Pradip Roy vs State Of Tripura And Ors

[1] Heard Mr. Sengupta, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned counsel appearing for the state.

[2] A short grievance as raised by the petitioner is that the petitioner was given prematurely the benefit of CAS-II by bringing him in the scale of pay of Rs.5000-10,300/- and his pay was fixed on Rs.5260/- on 25.12.2004 deeming him to have completed 7 (seven) years of service on that day. But it is the admitted position that the petitioner did complete 7 (seven) years on that day to be entitled to get the Grade more than in the scale of pay of Rs.5000-Rs.10,300/- on 25.12.2005. The said erroneous fixation was detected by the respondent, particularly the Director of Economics and Statistics, after 13 (thirteen) years as would be evident from that order dated 04.10.2006 under No.F.1(188)/STAT/ESTT/1999/2114 (Annexure-1 to the writ petition).

[3] It is after about thirteen years, a due drawn statement was drawn to the notice of the petitioner by the order dated 27.04.2020 (Annexure-4 to the writ petition). The said order has revealed that the petitioner has drawn an excess amount of Rs.1,17,386/- for the period from 26.12.2004 to 30.04.2020. Accordingly, the petitioner has been asked to refund the said amount and in the event of failure, the amount will be recovered as an excess amount from his salary. The petitioner has challenged the said decision by means of this petition stating that in view of the law laid down by the apex court in State of Punjab and Others vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 where the apex court having appreciated its earlier decisions in the field has laid down the law by stating that first and foremost, as it is pertinent, to note that the said Court in its judgment in Syed Abdul Qadir's case: (2009) 3 SCC 475, has recognized that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family.

[4] Based on the above consideration in Rafiq Masih (supra), the apex court has observed that if the mistake is of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payment mistakenly made to the employee.

[5] Finally, after further deliberation in Rafiq Masih (supra), the apex court has laid down the postulates where and when the recovery cannot be permitted. However, it has been reminded that all postulates in all situations cannot be identified or laid down. A few situations, wherein recoveries by the employers, would be impermissible in law has been laid down in Rafiq Masih (supra) which reads as under:

"(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."

[6] Mr. Sengupta, learned counsel appearing for the petitioner has submitted that the recovery has been directed after more than 13 years and the petitioner's pay has been refixed, to which the petitioner has no grievance. And as such according to the guidelines laid down in Rafiq Masih (supra), the said amount cannot be recovered from the petitioner inasmuch as such recovery will be atrociously iniquitous.

[7] To repel the submission of Mr. Sengupta, learned counsel appearing for the petitioner, Mr. D. Sharma, learned Addl. GA has submitted that the petitioner filed option as per Schedule-I of Rule 6 of the Tripura State Services (Revised Pay) Rules, 1999 whereby he had undertaken that if any amount is overdrawn for fixation, the petitioner shall refund the amount of overdrawal, if any, which may be detected subsequently by the Department/office or during the final check up by the Accountant General of Tripura. Mr. Sharma, learned Addl. GA has submitted that the principles of Rafiq Masih (supra) will not be available to the petitioner.

[8] In High Court of Punjab and Haryana vs. Jagdev Singh reported in (2016) 14 SCC 267, after considering the Rafiq Masih (supra) it has been laid down that when the respondent meaning (the employee) opted for the revised pay scale which he furnished to undertake to the effect that he would be liable to refund any excess payment made to him, he is bound to refund the amount drawn in excess. In the counter affidavit filed by the respondent (the employee) the disposition has been specifically admitted. Subsequently, [in the case of Jagdev Singh (supra)] when the rules were revised, it was found that the payment in excess had been made to the respondent and within a year of making the excess payment, due attempt has been made to recover the said amount. In that context, on considering the guidelines as laid down in Rafiq Masih (supra), it has been enunciated in Jagdev Singh (supra) as follows:

"11. The principle enunciated in proposition (ii) (of Rafiq Masih)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."

