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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
WA No.37 of 2024
Sri Kishor Lal Das
...... Appellant(s)
V E R S U S
The State of Tripura and others
Respondent(s)
..….
For Appellant(s) : Mr. P. Roy Barman, Sr. Advocate,
Mr. Samarjit Bhattacharjee, Advocate,
Mr. Koomar Chakraborty, Advocate.
For Respondent(s) : Mr. Kohinoor N Bhattacharya, G.A.,
Mr. N. Majumder, Advocate.
HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
S.D PURKAYASTHA
HON’BLE MR. JUSTICE
=O=R=D=E=R=
29/04/2024
Heard Mr. P. Roy Barman, learned senior counsel assisted by
Mr. Samarjit Bhattacharjee and Mr. Koomar Chakraborty, learned counsel
appearing for the appellant. Also heard Mr. Kohinoor N Bhattacharya,
learned Government Advocate and Mr. N. Majumder, learned counsel
appearing for respondent Nos.4 and 5.
[2] The writ petitioner (appellant herein) is aggrieved by the
dismissal of WP(C) No.1097 of 2022 dated 07.03.2024 passed by the
learned Single Judge whereby the learned Writ Court did not interfere in the
matter. Petitioner, a Junior Engineer (Civil) Grade-II (Group-C) in the
Department of Agriculture, superannuated on 31.03.2022. During service, he
was granted the benefit of CAS-I and CAS-II respectively with effect from
25.02.1991 and 01.01.1999. He was also accorded the ACP-III benefit on
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completion of 25 years service with effect from 25.02.2012. However, the
Office of Accountant General (A&E) issued a letter dated 12.10.2022
(Annexure-1) to the Superintendent of Agriculture, Bishalgarh Agri Sub-
Division, Sepahijala District, Tripura on the subject of return of pension case
of the petitioner. The relevant part of the letter is extracted hereunder:
“No.Pen-2/Sup/15/PR-35/2022-23/12132-33/72858 Date:12.10.2022
To
The Supdt. of Agriculture,
Bishalgarh Agri. Sub-Division,
Sepahijala Dist, Tripura
Subject: Return of Pension Case in respect of Shri Kishor Lal Das,
Retd. Jr. Engineer.
Sir,
The above mentioned Pension case along with IPS received with your letter
No. F.2(11-P)-Agri/BLG/Estt/2015-16/3688-91 dated 06-05-2022 is returned herewith
with the request to resubmit the same removing the defect/irregularities as observed and
mentioned below at an early date please.
1. „Departmental date sheet‟ have not been furnished, which is required to
be furnished with every pension proposal. Please furnish a duly filled in and signed
„departmental data sheet‟ alongwith the Service book.
2. In this connection, this is to be mentioned here that, the commutation
application (photocopy enclosed) furnished has not been considered for the purpose of
payment of any commuted value since in column No. 09 „Fraction of Pension proposed
to be Commuted‟ it is mentioned that, “Unwilling for Commutation of my Pension.”
3. The last pay would be Rs.1,10,300/- only instead of Rs.1,17,000/- only
as mentioned in the LPC and Service Book entry. The details of pay fixation and
regulation of pay is furnished as per „Annexure A‟, enclosed herewith for your
convenience.
In view of above, you are requested to re-examine the matter to furnish
your views and, if agreed, with the Annexure „A‟, the pay may be fixed accordingly and
revised IPS, LPC may be submitted with proper noting in the Service Book under your
attestation for taking further necessary action at this end. A due & drawn statement as
regards pay & allowances overdrawn, leave salary overdrawn may be prepared and
furnished to this end.
However, pension (PPO) has already been issued on last pay of
Rs.1,10,300/- only keeping gratuity (GPO) held up, which will be considered for release
on receipt of response from your end.
Yours faithfully,
Enclo:- Service Book, Annexure and
Photocopy of Commutation application
as stated above
Sr. Accounts Officer”
[3] It is indicated that pension case along with I.P.S received with
the letter dated 06.05.2022 is returned with the request to resubmit the
documents removing the defect/irregularities i.e. (i) duly filled in and signed
„departmental data sheet‟ along with the Service Book (ii) the commutation
application (photocopy enclosed) furnished has not be considered for the
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purpose of payment of any commuted value since in column N
o.09 „Fraction
of Pension proposed to be Commuted‟ it is mentioned that “Unwilling for
Commutation of pension of the petitioner (iii) the last pay would be
Rs.1,10,300/- instead of Rs.1,17,000/- as mentioned in the last pay
certificate and Service Book entry. The Superintendent of Agriculture was
requested to re-examine the matter and if he agreed, with the Annexure-A,
the pay may be fixed accordingly and revised IPS, LPC may be submitted
with proper noting in the Service Book under proper attestation for taking
further necessary action at their end. A due and drawn statement as regards
pay and allowances overdrawn, leave salary overdrawn may be prepared and
furnished to their end. However, it was also indicated that pension (PPO) has
already been issued on last pay of Rs.1,10,300/- keeping gratuity (GPO) held
up, which will be considered for release on receipt of response from their
end. This communication was impugned in the writ petition. Apart from
that, petitioner also prayed that the respondents may be restrained from
recovering any amount from the pensionary benefits of the petitioner on
account of alleged excess payment. He also prayed for a Writ of Mandamus
for release of the remaining gratuity (amounting to Rs.2.5 lakhs).
