Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 133 (GAU)

Krishna Chandra Das v. State of Tripura

2008-02-15

UTPALENDU BIKAS SAHA

body2008
JUDGMENT U.B. Saha, J. 1. The case in hand is a surprising and shocking one. By this writ petition the petitioner has prayed for a direction for quashing the Memo dated 26.4.2005 (Annexure-4 to the writ petition) issued by the Director of Social Welfare and Social Education, Govt. of Tripura, respondent No. 2 herein, whereby and whereunder the petitioner was released from Govt. service with immediate effect placing him on superannuation on and from 31.03.2001 basing his date of birth on 19.3.1943, which has been recorded in the attestation form by the petitioner at the time of his entry into service and also to recover the excess amount paid to the petitioner for the period from 31.3.2001 to 26.4.2005, i.e. the date of issue of the impugned memorandum from his pensionary benefits and also for a direction not to recover the purported excess pay and allowances paid to him during the period from 1.4.2001 to 6.5.2005, i.e. the period he worked after the date of his actual superannuation. 2. Heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Banerjee, learned Counsel for the petitioner and Mr. T.D. Majumdar, learned Addl. Govt. Advocate appearing for the respondents. 3. The short facts required to be discussed for the purpose of disposal of the case in hand are as follows: The petitioner was employed as Driver Grade-II and posted in the office of Block Development Officer, Kanchanpur, Longai R.D. Block on 3.11.1983 and at the time of entry into the service he mentioned his date of birth as on 19.3.1943 in the attestation form. While he was working in such capacity all on a sudden he received a letter dated 28.8.2004, issued by the Joint Director, Social Welfare and Social Education, Govt. of Tripura whereby and whereunder he was asked to submit original documents like school certificate, birth certificate for verification of his date of birth. Receiving the same the petitioner furnished a school certificate wherein his date of birth was shown as 16.6.1952. Thereafter, vide memo dated 18.1.2005 the petitioner was asked to show cause as to why his service will not be terminated w.e.f. 20.03.2001 and the salary drawn by him for the excess period will not be recovered on the ground of submission of false school certificate by him and also for violation of the Civil Service Conduct Rules. Thereafter, vide memo dated 18.1.2005 the petitioner was asked to show cause as to why his service will not be terminated w.e.f. 20.03.2001 and the salary drawn by him for the excess period will not be recovered on the ground of submission of false school certificate by him and also for violation of the Civil Service Conduct Rules. In response to the aforesaid memo dated 18.1.2005 the petitioner showed cause vide his letter dated 1.2.2005 wherein he stated that he was ready to go on retirement on superannuation from 31.3.2001 (afternoon) in view of the given circumstances as stated therein. He also requested the respondents not to recover the salary paid to him for the period he worked and also not to take any adverse decision against him considering his aforesaid prayer. On receipt of the reply of the petitioner the respondent No. 2 issued the memo dated 26.4.2005 (Annexure -4 to the writ petition) whereby and whereunder the date of birth of the petitioner mentioned by him in the attestation form as on 19.3.1943 has been accepted as genuine and as such the petitioner was asked to retire on superannuation w.e.f. 31.3.2001 (afternoon) and recovery of the excess pay and allowances paid to the petitioner for the period from 1.4.2001 to 6.5.2005 from his pensionary benefits was directed despite he worked during the said period satisfactorily and the authority also admittedly utilized his service. The petitioner being aggrieved by the aforesaid decision of the respondents has impugned the same in the instant writ petition. 4. The State respondents by way of filing detailed counter-affidavit denied the allegations made in the writ petition and stated, inter alia, that though the petitioner at the time of his entry into service declared his date of birth as on 19.3.1943 in the attestation form and which was accepted by the authority as per provision of GFR, but without any cogent reason the petitioner submitted a certificate showing his date of birth as on 16.6.1952 wherefrom a doubt was created in the mind of the authority and the same was enquired into from the school which issued the said certificate. On verification it was found that the certificate furnished by the petitioner is a fake one and no such certificate was ever issued to the petitioner by the said school authority. On verification it was found that the certificate furnished by the petitioner is a fake one and no such certificate was ever issued to the petitioner by the said school authority. Though that was a case of forgery but the authority did not take any step against the petitioner. In the backdrop of the confusion, admittedly the petitioner served the department beyond the normal date of his superannuation and said service was not objected to by the Head of Office where he was posted on the last date of his superannuation and subsequently he was served with the show cause notice, memo dated 18.1.2005 (supra) and ultimately the authority issued the impugned memo for recovery of the excess pay and allowances paid to the petitioner from his pensionary benefits. 