was withheld. Similarly vide another
sanction memo dated 28.05.2021 an amount of Rs.6,26,240/-
was sanctioned as amount of leave salary and both the amounts
were calculated treating his basic pay to be Rs.60,800/-.
[3] After the pension proposal of the petitioner was
forwarded to the office of the Accountant General, the letter
dated 25.08.2021 (Annexure-5) was communicated by the
Assistant Accounts Officer of the office of Accountant General (A
& E) to the said Deputy Director of Horticulture, Shantirbazar
indicating that the fixation of pay of the petitioner under ROP
Rules, 2009 appeared to be incorrect in the service book and his
pay ought to have been fixed at Rs.5,160/- instated of Rs.5,280/-
as on 01.01.2006 i.e. having a difference of Rs.120/-. As per said
calculation, the office of the Accountant General came to the
conclusion that the last basic pay of the petitioner would be
Rs.59,000/- instead of Rs.60,800/- and a request was made by
them to said Deputy Director of Horticulture to resubmit the
service book of the petitioner after making proper entries of
refixation of pay under ROP, 2009 and ROP, 2017 along with
revised IPS and connected due and drawn statement of pay and
allowances w.e.f. 01.01.2009 to 30.11.2012 under factor
1.74, w.e.f 01.12.2012 to 31.03.2015 under factor 1.86,
Grade Pay w.e.f. 01.04.2015 to 31.03.2017 and thereafter,
w.e.f. 01.07.2017 to 31.05.2021 along with leave salary for
finalisation of the case at their end. It was also stated in the said
communication that the pension and commuted value of the
pension were already released on the basis of last pay of
Rs.59,000/- as per the above said fixation of pay regulation
withholding gratuity which would be released on receipt of the
reply from the office of the Deputy Director of Horticulture.
[4] Another letter was also issued on 27.10.2021
(Annexure-7) by the Senior Accounts Officer of said office to said
Deputy Director of Horticulture stating further that the refixation
of pay of the petitioner under ROP, 1999 also appeared to be
incorrect inasmuch as it was not clearly mentioned in the service
book about the change of DNI as on 01.01.1998 instead of
01.06.1998 and therefore, request was made from the office of
the Accountant General to the said office of Deputy Director of
Horticulture to re-examine the matter again. Another ground was
also raised from the office of the Accountant General through
their another communication dated 04.01.2022 addressed to said
Deputy Director of Horticulture, Shantirbazar stating that in view
of the notification dated 24.06.2008 issued by the Finance
Department, the substituted provision of FR-22(I) (a) (2) as per
notification No.F.19(1)-FIN(G)/83 dated 03.10.1999 shall be
applicable in case of movement under CAS of Tripura State Civil
Services (Revised Pay) Rules, 1999 and the date of next
increment (DNI) along with the scope for exercising option shall
be regulated as per provision of FR-22(I) (a) (2) w.e.f.
01.01.1999 but as per service book of the petitioner, it was found
that he got the first gradation on 15.06.1997. Therefore, further
request was made to the said Deputy Director to re-examine the
matter and in case of necessity to communicate with the Finance
Department and to resubmit the service book after proper
fixation of pay regulation along with views of Finance Department
and the revised IPS & LPC. Again similar letter on 20.12.2022
(Anexure-7) was also issued by Senior Accounts Officer. Further
on 08.06.2023 (Annexure-8) the senior Accounts Officer
communicated said Deputy Director of Horticulture with a request
to furnish the revised LPC at Rs.59,000/- as per refixation of pay
in the service book of the petitioner along with such due and
drawn statement under proper attestation for authorisation of the
gratuity at their end.
[5] A specimen of the due and drawn statement of the
petitioner was also sent along with the said communication under
Annexure 8 to the office of the Deputy Director by the Senior
Accounts Officer wherein an amount of Rs.1,24,576/- was shown
to be paid in excess from the pay and allowances and further
Rs.18,540/- was shown to be paid as excess payment of leave
salary.
[6] The petitioner then sent a representation to the
respondents on 26.12.2023 (Annexure-9) with a request to
release his rest amount of gratuity along with interest @ 9% per
annum and also to reissue his PPO correcting the same to be
Rs.60,800/- and also to calculate his pensionary benefits
considering his last basic pay to be Rs.60,800/- in place of
Rs.59,000/-.
