Kaushalya v. State Of Bihar — 1999 DIGILAW 847 (PAT)

Judgment 1. In all these writ petitions since the question involved is common, they have been heard and are being disposed of by this common order. 2. First four writ petitions have been filed by the employees of the Patna Municipal Corporation, who are aggrieved by the orders contained in Annexures 2 & 3 respectively. By Annexure-2 in C.W.J.C. No. 8527 of 1999 the Administrator of the Corporation directed the office to place the claim of the post-retirement benefit of the employee only after completing the necessary formalities mentioned therein. According to the said direction the claim of the employee was to be put up after making necessary adjustment of the alleged excess amount drawn during the services rendered by them beyond the actual date of superannuation, and by Annexure-3 of C.W.J.C. No. 9732 of 1998 the claim of the petitioner has been decided after making adjustment of the alleged excess amount drawn by him during the period after his actual date of superannuation. In C.W.J.C. Nos. 11677 of 1998 and 11739 of 1998 by the order, contained in Annexure-1, which have been issued on 16.3.98 and 24th February, 1996 respectively by the Deputy Administrator of the Corporation pursuant to which on completion of 40 years of their service on 14.5.1995 and 1994 the petitioners have been sought to be superannuated with immediate effect. They are aggrieved by non-payment of their post-retiral dues, despite filing representations by them. Learned counsel for the petitioners apprehends that payment of the petitioners have been kept withheld for making recovery of the alleged excess amount drawn by them during the period the date and/or the year determined as their retiral age and till when the work was taken from them. 3. In C.W.J.C. No. 9432 of 1998 the petitioner who is widow of the deceased employee of the Bihar State Electricity Board, is aggrieved by non-payment of the dues including pensionary dues on account of death of her husband. The husband of the petitioner entered into service on 4.4.1956 and his date of birth in the service book was recorded as 4.5.1943. In the counter affidavit filed on behalf of the Board, it is alleged that the said recording of date of birth at the time of opening of the service book was by mistake/slip of pen. The husband of the petitioner entered into service on 4.4.1956 and his date of birth in the service book was recorded as 4.5.1943. In the counter affidavit filed on behalf of the Board, it is alleged that the said recording of date of birth at the time of opening of the service book was by mistake/slip of pen. It is further alleged that soonafter the said mistake was detected the husband of the petitioner was asked to produce the document in support of date of birth and when he did not produce it, Medical Board was constituted which after conducting radiological/ossification test found the age of petitioner 60 to 62 years on the date of examination i.e. 8.5.1997. It is stated that the date of birth of the husband of the petitioner comes to 4.5.1935 and thus he was made to retire with effect from 31.3.1995 to which he never raised any objection. 4. It is thus, alleged that the husband of the petitioner continued in service beyond the actual date of retirement during period 31.5.1995 to 23.5.1997 and withdrew Boards money for the period by way of salary and ailowance which are liable to be adjusted against the different retiral benefits of the deceased employee. In paragraph 13 it is stated that the other retiral benefits of the late husband of the petitioner shall be released on or after the adjustment of the excess amount drawn by the husband of the petitioner with which the petitioner is aggrieved. 5. It is not the case of the Respondents in any of the writ petitions that the employees including the deceased husband of the petitioner continued in service beyond the age of superannuation on account of any mis-representation or manipulation made by them. It is, contended by the learned counsel for the petitioners that in first four cases the petitioners are illiterate persons and there is no fault on their part in continuing beyond the actual date of superannuation. As such they cannot be deprived of the salary for the period when admittedly work have been taken from them. According to the learned counsel it will be too much to expect from the illiterate workers to remember their age and the actual date of superannuation. They do not even know as to whether their service book was ever opened and any such entry regarding their age was made. According to the learned counsel it will be too much to expect from the illiterate workers to remember their age and the actual date of superannuation. They do not even know as to whether their service book was ever opened and any such entry regarding their age was made. It is submitted that under Article 23(1) of the Constitution of India traffic in human being and beggar and other similar form of force labour are prohibited and any contravention of the same is an offence punishable in accordance with law. According to the teamed counsel the impugned recovery will amount to taking work from the petitioner for such period as beggar. On the other hand, learned counsel for the Respondents submitted that the petitioner/husband of the petitioner have no right to claim the salary etc. for the work which they perform after their actual date of retirement. In absence of any order re-employing them in service they are not entitled to continue in service as per law. In support of this, learned counsel for the Respondents placed reliance on a decision of the Supreme Court in the case of Radha Krishna V/s. Union of India, reported in 1997(2) P.L.J.R. 129 (S.C.) and also order of this Court dated 2.8.99 passed in C.W.J.C. No. 10468 of 1998 by learned Single Judge declining to allow the benefit of the said period following the aforementioned decision of the Apex Court. 6. Learned counsel for the petitioner submitted that the same Honble Judge in C.W.J.C. No. 931 of 1998 disposed of on 23.6.99 directed that if any amount has been paid for the period for which they have worked the said amount was not to be recovered from her. In similar case similar order was passed by another Honble Judge in C.W.J.C. No. 8832 of 1998 disposed of vide order dated 6.7.99 directing that since the petitioner was admittedly allowed to work till February, 1996 he is entitled to the salary for such period. In both the said writ petitions petitioners were made to retire by the impugned order retrospectively from the actual date of retirement. 