Hiralal Sarkar vs The State of Tripura and Others

Utpalendu Bikas Saha, J.—1. The instant writ petition is filed by the present petitioner Hiralal Sarkar, for quashing the memorandum dated 18.03.2011 (Annexure 10 to the writ petition) issued by the Director, SFSL whereby and whereunder the petitioner was informed that there was an excess payment of Rs. 73,041/- towards his salary during the period from January, 2009 to February, 2010.

Heard Mr. Sekhar Dutta, learned counsel appearing for the petitioner as well as Ms. A.S. Lodh, learned Additional Government Advocate appearing for the respondents.

Brief facts needed to be discussed are that the petitioner was initially appointed as a Driver of the Tripura Jute Mills Limited, a Government of Tripura undertaking Tripura under the Home Department and he while was working as driver, at that time Administrative Officer of Tripura Jute Mills Limited received a letter of appointment dated 16.05.2008 from the Director, SFSL, Government of Tripura, respondent No. 3 herein for sparing a driver for appointment as driver in SFSL, Tripura and in reply thereto the Administrative Officer of Tripura Jute Mills Limited by his letter dated 04.06.2008 forwarded the application of the petitioner to the respondent No. 3 for appointment as a driver in Tripura State Forensic Science Laboratory. Upon receipt of the letter dated 04.06.2008, the respondent No. 3 has informed the Administrative Officer, Tripura Jute Mills Limited by a letter dated 27.06.2008 that the petitioner has been selected for appointment as driver in SFSL, Tripura, on deputation with a request to direct the petitioner to report the SFSL, Tripura on any working day within a month from the date of 27.06.2008. In pursuant to the appointment letter dated 27.06.2008 (Annexure 2 to the writ petition) the Administrative Officer, Tripura Jute Mills Limited released the petitioner and consequent thereto, the petitioner had joined in the SFSL, Tripura as driver. While he was working as a driver in SFSL, Tripura, he received an office order dated 15.06.2009 (Annexure 7 to the writ petition) wherein it was mentioned that in pursuance of the Finance Department, Government of Tripura, notification dated 05.05.2009, the pay of staffs of SFSL, Tripura have been fixed as per Tripura State Civil Services (Revised Pay) Rules, 2009 implemented w.e.f. 01.01.2009. On 08.09.2009, an office order was issued by the respondent No. 3 informing him that as per observation of the Assistant Audit Officer, Directorate of Audit, Government of Tripura, the persons on deputation to the Government department from Public Sector Undertaking (for short hereinafter referred to as PSU) are not entitled to the pay scale as per ROP, 2009 and he has to draw the pay and allowances in the pre-revised scale of Rs. 3300-7100/- till finalization of the ROP, 2009 in respect of the PSU. By memorandum dated 31.03.2013 (Annexure 9 to the writ petition), the petitioner was informed that there was an excess payment of Rs. 93,322/- paid towards the salary of the petitioner during the period from July, 2008 to December, 2009 and finally the impugned memorandum dated 18.03.2011 was issued, as stated supra.

Being aggrieved by the action of the respondents, the petitioner made representations one after another but the authority did not response to those representations rather the Director, SFSL, Tripura, respondent No. 3 herein, took up the matter with the Director, Audit Directorate that the salary of the petitioner under the Tripura Jute Mills Limited was far less than his pay drawn under the State government which requires to be examined by the government and necessary clarification and guidelines are required to regulate his pay for the period from 01.01.2009 to 31.12.2009.

The respondents State by way of filing counter affidavit have contended that the petitioner is not entitled to revised pay scale as per ROP Rules, 2009 being a deputationist and as such pay of the petitioner along with other deputationist of SFSL, Tripura was reverted to their pre-revised scale. It is also stated that as per the Finance department memorandum dated 28.07.2009 (Annexure 2 to the writ petition) the pay of the petitioner for which he was entitled were regulated vide letter dated 06.02.2010 and 16.03.2010, respectively (Annexure 4 and 5 to the writ petition) and it was detected that Rs. 93,322/- was drawn in excess and paid to the petitioner from July, 2008 to December, 2009 though the audit party raised objection only on the benefit of pay revision i.e. the period of implementation of ROP, 2009 (not from the date of joining of the petitioner i.e. July, 2008) and the excess payment was revised to Rs. 73,041/-.

