Partly allowed

Dilip Kr. Bhowmik v. T.R.T.C. and Anr.

Tripura HC2 Jun 2017WP(C)/1259/2016

Case brief

AI extract

What is this about?

A retired transport corporation employee sought Group-C pay-scale benefits despite having received Group-D benefits. The court permitted a fresh option within four weeks, directing notional pay fixation and revised retiral benefits, but denied additional actual pay for the period served on Group-D pay.

What did the court decide?

Option for Group-C scale permitted within four weeks of receiving the order; notional pay fixation and refixation and disbursement of retiral benefits within three months of the option.

Dilip Kr. Bhowmik Vs T.R.T.C. and Anr. — Pension and Retirement Benefits | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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W.P.(C)No.1259 of 2016

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Sri Dilip Kumar Bhowmik, son of late Ramani Mohan Bhowmik, resident of North Badharghat, P.O. A.D. Nagar, P.S. West Tripura, District: West Tripura

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………… Petitioner

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;;;;;... – Vs –

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1. Tripura Road Transport Corporation, a Government of Tripura undertaking, represented by it’s Chairman, having his office at Krishnanagar, P.O. Agartala, P.S. West Agartala, District: West Tripura

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2. The Managing Director, Tripura Road Transport Corporation, a Government of Tripura undertaking, having it’s office at Krishnanagar, P.O. Agartala, P.S. West Agartala, District: West Tripura

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………… Respondents

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B E F O R E

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THE HON‟BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. R. Dutta, Advocate For the respondents : Mr. P. Dutta, Advocate Date of hearing and delivery of judgment and order : 02.06.2017 Whether fit for reporting : YES

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Judgment and Order (Oral)

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Heard Mr. R. Dutta, learned counsel appearing for the

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petitioner as well as Mr. P. Dutta, learned counsel appearing for the respondents.

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W.P.(C). No. 1259 of 2016

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Page 1 of 14

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02. By means of this writ petition, the petitioner who had been working as Assistant (Mechanical), earlier borne in the Group-D category has basically challenged the memorandum dated 14.09.2011 [Annexure-C to the writ petition]. By the said memorandum the categories of employees who were declared Group-C for their pay scale revised to Rs.3050-5910 as per recommendation of the 4^th Tripura Pay Commission were asked to exercise fresh option for electing whether they want to be in the said pay scale and retire on superannuation on 58 years or to move down the scale below, meant for the Group-D employees and retire on superannuation on 60 years. The petitioner retired from the service on his superannuation on 31.08.2016, though his date of superannuation was 18.05.2016. The petitioner was having the pay scale of Rs.370-650 which was revised to Rs.850-2130 under the Tripura State Civil Services (Revised Pay) Rules, 1988 as the petitioner was borne in the Group-D category. The said scale of pay of Rs.850-2130 was revised to Rs.3050-5910 with effect from 01.01.1996 in terms of the Tripura State Civil Services (Revised Pay) Rules, 1999. Accordingly, the petitioner’s pay was fixed in the said pay scale from 01.01.1996. In the meanwhile, the respondent No.2 issued the memorandum No.F.1.(15)-TRTC/ESTT/56/99 dated 10.11.1999 [Annexure-B to the writ petition] relating to implementation of the revision of pay scales for different categories of posts in the Tripura Road Transport Corporation, in short ‘TRTC’. By the said memorandum the revised scales for different categories of posts were sought to be introduced. For that purpose the Board of Directors of the TRTC held their 106^th meeting on 13.08.1999 for implementing the said revised pay scale as per the policy of the Finance Department, Government of W.P.(C). No. 1259 of 2016

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Tripura. The respondent No.2 who is the appointing authority of the petitioner called the employees to exercise their option in the prescribed form as enclosed with the said memorandum. By the said memorandum, it was provided that the employees of the TRTC who were enjoying the pay scale of Rs.850-2130/- but were enjoying all the facilities of Group ‘D’ employees would be treated as Group ‘D’ employee with effect from 01-01-1999, with a further rider that in the event an employee was inclined to retain the status of the Group-C then he would not be entitled to enjoy the facilities such as the longer retirement age, washing allowance, liveries, G.I.S. etc. prescribed for Group-D employees with effect from 01.01.1999.