5. Mr. Talapatra, learned senior counsel appearing for the petitioner submits that the petitioner is entitled to the payment of pay and allowances for the period from 1.4.2001 to 6.5.2005 even if his date of retirement on superannuation is treated to be as on 31.3.2001 as he admittedly discharged his duties from 1.4.2001 to 6.5.2005 and the authority also utilized his service and made payment of pay and allowances for the said period. If the aforesaid pay and allowances in the plea of excess amount paid to the petitioner for serving beyond the period of his superannuation is allowed to be deducted in view of the impugned order then that would be an injustice to him and he would be the victim of forced labour. According to him, the entire action of the respondents so far it related to the order of recovery of the amount paid to the petitioner as pay and allowances for the period he worked beyond his actual date of retirement is arbitrary, illegal and irrational, more so violative of Article 23 of the Constitution. He also submits that if the petitioner worked for the period beyond his actual date of retirement that was not for his fault, but for the fault of the concerned Head of Office wherein he was posted till the last date of his superannuation, which will be evident from paragraph 6 of the counter-affidavit. If any recovery has to be made that has to be done from the officer concerned for whose fault the petitioner was allowed to work beyond his actual date of superannuation till 6.5.2005. If any recovery has to be made that has to be done from the officer concerned for whose fault the petitioner was allowed to work beyond his actual date of superannuation till 6.5.2005. He further submits that a poor employee like the petitioner should not be deprived of from his legitimate claim of salary, which he is entitled for the period, he served. 6. Mr. Majumdar, learned Addl. Govt. Advocate while resisting the submission of Mr. Talapatra submits that the impugned order dated 26.04.2005 cannot be faulted with by the petitioner before this Court as he himself has accepted his date of birth as on 19.03.1943, which has been recorded in his attestation form as the genuine one. He also submits that the plea which has been taken before this Court that was not placed before the respondent authority. Therefore, the same cannot be accepted by this Court while deciding this case. According to Mr. Majumdar, the authority could have made a complaint before the police for the offence committed by the petitioner by way of submission of fake certificate which was not done considering the fact that the petitioner rendered service to the department for a pretty long time and as such a lenient view was taken. He further submits that the petitioner did not object to the recovery when he was given opportunity to show cause. He finally submits that a similar issue came up before the Apex Court in the case of Radha Kishun v. Union of India and Ors. reported in (1997) I LLJ1 165 SC wherein their Lordships of the Supreme Court held that though the petitioner in that case continued in service beyond the date of his superannuation without re-employment in public interest does not entitle him to claim any salary for the said period as the said continuation in service was not as per law and upheld the action of the authority so far the recovery is concerned and he reminded this Court that in judicial review the court cannot sit over the decision of the administrative authority as an appellate authority. At best the court can examine whether there is any fault or illegality in the decision making process. 7. In response to the submission of Mr. Dutta Majumdar, learned Addl. Govt. Advocate, Mr. At best the court can examine whether there is any fault or illegality in the decision making process. 7. In response to the submission of Mr. Dutta Majumdar, learned Addl. Govt. Advocate, Mr. Talapatra, learned senior counsel contended that it is the respondents who did not verify the date of birth of the petitioner in the service book before 28.08.2004, i.e. the date of issuance of the letter (Annexure-1 to the writ petition) by the Joint Director, Social Welfare and Social Education to the petitioner whereby and whereunder the petitioner was requested to submit original school certificate etc. for verification of his date of birth. Had the authority gone for verification of the date of birth of the petitioner in the service book before his actual date of retirement then the situation which has arisen here would not have arisen and the petitioner also ought not to render service beyond the actual date of his superannuation. He also submits that the decision in Radha Kishun (supra) as relied on by the learned Addl. Govt. Advocate has no application in the instant case as the same is distinguishable. In the said case there was no dispute regarding the date of birth of the petitioner, but in the instant case admittedly there was a dispute regarding the date of birth of the petitioner before he accepted his date of retirement on superannuation from 31.03.2001 (afternoon) vide letter dated 01.02.2005 (Annexure-2 to the writ petition). He further contended that when the authority did not proceed with any departmental proceeding against the petitioner till the issuance of the impugned memo, now they cannot take the said plea when the petitioner challenges the action of the authority so far it relates to the recovery of the amount of pay and allowances paid to him for the period he served beyond the actual date of his superannuation. In support of his contention Mr. Talapatra relied on the decision of the Apex Court in the case of State of Gujarat and Anr. v. Hon'ble High Court of Gujarat reported in 1998 CriLJ 4561. 8. In support of his contention Mr. Talapatra relied on the decision of the Apex Court in the case of State of Gujarat and Anr. v. Hon'ble High Court of Gujarat reported in 1998 CriLJ 4561. 8. From the contentions made by the parties in their respective pleadings and the submissions of the learned Counsel for the parties, the question arises for decision by this Court is whether the pay and allowances paid to an employee is recoverable from his pensionary benefits if he rendered service even after the date of his superannuation in view of the confusion arises regarding his date of birth. 