Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 95 (PAT)

Ram Raj Singh v. State Of Bihar

2007-01-12

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard Mr. Sheikh Arkan Ahmed, learned Counsel for the petitioner and learned J.C. to Standing Counsel No. 11, for the State. 2. The petitioner seeks quashing of the order dated 13.6.2000 (Annexure-1) issued by the Circle Officer, Dawath, Rohtas by which a direction has been made for recovery of Rs. 73,083.00 being the salary for a period of two years and two and half months from the petitioner, since as per the service book, the petitioner was to retire on 30.4.1998 whereas, he has retired on the basis of the notice of retirement on 15.6.2000. 3. The petitioner was appointed as Choukidar by order No. 10/1993-94 dated 1.3.1994 of the District Magistrate, Rohtas at Sasaram. It appears that no document could be produced by the petitioner regarding his date of birth and even in Medical Fitness Certificate dated 26.10.1993 submitted by him at the time of joining, issued by the Medical Officer, Piro, Bhojpur, it is stated that his age, according to his statement, is 45 years but he seems to be 49 years old. In view of the said situation, the petitioner was sent for determination of his age to the Government Hospital at Sasaram. His age was determined by the Medical Board and accordingly his date of birth was entered in the service book as 15.4.1940. The petitioner claims to be illiterate. Even on the said page of the service book where his date of birth is given, instead of his sis nature he has put his thumb impression. Thereafter the petitioner continued to be in service beyond the actual date of retirement on 30 4.1998 and only after notice was served upon him by Annexure-1 which was received on 15th June, 2000 that he ceased to work. 4. Learned Counsel for the petitioner submitted that there is no justification for the said order of recovery dated 13.6.2000 since for the first time the department served notice upon the petitioner by the said order and immediately on receipt of the same on 15.6.2000 he had stopped working and thus for the period he had actually worked, he would be entitled to salary for the same. It is submitted that it was the fault of the authorities that they had not earlier served the notice and made him to retire on the due date according to the age determination by the Medical Board which was entered in the service book. It is further submitted that since the petitioner was illiterate he had no Knowledge of what was written in the service look and it was for the authorities to have intimated him regarding the same, being the custodian of the service book of the petitioner. It is further submitted that there was no fraud or misrepresentation committed by the petitioner in continuing in service and thus the salary of Rs. 73,083.00 that he has received, until that date cannot be recovered from him. 5. In support of the aforesaid contention, learned Counsel relies upon a decision of the Supreme Court in the case of State of Bihar V/s. Narasimha Sundram: - of which it has been laid down as follows: So far the question of payment of arrears of salary is concerned, we do not find any merit in the contention of 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 inquiry as to the alleged fraud played by the respondent on the department. It is not denied that the respondent worked till 30th September, 1989 and in that view we confirm that part of the impugned judgment which refers to the salary. The respondent should be paid his arrears of salary, if not already paid, within two months from today. 6. Learned Counsel for the petitioner also relies upon a decision of a learned Single Judge Bench of this Court in the case of Kaushalya V/s. State of Bihar and Ors. 2000(1) PLJR 505 , in which relying upon the aforesaid decision of the Supreme Court the same proposition has been laid down. He further relies upon another judgment in the case of Tameshwar Prasad Singh V/s. The State of Bihar and Ors. 2000(1) PLJR 172 in which again the same judgment of the Supreme Court has been relied upon and it has been directed that no recovery of the alleged excess amount can be made. He further relies upon another judgment in the case of Tameshwar Prasad Singh V/s. The State of Bihar and Ors. 2000(1) PLJR 172 in which again the same judgment of the Supreme Court has been relied upon and it has been directed that no recovery of the alleged excess amount can be made. However, it is to be noted that in the last judgment the matter related to wrong fixation of pension on the basis of incorrect pay fixation in which no fraud or misrepresentation of the employee was involved. Learned Counsel also relies upon a decision in tire case of Abdul Hakim V/s. The State of Bihar and Ors. 2004(4) PLJR 508 in which the same proposition has been laid down following the decision in Kaushalyas case (supra). 