JUDGMENT : Arindam Lodh, J. 1. Heard Mr. P. Roy Barman, learned counsel assisted by Mr. K. Nath, learned counsel appearing for the petitioner. Also heard Mr. K. Bhattacharjee, learned counsel appearing for the respondents. 2. The main controversy arose in this writ petition is that whether the respondent-TRTC is entitled to recover the excess amount of Rs. 72,969/- out of gratuity amount of Rs. 2,63,296/- (Rupees two lakhs sixty three thousand two hundred ninety six) which was sanctioned in favour of the petitioner being a Group-D employee under the respondent-TRTC in view of a decision of the Apex Court in State of Punjab & Others vs. Rafiq Mashi (White washer) & Others, reported in (2015) 4 SCC 334 . 3. Before dealing with the controversy, this Court may reproduce the relevant observations made by the Apex Court in the case of Rafiq Mashi (Supra): "18. 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. Be that as it may, based on the decisions referred to herein above, 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 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. (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." 4. In the case in hand, the petitioner is admittedly a Group-D employee under the respondent-TRTC. More so, he has already been retired from service and it will be very harsh to recovery the said amount of Rs. In the case in hand, the petitioner is admittedly a Group-D employee under the respondent-TRTC. More so, he has already been retired from service and it will be very harsh to recovery the said amount of Rs. 72,969/- from the gratuity amount of the petitioner. 5. Keeping in mind the aforesaid decision laid down by the Apex Court as delineated above, let us examine the relevant facts of the present case. 6. In the instant case, the petitioner is a Group-D employee as confirmed by Mr. K. Bhattacharjee, learned counsel appearing for the respondent-TRTC. The petitioner retired from service on 28th March, 2012 and after his retirement, the impugned order dated 10th April, 2012 was issued by the Managing Director, Tripura Road of Transport Corporation, stating inter alia that "the outstanding drawn dues of Rs. 72,969/- (Rupees seventy two thousand nine hundred nine) only an excess payment of salary of this Corporation in reference to this order No. F.1(39)-Estt/TRTC/08/10 dated 03.04.2012, should be recovered full & final gratuity of Sri Sunil Chandra Lodh, Ex-Vehicle Astt., for clearing his drawn due excess salary payment in TRTC." This order was passed in exercise of power conferred under Sub-Section (3) of Section-4 of the Payment of Gratuity Act, 1972 and Second Amendment Act, 1988 adopted by TRTC (pertaining to maximum limit of gratuity admissible). It is apparent from the said order that an amount of Rs. 2,63,296/- (Rupees two lakhs sixty three thousand two hundred ninety six) was sanctioned towards full & final payment of gratuity to the petitioner. 7. From the said order dated 10.04.2012 and having regard to the submission of the learned counsel appearing for the petitioner, it reveals that while the petitioner was in service, the respondent-TRTC had paid monthly salary in excess of his actual salary he was entitled to draw. After his retirement, when the question of payment of gratuity arose, then, the respondent-TRTC had detected the mistake they committed at the time of paying the salary to the petitioner and, then, they deducted the accumulated excess amount which they had paid earlier to the petitioner from the total sanctioned amount of gratuity. 8. After his retirement, when the question of payment of gratuity arose, then, the respondent-TRTC had detected the mistake they committed at the time of paying the salary to the petitioner and, then, they deducted the accumulated excess amount which they had paid earlier to the petitioner from the total sanctioned amount of gratuity. 8. It is the contention of the learned counsel appearing for the petitioner that the gratuity amount of the employee is protected by the statute itself, and if excess payment out of salary was paid to the petitioner, it cannot be recovered from the amount of gratuity. 9. On the contrary, Mr. K. Bhattacharjee, learned counsel appearing for the respondent-TRTC has submitted that the excess amount which the TRTC had paid to the petitioner out of his salary, has been adjusted by way of deducting same from the sanctioned amount of gratuity which the petitioner was entitled to. 10. I have considered the submission of the learned counsel appearing for the parties and have taken note of the scheme envisaged in the Gratuity Act. 11. In my opinion, the entire scheme under the Payment of Gratuity Act is a welfare legislature and the amount of gratuity is not liable to be adjusted towards any amount drawn by the employee under any heads. 12. In the instant case, the respondent-TRTC on their own had committed mistake in making payment of salary to the petitioner in excess to the amount the petitioner was actually entitled to draw. The petitioner was totally unaware of the fact being a Group-D employee. The petitioner cannot be said to be at fault in any manner for such negligent act of the respondents. At best, in my opinion, recovery of such excess payment if necessary, should be made from the persons who are liable and responsible to fix and disburse the salary. It is sheer negligence on the part of those persons, and for such negligent act those persons are only to be penalized but not the employees of such lower category who unknowingly utilized the entire amount during the tenure of his service on the pretext that it was his actual salary and that too when the question of recovery comes up from gratuity. Having realized the mistake, after his retirement, at the time of payment of gratuity, the respondent-TRTC had adjusted the excess amount by way of deducting from the sanctioned amount of Rs. 2,63,296/- (Rupees two lakhs sixty three thousand two hundred ninety-six) out of gratuity the petitioner was entitled to, which is contrary to the very object of the scheme of the Act. 13. In my opinion, under the Payment of Gratuity Act, the respondent-TRTC had committed a serious error in law when they had passed the order dated 10.04.2012 for recovery of the payment which they paid to the petitioner in excess of his actual salary and the said order of recovery dated 10.04.2012 is liable to the set aside. 14. In this backdrop, bearing in mind the principle enunciated in the case of Rafiq (supra), the order dated 10.04.2012 (Annexure-P/2 to the writ petition) issued by the Managing Director, TRTC stands set aside and quashed. It is further directed that the amount which the petitioner was paid in excess out of his salary, shall not be adjusted from the gratuity amount which was sanctioned and accorded to the petitioner. As such, the respondent-TRTC is liable to refund the said amount of Rs. 72,969/- to the petitioner with simple interest @6% per annum. 15. In view of the above, the present petition stands allowed and disposed of. Pending application(s), if any, also stands disposed of.