[9] Based on this stipulation, Mr. Sharma, learned Addl. GA has submitted that since the petitioner has furnished the option in terms of the Schedule-I to the Rule 6 of the ROP Rules, 1999, the petitioner is bound to refund the excess amount which has been paid to him inadvertently. For this purpose, it is necessary to reproduce the undertaking that has been given by the petitioner and accordingly the same is reproduced.

SCHEDULE -I

FORM OF OPTION FOR COMING OVER TO REVISED SCALE.

(i) I, Shri Pradip Roy hereby elect for the revised scale of pay of Rs.3200-6030 of my substantive/officiating/temporary post with effect from 1st January, 1996.

(ii) I, Shri Pradip Roy hereby elect to continue in the existing scale of pay of Rs.970-2400 of my substantive /officiating/temporary post mentioned below till the end of 01.07.1996 (but not later than 31.12.1996) and to come over to the revised scale of pay of Rs.3200-6030 with effect from 01.07.1996.

(iii) I, Shri Pradip Roy hereby elect to come to revised scale of Rs.3200-6030 corresponding to existing scale of substantive post 970-2400 on reversion to the substantive post with effect from 01.07.1996, (Not later than 31.12.1996).

DECLARATION

"I do hereby undertake to receive pay and allowances on the basis of the provisional fixation of my pay made under the Tripura State Civil Services (Revised Pay) Rules, 1999 on the condition that I shall refund the amount of overdrawal, if any, which may be detected subsequently by the Department office or at the time of final check up by the Accountant General Tripura".

(Pradip Roy)

Sd/- illegible

[10] In rejoinder, Mr. A. Sengupta, learned counsel appearing for the petitioner has robustly submitted that a bare reading of the option would show that the option was primarily given for coming over the revised scale of pay of Rs.3200-6030 which was the revised scale of Rs.970-2400 w.e.f. 01.07.1996. Mr. Sengupta, learned counsel has submitted that true it is that if any excess amount is drawn for mistake committed during the fixation of pay, then the petitioner was bound to refund the said amount. But the controversy that has been reflected in this writ petition does not relate to the fixation of the revisional pay as reflected in the option (Annexure-R-2 to the reply filed by the respondents) by any stretch.

[11] It is an admitted position, as would reveal from the para-9, that a wrong has been committed while releasing the higher scale as benefit under Career Advancement Scheme (CAS) on completion of seventeen years of service. The benefit would have been released with effect from 25.12.2005 as per Rule 10 of ROP Rules, 1999, instead the benefit had been released from 24.12.2004. The said premature release of the higher scale does not have anything to do with the option. It is a mistake, not relating to the fixation of pay and it is a mistake in respect of 'the due date' from which the petitioner was entitled to move to a higher pay scale under CAS-II.

[12] Therefore, Mr. Sengupta has submitted that incidence cannot be treated as covered by the said option or any other undertakings for purpose of applying Jagdev Singh (supra). Moreover, if the facts are consulted, it would be evident from Jagdev Singh's case (supra) that the respondent (the writ petitioner) was not belonging to Group 'D' or Group 'C' category employee but he was a senior judicial officer. But, while fixing his pay some mistake had crept in before one year's lapse, the recovery was ordered. In the present case, the petitioner belongs to Category 'C' and recovery has been ordered after thirteen years and as such the principle of Rafiq Masih (supra) would squarely apply in the present circumstances.

[13] This court finds sufficient force in the submission of Mr. Sengupta, learned counsel appearing for the petitioner. True it is that a serious mistake has been committed while giving the benefit of CAS-II to the petitioner, but after thirteen years, the respondent could identify the said mistake. In the meanwhile, a substantive amount has been drawn and consumed by the petitioner as excess what was not entitled to him.

Further, this court is of the view that the postulates of Rafiq Masih (supra) do clearly apply in the present circumstances and hence, the respondents are restrained from recovering any amount from the petitioner which he has been drawn as excess to the entitlement, i.e. to the extent of Rs.1,17,386/-. However, the petitioner would be drawing the pay as corrected by the respondents and reflected in the due drawn statement.

In terms of the above, this writ petition stands allowed.

There shall be no order as to costs.