[4] The learned Writ Court referred to an undertaking given by the
petitioner on 12.05.2009 in a Form of option as per rule 5 and 6 to Schedule-
II, Part-A to the effect that he undertakes to refund to the Government any
amount which may be drawn by him in excess of what is admissible on
account of erroneous fixation of pay in the revised pay structure as soon as
the fact of such excess withdrawal comes to his notice. The learned Writ
Court, therefore, held that the proposed recovery from the pensionary
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benefits of the petitioner because of conferment of CAS II benefits from a
date anterior to the due date was proper. The petitioner had undertaken to
reimburse any excess payment received. The learned Writ Court also
referred to the decision rendered by the Apex Court in case of State of
Punjab and others versus Rafiq Masih (White Washer) and others,
reported in (2015) 4 SCC 334, Civil Appeal No.7115 of 2010 (Thomas
Daniel versus State of Kerala and others), reported in AIR 2022 SC 2153
and further in case of High Court of Punjab and Haryana and others
versus Jagdev Singh, reported in 2016 14 SCC 267. The learned Court,
therefore, held that if any amount is found to be paid in excess to the
petitioner is required to be refunded in view of the undertaking.
[5] The writ petitioner being aggrieved is in appeal.
[6] Mr. P. Roy Barman, learned senior counsel for the appellant at
the outset submits that if the CAS-II benefits have been conferred from a
date i.e. 01.01.1999 anterior to the due date i.e. 25.02.1999 appellant does
not have any objection to fixation of his last pay at a reduced scale to
Rs.1,10,300/- from Rs.1,17,000/-. However, the confermant of CAS benefit
from an anterior date was not on account of any misrepresentation or fraud
on the part of the writ petitioner. The pay fixation is done by the department
and disbursement is allowed by the competent authority i.e. the drawing and
disbursing authority. The writ petitioner was working at a lower post of
Junior Engineer in the department. It is submitted that neither any show-
cause notice has been issued for proposed recovery by the competent
authority under the department nor any formal order of recovery has been
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issued against him. Petitioner in bona fide belief that his pensionary benefits
may be withheld on account of the impugned communication between the
office of Accountant General and the Executive Engineer, Department of
Agriculture & Farmers Welfare, West Tripura approached the Writ Court for
relief. It is submitted that the recovery of excess payment, if any, also relates
to a period far in excess of 5 years from his retirement or any such order of
recovery which is yet to be issued. He relies upon the principles laid down
by the Apex Court in case of Rafiq Masih (supra) in support of his
submission. It is submitted that in such circumstances, when recovery of
pensionary benefits or withholding by the respondents entails adverse
it‟s
civil consequences, it should not be allowed to be made without proper
opportunity to the petitioner to show-cause. As such, learned senior counsel
for the appellant prays that the department may be directed to consider the
case of the petitioner in the light of the aforesaid facts and the proposition of
law laid down by the Apex Court so far as the question of recovery is
concerned. However, he does not object to re-fixation of his last pay scale to
Rs.1,10,300/- from Rs.1,17,000/- for the purposes of issuance of pension
payment order and other pensionary benefits.
[7] Mr. N. Majumder, learned counsel for the respondents No.4 and
5 submits that the impugned communication dated 12.10.2022 is a
correspondence between the office of Accountant General and the concerned
Superintendent of Agriculture of the Department with a copy to the
petitioner but it is not any order of recovery issued by the office of
Accountant General against the petitioner per se. The competent authority
under the department had been only asked to revise the pay of the petitioner
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and re-submit it with endorsement in the Service Book and proper attestation
with an undertaking of the pensioner for any recovery from commutation of
pension (if needed) to the office of Accountant General.
[8] Mr. Kohinoor N Bhattacharya, learned Government Advocate
submits that as on date no such order of recovery has been issued by the
department. He however does not dispute the legal position that in case the
department chooses to recover any such amount paid in excess due to
conferment of CAS-II benefits to the petitioner from an anterior date,
principles of natural justice required a proper show-cause notice to be issued
upon him before any such order is passed.
[9] We have considered the submissions of learned counsel for the
parties and taken note of the relevant materials from record. We have also
gone through the impugned judgment. The relevant facts referred in the
foregoing part of this order do not need any reiteration. It has been submitted
at the outset on behalf of the petitioner that if the CAS-II benefits were
conferred from a date anterior to the due date, petitioner does not have any
objection to re-fixation of his last pay as proposed by the Accountant
General. However, recovery without any due notice after retirement and that
too for benefits conferred not on account of any misrepresentation or fraud
on the part of the petitioner for a period relating to more than 22 years back
should not be done without an opportunity to the petitioner to show-cause.
We are also in agreement with the submission that in case the department
chooses to recover the amount paid in excess due to conferment of CAS-II
benefits from a date i.e. 01.01.1999 anterior to the due date i.e. 25.02.1999
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the competent authority under the department should issue a show-cause
notice to the petitioner before the proposed recovery. The petitioner shall be
allowed opportunity to submit his reply with all supporting documents and
submissions. The competent authority on consideration of reply of the
petitioner would thereafter proceed to take a decision, in accordance with
law, within a reasonable time. It appears that the pension of the petitioner at
the reduced scale of Rs.1,10,300/- has already been released but gratuity
benefits have been withheld awaiting a response from the department. In
those circumstances, the competent authority of the department would take
an early decision in the matter, in accordance with law.
[10] In the light of discussions and observations made hereinabove,
the impugned judgment dated 07.03.2024 passed in WP(C) No.1097 of 2022
is set aside. The writ appeal is disposed of in the manner and to the extent
indicated above.
Pending application(s), if any, also stands disposed of.
S.D PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
(
SID DHARTHA Digitally signed by
SIDDHARTHA LODH
Date: 2024.05.03 19:19:14
LODH
+05'30'
Dipesh