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03. The petitioner has asserted that he was never asked to file such option in terms of the memorandum dated 10.11.1999. Much later, the respondent No.2 issued a further memorandum bearing No.F.1(39)-TRTC/ESTT/Pay-Review/Helper/V.Astt.S/guard etc. dated 14.09.2011 noting that no option has been received in furtherance of the said memorandum dated 10.11.1999. It was noted that the employees belonging to Group-C cannot be allowed to serve beyond 58 years of age. A group of employees were found to have been withdrawing a considerable amount in excess to what they are entitled. The authority therefore decided to recover the excess amount drawn by the employees of the above categories. Further, it was decided that those employees who had completed the age of 58 years as on 01.09.2011 shall proceed for retirement. However, they were favoured with further opportunity of exercising option. In the said premises, it was directed as under:

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W.P.(C). No. 1259 of 2016

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(i) Either accept continuance of service up to 60 years of age, by way of reduction of the pay scale, from that of the pay scale, meant for Group-C categories of Post, with an undertaking that they would refund the excess amount, drawn by them from 01-011999, to the date of issue of the memorandum.

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(ii) They would proceed on retirement on 30-09-2011.

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Form of option was enclosed with the said memorandum

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dated 14.09.2011.

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04. Mr. R. Dutta, learned counsel appearing for the petitioner has submitted that the petitioner did not exercise any option and he continued in the service and retired on completion of 60(sixty) years of age. There is no dispute that in the year 2013, the age of superannuation was raised to 60 years for all categories of employees and thus the age of superannuation for both the categories of employees namely Group-C or Group-D, became the same i.e., 60 years and that created a new situation in which a group of employees of TRTC approached this court by filing a writ petition being W.P.(C) No.141 of 2012 [Sri Kalidas Paul vs. Tripura Road Transport Corporation etc.] where this court by the judgment dated 22.07.2013, held as under:

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“2. By the memorandum under No. F.1(39)-TRC/ESTT/PayReview/Helper/V.Astt.S/guard etc.631, dated 14.09.2011 (Annexure-P/5 to the writ petition, being W.P.(C) No.141/2012), the Helper, Vehicle Assistant and Security Guard etc. of the Corporation who are getting the pay scale of Rs.3050-5910/- as per recommendation of 4th Tripura Pay Commission and the order No. F.6(5)-FIN(PC)/99, dated 05.07.2009 of the Finance Deptt, Govt. of Tripura, has been declared as Group-C category employees. The said order dated 05.07.2009 was circulated by the Corporation by their office memorandum No. F.1(125)TRTC/Estt/P1/99, dated 10.09.1999. The Group-C employees are not entitled to the several benefits which are received by the Group-D employees. There is no dispute that the petitioners were earlier Group-D employees by all hue and character. Group-C employees were to retire from service on completion of 58 years of age as per the Government policy. As per the recommendation of the Pay Review Committee, 2009, the pay scale of Rs.3050-5910/has been revised to Rs.5310-24,000/- under Pay Band – II

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W.P.(C). No. 1259 of 2016

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and that pay scale is indisputably earmarked for the GroupC category. By the said memorandum dated 10.09.1999 the concerned employees were asked to submit options for selecting their pay scales, whether they would retain the pay scale attached to the Group-D employees for enjoying the benefits attached to the Group-D category inclusive of the retiral age of 60 years or they would opt for the pay scale of the Group-C employees. For appreciation, the memorandum dated 10.11.1999 (Annexure-P/4 to the writ petition, being W.P.(C) No.141/2012) as a whole is reproduced hereunder :

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“TRIPURA RAOD TRANSPORT CORPORATION (A GOVT. OF TRIPURA UNDERTAKING) AGARTALA : TRIPURA

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NO.F.1(15)-TRTC/ESTT/56/99 Dated 10.11.1999

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MEMORANDUM

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Sub :- Revision of pay scale of different category of Posts in Tripura Road Transport Corporation.

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The Finance Department Govt. of Tripura vide letter No.F.6(5)-FIN(PC)/99 dt. 05.11.99 suggested revised pay scale of different categories of pots in TRTC alongwith terms and conditions of pay revision of the public sector undertaking. The board of the corporation in its 106 the meeting held on 13.08.1999 accorded approval to the introduction of revised pay scales in TRTC strictly as suggested by the Finance Deptt. subject to approval of the Government as required under Sub-Sections 2(c) of Section 45 of TRTC Act, 1950. The State Government vide letter No. F.6913)-TRANS/99/ Dt. 10.09.99 of the Transport Department has also accorded approval to the introduction of revised pay scales strictly as per terms & conditions of pay revision as laid down in Annexure-B of Finance Department letter No. F.6(5)-Fin(PC)/99 Dt. 05.07.99.