[7] As no response was received from the respondents by
the petitioner in respect of the said representation, he also issued
one legal notice on 01.05.2024 (Annexure-10) through his
learned counsel ventilating his grievances again, to which the
Deputy Director of Horticulture, Shantirbazar vide his letter dated
21.05.2024 (Annexure-11) informing that as per the demand of
the petitioner, the application along with service book and due
and drawn statement were sent to the office of the Director,
Horticulture and Soil Conservation vide letter dated 08.08.2023
and then same was sent to the office of Director of Agriculture &
Farmers Welfare, Tripura for correction of his basic pay. The
Senior Accounts Officer also sent a reply against the said legal
notice vide his letter dated 03.05.2024 (Annexure-12) informing
the above said communications made by them and the replies of
their office letters dated 20.12.2022 and 08.06.2023 from the
concerned department with views of the Finance Department
were still awaited and therefore, they were not in a position to
issue GPO in favour for the petitioner unless and until the proper
reply is received from the concerned department. The petitioner
thereafter has approached this court under Article 226 of the
Constitution seeking redresses.
[8] It is also agitated that other two employees, namely
Dhirendra Kumar Das and Badal Majumder as similarly situated
with the petitioner who joined in the service with the petitioner
and also got promotion in the post of UDC by the same
notification, went on retirement on 30.06.2021 and 31.01.2019
respectively and in the case of Dhirendra Kr. Das, his last basic
pay was maintained at Rs.60,800/- and the last basic pay of
Badal Majumder was determined to be Rs.59,000/- considering
his early date of retirement but illegally the last pay of the
petitioner was reduced.
[9] During hearing, Mr. Koomar Chakraborty, learned
counsel appearing for the petitioner argues before this court that
before reducing such last basic pay of the petitioner, no show
cause notice was issued to him and actually, the bunching benefit
by way of one increment of Rs.120/- was not provided to the
petitioner w.e.f. 01.01.2006 by the office of the Accountant
General rather it was provided w.e.f. 01.06.2006 wrongly and for
that reason, illegally the last basic pay of the petitioner was
reduced to Rs.59,000/-. In this regard, learned counsel Mr.
Chakraborty also referred to Rules 3 (1)(k) and 7 of the ROP
Rules, 2009 which are extracted hereunder:
3(1)(k) bunching benefit-the term bunching benefit means that
the older employee shall be given the benefit of one increment in
the existing pay for 10 completed years of service from the date of
entry into the State Govt. service under regular scale and two
increments for 20 completed years of service from the date of entry
in the State Govt. service under regular scale. The benefit provided
shall be treated as a one time measure at the time of fixation only
under these rules i.e. on the date of coming over to the revised
scale;
.......... .......... ..........
7. Fixation of initial pay in revised pay structure-(1) The initial
pay of the Government employee who elects or is deemed to have
elected under rule 6 to be governed by the revised pay structure
incorporated in these rules on and from the 1 st day of January,
2006, shall, unless in any case the Governor by special order or
otherwise directs, be fixed in the following manner, namely:-
(i) for the purpose of fixation of initial pay in the
revised pay structure effective from 1st January,
2006 bunching benefit in the form of one increment
shall be provided in the existing scale of pay of the
concerned employee for 10 completed years of
service from the date of his/her direct entry in the
cadre service of the State Government or, as the
case may be, in the State Government Department.
Subject to fulfilment of these criterion, those who
have completed further 10 years of service, i.e. total
20 years of service will be provided further one
increment in the existing scale for the purpose of
fixation of initial pay in the revised pay structure.
The reference date for calculation of completed
years of service of 10/20 years will be 31st
December, 2005. This-bunching benefit would be
admissible only as a one time measure for the
purpose of revision under these rules.
