HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.553 of 2024
Sri Nikhil Ranjan Nath Sharma,
Retired Senior Helper of TSECL,
S/o Lt. Chitta Ranjan Nath Sharma Nath,
Resident of Vill: Lalchera, District: Khowai, Pin:799201.
----The Petitioner
Versus
1. The State of Tripura,
to be represented by the Secretary.
Department of Power, Government of Tripura,
Secretariat, Capital Complex, Kunjaban, Agartala,
Pin-799010.
2. The Tripura State Electricity Corporation Limited (TSECL),
to be represented by the Chairman-cum-Managing Director,
TSECL, Bidyut Bhawan, Banamalipur, Agartala, West Tripura,
Pin: 799001.
3. The Accountant General (A & E),
Tripura, P.O.: Kunjaban, P.S.: New Capital Complex, Agartala,
Pin: 799010.
4. The Dy. General Manager, ED- Teliamura, TSECL,
Khowai, Tripura.
5. The Executive Engineer (GPF & Pension),
Department of Power, Government of Tripura,
Bidyut Bhawan, Banamalipur, Agartala, West Tripura.
6. The Dy. General Manager, (Corporate), TSECL,
Bidhyut Bhawan, Banamalipur, Agartala, West Tripura.
7. The Senior Accountant Officer,
O/o the Accountant General (A & E),
Tripura, P.O.: Kunjaban, P.S.: New Capital Complex,
Agartala, Pin: 799010.
….The Respondent(s)
For Petitioner(s) : Dr. M. L. Roy, Adv,
For Respondent(s) : Mr. B. N. Majumder, Sr. Adv,
Mr. K. Deb, Adv,
Mr. K. De, Addl. G.A.
Date of hearing : 02.12.2024
Date of delivery of
Judgment & Order : 18.12.2024
Whether fit for
reporting : NO
Page 2 of 14
. JUSTICE BISWAJIT PALIT
HON‟BLE MR
Judgment & Order
By means of filing this writ petition, the present
petitioner has prayed for the following reliefs:
“(i) Issue Rule upon the Respondents to show
cause as to why a Writ in the nature of Mandamus
and/or any other Direction or Directions and/or
Order or Orders of like nature directing the
Respondents not to recover alleged
wrongful/excess payment made to the Petitioner
during service period, as mentioned in the
Communication No. F.5(139)DGM/ED-
TLN/TSECL/791-95, dated 21.05.2024 (Annexure
9) on the subject „Recovery of wrong/excess
payments‟.
(ii) Issue Rule upon the Respondents to show
cause as to why a Writ in the nature of Mandamus
and/or any other Direction or Directions and/or
Order or Orders of like nature directing the
Respondents to restore the last basic pay at
Rs.32,400/- for regularisation of the pension of
the Petitioner.
(iii) Issue Rule upon the Respondents to show
cause as to why a Writ in the nature of Mandamus
and/or any other Direction or Directions and/or
Order or Orders of like nature directing the
Respondents to release the balance 25% of the
Gratuity amounting Rs.93,150/-, plus 9% interest
for deferred payment.
(iv) Upon hearing the parties, make the rules
absolute.”
02. Heard Learned Counsel, Mr. M. L. Roy appearing on
behalf of the petitioner. Heard Learned Addl. G. A., Mr. K. De
appearing on behalf of the State-respondents and also heard
Learned Senior Counsel, Mr. B. N. Majumder assisted by Learned
Counsel, Mr. K. Deb appearing on behalf of the respondent Nos.2
to 7.
03. Before proceeding with the merit of this writ petition,
let us discuss herein below the subject matter of the grievances
raised by the writ petitioner in his writ petition. According to the
petitioner, he was entered in service on 30.12.1987 in the post of
Page 3 of 14
Helper in the pay scale of Rs.775/- and retired on superannuation
on 28.02.2021, while he was occupying the post of Senior Helper
Gr.-II, having last basic pay Rs.32,400/-.