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The undersigned accordingly hereby announcing the revisions of pay scales of the different categories of the posts held by the employees/workers of TRTC as indicated in Schedule-I road with terms and conditions of pay revision of the Public Sector Undertaking in Annexure „D‟ enclosed herewith.

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In inviting attention to para 5 of Annexure „D‟ the employees workers are requested to exercise their option in prescribed form enclosed herewith through their respective Branch Officers.

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In this connection, the employee who were already enjoying the pay scale of Rs.850-2130/- (treated as Gr.C) but were enjoying all the facilities admissible for Group „D‟ employees as per existing orders of the Government shall be treated as Group „D‟ employee with effect from 01.01.1999.

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However, they may submit a option within one month from the date of issue of this Memorandum, whether they would like to retain the status of Group-C or Group-D employees. If they opt to retain the status of Group-C, in that case they shall not be entitled to enjoy any facilities (such as retirement benefit, Washing Allowance, Liveries, G.I.S. etc.) prescribed for Group-D employees with effect from 01.01.99.

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Similarly in inviting attention to para 9 of the Annexure-D the employees & workers of the Corporation are further requested to submit their application form for opening of

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W.P.(C). No. 1259 of 2016

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individual Post Office Savings Bank Account in order to credit the arrears of pay for the period from 01.01.1999 to 31.03.1999.

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It is further informed that Government decision towards determination of revised pay scales of the posts in Schedule – II and III of your letter No. F.1(125)TRTC/ESTT/PF/99/939 Dt. 17.08.99 would be communicated after the election process is over.

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The Branch Officers are revised to go through of the fully the Schedule-I and Annexure-D and letter No.F.6(9)FIN(PC)/99 dt. 12.08.99 of the Finance Department in Annexure-C bring/explain the centres of the said Annexure to the notice of all the employees under perusal and obtain their option in Schedule-I and application form for opening of Post Office Savings Bank Account duly filed in and signed and send the same to the undersigned immediately for follow up action this end.

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Sd/- illegible (D. Acharjee) Managing Director”

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3. The option as referred in Schedule-I reads as under :

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“The employees who were already enjoying the pay scale of Rs.850-2130/- (treated as Gr.-C) but were enjoying all the facilities admissible for Group-„D‟ employees as per existing orders of the Govt. shall be treated as Group-„D‟ employees with effect from 01.01.1999.

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However, they may submit a option within one month from the date of notification of these rules, whether they would like to retain the status of Group-„C‟ or Group-„D‟ employee. If they opt to retain the status of Group-„C‟, in that case they shall not be entitled to enjoy any facilities (such as Retirement benefit, Washing Allowance, Liveries, G.I.S. etc.) prescribed for Group-„D‟ employees with effect from 01.01.1999.”

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4. From the memorandum dated 14.09.2011, it transpires that no option was received at the time when the pay of the petitioners were fixed in the pay scale of Rs.3050-5910/(the pay scale meant for the Group-C category employees). The petitioners have continued beyond their prescribed retiring age of 58 years when the memorandum dated 14.09.2011 is issued. In the said memorandum, it has been observed that :

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“On account of fixation of pay in the Group-“C” categories of pay scale as well as continuation of service beyond 58 years age a group of employees of above category have drawn a reasonable amount in excess.

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Now, the management of the Corporation have taken a decision to consider the matter of withdrawal of excess amount by the above categories staff in a lenient view, provided that the concerned employees who have completed age of 58 years of more whatsoever the ages may be as on 1st September 2011, shall go on retirement on 30th September, 2011.”

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5. To implement such decision, two option formats were appended to that memorandum, one regarding opting for retirement on 30th September, 2011 by the employees who

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W.P.(C). No. 1259 of 2016

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have completed 58 years of age and another regarding continuation of service up to 60 years of age by way of reducing the pay scale from that of the pay scale meant for Group-„C‟ categories of post on being agreed to refund of the excess amount drawn by them from 01.01.1999 till date.

