Tripura High Court
Sri Jitender Kumar Singh (Regimental ... vs The Union Of India on 1 September, 2025
HIGH COURT OF TRIPURA
AGARTALA
I.A.01 of 2025
In
WP(C) No.427 of 2025
1. Sri Jitender Kumar Singh (Regimental No.102558793), son of Late
Shri Chandri Singh, resident of Village & P.O-Katahara Khas (Ramnagar),
District- Maharajganj, Uttar Pradesh.
2. Sri Ravi Kalwar, (No.071050962), Son of Sri Tarak Nath Kalwar,
resident of Jagatdal, Dist- North 24 Pargana, West Bengal.
3. Sri Pramod Kumar (No.032541076), son of Sri Narendra Singh,
resident of Ratawa, Dist- Kanpur, Uttarpradesh.
4. Sreeramulu Naidu Chinta (No.041469455), Son of Sri Satyam
Naidu, resident of Somarajupeta, P.O-Ambakhandi, District-Srikakulam,
Andhra Pradesh.
5. Sri Pradeep Kumar (No.134520092), Son of Sri Om Prakash,
resident of VPO-Andhiyar, Dist-Bulandhshr, Uttar Pradesh.
6. Sri Joginder Kumar (No. 180538168), Son of Sri Tarsen Lal,
resident of Qadinwalli, P.O-Dorangala, District-Gurdaspur, Punjab.
7. Sri Srikant Tirkey (No.130812481), Son of Sri Ram Tirkey, resident
of VPO_ Telepara T.F, P.O-Binnaguri, District- Jalpaiguri, West Bengal.
8. Sri Amit Kumar (No.140531266), Son of Sri Kewal Krishan, resident
of Bhabour Sahib, Dist- Ropar, Punjab.
9. Sri Biswajit Singha (No.110034003), son of Sri Birendra Nath
Singha, resident of Coochbehar, West Bengal.
10. Sri Nitish Kumar (No.113765894), son of Sri Akhileshwar Singh,
resident of District-Palamou, Jharkhand.
----Applicant(s)
Versus
1. The Union of India, represented by the Secretary, Department of
Home Affairs, having his office at North Block, New Delhi, 110001.
2. The Secretary, Department of Home Affairs, having his office at
North Block, New Delhi, 110001.
3. The Director General, Border Security Force, having his office at
Block No. 10, CGO Complex, Lodhi Road, New Delhi-110003.
4. The Commanding Officer, HQ 169 Battalion BSF, Bagma, Gomati
Tripura.
5. The Director of Accounts, Pay and Accounts Division (BSF), Ministry
of Home Affairs, having his office at C Wing, 2nd Floor, Near Madangiri,
Pushpa Bhawan, Delhi - 110062.
----Respondent(s)
For Applicant(s) : Mr. Somik Deb, Sr. Adv.
Mr. Saptarshi Majumder, Adv.
For Respondent(s) : Mr. Bidyut Majumder, Dy. SGI
HON'BLE MR. JUSTICE BISWAJIT PALIT
Order
01/09/2025
Learned Senior Counsel, Mr. Somik Deb assisted by
Learned Counsel, Mr. Saptarshi Majumder is present on behalf of
the applicant-petitioners. Learned Dy. SGI, Mr. Bidyut Majumder is
present on behalf of the respondents-Union of India.
Learned Senior Counsel for the applicant-petitioners
drawn the attention of this court that the present applicant-
petitioners have filed the connected writ petition for
quashing/setting aside the impugned audit report dated
03.10.2023 (Annexure-4 to the writ petition) along with other
reliefs and during continuation of the writ proceeding, the
respondents have issued one memo dated 31.07.2025 (Annexure-
1 to the IA) upon applicant-petitioner No.1, Sri Jitender Kr. Singh
for recovery of overdrawn amount of Rs. 1,04,078/- in respect of
pay and allowances. And, if this allowance amounting to Rs.
1,04,078/- is recovered, then the applicant-petitioner No.1, Sri
Jitender Kumar Singh would be seriously prejudiced being a
Group-C employee.
It is further submitted by Learned Senior Counsel that on
the basis of Audit Report (Annexure-4 to the Writ Petition), the
respondents-Union of India is also contemplating to deduct
overdrawn amount from the rest of the applicant-petitioners. As
such, the present applicant-petitioners have filed this IA for
retraining/prohibiting the respondents from acting in any manner
in respect of the recovery of overdrawn pay and allowances of the
applicant-petitioners in furtherance of the impugned audit report
dated 03.10.2023 (Annexure-4 to the writ petition) till disposal of
the connected writ petition. Learned Senior Counsel further
submitted that if the prayer is not allowed, then the present
applicant-petitioners would be seriously prejudiced and that would
be harsh and iniquitous.
