Tripura High Court
Sri Anup Kumar Saha vs The State Of Tripura on 6 May, 2025
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.46 of 2025
Sri Anup Kumar Saha, (61 years)
S/O- Lt. Anil Chandra Saha,
Resident of Kunjaban Colony,
P.O.- Abhoynagar, P.S.- East Agartala,
Sub-Division- Sadar,
District -West Tripura,
PIN-799005.
.... Petitioner(s).
Versus
1. The State of Tripura,
(to be represented by) the Secretary,
Department of Finance, Government of Tripura,
New Secretariat Building,
New Capital Complex, Agartala,
West Tripura, PIN-799010.
2. The Secretary,
Department of Finance,
Government of Tripura,
New Secretariat Building,
New Capital Complex, Agartala,
West Tripura, PIN-799010.
3. Tripura Road Transport Corporation (TRTC),
(A Government of Tripura undertaking) to be
represented by The Chairman,
Tripura Road Transport Corporation,
Krishnanagar, Agartala, West Tripura,
PIN-799001.
4. The Managing Director,
Tripura Road Transport Corporation,
Krishnanagar, Agartala,
West Tripura, PIN-799001.
5. The Secretary,
Department of Transport,
Government of Tripura,
Paribahan Bhavan, Astabol,
Northgate, Agartala,
West Tripura District,
PIN-799001.
.......Respondent(s).
For Petitioner(s) : Mr. Purusuttam Roy Barman, Sr. Adv.
Ms. Sutapa Deb Barman, Adv.
For Respondent(s) : Mr. Karnajit De, Addl. G.A.
Mr. Dipankar Sarma, Addl. G.A.
Date of Hearing : 30.04.2025
Date of delivery of
Judgment and Order : 06.05.2025
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
By means of filing this writ petition, the present
petitioner has sought for the following reliefs:-
(i) Issue Rule upon the Respondents to show cause
as to why a writ in the nature of Mandamus and/or
order/orders and/or direction/directions of like
nature shall not be issued whereby directing the
Respondents to make the full and final payment of
Gratuity amounting to Rs.2,07,523/- with interest
@9% per annum to the Petitioner till the date of actual
payment an interest @9% also for deferred payment
of Rs.12,07,523/-.
(ii) Issue Rule upon the Respondents to show cause
as to why a writ in the nature of Mandamus and/or
order/orders and/or direction/directions of like
nature shall not be issued whereby directing the
Respondents to quash and cancel the letter, dated
02.01.2025 issued by the Respondent No.4.
(iii) Issue Rule upon the Respondents to show cause
as to why a writ in the nature of Mandamus and/or
order/orders and/or direction/directions of like
nature shall not be issued whereby directing the
Respondents to determine the Gratuity payable to the
Petitioner on the basis of his last basic pay i.e.
Rs.45,900/-
(iv) Call for the records pertaining to the instant
Writ Petition from the custody of the Respondents.
(v) Make the Rules absolute after hearing the
Parties.
02. Heard Learned Senior Counsel, Mr. P. Roy Barman
assisted by Learned Counsel, Ms. Sutapa Deb Barman
appearing on behalf of the petitioner. Also heard Learned Addl.
G.A., Mr. K. De appearing on behalf of the State-respondents
and further heard Learned Addl. G.A., Mr. D. Sarma appearing
on behalf of the respondent Nos.3 and 4.
03. The brief facts of this writ petition are as follows:-
According to the petitioner, he joined Tripura Road
Transport Corporation, in short TRTC on 18.01.1985 in the post
of Guard. After attaining the age of superannuation, the
petitioner retired from service on 31.12.2022 vide order dated
04.02.2022 of the Managing Direction, TRTC. The petitioner at
the time of retirement was holding the post of Head Guard
(Annexure-1).
04. The Tripura State Civil Services (Leave) Rules, 1986
is applicable to the petitioner as it has been adopted by the
TRTC. The payment of Gratuity Act 1972 is also applicable to
the petitioner.