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Being aggrieved by the said memorandum dated 14.09.2011, the writ petitioners have approached this court.

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6. The petitioners by representations, in lieu of the options, have stated to the Managing Director of the Corporation that the authority have not asked them to exercise the options when their scale of pay was revised to Rs.30505910/from Rs.850-2130/and the authority has continued to provide the petitioners all the benefits of Group-D employees till the memorandum dated 14.09.2011 has been issued. The petitioners have also stated that they have not overdrawn any amount as claimed by the Corporation. But, the said plea was rejected by the memorandum dated 13.10.2011 (Annexure P/7 to the writ petition, being W.P.(C) No.141/2012) by the Managing Director of the Corporation and the excess amount as drawn by the individual petitioners has been calculated by the Corporation and circulated to them. The said statement is available at Annexure-P/8 to the writ petition, being W.P.(C) No.141/2012. The petitioners by way of individual representations (Annexure-P/9 to the writ petition, being W.P.(C) No.141/2012) have raised protest against such step for recovering the purported excess amount as drawn by them. Thereafter, the Managing Director of the Corporation, by the order dated 24.11.2012 (AnnexureP/10 to the writ petition, being W.P.(C) No.141/2012) has communicated the petitioners that :

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“This is to inform you that as per decision of the Board of Director, in the 135th Meeting held on 20.07.2011 Memorandum was issued to certain category of staffs vide No. 1(39)-TRTC/08/S/ Revision of pay 2009/671 dt. 26.09.2011 and No. 684 dt. 30.09.2011 who have been enjoying Pay scale meant for Group-C employees of the Corporation, for choosing the age of retirement whether they are willing to continue the service up to age of 60 years of age or to go on retirement on completion of 58 years of age. In the option form meant for the above category of staffs it was clearly mentioned that who will opt 60 years of age for retirement from service their pay would be re-fixed w.e.f. 01.01.1996 in the corresponding Pay scale as per provision of ROP – 1999 effective from 01.01.1996 with cash benefit from 01.01.1999. After re-fixation of pay etc. Due Drawn Statement would be prepared and if it is found that any one has drawn excess salary, that amount would be recovered from the salary of the respective staff and even if the entire excess amount cannot be recovered from their monthly salary, the balance amount to be recovered from the gratuity amount payable after retirement exclusively as per option exercised by the concerned employees.

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Thus your pay has been reduced according to option exercised by you. (photo copy of the option form submitted by you is enclosed herewith for ready reference)”

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W.P.(C). No. 1259 of 2016

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7. The petitioners have also admitted that they have exercised the options in qualified terms stating that they intend to continue in service up to the age of 60 years in the corresponding pay scale meant for Group-D employees. In that case the excess amount drawn by them from 01.01.1999 till date may be recovered from their salary for the remaining period of services. If the excess amount as drawn by them can be recovered from their pay during the remaining period of service, the balance amount may be recovered from the gratuity amount payable to them after retirement from services. Thereafter, by the order dated 22.03.2012 (Annexure-P/11 to the writ petition, being W.P.(C) No.141/2012), the Managing Director of the Corporation has directed the Chief Account Officer that a sum of Rs.2,500/- per month shall be deducted from the salary of the petitioners from March, 2012 till the amount due is recovered from them.

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8. The memorandum dated 14.09.2011 (Annexure-P/5 to the writ petition, being W.P.(C) No.141/2012), memorandum dated 13.10.2011 (Annexure-P/7 to the writ petition, being W.P.(C) No.141/2012), Statement showing the excess amount drawn by the individual petitioners (Annexure-P/8 to the writ petition, being W.P.(C) No.141/2012), letter dated 24.11.2012 (Annexure-P/10 to the writ petition, being W.P.(C) No.141/2012) and correspondence dated 22.03.2012 (Annexure-P/11 to the writ petition, being W.P.(C) No.141/2012) are not under challenge by these writ petitions.

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9. Mr. Somik Deb, learned counsel appearing for the petitioners has submitted that from the order dated 01.11.2011 (Annexure-P/3 to the writ petition, being W.P.(C) No.141/2012) it would be evident that the Managing Director of the Corporation has given the notice to each of the petitioners that “on completion of the age of 60 (sixty) years as on 07.11.2012, he shall retire from service”. In the individual orders the date of superannuation and the date of retirement have been provided. The said order dated 01.11.2011, according to Mr. Deb, learned counsel indicates that even the Corporation was not aware of the implication of the Finance Department‟s order dated 05.07.2009. As such, the recovery as directed is absolutely unwarranted.

