Tripura High Court
Smt Mamata Singha Roy vs The State Of Tripura on 15 June, 2018
Author: Ajay Rastogi
Bench: Ajay Rastogi
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HIGH COURT OF TRIPURA
AGARTALA
W.P(C)No.603/2017
Smt Mamata Singha Roy, C/o. Sri Amal Chandra Deb, Resident of
Joynagar Middle Road, P.O-Agartala, P.S- West Agartala, Dist.-
West Tripura.
----Petitioner(s)
Versus
1. The State of Tripura, Represented by the Secretary to the
Govt. of Tripura Department of Fisheries, Govt. of Tripura,
Lembucherra, District-Tripura (W).
2. Chief Executive Officer, West Tripura, F.F. D.A, College Tilla,
Pin-799004, District-West Tripura.
----Respondent(s)v
For Petitioner (s) : Mrs. Sujata Deb(Gupta), Advocate.
For Respondent(s) : Mr. D. Sharma, Addl. Govt. Adv.
Mr. C. S. Sinha, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
Order
[
15/6/2018
The instant writ petition has been filed by a person who
stood retired from service in January, 2017 and what being
transpired from the record is that this uncalled for litigation has
been thrust upon the retired person only for satisfaction of ego of
the bureaucrats.
2. The brief facts in nutshell which are not in dispute but
relevant for consideration in the present writ petition are that the
petitioner joined in service as LDC on 7th September, 1982 in West
Tripura Fish Farmers Development Agency (for short, West Tripura
FFDA) and indisputedly the State Government has financial and
pervasive control over FFDA and while in service he was promoted
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to the post of Upper Division Clerk and on attaining the age of
superannuation retired from service on 31st January, 2017.
3. The then Chief Executive Officer taking note of the
relevant scheme of rules sanctioned a sum of Rs.4,00,000/-
towards gratuity under its seal & authority vide order dt. 21st
February, 2017 showing good gesture that a retired person must
get what is due towards terminal benefits must be paid without
delay.
4. But it appears that was not acceptable to the State
Government since it was paid without prior sanction by the
Finance Department who claim its supremacy in all financial
matters and taking that to be a basis it appears that some
correspondence took place between the Finance Department and
the West Tripura FFDA and the officer was compelled that if the
money towards gratuity sanctioned and paid to the retired
employee if not recovered there would be a possibility that
financial burden may be fastened on him. Under those
circumstances later order came to be passed on 7th April, 2017
asking the petitioner to refund the amount of Rs.4,00,000/- which
was paid to her towards gratuity as it was paid without approval of
the Finance Department.
5. Counsel for the petitioner submit that earlier there was
a question under consideration as to whether the employees of
the West Tripura FFDA are entitled for gratuity and leave salary as
a terminal benefits on retirement and the matter came to be
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examined initially by a ld. Single Judge court in Writ Petition(C)
No.493/2010 which was decided on 6th April, 2011 and the subject
matter was further examined by a Division Bench in Writ Appeal
No. 44/2012 and the judgment of the ld. Single Judge was upheld
vide judgment dt. 4th September, 2012 and I considered it
appropriate to quote the extract of the Division Bench judgment of
this court as under:
"04.09.2012
Heard Mr. N. Majumder, learned counsel for
the appellant and also Mr. H. Sarkar, learned
counsel for the respondent.
*******
It appears from the submission of Mr. Majumder, learned counsel for the appellant that even though respondent is entitled to get gratuity and leave salary, the appellant has no fund to release the gratuity and leave salary. In this given fact, the learned Single Judge vide impugned order dated 06.04.2011 had directed the appellant to approach the Finance Department for releasing the fund in view of the order dated 24.06.2009 passed by the Certificate Officer, operative portion of which is quoted.
In the above factual backdrop, we are of considered view that the appellant has utterly failed to make out any case to interfere with the impugned order dated 06.04.2011. We are in complete agreement with the direction of the learned Single Judge to the appellant to approach the Finance Department for releasing fund in view of the order passed by the Certificate Officer dated.24.02.2009.
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In view of the above and also taking into consideration of the right of the respondent to get his gratuity and leave salary, we hope and trust that the Secretary, Finance, in case the appellant approached him pursuant to the direction of the court, shall consider and dispose of the matter with human touch, within a period of two months from the date on which approach is made by the appellant.
