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Judgment
Heard Mr. PK Pal, learned counsel appearing for the petitioners as well as Mr. S. Chakraborty, learned Additional Government Advocate appearing for the respondents.
All these writ petitions being WP(C) 1342 of 2016 [Sri Sumendra Debbarma vs. The State of Tripura and others], WP(C) 1345 of 2016 [ Smt. Arpita Chakma vs. The State of Tripura and others] and WP(C) 1346 of 2016 [ Smt. Haimanti Chakma vs. The State of Tripura and others] are clustered for disposal by a common judgment inasmuch as the controversy hinges on a common question revised in these writ petitions.
By means of these writ petitions, the petitioners have challenged the office order No. F.2(d)(76)-DJ/W/2016/12747-62, dated 15.11.2016 (Annexure P-7 to the writ petitions). In this batch of writ petitions the facts are not in dispute. All the petitioners were appointed as the Upper Division Clerk (UDC in short) in the scale of Rs.5310-24000/- [PB-2] with Grade pay as revised by virtue of the order dated 17.08.2011 and accordingly their pay was fixed for the said promotional post. In pursuance to the memorandum under No. F.6(1)-FIN(PC)/2008 dated 21.06.2013 (Annexure R-1 to the reply filed by the respondents), the competent authority has started a proceeding for recovering the amount as drawn in excess than their entitlement. The petitioners were given notice under No. F.2 (d)(A)(104)- DJ/W/2011-16/11380-86 dated 22.09.2016 asking why their pay shall not be refixed in the promotional post in terms of the memorandum dated 21.06.2013. The petitioners filed their objection against the recovery contending that they had enjoyed the said benefit for more than the last five years. If now, they are coerced to refund the excess amount in terms of the said notice dated 22.09.2016, they would suffer serious hardship inasmuch as they are borne in the grade which is not favoured with the high pay scale. The petitioners have raised their defence referring to a decision of the Apex Court in State Of Punjab & Ors vs Rafiq Masih (White Washer)& others reported in (2015) 4 SCC 334. Since the petitioners belonged to the class III service and they have been enjoying the pay for the last five years, from them no recovery can be made according to the guidelines as laid by the Apex Court. Despite that by the order dated 15.11.2016 as stated above, the recovery has been directed by 36 monthly installments. For purpose of reference, the entire order dated 15.11.2016 is extracted hereunder:
OFFICE OF THE DISTRICT & SESSIONS JUDGE
WEST TRIPURA DISTRICT::AGARTALA
No. F.2(d)(76)-DJ/W/2016/12747-62, Dated, Agartala.
The 15th Nov. 2016
ORDER
In consideration of the view submitted by Smt. Indira Chakma, UDC (Suits), Smt. Rupali Debbarma, UDC, Smt. Arpita Chakma, UDC, Sri Sumendra Debbarma, UDC, Smt. Haimanti Chakma, UDC and Sri Pradeep Debbarma as per Memorandum No. F.6(1)-FIN(PC)/2008 dated 21.06.2013 issued by the Finance Department, Govt. of Tripura, Ld. District & Sessions Judge, West Tripura, Agartala has been pleased to refix their pay and to recover the overdrawn amount of Rs.1,01,712/- from Smt. Indira Chakma, UDC (Suits), Rs. 98,128/- from Smt. Rupali Debbarma, UDC, Rs. 98,774/- from Smt. Arpita Chakma, UDC, Rs. 68,865/- from Sri Sumendra Debbarma, UDC and Rs.48,686/- from Smt. Haimanti Chakma, UDC of this establishment in 36th monthly installments each commencing from the pay bill of November, 2016 accordingly
AND
The pay & allowances amounting to Rs.59,160/- shall be paid to Sri Pradeep Debbarma less already drawn.
The Head Clerk (Accts) is directed to act accordingly.
Sd/ (G.Das)
Civil Judge(Sr.Divn)&Assistant Sessions Judge Court No.1, West Tripura, Agartala
(Head of Office)
[Emphasis added]
Mr. Pal, learned counsel appearing for the petitioners have submitted that the petitioners have not challenged the correctness or validity of the memorandum dated 21.06.2013 (Annexure R-1 to the reply). They have not also expressed any grievances against the memorandum dated 21.06.2013. Hence, their pay may be refixed in terms of the clarification made in the said memorandum dated 21.06.2013. For purpose of reference, the said memorandum dated 21.06.2013 is entirely extracted hereunder:
GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE
No. F.6(1)-FIN(PC)/2008 Agartala, 21 June 2013
MEMORANDUM
Subject: Fixation of pay under the Sixth Amendment Rules, 2012 to the Tripura State Civil Services (Revised Pay) Rules, 2009- Clarification thereto.
Consequent upon the Sixth Amendment Rules, 2012 to the Tripura State Civil Services (Revised Pay) Rules, 2009 vide Notification No. F.6(1)-FIN(PC)/2012(P-I) dated 19.12.2012, queries have arisen from certain quarters in respect of fixation of initial pay at the time of direct recruits appointed on or after 01.01.2006 and in respect of fixation of pay at the time of promotion of employees. The points raised and clarification thereto are stated below:
Sl.No
Point raised
Clarification
1)
What will be the initial pay in the pay band of a Government employee appointed directly on or after 01.01.2006 in the revised pay structure under the Sixth Amendment Rules, 2012 to the Tripura State Civil Services (Revised Pay) Rules, 2009?