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10.On the other hand, Mr. P. Datta, learned counsel appearing for the respondent-Corporation has stated that as per Rule 16 of the Tripura State Civil Services (Revised Pay) Rules, 1999, the Government employees were classified in four groups. By that classification all the posts which carry the pay scale maximum of which is less than Rs.5,660/- were classified as Group-D. However, a note which was appended below the said Rule, reads as under :

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“The employees who were already enjoining the pay scale of Rs.850-2130/- (treated as Gr.C) but were enjoying all the facilities admissible for Group-„D‟ employees as per existing orders of the Govt. shall be treated as Group-„D‟ employees with effect from 01.01.1999.

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However, they may submit an option within one month from the date of notification of these rules, whether they would like to retain the status of Group„C‟ or Group-„D‟ employee. If they opt to retain the status of Group-„C‟, in that case they shall not be entitled to enjoy any facilities (such as retirement benefit, Washing Allowance, Liveries, G.I.S. etc.) prescribed for Group-„D‟ employees with effect from 01.01.1999”.

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W.P.(C). No. 1259 of 2016

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11.By the memorandum dated 05.07.1999, the revision of pay have been effected in the Corporation w.e.f. 01.01.1996 and the pay scale of Group-C employees has been revised from Rs.850-2,130/- to Rs.3050-5910/- whereas the pay scale of Group-D employees has been revised from Rs.7751130/- to Rs.2600-3545/-. In terms thereof, the Principal Secretary to the Finance Department, by the communication No. F.6(5)-FIN(PC)/99, dated 05.07.1999 (Annexure-B to the counter-affidavit) had requested to place the issue to the Governing Body of the Corporation for deliberation and for introduction of the revised scales. Thereafter, the Managing Director of the Corporation by the communication No. F.1(39)-TRTC/Estt/08/Vol-II/764, dated 30.10.2010 (Annexure-C to the counter-affidavit) has sought some clarification from the Transport Department, Govt. of Tripura. For appreciation, the relevant part of the communication dated 30.10.2010 is extracted hereunder :

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“With reference to the subject cited above, a clarification is required for Fixation of pay to 2/3 categories of staff as follows :

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Some problem arise of “HELPER & VEHICLE ASSISTANT” in TRTC who have holding the scale Sl.No.18 (Revised Pay Scale of TRTC) and were appointed in the post of helper and Vechicle Asstt. by back and now holding the scale of Rs.3,050/- to 5,910/- (pre revised scale). They are serving for long 25/26 years in the same scale. Now to get the benefit of PB-2 in Group-C. Now a question arises if they will get the benefit of 10 years, 17 years and 25 years ACP as per eligibility, Grade pay may stand @ Rs.2,000/- in new scale.

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Another problem arises as present scale of the Helper & Vehicle Asstt. fixed in Pay Band – 2 i.e. Rs.5,31024,000/- the scale indicate Group-c, but they are serving as Class-IV Staff (Group-D) and they are also completed the age 59/60 years. Now it is not clear whether their service was treated as a Group-D or Group-C Staff.”

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12. It distinctly surfaces from the said communication that the Managing Director of the Corporation has sought clarification stating that the present pay scale of the Helper and Vehicle Asstt. are fixed in Pay Band-2 i.e. Rs.531024,000/-, the scale for the Group-C staff, but those categories of employees were serving as the Group-D staff and they have completed the age of 59/60 years. It is not clear whether their service was treated as Group-D or Group-C staff.

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13. Again, by a communication No.F.1(39)TRTC/Estt/08/S/ Revision of Pay 2009/1365, dated 28.02.2011 (Annexure-E to the counter-affidavit), the Managing Director of the Corporation has sought for clarification in the following terms:

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“A clarification is thus urgently required as to whether the Helper and Vehicle Assistants of TRTC (Pay scale Rs.5,310-24,000/- PB-2) will be treated as Group “C” or Group “D” staff and what will be their age of retirement.”