Further, according to the petitioner he was appointed
under the Department of Power, Government of Tripura and later
on, his service was placed under the disposal of the Tripura State
Electricity Corporation Limited (TSECL in short) and his pay was
revised time to time as per Tripura State Civil Service (TSCS, in
short) ROP Rules and he retired on superannuation, while he was
rendering service in TSECL.
On completion of 10 years of service, the petitioner
was favoured with CAS-I w.e.f. 30.12.2007, and on completion of
nd
17 years of service the petitioner was favoured with 2 ACP w.e.f.
30.12.2014 in terms of TSCS ROP Rules, 2009. Accordingly, the
basic pay of the petitioner was fixed at Rs.9,560/- w.e.f.
30.12.2014, vide office order No.F.3(15)DGM/ED-MANU/2016-
17/949-54, dated 24.06.2016 and subsequently, also revised as
st
per Tripura State Civil Service (Revised Pay) Rules, 2017 and 1
Amendment Rule, 2018.
After retirement of the petitioner, vide office order
No.F.2(25)/PD/PEN/2021/2566-71, dated 05.05.2021, the
Executive Engineer (GPF & Pension etc.), Department of Power,
Government of Tripura also sanctioned provisional Death-cum-
Retirement Gratuity at the rate of 75% amounting Rs.2,79,450/-
of the total entitled amount Rs.3,72,600/- only.
Page 4 of 14
Further, on attaining the age of superannuation, the
petitioner retired from service on 28.02.2021 and as per LPC,
dated 03.08.2021, issued by the Dy. General Manager, Teliamura,
TSECL, Khowai District, at the time of retirement, basic pay of the
petitioner was determined at Rs.32,400/-.
After that, vide communication No.Pen-2/RC/PR-
106/2021-22/10305, dated 07.01.2022, the Sr. Accounts Officer
of the O/o the Accountant General (A & E), Tripura intimated the
Executive Engineer (GPF & Pension), Department of Power,
Government of Tripura, Bidyut Bhawan, Banamalipur, Agartala,
West Tripura, that, the pay regularization of the petitioner needed
to be corrected, for which he also made request to review the
matter and to make revised regulation of pay in the Service Book
of the petitioner, under proper attestation. It was further
mentioned in the said communication that, however, pension and
commutation of pension of the petitioner has already been
authorized from their end on the last basic pay of Rs.31,500/-
pending DCRG, which will be released on reply from the end of the
Executive Engineer (GPF & Pension), Department of Power,
Government of Tripura, Bidyut Bhawan, Banamalipur, Agartala,
West Tripura.
In response, Dy. General Manager, ED-Teliamura,
TSECL, Khowai, Tripura communicated to the Executive Engineer
(GPF & Pension), Department of Power, Government of Tripura,
Bidyut Bhawan, Banamalipur, Agartala, West Tripura, vide Letter
Page 5 of 14
No.F.6(33)/DGM/ED-TLM/2022-23/6912-13, dated 05.11.2022
with copy to the petitioner that, the pay of the petitioner has been
revised as asked by the Sr. Accounts Officer of the O/o the
Accountant General (A & E), Tripura and also made entry in his
Service Book accordingly, under proper attestation. Along with the
said communication, the Service Book with IPS & Leave account in
original of the petitioner, copy of revised regulation of Pay, and
Due and Drawn (Overdrawn) Statement were also enclosed.
In the Due and Drawn (Overdrawn) Statement,
enclosed by the Dy. General Manager, ED-Teliamura, TSECL,
Khowai, Tripura with the communication No.F.6(33)/DGM/ED-
TLM/2022-23/6912-13, dated 05.11.2022 shown that, the
petitioner has overdrawn an amount Rs.93,409/-.
Thereafter, the O/o the Accountant General (A & E),
Tripura also rectified the PPO of the petitioner vide dated
02.02.2023, in which his last basic was reduced to Rs.31,500/-
from Rs. 32,400/-.