7. In both the said writ petitions petitioners were made to retire by the impugned order retrospectively from the actual date of retirement. 7. Thus, the common question involved in the writ petitions is as to whether the authority can make recovery on account of alleged excess payment made to the employees concerned for the services rendered by them beyond the actual date of superannuation, not on account of any misrepresentation or manipulation made by them. 8. The reliance placed by the learned counsel for the Respondents on the decision of the Supreme Court in the case of Radha Kishan vs. Union of India & others (supra) is of no help to them. Even according to the said decision, the person can not be denied of the salary for the period after his actual date of superannuation, if he actually continued to work despite his awareness that he could not continue to be in service as per law. However, the said decision of the Apex Court is directly in conflict with the earlier larger Bench decision of the Apex Court in the case of State of Bihar V/s. Naraslmha Sundram, reported in A.I.R. 1994 Supreme Court 599: 1994 (1) PLJR (SC) 101 about which there is no reference even made in the subsequent decision of the Apex Court in the case of Radha Kishan vs. Union of India (supra). 9. In the case of State of Bihar vs. Narasimha Sundram the facts before the Supreme Court were that the Respondent had to retire as an Executive Engineer under the appellant-State on the basis of his true age on 31st January, 1988, but he remained in service by playing fraud on the Department. However it was admitted that he served the department till 30th September, 1989. By a writ petition out of which the appeal arose the respondent claimed his salary from February, 1988 to September, 1989. The Respondent also complained that he was not being paid his post retiral benefits. The High Court by the impugned judgment allowed both the reliefs. However it was admitted that he served the department till 30th September, 1989. By a writ petition out of which the appeal arose the respondent claimed his salary from February, 1988 to September, 1989. The Respondent also complained that he was not being paid his post retiral benefits. The High Court by the impugned judgment allowed both the reliefs. The Apex Court dealing with the question of payment of arrears of salary did not find any merit in the contention of the learned counsel for the appellant that the Respondent can be refused his emoluments for the period in question as no proceedings were ever initiated for enquiry as to the alleged fraud played by the Respondent on the department. In the absence of the denial that the Respondent worked till 30th September, 1989, the Apex Court confirmed that part of the impugned judgment of the High Court which refered to the salary and accordingly directed that the Respondent should be paid his arrears of salary, if not already paid, within two months from that day. 10. In the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh V/s. Presiding Officer, Labour Court, Chandigarh & others, reported in (1990) 3 S.C.C. 682 the Constitution Bench of the Apex Court while dealing with the meaning and effect of the decision per incuriarri held that non-reference to an earlier larger Bench decision of the Supreme Court will make subsequent decision of the Supreme Court per incuriam if the ratio of the earlier decision is in conflict with it. 11. It is well settled that no penalty can be imposed without at least giving an opportunity to the concerned employee to defend himself. Moreover, the Apex Court in the case of Sahib Ram V/s. State of Haryana & others, reported in 1995 Supp. (1) S.C.C. 18 in which the benefit of higher pay scale was given to the appellant, but by wrong construction made by the Principal for which the appellant could not be held to be at fault, directed that the amount paid till date may not be recovered from the appellant. This direction was given on the premise that it was not on account of any mis-representation by the appellant that the said benefit was given to him. 12. This direction was given on the premise that it was not on account of any mis-representation by the appellant that the said benefit was given to him. 12. Accordingly this Court is of the view that earlier larger Bench decision of the Supreme Court in the case of State of Bihar vs. Narasimha Sundram (supra) is binding and in view of the law settled by the said decision, the recovery of the alleged excess payment made to the employee concerned for the services rendered by them beyond the actual date of superannuation without any misrepresentation or manipulation made by them is not permissible. 13. In the present case, it is not alleged that the petitioners or the deceased employee were aware of their actual date of retirement and still they continued to work. Petitioners in the first four writ petitions are menial staff of the Corporation and in C.W.J.C. No. 9432 of 1998 the petitioner is widow of the deceased employee. Thus, it has rightly been submitted by the learned counsel for the petitioners that they cannot be held responsible for continuance beyond the actual date of superannuation as it is not alleged that they continued in service beyond the age of superannuation on account of any misrepresentation or manipulation made by them. 14. All the five writ petitions are, thus, allowed. Annexure-2 to C.W.J.C. No. 8527 of 1998 to the extent whereby the Administrator of the Respondent- Corporation has directed that the claim of the employee should be put up after making necessary adjustment of the alleged excess amount drawn during the services rendered by them beyond the actual date of superannuation, and Annexure-3 of C.W.J.C. No. 9732 of 1998 are quashed. Accordingly, the Respondents are directed to release the remaining pensionary benefits of the petitioners within two weeks of the receipt/production of the copy of this order with interest as provided for delayed payment in the relevant Rule or Government decision which are applicable to the Respondent-Corporation and Board.