9. This Court has given an anxious consideration to the submissions of the learned Counsel for the parties as well as the pleading and law reports cited before this Court. It is an admitted position that the petitioner while entered into service filled up the attestation form wherein he mentioned his date of birth as on 19.03.1943, but when the authority vide letter dated 28.08.2004 (Annexure-1 to the writ petition) asked him to submit urgently the original documents like school certificate for verification of his date of birth he produced one certificate wherein his date of birth has been mentioned as on 16.06.1952. It is also an admitted fact that though the date of retirement on superannuation of the petitioner was on and from 31.01.2001 basing his date of birth as on 19.03.1943 as recorded in his attestation form, the respondent authority did not go for any verification of his date of birth, which created the entire confusion and prompted the respondents to issue the memo dated 18.01.2005 asking him to show cause as to why his service should not be terminated w.e.f. 20.03.2001 and the salary drawn by him for the excess period will not be recovered on the ground of submission of false school certificate by him and thus violation of Civil Service Conduct Rule. The petitioner while showing cause to the aforesaid memo dated 18.01.2005 specifically requested the authority not to recover the salary drawn by him for the period he worked beyond his actual date of superannuation as proposed. For better appreciation, the letter dated 01.02.2005 (Annexure-2) is reproduced hereunder: To The Director, Social Welfare and Social Education, Agartala Ref: Memorandum No. F.33(319)-DSWE/LA/2004, dated 18.01.2005 Subject: Reply to the Show-Cause. For better appreciation, the letter dated 01.02.2005 (Annexure-2) is reproduced hereunder: To The Director, Social Welfare and Social Education, Agartala Ref: Memorandum No. F.33(319)-DSWE/LA/2004, dated 18.01.2005 Subject: Reply to the Show-Cause. Sir, I have the honour to state that the said Certificate was issued by a person in the said School. But, I did not know that has been issued beyond record. I stated to them I read in that School for time. I did not know that Certificate was issued beyond record. Sir, since I have been working, the salary for the working period may kindly not be recovered as proposed. However, in the given circumstances I accept your proposition to effect my retirement on superannuation from 31.03.2001 (Afternoon) as per the existing record. I would earnestly pray not to take any adverse decision against me and on lenient consider my prayer as above and oblige. Dated, Tulasikhar, The 1st Feb/2005 Yours faithfully, Sd/- (Krishna Chandra Das) Driver Under the Office of C.D.P.O., Tulasikhar, Khowai. 10. The authority failed to consider the prayer of the petitioner and also failed to assign any reason for rejection of his prayer so far recovery of the salary for the working period of the petitioner is concerned, which will be evident from the impugned memo dated 26.04.2005 (Annexure-4 to the writ petition) Failure to assign any reason in the order passed is nothing but denial of justice, more so an order reason abstentia is a nullity in the eye of law. It would be profitable if the said memo dated 26.04.2005 is reproduced hereunder: Confidential No.F.33(319)-DSWE/LA/04 Government of Tripura Directorate of Social Welfare & Social Education Tripura Dated, Agartala, the 26/4/2005. Memo Whereas Sri Krishna Ch. Das joined as a driver (Grade-II) to the Block Development Office, Kanchanpur Langai R.D. Block on 03.11.1983. Subsequently the service book of Sri Das was introduced from the office of the B.D.O. In the said Service Book the date of birth of Sri Das, Driver has shown as 16.06.1952 after verification of School Certificate by the Head of Office which produced by Sri Das, Driver. And Whereas on scrutiny of the attestation form submitted by Sri Krishna Ch. Das, Driver along with his offer of appointment at the time of entry into Govt. service it is found that in the said attestation form his date of birth was recorded as 19th March, 1943 by him. And Whereas on scrutiny of the attestation form submitted by Sri Krishna Ch. Das, Driver along with his offer of appointment at the time of entry into Govt. service it is found that in the said attestation form his date of birth was recorded as 19th March, 1943 by him. And Whereas finding clear difference in date of birth, a show cause notice was issued to Sri Krishna Ch. Das, Driver vide this Office Memo No. F.33(319)-DSWE/LA/2004 dated 18-01-2005 to furnish the actual date of birth of Sri Krishna Ch. Das, Driver. And Whereas the show cause reply so submitted by Sri Krishna Ch. Das, Driver on 05.02.2005 has been examined by this Office carefully and found that Sri Das has intended to accept the retirement on superannuation from 31.03.2001 basing his date of birth on 19.03.1943 which has been recorded in the attestation form by him and the Department is of the opinion that the date of birth of attestation form i.e. 19.03.1943 is the genuine. Therefore, after considering the facts, it is decided that Sri Krishna Ch. Das, Driver should be released from the Govt. service immediately placing him on superannuation and the excess pay and allowances paid to him w.e.f. 01.04.2001 to up till now to be recovered from the entitlement of pensionary benefits of Sri Krishna Ch. Das, Driver. Sd/- Director 20.04.2005 Social Welfare and Social Education, Tripura. 