05. According to the petitioner, the last basic pay and
DA of the petitioner at the time of retirement was Rs.45,900/-
and Rs.9,180/- respectively which would be evident from the
certificate, dated 23.08.2023 issued by the Managing Director,
TRTC. Further according to the petitioner he discharged 38
years of qualifying service and considering the basic pay and
DA he was entitled to gratuity for an amount of
Rs.12,07,523/(Annexure-2).
06. The TRTC vide order dated 24.03.2023 sanctioned a
sum of Rs.10,00,000/- towards final payment of Gratuity in
favour of the petitioner who retired from service on
superannuation. But the respondents have released payment of
Rs.10,00,000/- to the petitioner as gratuity on 24.03.2023
after the due date. So, the petitioner is entitled to more
Rs.2,07,523/- as the balance amount of gratuity (Annexure-
3).
07. The payment of Gratuity Act, 1972 has been
amended on 2018 which came into force on 29.03.2018 and by
the said amendment Section 4(3) of the Act, 1972 has been
amended increasing the ceiling limit at Rs.20,00,000/- as
notified by the Central Government vide notification dated
29.03.2018 (Annexure-4).
08. It was further submitted that one LalZakimRokhum,
a retired employee of TRTC filed a writ petition before this
Court for granting him full and final payment of gratuity at the
enhanced rate i.e. at Rs.20,00,000/- introduced by the
amendment of the Act, 1972 and this Court vide Judgment
dated 20.02.2020 delivered in WP(C) No.1209 of 2019, held
that the employees of TRTC are entitled to Payment of
Gratuity in terms of the amendment of the Payment of Gratuity
Act, 1972, vide notification dated 29.03.2018 issued by the
Government of India, raising gratuity limit to Rs.20,00,000/-
from Rs.10,00,000/- and also directed that the petitioner shall
be paid gratuity in terms of the ceiling limit i.e. Rs.20,00,000/-
with 7.5% interest. The said judgment has been complied with
by the said respondents (Annexure-5).
09. The present petitioner, thereafter, on 19.04.2023,
made a representation demanding full and final payment of
gratuity as per the enhanced rate with interest, but no action
was taken (Annexure-6 & 7).
10. Being aggrieved, the petitioner had approached this
Court by filing a writ petition bearing No.WP(C) No.45 of 2024
and this Court vide Judgment and Order dated 26.04.2024
allowed the writ petition observing that the petitioner is
entitled for leave encashment. In WP(C) No.45/2024, the
petitioner sought two fold reliefs i.e. one for release of full and
final payment of gratuity and also for release of leave
encashment etc. In those writ petitions the reliefs sought for
was for sanction of leave encashment benefit. So, the present
petitioner filed a review petition before this Court vide Rev.
Pet. No.17/2024 and this High Court vide order dated
13.09.2024 allowed the said review petition and directed that
the petitioner is also entitled to gratuity along with leave
encashment benefit (Annexure-8).
11. Thereafter, in compliance of the order dated,
13.09.2024 passed by this Court further Rs.49,677/- has been
sanctioned in favour of the petitioner as remaining amount of
gratuity, vide Sanction Order dated 08.10.2024 issued by the
Managing Director, TRTC (Annexure-9).
12. After that the petitioner served legal notice on
03.11.2024 through Learned Advocate Ms. Sutapa Deb Barman
(Annexure-10). In reply it was informed that the petitioner is
not entitled to any further amount of gratuity because as per
the Audit report the last basic pay of the petitioner has been
recorded as Rs.39,900/- as on 31.12.2022 and as such his
Gratuity comes to Rs.10,49,677/-. Thus the petitioner is not
entitled to any further amount of Rs.2,07,523/-. It has been
also stated that in the said order dated, 13.09.2024 passed by
this Court in Rev. Pet. No.17/2024 no direction was given to
the TRTC for releasing Gratuity as per the claim of the
petitioner along with interest for deferred payment
(Annexure-11).
13. According to the petitioner, in the letter dated
02.01.2025 issued by the Managing Director, TRTC it was
informed that his basic pay has been reduced from Rs.45,900/-
to Rs.39,900/- on the basis of alleged Audit Report. In this
regard, no show cause notice was issued to the petitioner to
show cause as to why his basic pay shall not be reduced to
Rs.39,900/- from Rs.45,900/-.
