Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 30 (CAL)

UNION OF INDIA v. MADHUSUDAN GANGULY

2008-01-10

D.P.SENGUPTA, PRANAB KUMAR DEB

body2008
Judgment DEBIPRASAD SENGUPTA, J. Subject matter of challenge in the present writ application is the judgment and order passed by the Central Administrative Tribunal, Calcutta Bench dated 11.5.2005 in O.A. No. 377 / 2005. Respondent Madhusudan joined his service in Eastern Railway in the year 1962. He was treated as illiterate and his date of birth was recorded as on 27.4.1944 in the Service Book. He retired from service on 30.4.2004 and by a memo being no. IRM/HOW/E.Rly dated 5.5.2004 he was directed to receive his settlement dues on 6.5.2004. In the said memo it was also stated that there was no claim against the employee, Sri Madhusudan Ganguly. Surprisingly, thereafter an order was issued vide Memo dated 11.8.2004 thereby terminating his service with effect from 31.5.97 and directing him to deposit the amount which was overdrawn by him amounting Rs.6,96,428.00 due to his overstaying in service for the period from 1.6.97 to 30.4.2004. Challenging such order dated 11.8.2004 the applicant employee/respondent approached the Tribunal. The application was allowed, the impugned order was quashed and the respondent/writ petitioner was directed to release all the retiral benefits in favour of the applicant/respondent forthwith. Hence this writ petition is preferred by the Union of India challenging the order of the Tribunal. Mr. R. N. Das, learned Senior Counsel appearing on behalf of the writ petitioner / Union of India submits that the date of birth of the respondent as recorded in the school certificate was 30.5.39. But he declared his date of birth as 27.4.44 in the Service Book. It is submitted by Mr. Das, learned Counsel that since the date of birth of the respondent was 30.5.39, he was to retire on 1.6.1997. But he continued his service till 30.4.2004. So he continued his service beyond the age of his superannuation and accordingly he is to pay back the amount, which was overdrawn by him due to his overstaying in service. Mr. Das, learned Advocate relies upon a judgment of the Hon’ble Supreme Court reported in (1997) 9 SCC-239 (Radha Kishun Vs Union of India & Others). In the said case the petitioner joined service in Telecommunication Department. Admittedly his date of birth was 13.5.33 and on attaining the age of superannuation he was to retire on 31.5.91, but he remained in service till 31.5.94. When action was taken to recover the amount he approached the Tribunal and was unsuccessful. In the said case the petitioner joined service in Telecommunication Department. Admittedly his date of birth was 13.5.33 and on attaining the age of superannuation he was to retire on 31.5.91, but he remained in service till 31.5.94. When action was taken to recover the amount he approached the Tribunal and was unsuccessful. It was held by the Hon’ble Apex Court that it was a case of absolute irresponsibility on the part of the Officer concerned in the establishment. The petitioner, since he continued in his service beyond the period of his superannuation, had no right to claim the salary etc. Petition was accordingly dismissed. Relying upon the aforesaid judgment, it is submitted by Mr. Das, learned Advocate of the petitioner that the respondent / employee deliberately suppressed his actual date of birth and made a false declaration, on the basis of which his date of birth was recorded in the Service Book as 27.4.1944 although his actual date of birth was 30.5.1939. When this was detected by the concerned authority, an enquiry was conducted and it was found on verification that his date of birth was 30.5.1939. So in view of the Supreme Court Judgment there is nothing wrong in the order directing the Railway employee / respondent to pay back the amount which was overdrawn by him due to his overstaying in the employment. Mr. Dutta, learned Advocate appearing on behalf of the respondent employee submits that at the time of his entry in service in 1962 the employee was treated as illiterate and as per his declaration date of birth was recorded as 27.4.1944 in the Service Book. A school leaving certificate was subsequently given in which his date of birth was recorded as on 30.5.39. But his date of birth was recorded as 27.4.44 in the Service Book. Since he was illiterate, entry in the Service Book was made by some Officer in the department and he put his LTI thereon. So, if there was any mistake, it was committed by the concerned department. The learned Advocate further submits that no enquiry, as it is alleged by the writ petitioner, was ever conducted by any authority in the school. No notice was ever given to the employee / respondent before making any change in the entry in the Service Book regarding age. The learned Advocate further submits that no enquiry, as it is alleged by the writ petitioner, was ever conducted by any authority in the school. No notice was ever given to the employee / respondent before making any change in the entry in the Service Book regarding age. If any excess amount is paid to the employee due to his overstaying in the employment after due date of superannuation and if it was done due to the fault on the part of the employer / writ petitioner, such excess amount cannot be recovered from the retiral dues of the petitioner. Mr. Dutta, learned Advocate relies upon a Judgment of the Hon’ble Supreme Court reported in (2007) 6 SCC-180 (Babulal Jain Vs State of M.P. & Others). From a reading of the said judgment, it appears that the appellant in the said case, although he was not entitled to higher scale of pay, was paid some excess amount by way of higher scale of pay, but it was not due to any mistake, misrepresentation or fraud