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2008 DIGILAW 817 (GAU)

Karabi Saha v. State of Tripura

2008-11-26

HRISHIKESH ROY, J.CHELAMESWAR

body2008
JUDGMENT Jasti Chelameswar, C.J. 1. Heard Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant/writ petitioner. Also heard Mr. S. Chakraborty, learned Govt. Advocate for the State respondents. 2. Aggrieved by the order dated 27.2.2002 passed in WP(C) No. 249 of 2002, the unsuccessful writ petitioner has preferred the present appeal. The facts raised in the present appeal are not in dispute. 3. In petitioner obtained some loan from the third respondent Bank herein, sometime in the year 1987. At that point of time the petitioner/appellant was unemployed. Subsequently the petitioner secured employment under the State of Tripura as an Assistant Teacher in a Government school. By letter dated 18.4.2002 of the Education Secretariat, the petitioner was informed that the third respondent herein by its letter dated 8.2.2002 reported to the Inspectorate that the appellant was a defaulter to the Tripura Gramin Bank to the tune of Rs. 14,657. The third respondent Bank, therefore, requested the Inspectorate to recover the abovementioned amount from the salary of the appellant. Therefore, the Inspectorate had informed the appellant that an amount of Rs. 2,000 (Rupees two thousands) only per month would be deducted and the same would be remitted to the third respondent Bank towards the discharge of the abovementioned outstanding loan. 4. Subsequently, by a proceeding dated 31.5.2002 the Inspectors of Schools, Bishalgarh, Tripura West deducted an amount of Rs. 2,000 from the salary payable to the appellant from the month of April 2002 towards the first installment contemplated in the earlier referred letter. 5. Challenging the decision of the respondent Nos. 1 and 2, to deduct the salary and in fact deduction of one of the installment, the appellant approached this Court by above writ petition which writ petition stood disposed by the learned Single Judge. 6. The learned Single Judge opined that the dispute is purely civil in nature and therefore, not valid within the jurisdiction of this Court under Article 226 of the Constitution. 7. We are unable to agree with the conclusion reached by the learned Single Judge for the following reasons. The loan transaction between the appellant and the third respondent is purely in the realm of a contract. Neither of the first two respondents was a party to such a contract. 7. We are unable to agree with the conclusion reached by the learned Single Judge for the following reasons. The loan transaction between the appellant and the third respondent is purely in the realm of a contract. Neither of the first two respondents was a party to such a contract. Where the alleged loan transaction is between two other parties, whether the obligation, if any, arising out of any loan transaction, if believed to be true are enforceable in law by the credit term, are questions which are required to be adjudicated by appropriate proceeding before an appropriate court. Normally the appropriate Forum for recovery of the amounts due to the above loan transaction is the competent civil court but with reference to certain classes of loans, an alternative way for adjudication of such dispute is created by law like the Tribunal constituted under the financial Institution for recovery of the outstanding loan amount. It is also a fact that for recover of certain classes of debts, particularly the debts due to the State, summary procedure of recovery giving a go bye to the normal procedure of the civil suit are also created under the provisions of the laws like the Revenue Recovery Act within various states. In all those cases, there is a clear authority of law enacted by the Legislature enabling the creditor to recover the amount by resorting to summary procedure stipulated by law. 8. The present case does not appear to be a case covered by any such summary procedure. Nothing is brought to the notice by the respondents to establish that the State is authorized to recover the amounts, such as one in dispute in this case, by any law. On the other hand, the defence of the State is that under Rule 17 of the Tripura Civil Services (Conduct) Rules, 1988, such recovery is permissible. It is declared that respondents seek to take shelter under Rule 17 of the Tripura Civil Services (Conduct) Rules, 1988 for justifying the impugned action. 9. Rule 17 of the Tripura Civil Services (Conduct) Rules, 1988 reads as follows: 77. Insolvency and Habitual Indebtedness: A Government employee shall so manage his private affairs as to avoid habitual indebtedness or insolvency. It is declared that respondents seek to take shelter under Rule 17 of the Tripura Civil Services (Conduct) Rules, 1988 for justifying the impugned action. 9. Rule 17 of the Tripura Civil Services (Conduct) Rules, 1988 reads as follows: 77. Insolvency and Habitual Indebtedness: A Government employee shall so manage his private affairs as to avoid habitual indebtedness or insolvency. A Government employee against whom any legal proceedings is instituted for the recovery of any debt due from him or for adjudging him as an insolvent, shall forthwith report the full facts of the legal proceedings to the Government. Note - The burden of proving that the insolvency or indebtedness was the result of circumstances which, with the exercise of ordinary diligence, the Government employee could not have foreseen or over which he had no control, and had not proceeded from extravagant or dissipated habits, shall be upon the Government employee. 10. It can be seen from the language of the Rule 17 that the rule does not authorize the State to recover the debts due from bona fide employees, due to State or to a third party. Rule 17 stipulates that a government employee against whom any legal proceedings are initiated for recovery of any debt due from him and seeking adjudging him as an insolvent, such employee shall forthwith report full facts of the legal proceedings to the Government. What is the purpose of seeking such information is not relevant for the purpose of present enquiry but it can be said without any hesitation that the rule as it, prima facie does not authorize the State to recover the debts due from its employees by such summary procedure as was sought to be resorted in this case. 11. Under the circumstances, we are of the opinion that the decision of the respondent Nos. 1 and 2 to recover the debt allegedly due to the third respondent and in fact deduction of an amount of Rs. 2,000 towards the first installment of such recovery, referred above from the salary of the appellant are wholly illegal and unsustainable. 12. 11. Under the circumstances, we are of the opinion that the decision of the respondent Nos. 1 and 2 to recover the debt allegedly due to the third respondent and in fact deduction of an amount of Rs. 2,000 towards the first installment of such recovery, referred above from the salary of the appellant are wholly illegal and unsustainable. 12. We, therefore, allow the writ appeal declaring the recovery proceeding dated 8.2.2002 and 31.5.2005, referred to above, as illegal and void and as a consequence further direct the respondents to refund the amount already deducted from the appellant as evidenced from the proceeding dated 31.5.2005 referred above, within 8 (eight) weeks from the date of receipt of a copy of this order. 13. The appeal stands allowed under the directions. Appeal allowed.