According to the petitioner, behind the back of the
petitioner, the respondents reduced the basic pay of the
petitioner to Rs.39,900/- from Rs.45,900/-. Hence, the present
petitioner filed the writ petition. The writ petition was
contested both by the corporation and the State.
14. The respondent Nos.3 and 4 denied the assertions
made in the writ petition and in Para No.11, the said
respondents have made following assertions.
"11. That, in regards to the statement made in
paragraph-9 to 11 of the writ Petition it is stated that
averments are denied and disputed. It is stated that at
the time of retirement of the Petitioner from the post
of Head Guard as on 31.12.2022 his basic pay was
Rs.39,900/-. The fact is that, the TRTC conducted
Audit accounts and re-calculation of Basic Pay &
allowances of all employees under the Corporation. In
so far as the Petitioner is concerned, the Directorate of
Audit has observed the following Due Drawn
statement:-
Excess pay & allowance paid to Shri Anup Kumar Saha,
Head Guard, Office of the Managing Director, TRTC for
the period from 1st October, 2018 to 31st August, 2022.
DoB: Date of Apptt.: 1 ACP 18.01.1995
18.12.1962 18.01.1985: (pre-revised Grade
Guard-Gr.III Pay:1300 &
Revised Grade
Pay: 1650/-)
2ndACP: 3rd ACP 1st Promotion:
18.01.2002 18.01.2010 05.10.2013 (Pre-
(Pre-revised (Pre-Revised revised GP;1600 &
Gr.Pay:1400 & GP:1500 & Revised GP: 2000
Revised Revised GP; [Guard to Security
Gr.Pay:1800/-) 1900/-) Guard]
He was Promoted on 20.12.2021 (Ad-hoc).
Accordingly pay has been fixed by the Corporation
with Pre-revised Grade Pay Rs.2000 & Revised Gr. Pay
Rs.2400/-though as per F.D order corresponding
Grade Pay was Rs.1600/- (Revised Rs.2000/-) such
benefit will not be allowed to him as he already
enjoyed the same grade Pay i.s. Rs. 2000/- at the time
of 1st promotion on 05.10.2013. Now as per the Due
Drawn statement prepared by the Audit based on the
accounts of the Corporation in respect of the
Petitioner from 1st October, 2018 to 31st August,
2022 is shown in separate statement.
DoB: 18.12.1962 Date of Apptt. 1st ACP 18.1.1995
18.01.1985 as Guard (pre-Revised
Gr.III GP:1300 & Revised
GP:1650.
2nd ACP 3rd ACP 1st Promotion
18.01.2002 18.01.2010 05.10.2013, Pre-
(Pre-revised GP: (Pre-revised: revised GP 1600 &
1400 & Revised GP 1500 & Revised GP
GP:1800 Revised 2000(Guard to
GP:1900) Security Guard).
A copy of the Audit Accounts statement for the period
from 1st October, 2018 to 31st August, 2022 in respect
of the Excess Pay & Allowance issued by the
Directorate of Audit is annexed and marked as
ANNEXURE-R/1.
From the Due Drawn statement issued by the Audit
Directorate, it would appear that the Petitioner was
drawing excess pay and allowance, the reasons
whatever it may be. After the Audit observation, re-
calculation of Gratuity of the Petitioner Ex-Head
Guard, TRTC during the period of his retirement, was
made as follows:-
Date of retirement -2022-12-31
Date of Joining -1985-01-18
Total period of service is 37 yrs, 11 months and 13
days i.e. 38 years.
Now taking into consideration his revised Basic Pay as
per Audit observation, the Basic pay at the time of
retirement of the Petitioner was Rs.39,900/-+ DA
20% comes to Rs.7,980/- = Rs.47,889 x 15 x 38 yrs
divided by 26 = Rs.10,496,77/-. Thus the total
Gratuity comes at Rs. 10,49,677/-. On the retirement
of the petitioner, as per sub-Rule(3) of Section 4 of
the payment of the Gratuity Act, 1972 and 3rd
Amendment Act, 2010 as adopted in TRTC, an amount
of Rs. 10,00,000/-(Rupees Ten Lakhs) was released to
him being the provisional payment of Gratuity as per
sanction order issued vide No.F.1(132)-TRTC/ Set/
Gratuity/Vol-X/2019/1120, dated 24/03/2023.