After that, in the Due and Drawn (Overdrawn)
Statement, enclosed by the Dy. General Manager, ED-Teliamura,
TSECL, Khowai, Tripura with the communication
No.F.6(33)/DGM/ED-TLM/2022-23/6912-13, dated 05.11.2022 it
is shown that, the petitioner had allegedly overdrawn an amount
Rs.93,409/-, (ii) balance 25% of the entitled Gratuity was not
released, and (iii) behind the back of the petitioner, without giving
any chance/opportunity to defend his last basic, the last basic of
Page 6 of 14
the petitioner reduced from Rs.32,400/- to Rs.31,500/-, the
petitioner served representation, dated 23.02.2023 followed by
Legal Notice through his Counsel Ld Advocate Aradhita Debbarma
on 15.02.2024 upon the Respondents No.4 & 7.
That, as the representation dated 23.02.2023 of the
petitioner and the subsequent Legal Notice, 15.02.2024 gave no
result, so, the petitioner, being aggrieved approached this High
Court by filing a writ petition bearing No.WP(C)/184/2024 for
relief.
This High Court vide order dated 11.03.2024 disposed
of the said writ petition of the petitioner directing the respondents
to pass a speaking order. The operative portion of the order of this
High Court dated 11.03.2024 passed in WP(C)184 of 2024 is
narrated herein below:
“……….without expressing any opinion on the
merits of the case, this present writ petition is
disposed of directing the respondents to pass a
speaking order in respect of the case of the
petitioner in accordance with law within a period
of three months from the date of receipt of copy
of this order. In the event, if the petitioner is
aggrieved by such order, the petitioner is at
liberty to challenge the same in accordance with
law. It is needless to mention here that the
doctrine of res judicata will not be applicable
here.”
After that, the petitioner communicated the order dated
11.03.2024 of the High Court in the aforesaid case to the
respondent Nos.4, 5 & 7 for compliance. In response to the said
communication, the Dy. General Manager, ED-Teliamura, TSECL,
Khowai, Tripura, the respondent No.4, issued letter vide
No.F.5(139)/DGM/ED-TLN/TSECL/791-95, dated 21.05.2024
Page 7 of 14
(Annexure-9) informed the petitioner that as the office of AG
determined the fixation of last basic pay at the rate of Rs.31,500/-
in place of Rs.32,400/-, so, Rs.31,500/- is being considered as
promissory
‘ estoppels’ on the part of TSECL as on 28.02.2021.
After that, the petitioner submitted representation to
the authority vide communication dated 19.06.2024 (Annexure-
10) which was forwarded to the concerned authority (Annexure-
11). But as no further action was taken, hence, the petitioner filed
the second writ petition.
It was further stated by the petitioner that the subject
of the dispute also covered by the judgment of this High Court
passed in WP(C) No.303 of 2022 dated 27.04.2023 and WP(C)
No.13 of 2024 dated 27.06.2024 and the judgment of the Hon’ble
Supreme Court passed in Civil Appeal No.5527 of 2022 (M.P.
Medical Officers Association vs. The State of Madhya Pradesh &
Others) dated 26.08.2022.
As already stated the respondent No.2, 4 & 6 and other
respondents have filed two separate counter-affidavits denying the
assertions of the petitioner in the writ petition. Rather the
respondents took the plea that the petitioner was allowed CAS-I
on 30.12.2007 with the pay scale of Rs.2650-4350/vide office
order of DGM, Corporate, TSECL of dated 10.05.2008 vide
reference No.F.6(92)/TSECL/E-1/11.161-65.
Page 8 of 14
Thereafter, on completion of 17 years of service, he
nd
was further allowed 2 ACP w.e.f. 30.12.2014 in terms of TSCS
ROP Rules, 2009, vide office order of dated 24.06.2016 of DGM,
ED-Manu and the basic pay of the petitioner fixed at Rs.9,560/- as
th
per ROP (6 amendment) Rules, 2012.
But in the office order vide No.F.3(15)/DGM/ED-
Manu/2016-17/949-54, dated 24.06.2016 of the Deputy General
Manager, Electrical Division-Manu make an error with unclean
format and fixed the basic pay of Rs.10,890/- as on 01.07.2015 in
place of 10,610/-. So, the last basic pay came up Rs.32,400/-
during retirement time in place of actual basic pay of Rs.31,500/-.