(ii) on providing the bunching benefit, increment(s)
provided under rule 11 & 13 and benefits provided under
rule-14 of these rules for the eligible cases to the existing
basic pay, pay in the pay band of the employee who
continued in service after 31st December, 2005, shall be
determined notionally as on 1st day of January, 2006 or
the date of coming over to the revised pay scale as per
option exercised, by way of multiplying with a factor of
1.74 and rounding off the resultant figure to the next
multiple off 10;
Provided that if the minimum of the revised pay band is
higher than the amount so arrived at in accordance with
the provisions of this item, the pay shall be fixed at the
minimum of the revised pay band;
(ii) After the pay in the pay band so determined, grade
pay corresponding to the existing scale shall be added;
(2) Subject to compliance of rule-6, the initial substantive pay of the
employee in the permanent post on which he holds lien or would
have held a lien had his lien not been suspended, and in respect of
his pay in the officiating post held by him shall be fixed separately in
the manner indicated in sub rule(1);
[10] It is also argued by Mr. Chakraborty, learned counsel
that the deduction of any amount on the ground of wrong fixation
for a period w.e.f. 01.01.2006 or w.e.f. 01.01.1998 as the case
may be, was not permissible in view of the decision of the Apex
Court rendered in State of Punjab and others vs. Rafiq Masih
(White Washer) and others, (2015) 4 SCC 334. According to
Mr. Chakraborty, learned counsel, illegally the gratuity amount
has been withheld which is required to be released immediately
with interest and the last pay of the petitioner should be fixed at
Rs.60,800/- in place of Rs.59,000/-.
[11] Mr. Kohinoor N. Bhattacharya, learned GA appearing
for the State-respondents submits that the rest amount of
gratuity was withheld by the office of the Accountant General for
the reason of erroneous pay fixation of the pay of the petitioner
and the petitioner also submitted one option form by way of
undertaking to refund to the government the excess payment, if
any, drawn by him on account of erroneous fixation in the revised
pay structure. He also submits that when the erroneous fixation
was detected by the office of the Accountant General, the last
basic pay was also reduced after making necessary correction as
per rules and nothing illegality or arbitrary was done by the
respondents.
[12] Mr. N. Majumder, learned counsel appearing from the
side of the Accountant General i.e. the respondents Nos.4 & 5,
submits that as per Rule 7 of ROP Rules, 2009 proper calculation
of the fixation of pay of the petitioner was done from the office of
the Accountant General as per norms and therefore, no
irregularity and illegality were committed by the respondents
No.4 & 5. He also refers to the letter dated 25.08.2021 of
Assistant Accounts Officer under Annexure-5 addressed to the
Deputy Director of Horticulture as discussed earlier. According to
Mr. Majumder, learned counsel, the last basic pay of the
petitioner was correctly refixed at Rs.59,000/- from the office of
the Accountant General and therefore, there is no merit in the
writ petition.
[13] Regarding the plea raised from the side of the
petitioner about not providing the bunching benefit by way of one
increment of Rs.120/- under Rule 7 of the ROP Rules, 2009 w.e.f.
01.01.2006 on completion of 10 years of service from the date of
direct entry in the service, Mr. Majumder, learned counsel during
hearing on 25.09.2024 submitted that an additional affidavit in
this regard would be submitted on behalf of the respondents No.4
& 5 with further clarification as to whether such benefit was
provided to the petitioner or not and then an additional affidavit
was also submitted from the side of the said respondents,
inter alia, in the following terms:
"........In this instant case the pay regulation was found
incorrect w.e.f. 01.01.1998 because the concerned
Department had wrongly fixed the pay giving benefit of 1st
Gradation after 10 years from the date of joining as per
office order vide F.2(516)-Agri(Estt)/2011-12/10221-84,
dated 05.05.2012, which does not match with the
Notification issued by the Finance Department, Govt. of
Tripura vide No.F.6(1)-FIN(PC)/98, dated 24.06.2008 at Sl.
No.2(c) wherein it has been mentioned that the Date of next
increment (DNI) alongwith the scope for exercising option
shall be effective from 01.01.1999 but the writ petitioner had
got this benefit w.e.f. 01.01.1998. In this connection the
concerned Department fixed the pay w.e.f. 01.01.2006 at
Rs.5,280/- and had been found incorrect for revised pay
regulation under ROP, 2009 and this office communicated
the concerned Department on several occasions regarding
this wrong fixation of pay vide letter dated 27.10.2021,
04.01.2022, 20.12.2022 & 08.96.2023 (which are mentioned
in the writ petition, this office communicated with the
concerned Department on several occasions regarding the
wrong fixation of pay regulation vide letter dated
27.10.2021, 04.01.2022, 20.12.2022 & 08.06.2023 (which
are mentioned in the writ petition). On receipt of reply from
the concerned department along with the correct pay
regulation this office will authorized withheld pensionary
benefits.
[14] However, no straight forward reply was given by the
respondents No.4 & 5 in the said additional affidavit about
providing of bunching benefit under Rule 7 of ROP Rules, 2009.