Subsequently the rest amount of Rs.49,677/- was also
paid to him vide No.9(728) TRTC/Gen/(L)1412-15
dated 08/10/2024. Petitioner Shri Anup Kumar Saha,
Ex Guard retired from the post of Head Guard and as
per Audit Report his last Basic pay is recorded as
Rs.39,900/- as on 31/12/2022 (at the time of
retirement). Accordingly, his gratuity amount was
calculated as Basic Pay Rs.39,900/-+(20%
DA=Rs.7,980/-)=Total Rs.47,880/-.Service Length-38
years, Total Gratuity amount comes at Rs. 10,49,677/.
Accordingly, sanction order was issued on
24/03/2023 for an amount of Rs. 10,00,000/-and on
08/10/2024 for an amount of Rs.49,677/-
It may be further mentioned herein that it is fact
that the Managing Director, TRTC issued certificate
dated 23.08.2023 showing the basic pay of the
petitioner as Rs.45,900/-. But during Audit
observation, the Due and Drawn statement of the
Petitioner was prepared and after recalculation, it is
found that the petitioner was paid excess amount as
pay and allowance since 1st October, 2018 to August,
2022. Accordingly, the petitioner was paid Gratuity
amount on the basis of the recalculated amount done
by the Directorate of Audit."
15. In Para No.13, the said respondents also stated
that the petitioner has been paid gratuity considering the
enhanced ceiling limit of Rs.20,00,000/- and based on the
Audit observation his basic pay was reduced to Rs.39,900/-
from Rs.49,900/-.
16. Further in Para No.19 the said respondents also
have asserted the following facts:
"19. That, in regards to the statement made in
paragraph 25 of the writ Petition it is stated that
averments are denied and disputed. It is stated that
WP(C) 45 of 2024 was filed for leave encashment and
full and final payment of gratuity with interest for
alleged deferred payment etc. The Hon'ble High Court
passed a common Judgment and Order on 26.04.2024
directing the TRTC respondents to look into the matter
and settle the claim of the petitioners within a period
of six months. Being aggrieved, Petitioner had filed
Review petition before the Hon'ble High Court,
registered as 17/2024 in WP(C) 45/2024 (d/o) to
review the Judgment and order declaring that the
petitioner of WP(C) No.45/2024 is entitled to full and
final payment of gratuity taking into consideration the
ceiling limit of Rs.20 lakhs in terms of Notification
dated 29/03/2018 in the Gazette of India and to
extend such benefit to the petitioner. The Hon'ble High
Court passed Order on 13/09/2024. Nowhere in the
Judgment and Order, the Hon'ble High Court directed
TRTC for releasing Gratuity as per the claim of the
petitioner. On scrutiny it appears that an amount of
Rs.10 lakhs was paid as Gratuity vide sanction order
dated 24/03/2024 and subsequently a further amount
of Rs.49,677/- was found due which was also
released, thus a total amount of Rs.10,49,677/- has
already been paid to the Petitioner considering the
enhanced ceiling limit of Gratuity to the extent of
Rs.20 lakhs. The Petitioner, Ex-Guard retired from the
post of Head Guard and as per Audit Report his last
Basic pay is recorded as Rs.39,900/-as on
31/12/2022 (at the time of retirement). Accordingly,
his gratuity amount was calculated as per Basic Pay of
Rs.39,900/-+(20%DA=Rs.7,980/-)=Total Rs.47,880/.
Service Length-38 years, Total Gratuity amount comes
at Rs. 10,49,677/-."
So, by the counter-affidavit, the respondents also
prayed for dismissal of this writ petition.