Thereafter, the ironical pay was identified by the Sr.
Accounts Officer, AG (A & E) Agartala, which was communicated
to the Executive Engineer (GPF & Pension) etc., Bidyut Bhawan on
dated 06.01.2022 to review and make revised the pay scale of the
petitioner.
In line with the Sr. Accounts Officer, AG (A & E),
Agartala, a revised of pay scale of the petitioner has been made
revised vide office order No.F.6(2)/DGM/ED-TLM/2022-23/6811-
15 dated 01.11.2022.
In addition to that in para No.27 of the counter-
affidavit filed by the respondent Nos.2, 4 & 6, a comparative table
was shown in respect of wrong and revised pay regularization.
Page 9 of 14
Hence, the contesting respondents by their counter-affidavits
urged for dismissal of this writ-petition.
04. In course of hearing, Learned Counsel appearing for
the petitioner submitted that the subject matter involved in the
writ petition is squarely covered by the memorandum dated
02.03.2016 of the Ministry of Personnel, Public Grievances &
Pensions, Department of Personnel & Training, Government of
India (Annexure-12) and also the judgment and order passed by
the Hon’ble Apex Court on 02.05.2022 in Civil Appeal No.7115 of
2010 (Thomas Daniel vs. State of Kerala and Ors.) (Annexure-
13) and the judgment passed by this Court dated 27.06.2024 in
connection with WP(C) No.13 of 2024 (Sri Dipak Baidya vs. The
State of Tripura and 3 Ors.).
Learned Counsel also referred another judgment of the
Hon’ble Supreme Court of India in Civil Appeal No.5527 of 2022
(M.P. Medical Officers Association vs. State of Madhya Pradesh
and Ors.). Referring those citations, Learned Counsel for the
petitioner further submitted that it is the settled principle of law
that the employees who had retired from service and once his
accounts and retiral benefits are settled and pension is paid then it
is not open for the employer to say that by mistake the employer
have paid excess amount to the employee and the same needs to
be recovered. Learned Counsel also submitted that such recovery
is not permissible in the eye of law.
Page 10 of 14
05. On the other hand, Learned Counsel for the respondent
submitted that the said recovery of amount is permissible under
the ambit of law.
06. I have heard both the sides at length and perused the
writ petition and the objection in the form of counter-affidavits
filed by the respondents as well as the documents annexed with
the writ petition by the writ petitioner. In the memo dated
02.03.2016 issued by the Deputy Secretary to the Government of
India, Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training, (Annexure-12), in para Nos.4
& 5 the Department observed as under and the said memo was
of
issued in pursuance of the judgment of Hon’ble Supreme Court
India in case of C.A. No.11527 of 2014 [State of Punjab and Ors.
etc. vs. Rafiq Masih (White Washer) etc.]:
“4. The Hon‟ble Supreme Court while observing
that 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 has summarized 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 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.
Page 11 of 14
(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.”
5. The matter has, consequently, been examined
in consultation with the Department of
Expenditure and the Department of Legal Affairs.
The Ministries/Departments are advised to deal
with the issue of wrongful/excess payments
made to Government servants in accordance with
above decision of the Hon‟ble Supreme Court in
CA No.11527 of 2014 (arising out of SLP (C)
No.11684 of 2012) in State of Punjab and others
etc vs Rajiq Masih (White Washer) etc. However,
wherever the waiver of recovery in the above-
mentioned situations is considered, the same may
be allowed with the express approval of
Department of Expenditure in terms of this
Department‟s OM No.18/26/2011-Estt (Pay-I)
dated 6th February, 2014.”
07. the Supreme Court of India in Civil
Further, Hon’ble
Appeal No.7115 of 2010 dated 02.05.2022 in Thomas Daniel
vs. State of Kerala and Ors. in para No.13 sub-para No.18
observed as under:
Hon’ble the Apex Court
“13…………
18. It is not possible to postulate all situations or
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, 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 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.
Page 12 of 14
(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.
08.