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14. Thereafter, the Joint Secretary of the Transport Department has clarified the position by their

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communication No.F.6(4)-Trans/2009, dated 14.06.2011 (Annexure-F to the counter-affidavit) as under :

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“I am directed to refer to your letter No. F.1(39)TRTC/Estt./08/S/Revision of Pay 2009/1365, dated 25.2.11 on the above mentioned subject and to inform you that employees holding the posts in the pay structure of PB-2 (Rs.5310-24,000/-) with Grade Pay ranging from Rs.1600/to Rs.2400/shall be classified as Group-C category and their retirement age is 58 years as informed by the Finance Deptt. Govt. of Tripura, Agartala vide their U.O. No. 303/Fin(PC)/II, dated 02.06.2011.”

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15. After the said communication dated 14.06.2011, the memorandum dated 14.09.2011 (Annexure-P/5 to the writ petition, being W.P.(C) No.141/2012) has been issued.

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16. Mr. P. Datta, learned counsel appearing for the respondents has submitted that the recoverable amount from each of the petitioners would be evident from Annexure-H to the counter-affidavit. However, in terms of the letter dated 22.03.2012 (Annexure-P/11 to the writ petition, being W.P.(C) No.141/2012), deduction could not be made for the interim order dated 30.03.2012, passed by this court in C.M. Appl. No.147/2012, in W.P.(C) No.141/2012, which was later on made absolute by the order dated 16.04.2012. In compliance to the said order dated 30.03.2012, the Managing Director of the Corporation had issued the order dated 07.04.2012 (Annexure-I to the counter-affidavit).

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17. It has been stated in unison by both the learned counsel for the petitioners and the respondents that in the Corporation the age of superannuation has been enhanced to 60 (sixty) years for all categories of employees. The petitioners, now who are in service, even if drawing the pay scale of Rs.3050-5910/- (pre-revised scale of Rs.8502130/-), they would superannuate at the age of 60 years and retire on the last day of the month when they would so superannuate. But the controversy lies elsewhere. Whether the option as exercised by the petitioners in terms of the memorandum dated 14.09.2011 would still be binding on them or not. The said option has enabled the Corporation to take steps to deduct the purported excess amount drawn by the petitioners. It has surfaced further that no option has been obtained in pursuance to the memorandum dated 10.11.1999 (Annexure-P/4 to the writ petition, being W.P.(C) No.141/2012) though the Branch Officers were instructed to obtain such option in terms of Schedule-I as appended to the said memorandum dated 10.11.1999. And such fact has been acknowledged by the communication dated 30.10.2010 (Annexure-C to the counter-affidavit) and communication dated 28.02.2011 (Annexure-E to the counter-affidavit). The clarification from the Transport Department, Govt. of Tripura was received by the letter dated 14.06.2011 (Annexure-F to the counter-affidavit). Before that, the Corporation was not aware of the consequences that might ensue from the Finance Department letter No. F.6(5)-FIN(PC)/99, dated 05.07.1999 (Annexure-B to the counter-affidavit). As such, the petitioners cannot be held responsible for the mess.

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18. For purpose of recovery, the apex court has enunciated the law in Registrar, Cooperative Societies, Haryana & Ors. Vs. Israil Khan & Ors., reported in (2010) 1 SCC 440. Approving the previous decision in Col. B.J. Akkara (Retd.) Vs. Govt. of India, reported in (2006) 11 SCC 709 that

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restraining the recovery of excess payment is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is permitted. A Government servant, particularly one in the lower rung of the service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, such relief is granted in that premise. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of the judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

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19. In these cases also, as the Corporation was confounded by confusion as indicated, they did not apprise the petitioners of the consequence that might visit them in future. After about 12 years the Corporation has taken action to recover the said amount in the premises that either the petitioners have to accept the age of superannuation at 58 years or they are to continue till 60 years as the Group-D employee and in that case they will be subjected to recovery in terms of Annexure-P/10 to the writ petition, being W.P.(C) No.141/2012.

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20. It has transpired clearly that the Management of the Corporation was not at all certain about the consequence of the said letter dated 10.11.1999 issued by the Finance Department of the Govt. of Tripura as condition for revision of pay. New classification as brought into by the Rule 16 of the Tripura State Civil Services (Revised Pay) Rules, 1999 read with the correspondence dated 05.07.1999 of the Finance Department thus was not comprehensively understood by the Corporation till the said clarification was extended. As such, the petitioners cannot be accused of any liability straightway. They had no knowledge that they had been receiving the pay in excess to what was due.