17. No separate counter-affidavit is filed by the State-
respondents and in course of hearing, Learned Addl. G.A.
submitted that they would also rely upon the same counter-
affidavit. The said respondent Nos.3 and 4 with their counter-
affidavit annexed Annexure-R/1 i.e. the Due Drawn statement
and according to them as per Due Drawn statement the
department is to recover Rs.1,87,380/- from the present
petitioner being excess amount paid to the present petitioner.
18. I have heard detailed argument of both the sides. At
the time of hearing of argument Learned Senior Counsel for
the petitioner submitted that behind the back of the petitioner
the Managing Director reduced the basic pay from Rs.45,900/-
to Rs.39,900/-. Further no notice/show cause was issued upon
him before reduction of the basic pay and as such the
petitioner is entitled to the relief as prayed for in the writ
petition.
19. On the other hand, Learned Addl. G.A., Mr. K. De
representing the State-respondents and Learned Addl. G.A.,
Mr. D. Sarma, appearing for the respondent Nos.3 and 4,
taking part in the hearing drawn the attention of the Court that
treating the ceiling limit of gratuity at Rs.20,00,000/- vide
Sanction Order dated 24.03.2023 a sum of Rs.10,00,000/- was
paid to the petitioner and thereafter a further sum of
Rs.49,677/- was paid to the petitioner by the Managing
Director, TRTC vide Sanction Order dated 08.10.2024, and as
such the petitioner is not entitled to any further amount from
the department concerned.
20. So, after hearing both the sides and also after
perusing the documents as Annexures relied upon by the
petitioner as well as the counter-affidavit submitted by the
respondents along with the Annexures, it appears that the
basic pay of the petitioner was reduced from Rs.45,900/-to
Rs.39,900/- beyond the knowledge of the petitioner. The
respondents in this regard failed to submit any document
showing that the basic pay was reduced from Rs.45,900/- to
Rs.39,900/- after giving due intimation to the present
petitioner. The respondents on the basis of last basic pay of
Rs.39,900/- paid the amount of Rs.10,49,677/- as gratuity
wherein according to the petitioner on the basis of pay slip
dated 23.08.2023, the petitioner is entitled to get
Rs.12,07,523/-. Thus, it is apparent from the record that there
is a gap of Rs.1,57,846/- which according to the petitioner, he
is entitled to get from his parent department i.e. TRTC.
21. According to the respondents they have paid excess
amount of Rs.1,87,380/- to the petitioner which according to
them is liable to be recovered from the present petitioner.
Admittedly, the petitioner was a Group-C employee of the
corporation. From the annexed documents relied upon by both
the parties, it appears that the aforesaid amount of
Rs.1,87,380/- was paid to the petitioner without any
misrepresentation or fraud played by the petitioner. Rather the
same was made due to alleged wrong calculation of basic pay
by the respondent department for which the present petitioner
cannot be held liable and responsible and he cannot be asked
to restore/refund the amount to the respondent department.
22. There are series of judgments in this regard, that if
there is any excess amount paid to any Group-C/Group-D
employees in that case after retirement of the employee there
is very least scope to recover the said amount from the
respective employee. Hon'ble the Supreme Court of India in a
case reported in (2015) 4 SCC 334 [State of Punjab And
Others Vs. Rafiq Masih (White Washer) And Others] in
Para Nos.17 and 18 observed as under:-
"17. Last of all, reference may be made to the decision
in Sahib Ram v. Union of India [1995 Supp (1) SCC 18]
wherein it was concluded as under: (SCC pp. 19-20.
paras 4-5)
"4. Mr. Prem Malhotra, learned counsel
for the appellant, contended that the previous
scale of Rs 220-550 to which the appellant was
entitled became Rs 700-1600 since the
appellant had been granted that scale of pay in
relaxation of the educational qualification. The
High Court was, therefore, not right in
dismissing the writ petition. We do not find any
force in this contention. It is seen that the
Government in consultation with the University
Grants Commission had revised the pay scale of
a Librarian working in the colleges to Rs 700-
1600 but they insisted upon the minimum
educational qualification of first or second class
MA, MSc, MCom plus a first or second class BLib
Science or a Diploma in Library Science. The
relaxation given was only as regards obtaining
first or second class in the prescribed
educational qualification but not relaxation in
the educational qualification itself.