Again, Hon’ble the Supreme Court of India in Civil
Appeal No.5527 of 2022 in M.P. Medical Officers Association
vs. State of Madhya Pradesh and Ors. etc. reported in (2022)
SCC OnLine SC 1099 wherein in para No.8
Hon’ble the Apex
Court observed as under:
“8. It is not in dispute that the members of the
appellant association, who were serving as
Specialists, Dental Specialists and officers in the
specialist’s cadre got the benefits under the
circular dated 23.05.2009. It was the
Department/State, who issued the circular dated
23.05.2009 and paid the benefits under the
circular dated 23.05.2009 to the members of the
appellant association, which subsequently came
to be withdrawn by the State in the year 2012.
Therefore, as such, there was neither any
misrepresentation on the part of the concerned
employees - members of the appellant association
nor can the mistake be attributed to them. The
mistake, if any, can be said to be that of the
Department/State, who issued the circular dated
23.05.2009 under which the members of the
association were given certain benefits till the
same was withdrawn in the year 2012. Therefore,
in the peculiar facts and circumstances of the
case, the State was not justified in ordering
recovery of the excess amount paid along with
the interest. It is true that stricto sensu, the
decision of this Court in the case of State of
Punjab v. Rafiq Masih, (2015) 4 SCC 334 may not
be applicable. However, at the same time, as
observed hereinabove, and in the facts and
circumstances of the case, the State was not
justified in ordering recovery of the excess
amount paid with interest, more particularly,
when it is reported that some of the
doctors/dentists - members of the association
have retired on attaining the age of
superannuation and the recovery shall be from
their pension/pensionary benefits. However, at
the same time, their pay fixation and the pension
shall have to be as per the order dated
26.08.2008.”
09. Further this High Court in WP(C) No.13 of 2024 dated
27.06.2024 in Sri Depak Baidya vs. The State of Tripura and
Ors. in para No.6 observed as under:
Page 13 of 14
“6. Why back by order dated 27.04.2023 passed
in WP(C) No.303 of 2022, this Court has
categorically held that following the judgment of
the Hon‟ble Supreme Court passed in Civil Appeal
No.5527 of 2022, wherein, the Apex Court had
said that in respect of retired people where
excess amount have been paid, the same cannot
be recovered, following the said principle, this
Court allowed the earlier round of writ petition on
27.04.2023. Again the respondents have issued a
fresh demand notice for the same amount and
this Court finds fault with the said action of the
respondents. The said action of the respondents
is arbitrary and illegal and thus, the said
impugned demand notice is set aside allowing the
present writ petition.”
In the given case, the petitioner is a retired
Government employee. There is no evidence on records that the
excess payment was made due to fault of the petitioner or any
fraud or misrepresentation by the petitioner, rather the
department itself committed the error.
10. In course of hearing, Learned Counsel for the
respondent failed to satisfy the Court regarding
admissibility/validity of the communication dated 21.05.2024 of
the writ petition (Annexure-9). Further from the aforesaid
principles of law laid down by the Hon’ble Apex Court, it appears
in those cases that in
that Hon’ble the Apex Court observed
respect of retired people where excess amount have been paid,
the same cannot be recovered. This High Court in WP(C) No.184
of 2024 filed by the present writ petitioner by order dated
11.03.2024 directed the respondents to consider the grievances of
the petitioner in-accordance-with law but inspite of that the
respondents have issued a fresh notice of recovery and wrongful/
excess by communication dated 21.05.2024 to the writ petitioner
(Annexure-9) and in view of principles of law laid down by the
Page 14 of 14
x Court in the aforenoted cases, the said action of the
Hon’ble Ape
respondents is arbitrary and illegal and thus, the impugned
communication dated 21.05.2024 (Annexure-9) is hereby set
aside. The petitioner in course of hearing failed to project the
other issues by showing any cogent evidence, as such excepting
setting aside the memo dated 21.05.2024 (Annexure-9), no
further relief is granted to the petitioner and accordingly, the writ
petition is stands disposed of with the said observation.
With this observation, the case is thus disposed of.
Pending application(s), if any, also stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
Date: 2024.12.19 16:00:06
DATTA
+05'30'
Purnita