Tapash Sarkar vs State Of Tripura And Ors.

Heard Mr. P.K. Pal, learned counsel appearing for the petitioner as well as Ms. A.S. Lodh, learned Addl. G.A. appearing for the respondents.

By means of this writ petition, the petitioner has challenged the office order dated 20.09.2016 and the decision embodied in D.O. letter No.1283 dated 24.11.2015 [Annexure P/1 series to the writ petition]. The petitioner has further urged this court to interfere with the order dated 08.11.2016 and the decision embodied in D.O. letter NO. 1095 dated 07.11.2016 [Annexure P/3 series to the writ petition].

Mr. P.K. Pal, learned counsel appearing for the petitioner has submitted that the petitioner has been working as the Wireless Operator. The petitioner has been promoted to the said post from the feeder post of Head Constable/RO. The petitioner has joined the present post of Wireless Operator (ASI) on 22.09.2009 in the scale of pay of Rs.5310-24,000/- [PB-2] with grade pay of Rs.2000/-. The petitioner's pay was fixed at Rs.14,646/- on 22.09.2009 as is reflected in the D.O. No.1528 dated 24.12.2009. Thereafter, by virtue of the Tripura State Civil Services (Revised Pay) (6th Amendment), Rules the petitioner's pay was fixed at Rs.18,760/- on 01.07.2013. Again in terms of Tripura State Civil Services (Revised Pay) (12th Amendment), Rules his pay was further fixed at Rs.24,745/- on 01.04.2015. Later on, it was discovered that the petitioner's pay was wrongly fixed and as a result of such wrong fixation, the petitioner has overdrawn a sum of Rs.1,18,558/-. By the impugned orders, it was directed that the said overdrawn amount shall be deducted from the petitioner's salary by monthly instalments.

Initially, there was no specification of the monthly instalments but by the office order dated 08.11.2016, the petitioner was informed that by 40 (forty) instalments at Rs.3000/- per month the said overdrawn amount shall be realised from him. The petitioner has challenged the said action of the respondents as stated and challenged the relevant order and the letter in this regard.

In a similar case, as Mr. P.K. Pal, learned counsel appearing for the petitioner has pointed out, this court had directed the respondents not to recover any amount in view of the fact that would create a serious hardship. The employees borne in the Group-C and Group-D would really face the hardship which may be beyond adjustment by them. The said decision, as stated by Mr. Pal, learned counsel was based on an apex court decision in State of Punjab and Others versus Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 where the apex court had occasion to place a guideline on recovery from the categories of government employees in the following terms :

"12. 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. W.P.(C). No. 51 of 2016 Page 4 of 4

(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.

[Emphasis supplied]

Mr. Pal, learned counsel has therefore submitted that the petitioner was paid a higher scale as stated above. Subsequently, the revised pay was paid to the petitioner by virtue of the amendment rules as stated. There is no dispute that no action was resorted to for recovery within a period of 5(five) years against the petitioner.

Ms. A.S. Lodh, learned Addl. G.A. has however submitted that if someone enjoys an unjust enrichment for a wrong fixation, there is no legal bar in recovering the said amount from such person. Ms. Lodh, learned Addl. G.A. has referred to the provisions of F.R. 31-A which provides :

"Notwithstanding the provisions contained in these rules, the pay of a government servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the President in this behalf"

There is no quarrel with that provisions of law. The only question that falls for consideration whether the respondents would be permitted to deduct the amount which has been assessed as excess from the petitioner or not. The apex court in Rafiq Masih (supra) has clearly laid down the guidelines how and from which category of the employees, such deduction for wrongful fixation or on account of any other action, can be realized.

This court is in agreement with the submission of Mr. P.K. Pal, learned counsel appearing for the petitioner that the petitioner is wholly covered by the guidelines as laid down in Rafiq Masih (supra) being employed as the Group-C employee. In consideration of the relevant facts read with the said guidelines in Rafiq Masih (supra) such deduction cannot be permitted by this court. Accordingly, the impugned orders and decisions as challenged are interfered with and set aside. No amount from the petitioner shall be deducted by the respondents.

Having observed thus, this writ petition stands allowed to the extent as stated.

There shall be no order as to costs.