11. The authority may have the power to recover the excess pay and allowances paid to an employee if such employee continued to be in service contrary to the provisions of law like rules and regulations covering the filed. But at the same time, it is the duty of the authority to see for whose fault the employee had got the opportunity to render service beyond the date of his retirement on attaining the actual date of superannuation. If the employee concerned continued in service due to the failure of officer under whose command he was serving then it is the duty of the authority to take action against the said official for his lack of responsibility and failure of discharging duties. If the employee concerned continued in service due to the failure of officer under whose command he was serving then it is the duty of the authority to take action against the said official for his lack of responsibility and failure of discharging duties. In the case of Radha Kishun (supra) admittedly the date of birth of the petitioner of that case is 13.05.1933 and his retirement on attaining the actual age of superannuation was 31.05.1991 but he remained in service till 31.05.1994 meaning thereby he himself voluntarily continued in service beyond his date of superannuation which he was not entitled to and consequent thereto the action was taken by the authority to recover the amount paid to him for the period beyond the date he was to retire. But in the instant case it appears from record that though the petitioner was supposed to be retired on and from 31.03.2001, but the authority due to their fault allowed him to continue in service till 26.04.2005, i.e. the date of issue of the impugned memorandum, which is also evident from the counter affidavit of the State respondents wherein it is stated, inter alia, that the petitioner served the department beyond the normal date of his superannuation and said service was not objected to by the Head of Office wherein he was posted till the last date of his superannuation and subsequently a show cause notice was issued to the petitioner vide Annexure-3 to the writ petition and the petitioner replied to the said show cause meaning thereby the respondents themselves admitted the position that the petitioner served the department beyond the normal date of his superannuation not by his own, but as the said service of the petitioner was not objected to by the Head of Office where he was posted till his date of superannuation. Though there is no quarrel with the proposition laid down by the Apex Court in the case of Radha Kishun (supra) but the fact of that case and the fact of the case in hand are quite different and distinguishable. Hence, according to this Court, the said case has no application in the instant case. This Court has also carefully gone through the aforesaid case of State of Gujrat and Anr. Hence, according to this Court, the said case has no application in the instant case. This Court has also carefully gone through the aforesaid case of State of Gujrat and Anr. (supra) in which question arose for decision of their Lordships was whether the prisoners required to do labour as part of their punishment should necessarily be paid wages for such work prescribed under the minimum wages law and that was ultimately decided by the Court, but their Lordships had no opportunity to decide the question arises for decision in the instant case, unlike 'forced labour' as a 'forced labour' is a labour where physical force, legal force or fine are otherwise imposed for all such factor left the petitioner on no alternative choice. Hence, this Court is of opinion that the said decision has no application in the instant case. 12. Nowhere in the counter, the respondents made any allegation that the petitioner had continued in service even after his date of retirement on attaining the age of superannuation concealing any fact, rather it is crystal clear that the respondent authority allowed him to continue in service beyond his date of superannuation either for their own administrative reasons or for the fault of Head of Office or for the dispute arose regarding his date of birth after submission of the alleged fake school certificate. As the petitioner was allowed to work either by the Head of Office where he was posted till the actual date of his superannuation or by any other authority for their irresponsible action it is the duty of the Court to ask the State respondents to take appropriate disciplinary action against all the persons concerned for whose irresponsibility and/or deliberate dereliction of duty in not ensuring the petitioner's retirement on his attaining the age of superannuation on the basis of the date of birth of the petitioner declared by him in the attestation form and not to recover the excess pay and allowances paid to him for the period he served beyond his actual date of superannuation as that would be detrimental and amounts to work without pay, which is not permissible and though it cannot be in true sense termed as 'forced labour' but apparently it can be said to be one kind of 'forced labour'. 13. 13. For the reasons and discussions aforementioned, this Court is, therefore, of opinion that in the peculiar facts and circumstances of the case in hand it would be proper and subserve the interest of justice if the impugned memo dated 26.04.2005 (Annexure-4 to the writ petition) to the extent that the excess pay and allowance paid to the petitioner w.e.f. 01.04.2001 till the issuance of the impugned memo dated 26.04.2005 shall be deducted from the entitlement of pensionary benefit of the petitioner is set aside and quashed and direct the respondents to initiate disciplinary proceeding against those officials for whose fault the petitioner was allowed to continue in service beyond the actual date of his superannuation and also to recover the amount paid to the petitioner from those officials if their deliberate dereliction of duty is proved in that proceeding. Order accordingly. With the above observations and direction, the writ petition is disposed of without any order as to cost.