7. Learned Counsel for the State, on the other hand, supports the order impugned on the ground that an employee cannot be permitted to continue in service beyond the period of superannuation and in case he has so continued then he would not be entitled to any salary and allowance for the said period since permitting the same would lead to all type of manipulations being committed. In such circumstances, there is no scope for any equitable consideration in favour of the employee. It is submitted that the petitioner had put ns thumb impression on the service book and thus it is to be presumed that he was aware of the date of his superannuation. In any case, since the petitioner had been referred for determination of his age to the Medical Board and had appeared before the Medical Board and accordingly his age has been fixed, therefore, it is not open to him to state that he was not aware of the age as determined by the Medical Board which has been recorded in his service book. In support of the aforesaid contention, learned Counsel relies upon a decision of the Supreme Court in the case of Radha Kishun V/s. Union of India and Ors. In support of the aforesaid contention, learned Counsel relies upon a decision of the Supreme Court in the case of Radha Kishun V/s. Union of India and Ors. - of which it has been laid down as follows: The learned Counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowances from 1.6.1991 to 26.6.1994 and that he is also entitled to the payment of provisional pension, death-cum-retirement gratuity, leave encashment, commutation of pension amount, GPF money and the amount deposited under CGHS on the plea that he retired from service on 31.5.1994. We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the above said date when admittedly he was to retire on 31.5.1991. It would be ah obvious case of absolute irresponsibility on the part of the officer concerned in the establishment in the section concerned for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits. 8. Learned Counsel for the State also relies upon a Division Bench judgment, of this Court in the case of Mostt. Nathia V/s. Patna Municipal Corporation and Ors. 2006(1) PLJR 433 , in para-3 of which it has been held as follows: The present is not a case where excess payment has been made on account of wrong promotion etc. This is a case where an employee after superannuation continued to work and took salary. Any Government employee knows the date of his/her superannuation. As a honest public servant he/she has to leave the office on the date of superannuation. If he/she continues even after superannuation and withdraw salary then that can be recovered and retired employee cannot take a plea that there was no fraud or misrepresentation on his/her part. No Government servant can claim any benefit by his/her own wrong or misdeeds. As a honest public servant he/she has to leave the office on the date of superannuation. If he/she continues even after superannuation and withdraw salary then that can be recovered and retired employee cannot take a plea that there was no fraud or misrepresentation on his/her part. No Government servant can claim any benefit by his/her own wrong or misdeeds. Any sympathy in such matter shown by the Court will amount to giving premium to the retired employee for his or her wrong. 9. The issue raised in the present matter has already been considered earlier by this Court in Kaushalyas case (supra) in which the two conflicting decisions of the Supreme Court in the case of Narasimha Sundrams case (supra) and Radha Kishuns case (supra) had been noted and this Court after taking into consideration the Narsimha Sundrams case, which had been decided by a larger Bend of three Judges of the Supreme Court, whereas Radha Kishuns case had been decided by two Judges Bench and the latter decision has not taken note of the earlier decision of the larger Bench, held that it is the earlier decision of the larger Bench which would be binding on it. In view of the doctrine of precedent involved. I am in respectful agreement with the view expressed by the earlier Bench of this Court in Kaushalyas case (supra), since the aforesaid two Supreme Court decisions have not been referred to by the Division Bench in Mostt. Nathias case. 10. In that view of the matter, it must be held that the direction for recovery made by the order dated 13.6.2000 as contained in annexure-1 cannot be considered as Legal and valid and must be quashed. It is accordingly quashed. 11. In the result, the writ application is allowed. However, it is made clear that the petitioner would only be entitled to any post retiral benefits on the basis of his actual date of retirement, i.e., 30.4.1998.