Mr. Dutta, learned counsel appearing for the petitioner relying upon the decision of the Apex Court in State of Punjab and others vs. Rafiq Masih (white washer) and others reported in , (2015) 4 SCC 334 would contend that the petitioner was not responsible for making the excess payment to him. Moreso, he is a Group-C employee and as per the decision of the Apex Court, the authority is not entitled to recover the said excess amount, particularly, in view of the observation made in paragraph 18 and 19 of the said judgment, which are as follows:-

"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, summarize 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.

We are informed by the learned counsel representing the appellant State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery) shall be deemed to have been upheld, for the reasons recorded above".

On the other hand Ms. Lodh, learned Additional Government Advocate relying upon a judgment of the Gauhati High Court, Agartala Bench in Mahananda Debbarma vs. State of Tripura and others reported in (2009) 4 GLR 598, in which I was a party submits that the petitioner of that case was not entitled to retain the excess amount paid to him due to mistake or wrong interpretation of the rules and it was ordered that a bonafide mistake can be rectified and upheld the order of recovery of the excess amount was upheld.

Upon consideration of the submission of learned counsel for the parties as well as on perusal of the records, it appears that the petitioner did not challenge the memorandum dated 28.07.2009 (Annexure R-2 to the writ petition) wherein it has been specifically mentioned that the employees/workers while serving on deputation in the State government Departments shall be entitled to get benefit of revision of pay and allowances implemented in their respective parent organizations in pursuance of the communication issued from the Finance Department including date of notional effect and financial effect indicated in the concerned communication. It also appears from the rejoinder that some other drivers from the Tripura Jute Mills Limited, who were appointed on deputation in various departments of the government as driver were provided the pay scale as per provision of Tripura State Civil Services (Revised Pay) Rules, 2009. Therefore, according to this Court the petitioner was deprived of his legitimate claims of revision of the pay scale.

Mr. Dutta, learned counsel at this stage placed one memorandum No. F.2(1)/FIN/(AUD-DIR)/2002/VOL.1/6730-33, dated 4th September, 2010, issued by the Directorate of Audit wherein it is mentioned that prior to revision of pay of State government employees under Tripura State Civil Service (Revised Pay) Rules, 2009, Ministerial & Group-D staff on deputation with the Directorate of Audit had been enjoying pay and allowances at per with that of State government employees, in accordance with provisions contained in Appenix-5 of F.R. vide U.O No. 544/FIR(G)/2002, dated 16.08.2002. It is also mentioned in the said memorandum that it has been decided now by the government that pay and allowances of those staffs may be regulated in the same manner and accordingly their pay and allowances will be regulated under Tripura State Civil Services (Revised Pay) Rules, 2009 w.e.f. 01.01.2006 which was issued with the approval of the Finance Department, Government of Tripura.

As the respondents, particularly the Director, SFSL, Tripura did not reply to the representations of the petitioner, it would be proper for this Court to dispose of the instant writ petition with a simple direction to the petitioner to make a fresh representation to the Director of SFSL, Tripura, with a copy to the Secretary, Finance department, within a period of 6 (six) weeks from today and the Director of SFSL, Tripura shall take up the matter with the Secretary, Finance Department and finally dispose of the representation by a reasoned order within a period of 3(three) months from the date of receipt of the representation and till disposal of the representation, if any filed by the petitioner, there shall be no recovery from the salary of the petitioner. Ordered accordingly.

In view of the above, the instant writ petition is disposed of.

No order as to costs.