The figure shown in the column 'Pay in the Pay Band' against each Grade Pay in respect of PB-1, PB-2, PB-3 & PB-4 as appended as 'PART-F' at Page-2 of the Sixth Amendment Rules, 2012 to the Tripura State Civil Services (Revised Pay) Rules 2009 will be the initial pay in the pay band.
Example: Mr 'A' was appointed directly to a particular post in the pay structure of PB-4 (Rs.13,575-37,000/-) + GP- Rs.3700/- on 01.01.2012. His initial pay in the pay band will be Rs.14,510/- and his basic pay will be Rs.18,210/- (Rs.14,510 + GP-Rs.3700) on and from 01.01.2012 (date of appointment) in the above mentioned pay structure as per Sixth Amendment Rues, 2012 to the Tripura State Civil Services (Revised
Pay) Rules, 2009.
2)
How will the pay of Government employee be fixed at the time of promotion to the higher post in the different pay bands?
The pay of a Government employee at the time of promotion to the higher post in the different pay bands will be fixed as per Rule 12 of the Tripura State Civil Services (Revised Pay) Rules, 2009 read with fourth Amendment Rules, 2010 to the Tripura State Civil Services (Revised Pay) Rules, 2009.
Example: Mr. 'B' with basic pay of Rs. 17,820/- (Band Pay- Rs.14,720/- + Grade Pay- Rs.3100/-) in the pay structure of PB-3 (Rs.9570-30,000) + GP- Rs.3100/- was appointed to a higher post on promotion in the pay structure of PB-4 (Rs.13,575/--37,000/-) + GP- Rs.4500/- on 11.04.2011. His pay will be fixed on promotion to the higher post as follows:
(i) If option exercised by him to get his pay fixed in the higher post directly on the date of promotion i.e. on 11.04.2011:
ؠ Pay to be fixed on promotion on 11.04.2011: Rs.19,760/-(Rs.14,720/-+3% of Rs.17,820/- i.e. Rs.540/- + Rs.4500/-)
ؠ Pay as on 01.07.2011: Rs.19,760/-
(ii) If option exercised by him to get his pay fixed in the higher post on the date of accrual of next increment of the lower post i.e. on 01.07.2011:
ؠ Pay to be fixed on promotion on 11.04.2011: Rs.19,220/-(Rs.14,720/-+ Rs.4500/-)
ؠ Pay be refixed on 01.07.2011: Rs.20,310/- [Rs.14,720/-+3% of Rs.17,820/- i.e. Rs.540/- + 3% of 9Rs.17,820/- + Rs.540/-) i.e. Rs.550/- + Rs.4500/-]
By order etc.
Sd/
(R. DEBBARMA)
Dy. Secretary to the Government of Tripura
The grievance of the petitioners is thus confined to the recovery as directed by the order dated 15.11.2016. Mr. Pal, learned counsel has fairly submitted that in terms of the said memorandum dated 21.06.2013 if the pay of the petitioners is refixed, the said arrears as calculated by the Head of Office, can be shown as the excess drawn by the petitioners, but after five years when the petitioners have consumed that sum whether the recovery should be permitted. This is the sole question that has fallen for consideration of this court. Mr. Pal, learned counsel has asserted that in view of Rafiq Masih (supra) such recovery cannot be permitted as the Apex Court has clearly laid the guideline that recovery from the employees belonging to the class III and class IV services or Group 'C' and Group 'D' services whose excess payment has been made for a period in excess of five years before the order of recovery was issued cannot be made.
In the present case, the petitioners have enjoyed the said excess amount for five years when the order of recovery was issued and hence following the guidelines as laid down by the Apex Court in Rafiq Masih (supra), the respondents be prohibited from recovering any amount from the petitioners. For purpose of reference, the relevant paragraph where the guidelines are laid down has been extracted hereunder:
"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 herein above, 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."
Mr. Chakraborty, learned Additional Government Advocate has fairly admitted that on the day of issuing the impugned order dated 15.11.2016 (Annexure P-7 to the writ petition) the time frame of five years had expired, but the notice was issued to the petitioner much before that, i.e. on 22.09.2016. That apart, Mr. Chakraborty, learned Additional Government Advocate has submitted that an undertaking was taken from the petitioner at the time of making payment on refixation of pay in the promotional post that had they received any amount in excess they would refund the said amount. Mr. Chakraborty, learned Additional Government Advocate did not dispute the fact that after issuance of the memorandum dated 21.06.2013 the clarification generated a new circumstances when the fact of the drawal of the excess amount was located as the petitioners' pay in the promotional post was again refixed. Mr. Chakraborty, learned Additional Government Advocate has submitted having referred para 11 of the reply that the Head of Office for reason best known to him had taken the action after 3 years and 4 months from the date of issuance of the said memorandum dated 21.06.2013
Having appreciated the submissions made by the learned counsel appearing for the parties, this court is of the view that if the recovery is permitted, it would be inequitous and harsh and it would out-weigh the equitable balance.
In view of this, the impugned order of recovery dated 15.11.2016 (Annexure 7 to the writ petition) is set aside and quashed. The respondents are directed not to recover any amount from the petitioner which has been determined to have drawn by the petitioner in excess of the pay till their refixation in terms of the memorandum dated 21.06.2013 (Annexure R-1 to the writ petition).
In the result, all the writ petitions are allowed. However, there shall be no order as to costs.