In support of his contention, Learned Senior Counsel
relied upon one citation of the Hon'ble Supreme Court of India in
State of Punjab & Ors. vs. Rafiq Masih (White Washer) &
Ors., reported in (2015) 4 SCC 334 wherein in para No.18,
Hon'ble the Apex Court observed as under:
"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."
Referring the same, Learned Senior Counsel submitted
that since the present applicant-petitioners comes under the
category of Group-C employees under the respondents-Union of
India, so, if the recovery is made that would be harsh and
iniquitous for them, which the respondent authority cannot be
permitted to deduct the overdrawn amount from their salary, if
any.
Learned Senior Counsel again referred another citation of
the Hon'ble Supreme Court of India in Jogeswar Sahoo & Ors.
vs. The District Judge, Cuttack & Ors., reported in 2025 SCC
OnLine SC 724 wherein in Para No.10, Hon'ble the Apex Court
observed as under:
"10. *** *** ***
13. In State of Punjab v. Rafiq Masih (White Washer)(supra)
wherein this court examined the validity of an order passed
by the State to recover the monetary gains wrongly extended
to the beneficiary employees in excess of their entitlements
without any fault or misrepresentation at the behest of the
recipient. This Court considered situations of hardship
caused to an employee, if recovery is directed to reimburse
the employer and disallowed the same, exempting the
beneficiary employees from such recovery. It was held thus:
"8. As between two parties, if a determination is rendered
in favour of the party, which is the weaker of the two,
without any serious detriment to the other (which is truly
a welfare State), the issue resolved would be in
consonance with the concept of justice, which is assured
to the citizens of India, even in the Preamble of the
Constitution of India. The right to recover being pursued
by the employer, will have to be compared, with the effect
of the recovery on the employee concerned. If the effect of
the recovery from the employee concerned would be, more
unfair, more wrongful, more improper, and more
unwarranted, than the corresponding right of the
employer to recover the amount, then it would be
iniquitous and arbitrary, to effect the recovery. In such a
situation, the employee's right would outbalance, and
therefore eclipse, the right of the employer to recover.
xxxxxxxxx
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."
Referring the same, Learned Senior Counsel submitted
that since the present applicant-petitioners are Group-C
employees, so in view of the principles of law laid down by Hon'ble
the Apex Court, the alleged overdrawn amount on the basis of
audit report dated 03.10.2023 (Annexure-4 to the writ petition)
cannot be permitted to be deducted.
Furthermore, before issuing memo dated 31.07.2025
regarding recovery of the amount of Rs.1,04,078/- from applicant-
petitioner No.1, no such notice was issued upon him and there
was no fraud or misrepresentation on the part of the present
applicant-petitioners in respect of drawal of excess amount
because it was the authority who gave the amount to the
applicant-petitioners during the period of COVID. Furthermore, the
applicant-petitioners had to perform their duties during the critical
situation across the world, and if at this stage the authority
deducts the amount, that would cause serious prejudice to the
applicant-petitioners and also would cause hardships to them and
would be iniquitous. So, Learned Senior Counsel urged for
allowing this interim application by staying the operation of memo
dated 31.07.2025(Annexure-1 to the IA) issued in respect of
applicant-petitioner No.1 and also for staying any operation on the
basis of impugned audit report dated 03.10.2023 (Annexure-4 to
the writ petition) regarding recovery in respect of the present
applicant-petitioners till disposal of the connected writ petition.
On the other hand, Learned Dy. SGI, Mr. Majumder
appearing on behalf of the respondents-Union of India submitted
that the present IA is not maintainable as because the reliefs
sought for in the writ petition and also in the IA are same. As
such, the applicant-petitioners are not entitled to any relief at this
stage till disposal of the writ petition. Learned Dy. SGI also relied
upon one citation of the Hon'ble Supreme Court of India in State
of Uttar Pradesh & Ors. vs. Ram Sukhi Devi reported in AIR
2005 SC 284 wherein in para No.8, Hon'ble the Apex Court has
observed as under:
"8. To say the least, approach of the learned Single Judge and the
Division Bench is judicially unsustainable and indefensible. The
final relief sought for in the writ petition has been granted as an
interim measure. There was no reason indicated by learned Single
Judge as to why the government order dated 26-10-1998 was to
be ignored. Whether the writ petitioner was entitled to any relief
in the writ petition has to be adjudicated at the time of final
disposal of the writ petition. This Court has on numerous
occasions observed that the final relief sought for should not be
granted at an interim stage. The position is worsened if the
interim direction has been passed with stipulation that the
applicable government order has to be ignored. Time and again
this Court has deprecated the practice of granting interim orders
which practically give the principal relief sought in the petition for
no better reason than that of a prima facie case having been made
out, without being concerned about the balance of convenience,
the public interest and a host of other considerations. [See CCE v.
Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75] (SCC at
p. 265), State of Rajasthan v. Swaika Properties [(1985) 3 SCC
217] (SCC at p. 224), State of U.P. v. Visheshwar [1995 Supp (3)
SCC 590 : 1995 SCC (L&S) 1423 : (1995) 31 ATC 511] ,
Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd.
Musa [1995 Supp (2) SCC 593] , Shiv Shankar v. Board of
Directors, U.P. SRTC [1995 Supp (2) SCC 726 : 1995 SCC (L&S)
1018 : (1995) 30 ATC 317] and Commr./Secy. to Govt. Health and
Medical Education Deptt. Civil Sectt. v. Dr. Ashok Kumar Kohli
[1995 Supp (4) SCC 214] .] No basis has been indicated as to why
learned Single Judge thought the course as directed was
necessary to be adopted. Even it was not indicated that a prima
facie case was made out though as noted above, that itself is not
sufficient. We, therefore, set aside the order passed by learned
Single Judge as affirmed by the Division Bench and without
expressing any opinion on the merits of the case we have
interfered primarily on the ground that the final relief has been
granted at an interim stage without justifiable reasons. Since the
controversy lies within a very narrow compass, we request the
High Court to dispose of the matter as early as practicable,
preferably within six months from the date of receipt of this
judgment."
Referring the same, Learned Dy. SGI submitted that in
view of the said citation there is no scope to consider the IA at this
stage filed by the present applicant-petitioners. Learned Dy. SGI
finally urged for disposal of the writ petition to resolve the dispute.
To counter the submission, Learned Senior Counsel drawn
the attention of the court that in the original writ petition, the
present applicant-petitioners have sought reliefs for quashing/
setting aside the impugned audit report dated 03.10.2023 but in
the IA, the applicant-petitioners have sought for staying any sort
of action on the basis of said audit report dated 03.10.2023 till
disposal of the writ petition against the present applicant-
petitioners. Moreso, both are legally different although the same
arises out of the audit report. Learned Senior Counsel further
submitted that if at this stage the reliefs sought for is not granted,
then the applicant-petitioners would be seriously prejudiced
because they are Group-C employees and if any recovery order is
made at this stage, that would cause serious hardships to them.
Further, in view of the principle of law laid down by Hon'ble the
Apex Court, the same is also not permitted as per law laid down
by Hon'ble the Apex Court.
I have heard submission of both the sides at length and
also gone through the citations as referred by the applicant-
petitioners as well as the respondents. The respondents-Union of
India inspite of allowing time have not submitted their counter
affidavit till today.
It is the admitted position that in the connected writ
petition, the present applicant-petitioners have sought reliefs for
quashing/setting aside the impugned audit report dated
03.10.2023 (Annexure-4 to the writ petition) along with other
reliefs. And, in this present IA, the applicant-petitioners have
sought relief for staying of any action in respect of recovery of
amount on the basis of the audit report dated 03.10.2023 till
disposal of the writ petition against the applicant-petitioners and
also the memo dated 31.07.2025 issued by the respondent
authority upon applicant-petitioner No.1.
Admittedly, the present applicant-petitioners are Group-C
employees under respondents-Union of India. The connected writ
petition is still pending for disposal. However, if at this stage no
interim protection is granted, then in the considered view of this
Court, that would cause undue hardships to the applicant-
petitioners being Group-C employees.
So, relying upon the principles of law laid down by the
Hon'ble Apex Court the respondents-Union of India is restrained
from taking any action regarding recovery of any overdrawn
amount in the light of audit report dated 03.10.2023 (Annexure-4
to the writ petition) in respect of the present applicant-petitioners
till disposal of the connected writ petition. The subject matter of
the citation referred by Learned Dy. SGI appears to be not similar
with the subject matter of the present writ petition. As such, the
same principle cannot be applied at this stage.
With this observation, the instant interlocutory application
stands allowed and thus, disposed of.
JUDGE
Snigdha
MOUMIT Digitally signed by
MOUMITA DATTA
A DATTA Date: 2025.09.01
17:52:34 +05'30'