5. Admittedly the appellant does not
possess the required educational qualifications.
Under the circumstances the appellant would
not be entitled to the relaxation. The Principal
erred in granting him the relaxation. Since the
date of relaxation the appellant had been paid
his salary on the revised scale. However, it is
not on account of any misrepresentation made
by the appellant that the benefit of the higher
pay scale was given to him but by wrong
construction made by the Principal for which the
appellant cannot be held to be at fault. Under
the circumstances the amount paid till date may
not be recovered from the appellant. The
principle of equal pay for equal work would not
apply to the scales prescribed by the University
Grants Commission. The appeal is allowed partly
without any order as to costs." (emphasis
supplied)
It would be pertinent to mention, that Librarians were
equated with Lecturers, for the grant of the pay scale
of Rs 700-1600. The above pay possessed the
prescribed minimum educational qualification (first or
second class MA, MSc, MCom plus a first or second
class BLib Science or a diploma in Library Science, the
degree of MLib Science being a preferential
qualification). For those Librarians appointed prior to
3-12-1972, the educational qualifications were
relaxed. In Sahib Ram case [Sahib Ram v. State of
Haryana, 1995 Supp (1) SCC 18], a mistake was
committed by wrongly extending to the appellants the
revised pay scale, by relaxing the prescribed
educational qualifications, even though the appellants
concerned were ineligible for the same. The appellants
concerned were held not eligible for the higher scale,
by applying the principle of "equal pay for equal
work". This Court, in the above circumstances, did not
allow the recovery of the excess payment. This was
apparently done because this Court felt that the
employees were entitled to wages, for the post against
which they had discharged their duties. In the above
view of the matter, we are of the opinion, that it would
be iniquitous and arbitrary for an employer to require
an employee to refund the wages of a higher post,
against which he had wrongfully been permitted to
work, though he should have rightfully been required
to work against an inferior post.
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."
Relying upon the aforesaid principle of law laid down
by the Hon'ble Apex Court, it appears to this Court that if at
this stage the aforesaid amount of Rs.1,87,380/- as alleged by
the respondents is to be recovered from the petitioner in that
case the same would cause undue hardships and sufferings to
the petitioner being a poor paid employee who had received
the amount without any fault of his own rather the fault alleged
to be committed by the department. So, the respondents
department be restrained from recovering the said amount
from the petitioner at this stage. So, after hearing of both the
sides and also going through the relevant documents
submitted by both the parties this writ petition is disposed of
with the following observations/directions:-
(i) That the respondent department shall be restrained from
recovery/realization of the aforesaid amount of Rs.1,87,380/-
from the petitioner in view of the aforesaid principle of law laid
down by the Hon'ble Apex Court in aforesaid Rafiq Masih
(supra) case.
(ii) Since, the basic pay of the petitioner was reduced from
Rs.45,900/- to Rs.35,900/- behind the back of the petitioner
by the respondent department i.e. the Managing Director,
TRTC, based on the Audit Report. So the petitioner of this case
shall be at liberty to file a representation to the respondent
Managing Director, TRTC within a period of 15 days from the
date of delivery of the judgment and thereafter the respondent
department i.e. Managing Director, TRTC shall dispose of the
grievances of the petitioner within a further period of next 01
(one) month regarding reduction of basic pay from Rs.45,900/-
to Rs.35,900/-.
(iii) If it is found that the basic pay was reduced without any
cogent grounds in that case the department shall release the
balance amount of gratuity in favour of the petitioner as
claimed by him in the writ petition after due calculation,
considering the ceiling limit of Rs.20,00,000/- as per
notification dated 29.03.2018 issued by the Central
Government, as the same has been admitted by the
respondents.
With these observations, this writ petition is
disposed of.
Pending application/s, if any, also stands disposed
of.
JUDGE
Amrita
AMRITA DEB AMRITA DEB
Date: 2025.05.07
17:37:03 +05'30'
