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2014 DIGILAW 189 (TRI)

Sangeeta Dewanjee v. State of Tripura

2014-05-27

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- While the petitioner was serving as the Upper Division Clerk (UDC) in the Abhoynagar Higher Secondary School, now Nazrul Smriti Vidyalaya, she was asked by the Head Clerk of the school to prepare the Salary Bills in respect of two Night Guards, namely Ranjit Chowhan and Uttam Debnath in the scale of pay of `775-1135 w.e.f. 01.10.1992. Later on, by the memorandum dated 01.12.2004, Annexure-1 to the writ petition, the petitioner was asked alongwith others, why a part of the overdrawn amount to the extent of` 44,617.40 should not be recovered from her. The petitioner, in response to that show cause, had filed her reply dated 16.12.2004, Annexure-4 to the writ petition, stating that she had prepared the salary bills under the instruction of "the Headmaster or the Head Clerk" and as such she should not be saddled with any liability whatsoever. However, by the memorandum dated 11.01.2005, Annexure-6 to the writ petition, it has been observed that the reply of the petitioner was not satisfactory at all and, accordingly, she was directed to deposit the said sum within 15 days. The petitioner had filed a protest representation on 02.02.2005, Annexure-7 to the writ petition, reiterating her stand. But, by the memorandum dated 25.04.2005, Annexure-8 to the writ petition, the petitioner was intimated that her request to absolve her from the liability of payment had been regretted and she was requested to deposit the said amount of `44,617.40. However, payment by instalment was allowed to the petitioner. Being aggrieved by the said action, the petitioner has approached this court by filing this writ petition. 2. By the order dated 02.09.2005 passed in C.M. Appl. No. 341/2005, arising from this writ petition, the recovery of the said amount pursuant to the memoranda dated 11.01.2005 and 25.04.2005, had been stayed till the returnable date. Later on, by the order dated 05.10.2005, the interim order passed on 02.09.2005 was allowed to be continued till further orders. In view of this, by the order dated 05.10.2005 the said petition, being C.M. Appl. No. 341/2005 was disposed of. The respondents did not approach this court for vacating the said order and, as such, the said interim order is still in force. Therefore, the petitioner, as stated, has not paid any amount pursuant to the memoranda dated 11.01.2005 and 25.04.2005, Annexures 6 and 8 respectively to the writ petition. 3. Mr. No. 341/2005 was disposed of. The respondents did not approach this court for vacating the said order and, as such, the said interim order is still in force. Therefore, the petitioner, as stated, has not paid any amount pursuant to the memoranda dated 11.01.2005 and 25.04.2005, Annexures 6 and 8 respectively to the writ petition. 3. Mr. P.K. Ghosh, learned counsel appearing for the petitioner has submitted that the said recovery proceeding had commenced in terms of the judgment and order dated 20.05.2004 delivered in W.P. (C) No. 65/2004 by the Gauhati High Court, wherein it has been observed as under: Under the circumstances, regard being had of the meagre amount of emoluments being received by the petitioners with effect from February, 2004. I am of the considered view that recovery of the entire over payment will cause hardships and miseries of immense proportion upon extremely low-paid employees like the petitioners. On the other hand, I cannot lose sight of the bizarre fact that the petitioners have been drawing the salary of regular employees for twelve years with the full knowledge that they were not entitled to such salaries under the law. Under the circumstances to restrain the respondents from recovering the entire over payment will be highly iniquitous and will also give wrong signal to others. Therefore, the ends of justice will be meet by directing the State-respondents to recover 50% of the over payment made to the petitioners from their total emoluments in easy instalments, the maximum whereof shall not exceed one sixth of the total emoluments and by directing the State-respondents to recover the remaining amount from the erring officials. Order accordingly. It is made clear that if no recovery is being made from the erring officials, no recovery should be made from the petitioners’ either. [Emphasis supplied] 4. Mr. Ghosh, learned counsel has further submitted that in view of the said judgment and order dated 20.05.2004, the petitioner cannot be stated to be one of the erring officials. He has continued to submit that, it is the Headmaster and the Head Clerk who were responsible for releasing the pay and allowances of the said two night guards in the regular pay scale of ` 775-1135 w.e.f. 01.10.1992 having no order from the competent authority. He has continued to submit that, it is the Headmaster and the Head Clerk who were responsible for releasing the pay and allowances of the said two night guards in the regular pay scale of ` 775-1135 w.e.f. 01.10.1992 having no order from the competent authority. In the judgment and order dated 20.05.2004, it has been clearly observed that "the payment of regular pay and allowances to the petitioners were allowed by the concerned D.D.O.". Only after the competent authority had discovered the fact that the petitioners of W.P. (C) No. 65/2004, namely Ranjit Chowhan and Uttam Debnath have been paid the regular pay and allowances, the respondents stopped such payment and directed recovery of the amount received in excess by those persons. The said order of recovery was under challenge in that writ petition. By dint of the said judgment and order dated 20.05.2004, it was directed that 50% of the over-drawn payment may also be recovered from the erring officials and hence the said show cause dated 01.12.2004 was issued for recovery of 50% of the amount drawn in excess by those two night guards from ’the erring officials’. 