In support of the plea of State-respondents in respect of
execution of 'undertaking' by the petitioner, they submitted such
undertaking as Annexure-E with their counter affidavit but it
manifests that the same was executed on 05.08.2021 i.e. after
two months of the retirement of the petitioner and not at the
time of fixation of pay as per ROP or prior thereto. Therefore, the
said document is not much relevant. However, another option
form was also signed by the petitioner regarding fixation of his
pay w.e.f. 01.01.2006, as relied on by State-respondents, giving
the undertaking that he would be liable to refund the excess
amount drawn by him in case of any wrong fixation. Be that as it
may, said fact will be examined in different perspective in the
light of the judgment of the Apex Court as to whether such
refund after retirement about any wrong fixation done long ago
would be harsh and iniquitous towards the petitioner or not.
[15] Now 2(two) questions come up for consideration
before this court i.e. (i) the matter of alleged wrong fixation of
pay by the office of the Accountant General and (ii) the matter of
recovery of amount on the ground of alleged wrong fixation. So
far the second question i.e. the matter of recovery is concerned,
from the correspondences made from the office of the Accountant
General, it is clear that the wrong fixation was either w.e.f.
01.01.1998 or latest by 01.01.2006. Admittedly, the petitioner
was a Group-C employee and he had no contribution in such
wrong fixation, if any. In Rafiq Masih (supra), some situations
have been postulated by the Hon'ble Supreme Court wherein
recoveries by the employer was held to be impermissible in law
and the relevant paragraph No.18 thereof, is extracted
hereunder:
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 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.
[16] It is already noted that the petitioner was a Group-C
employee and the alleged recovery from the employee on the
ground of excess payment is for a period far beyond 5[five] years
from the date when such order of recovery was proposed and
already the petitioner has gone on superannuation. Therefore,
the case of the petitioner is covered by above said decision.
Consequently, it is held that recovery of any such amount at a
belated stage after retirement will be very much harsh, iniquitous
and impermissible at law. So far the matter of alleged wrong
fixation is concerned, nothing could be shown from the side of
the respondents that before making any such decision of wrong
fixation, the petitioner was given a scope to be heard. Therefore,
any order passed against his interest alleging wrong fixation is
violative of principle of natural justice. Therefore, the
respondents cannot be allowed to give effect to the letter dated
25.08.2021 (Annexure-5) and the letters dated 27.10.2021,
04.01.2022, 20.12.2022 and 08.06.2023 (under Annexure-7 and
Annexure-8) of the office of Accountant General unless the
petitioner is given a scope to be heard and to explain his own
stand.
[17] So far the matter of withholding of rest amount of
gratuity of the petitioner is concerned, it is also not the case of
the respondents that there was any outstanding dues recoverable
from the petitioner at the time of retirement in terms of Rules 70
and 75 of the CCS Pension Rules, 1972 as adopted in Tripura.
Moreover, it appears that if, the gratuity is calculated treating his
last basic pay to be Rs.59,000/- in place of Rs.60,800/-, the
difference with the amount what has been calculated earlier, will
not be very significant. Therefore, the gratuity already calculated
shall remain unaltered.
[18] Considering thus, the writ petition is partly allowed. It
is held that proposed recovery of any amount by the respondents
on the ground of wrong fixation of pay of the petitioner is held to
be harsh, iniquitous and impermissible at law and therefore, the
respondents are directed not to recover any amount from the
petitioner on the ground of any such wrong fixation. However,
the respondents will have the liberty to revisit the pay fixation of
the petitioner to examine and verify it's correctness for the
purpose of fixation of his last basic pay and pension, but while
doing so, the petitioner shall be notified and shall be given the
opportunity to be heard and to place any document(s), if so
desire, in support of his contention.
The respondents are also directed to release the
balance amount of gratuity immediately along with interest @ 7%
per annum w.e.f. 30 [thirty] days from the date of retirement of
the petitioner, till payment is made.
The entire exercise of revisit of fixation of the pay of
the petitioner, if any, and the release of rest amount of gratuity
as ordered, shall be done within 8(eight) weeks from the date of
receipt of a copy of this judgment.
With such observations and directions, this writ
petition is disposed of.
Pending application(s), if any, also stand disposed of.
JUDGE
Sujay
SUJAY GHOSH Date: 2025.03.27 16:35:35