The appellant is directed to approach the secretary, Finance, with a certified copy of this judgment and order for passing necessary order.
The writ appeal is disposed of."
6. The question regarding entitlement for the payment of gratuity to the employees of the West Tripura FFDA staffs is no more res integra. Counsel submits that in the given facts and circumstances whether the gratuity which has been paid to the petitioner is with or without approval of the Finance Department is a ministerial act and for that, the petitioner could not be saddled to refund the amount of Rs.4,00,000/- paid to her towards gratuity. More so, when entitlement for gratuity in terms of the relevant scheme of rules applicable as on the date of retirement has not been disputed.
7. Indisputably, on the date of retirement of the petitioner in January, 2017 Rs.4,00,000/- was the amount towards gratuity payable to the retired person. Petitioner's counsel submits that the order impugned in the given facts and circumstances calling the Page 5 of 7 petitioner to refund under order dt.7th April, 2017 is a abuse of discretion and arbitrary, needs to set aside.
8. Counsel for the respondents States on the other hand submits that no payment could be made without approval of the Finance Department and it is revealed from the instant case that payment was made to the petitioner without prior sanction from the Finance Department and that was reason for which the agency was called upon to withdraw the payment made to the petitioner towards gratuity and further submits that under the scheme of rules applicable to the staffs of West Tripura FFDA they are not entitled for gratuity.
9. Mr. C. S. Sinha, ld. counsel appearing for the respondent No.2 although supported the contention of the petitioner's counsel and further submits that since the petitioner is entitled for payment of gratuity that was sanctioned and paid to her immediately on retirement keeping in view the mandate of this court holding the entitlement of the staffs of the West Tripura FFDA for gratuity and leave encashment but having no option left, order came to be passed indisputably under his signature for refund of the amount of gratuity paid to the petitioner dt. 7 th April, 2017.
10. I have heard counsel for the parties and also perused the material available on record with their assistance. Indisputably, the entitlement of the petitioner being a staff of West Tripura FFDA for payment of gratuity has been upheld by Page 6 of 7 this court vide judgment dt. 4th September, 2012 of which reference in detail has been made and the question for entitlement is no more res integra for this court.
11. It is also not a case of the respondents that at the time of retirement of the petitioner from service in January, 2017 the amount of gratuity payable was not Rs.4,00,000/- which in fact was paid to her on retirement towards gratuity vide order dt. 21 st February, 2017. This court make it further clear that four lakhs has been revised by the Govt. of Tripura under Tripura State Civil Services (Revised Pension) Rules, 2017 which become applicable from 1st April, 2017. As the petitioner was retired on January, 2017 the amount towards gratuity payable to employee was four lakhs and not ten lakhs at the given point of time.
12. Counsel for the petitioner submits that his entitlement for gratuity is of Rs.10,00,000/- and places reliance on the decision of the Division Bench of this court in W. P(C) No.578/2015 (Sri Dipak Debnath Vrs. The State of Tripura & Others.), since the parties have not addressed on this issue, I leave it open as to whether the entitlement of the petitioner towards gratuity amount is four lakhs or ten lakhs to be examined in the independent proceedings.
13. This court find substance in the submission of the petitioner's counsel for the reasons that when the entitlement has been upheld and payment was made by the agency according to the payment of gratuity payable to the petitioner, requirement of Page 7 of 7 sanction by the Finance Department may be a inter departmental correspondence and required for making formalities under the rule of business but, at the same time, as long as the entitlement is not in question and payment of gratuity is admissible under the rules, prior sanction from the Finance Department could not come in the way of petitioner in calling upon to refund the amount paid under the order impugned dt.7th April, 2017.
14. Consequently, the writ petition is allowed. The impugned order dt.7th April, 2017 calling upon the petitioner to refund the gratuity amount of Rs.4,00,000/- is quashed and set aside. As regard the question raised by the petitioner for entitlement of Rs.10,00,00/- instead of Rs. 4,00,000/- towards gratuity, this court leave it open for the petitioner to examine in an independent proceeding if initiated at behest of the petitioner. No costs.
CHIEF JUSTICE Certificate : All corrections made in the judgment/ order have been incorporated in the judgment/order. d. dey.(B)