on the part of the appellant. The Hon’ble Apex Court was of the view that recovery of excess payment without issuing any show-cause notice was not justified. Hence, the Hon’ble Supreme Court directed the Department to refund the amount so recovered to the appellant. It is the contention of the learned Advocate of the respondent that in the present case no show cause notice was issued to the respondent / employee before changing such date of birth in the Service Book. No opportunity of hearing was given to the respondent / employee before taking a decision for deduction / recovery of the amount from his retiral dues thereby violating the principle of natural justice. The learned Advocate of the respondent next relies upon a judgment of this court reported in (2006) 2 Cal. L.T. 600 (H.C.) (Kalyan Kumar Chattapadhyay Vs The State of West Bengal & Others). In the said case the retiral benefits, which were due to the petitioner, were denied despite repeated requests and demand. Ultimately it was found that there was a deduction from the gratuity amount payable to the petitioner on the ground that the said amount was overdrawn by the petitioner owing to wrong fixation of pay. In the said case the retiral benefits, which were due to the petitioner, were denied despite repeated requests and demand. Ultimately it was found that there was a deduction from the gratuity amount payable to the petitioner on the ground that the said amount was overdrawn by the petitioner owing to wrong fixation of pay. The question which fell for consideration before the learned Single Judge of this Court was as to whether the petitioner was to suffer on account of erroneous pay fixation and whether the pay / salary once paid could be recovered from the petitioner as the amount being overdrawn. It was held by the learned Single Judge in paragraph 36 and 37 as follows: “36. Thus, if this equitable consideration is taken into account, then it should be held that the respondents who are at fault, should not be allowed to recover the said amount from the retiral benefits of a retired person. That apart, the question of limitation, estoppel etc. are also relevant consideration which all stand in he way of such recovery.” “37. Under such circumstances, by following the decisions of the Hon’ble Supreme Court which were cited by Mr. Bhattacharya as aforesaid, this Court holds that when such excess payment was made to the petitioner due to admitted fault on the part of the respondents, the respondents cannot recover the said excess amount by way of adjustment from the retiral dues of the petitioner.” It was further held in paragraph 45 of the said judgment as follows: “45. It is not out of place to mention here that even no opportunity of hearing was given to the petitioner before taking the decision for deduction of the said overdrawal amount from the retiral dues of the petitioner. This Court also cannot support the decision of the concerned respondent for readjustment of the excess payment against the retiral dues of the petitioner inasmuch as such decision was taken in violation of the principles of natural justice.” Referring to the provision of para-225 of the Indian Railway Establishment Manual, Vol-I, it is submitted by the learned Advocate of the respondent that date of birth was recorded in the Service Book as per declaration and the date of birth, which was initially declared by the employee, is to be taken as correct date of birth. The Rule specifically provides that it is only the General Manager who is empowered to make any change in the date of birth. Admittedly, in the present case, no order was passed by the General Manager for changing date of birth. We have heard the learned Advocates of the respective parties. We have also perused the impugned judgment and order of the Tribunal as also other connected papers, which are annexed to the writ application. The respondent / employee entered into his service in Railways in 1962. Since he was treated as illiterate his date of birth was recorded as per his declaration. A school certificate was also produced at that time. Entry in the Service Book was made by some other Officer and the respondent put his LTI in the Service Book. Concerned authority was under obligation to verify and readjust the Service Book every five years. Nothing was done by the authority and no step was taken to correct such date of birth. It was more than one year after the date of his retirement in 2004 such mistake was detected and service of the respondent was terminated by order dated 11.8.2004 with effect from 31.5.97. Before making correction of date of birth no show cause notice was served upon the respondent thereby violating the principle of natural justice. According to the provision of Rule 225 of the Indian Railway Establishment Manual (Vol.1) General Manager is the appropriate authority to make any such correction of date of birth, which was also not done in the present case. This Court also cannot support the decision of the concerned authority for recovery of the excess payment from the retiral dues of the petitioner inasmuch as such decision was taken in violation of the principle of natural justice. In view of the discussion made above, we find sufficient merit in the submission made on behalf of the respondent. In our considered view the impugned judgment and order of the Tribunal does not suffer from any illegality and we do not find any reason to interfere with the same. The writ petitioner is directed to release all the retiral benefits to the respondent forthwith. If an amount is recovered from the retiral dues of the respondent employee, the same shall be returned to him immediately. The writ petition having no merit is accordingly dismissed. There will be no order as to costs.