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21. In Israil Khan (supra), it has been held that :

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“What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous.”

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22. In the case in hand, the Corporation has found their action erroneous after the said clarification received from the Transport Department. As such, this court is inclined not to permit the respondent-Corporation to recover any excess amount from the petitioners. If the petitioners are inclined to continue with the benefits attached to the Group-D employees, they are to exercise the option in that regard and in that case the respondent-Corporation may recover the excess amount with effect from 22.03.2012. But, if the petitioners are inclined to continue as the GroupC employees in exclusion of the benefits available to the Group-D category, they would be allowed to continue in the service in the pre-revised scale of pay of Rs.3050-5910/(corresponding revised scale of Rs.5310-24,000/-) till their age of suppuration at 60 years in terms of the new policy.”

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[Emphasis added]

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05. Mr. Dutta, learned counsel appearing for the petitioner has submitted that the petitioner is also covered by the said decision. Simply for the reason that he has retired, the petitioner cannot be denied the benefit as was extended to the similarly circumstanced persons. He has further stated that the said decision in Kalidas Paul Vs. Tripura Road Transport Corporation (supra) has been approved by another judgment and order dated 12.11.2014 delivered in W.P.(C) No.161 of 2014 by a division bench of this court and extended the benefit to the petitioner of that writ petition.

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06. From the other side, Mr. P. Dutta, learned counsel has raised jurisprudential objection namely that without any demur the petitioner continued in the service of the category of group-D and continued there and thereafter retired and all the retiral benefits were fixed accordingly. As someone submitted the option that cannot authorize him to claim the benefit earmarked for the Group-C employees. Mr. Dutta, learned counsel has further submitted that the petitioner has defied the order of the competent authority dated 14.09.2011 whereby the petitioner was asked to submit the option whether he would like to continue in the Group-D category or Group-C category. If the petitioner did not exercise the option at his risk, the petitioner cannot churn out any benefit from such non-exercise of option.

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07. To repel such submission, Mr. Dutta, learned counsel for the petitioner has submitted that the petitioner before his retirement had submitted one representation clearly stating that he would like to get the benefits of the Group-C employee as distinction by the age of

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W.P.(C). No. 1259 of 2016

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superannuation age has been done away with. As Mr. Dutta, learned counsel has submitted that the respondents did not take any decision on the said representation the petitioner has been persuaded thereby to approach this court for appropriate relief.

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08. Having considered the submission this court finds that this writ petition is substantially covered by the decision rendered by this court in Kalidas Paul vs. Tripura Road Transport Corporation (supra). But the petitioner’s entitlement is not automatic. It has to be noted here that despite the memorandum dated 14.09.2011, the petitioner continued to get the special benefits only available to the Group-D employees. Having taken a cumulative view on the basis of the impact in respect of the financial benefits, this court would generally observe that the petitioner cannot ask for combination of benefits available for Group-D and Group-C employees simultaneously. Such windfall is not permitted in view of the doctrine of unjust enrichment. However, if the petitioner exercised an option within 4(four) weeks from the day when he would receive a copy of this order, the petitioner be allowed to reap the benefit of the pay scale for the Group-C employees for holding the post of Assistant (Mechanical), but he will not be entitled to the actual financial benefits till his retirement. In the said pay scale, meant for the Group-C employees, the last pay of the petitioner shall be redrawn by the respondent No.2. Having received the option as such, his retiral benefits shall be refixed and disbursed within 3(three) months therefrom from the day of option.

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09. It is reiterated to make it further clear that the benefits of the petitioner shall be determined on the basis the pay scale meant for

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the Group-C employees from 01.01.1999. There shall be no difficulty in drawing the due-drawn statement as it is admitted that the petitioner had enjoyed the same. If the petitioner had drawn the pay in the Group-C scale, as stated earlier, for that time the petitioner’s pay is naturally adjusted. But from the time when the petitioner was paid his pay and allowances as the Group-D employee till his retirement, he will not get the additional benefit but would get the notional benefit for that period.

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10. With these observations and direction, this writ petition

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stands allowed to the extent as indicated above.

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There shall be no order as to costs.

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Moumita

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Page 14 of 14

Dilip Kr. Bhowmik v. T.R.T.C. and Anr.

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Dilip Kr. Bhowmik v. T.R.T.C. and Anr.

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