5. The petitioner from the very beginning has extended stiff resistance, contending that by no means she was responsible for excess payment as she had acted as per the order of the superior officers’. She had no authority either to give opinion as to whether the regular pay scale should be released to any employee or not. Thus, she has been arbitrarily saddled with the said liability of making payment of ` 44,617.40. In support of that contention, Mr. Ghosh, learned counsel has drawn attention of this court to the representation dated 10.12.2004, Annexure-5 to the writ petition, wherein the Head Clerk, namely Badal Choudhury (now retired) has categorically stated that "I was in confusion whether the Night Guards fall into the Group of Class-IV employees. I brought the matter to the then Headmaster Sri S.C. Nandi and he told me that they belong to the Class IV staff. I also requested him to contact the department in this regard but he told me to allow them the regular scale of pay and the consequences were to be faced by him. Accordingly I instructed the Bill Section and Establishment Section for necessary action. I also requested him to contact the department in this regard but he told me to allow them the regular scale of pay and the consequences were to be faced by him. Accordingly I instructed the Bill Section and Establishment Section for necessary action. So I cannot be blamed or punished for the irregularities as mentioned in the above cited Memo". 6. The respondents by filing a composite counter-affidavit, have submitted that since the petitioner had been entrusted for preparation of the Salary Bills, she had duty to follow the respective order of the Government while preparing the Salary Bills. Further, it has been contended in the counter-affidavit that the said action was the outcome of the judgment and order dated 20.05.2004 delivered in W.P. (C) No. 65/2004. As the petitioner’s representations were devoid of substance, she was not exonerated from the liability of paying her share in terms of the said judgment and order dated 20.05.2004. 7. From the representation filed by the Head Clerk, Annexure-5 to the writ petition, it has come to the notice of this court how the petitioner had been instructed to prepare the salary bills for those two night guards. As a result, how the said representation was dealt with by the respondents was required to be critically examined. For that purpose, the State-respondents were directed to produce the original documents available at Annexure-5 to the writ petition, by the order dated 14.03.2014 alongwith the relevant records. But, on 24.03.2014, Mr. T.D. Majumder, learned Govt. Advocate appearing for the state-respondents has placed the relevant file to show that the record at Annexure-5 to the writ petition is not traceable. There is no reflection how Annexure-5 was dealt with by the competent authority. He has also furnished a photo-copy of the note where it has been so asserted. Therefore, this court does not have any other alternative, but to treat the representation at Annexure-5 to the writ petition as genuine. 8. The respondents in their counter-affidavit, in response to paragraph-5 of the writ petition where the contents of the said representation at Annexure-5 to the writ petition has been described and relied upon, did not state nothing about the veracity of the said document, rather it has been stated that since the petitioner had prepared the salary bills for those two night guards, she had been identified as the erring official. 9. 9. Having appreciated the submissions advanced by the learned counsel for the parties and on scrutiny of the records so placed alongwith the writ petition, the counter-affidavit as well as the averments made therein including the averments made in the affidavit-in-rejoinder filed by petitioner, the question that arises for consideration by this court is whether the petitioner can be defined or termed as the ’erring official’ within the ambit of the judgment and order dated 20.05.2004 delivered in W.P. (C) No. 65/2004 or not. 10. From Annexure-5 to the writ petition, it transpires clearly that under the instruction of the Headmaster and the Head Clerk, the petitioner had prepared the salary bills of the said night guards. It further transpires that the Head Clerk had directed her under the instruction of the Headmaster who was also the Drawing and Disbursing Officer (DDO) for that school. As such, there is no material to show that the petitioner had taken any decision or she was the part of the decision making process whereby the said two night guards were favoured with the regular pay scale w.e.f. 01.10.1992. Thus, in the considered opinion of this court, the petitioner cannot be termed as the ’erring official’ within the ambit of the judgment and order dated 20.05.2004 delivered in W.P. (C) No. 65/2004. Hence the memoranda dated 11.01.2005 and 25.04.2005, Annexures 6 and 8 respectively to the writ petition, are quashed. It is also observed that no recovery in terms of the judgment and order dated 20.05.2004 delivered in W.P. (C) No. 65/2004 shall be made from the petitioner. 11. In the result, the writ petition stands allowed. There shall be no order as to costs. Return the records as produced by Mr. T.D. Majumder, learned Govt. Advocate.