Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1524 (RAJ)

Kalua v. Union of India

2013-09-03

ARUN MISHRA, NARENDRA KUMAR JAIN-I

body2013
Hon'ble JAIN-I, J.—Heard finally, With the consent of parties. 2. The order of Central Administrative Tribunal, Jaipur Bench, Jaipur dated 17th March, 2011 in Original Application No. 489/2009 is under challenge in this writ petition, preferred on behalf of applicant/petitioner, whereby his Original Application, against order dated 25th May, 2009 passed by respondents, has been dismissed. 3. Briefly stated, the facts of the case are that petitioner filed an original application before the Tribunal, wherein it was averred by him that he entered into the services of respondents by mentioning his date of birth as 12.1.1960 and on the basis of said date, an identity card was issued by the respondents, showing his name, post, same date of birth and date of appointment. The same date of birth was also mentioned in his PAN card issued by the Income Tax Department. Similarly, in the certificate of Physical Fitness of Employee issued to the applicant by the Railway Medical Examiner, the same date of birth of petitioner was mentioned as 12th January, 1960. He further submitted that he remained under bona fide belief that the date of birth of applicant is 12.1.1960 and therefore his date of superannuation will be 12.1.2020. He further submitted that all of a sudden, the respondents issued an order dated 25th May, 2009, wherein it was stated that date of birth of applicant is 2nd July, 1948 and his date of superannuation was 31st July, 2008. Therefore, he has over stayed, therefore, salary and allowances of overstaying period will be recovered from him. He submitted a representation before the respondents, but the same was rejected vide order dated 25th June, 2009. 4. The respondents controverted the above submissions of petitioner and submitted that it is a case of irregular retention in service beyond the age of superannuation. The date of birth of petitioner was 2nd July, 1948 and it was his duty and also to inform the respondents that his date of superannuation is 2nd July, 1948 but he deliberately overstayed and got salary and allowances. Therefore, the period after 31st July, 2008 is irregular and whatever salary and allowances, which have been paid to him are liable to be recovered. 5. Learned Tribunal after considering submissions of the parties, dismissed the original application of the petitioner. Hence, petitioner has preferred this writ petition. 6. Therefore, the period after 31st July, 2008 is irregular and whatever salary and allowances, which have been paid to him are liable to be recovered. 5. Learned Tribunal after considering submissions of the parties, dismissed the original application of the petitioner. Hence, petitioner has preferred this writ petition. 6. Submission of learned counsel for the petitioner is that at the time of entering in the service, he disclosed his date of birth as 12.1.1960. The same date was mentioned in his identity card issued by the respondents. He also mentioned the same date of birth in PAN Card issued by Income Tax Department. He has also placed on record a copy of horoscope, showing the same date of birth. His date of superannuation therefore, will be 12th January, 2020. The respondents committed an illegality in entering the entry of date of birth in his Service Book and in treating his date of superannuation as 31st July, 2008. He also submitted that respondents have committed an illegality in issuing the impugned order for recovery of salary and allowances for so called overstayed period. He submitted that there was no fault on his part as no retirement order was issued by the respondents treating his date of birth as 2nd July, 1948. He, therefore, submitted that respondents be directed to allow the petitioner to perform his duty till his date of superannuation i.e. 12.1.2020 with all consequential benefits and atleast the order of recovery of salary and allowances for so called overstayed period be quashed and set aside. 7. Learned counsel for the respondents submitted that in the service book of the petitioner, his date of birth is mentioned as 2nd July, 1948. The petitioner had also filed an affidavit way back on 22nd September, 1986, wherein he disclosed his date of birth as 2nd July, 1948. Therefore, his date of superannuation was 31st July, 2008. He also submitted that as per Master Circular issued by Railway Board, there is a responsibility of the administrative authority concerned to ensure that the government servant under their control retires on the due date. Therefore, his date of superannuation was 31st July, 2008. He also submitted that as per Master Circular issued by Railway Board, there is a responsibility of the administrative authority concerned to ensure that the government servant under their control retires on the due date. It is further provided that a government servant cannot take advantage of the non-receipt of formal orders to this effect, as it is his duty also to bring the fact that he is attaining the age of superannuation, to the notice of the Head of the Office, in which he is working. Thus, on account of lapse on the part of the controlling authorities, the benefit out of overstay in service beyond the age of superannuation is not available to the employee at the cost of the Government. He, therefore, submitted that the Tribunal was right in dismissing the original application of the petitioner. 8. We have considered the submissions of learned counsel for the parties and examined the impugned order of Central Administrative Tribunal and also the other documents available on record. 9. From the submissions and pleadings of the parties, two questions arise for our consideration in the present case. First, is about date of birth of petitioner; whether it is 12.1.1960 or 2nd July, 1948, consequently, what is the date of superannuation of the petitioner, whether it is 12.1.2020 or 31st July, 2008 ? The second question, is whether the respondents are entitled to recover the salary and allowances of alleged overstaying period i.e. from 31st July, 2008 to 25th May, 2009 from the petitioner ? 10. So far as first question about date of birth is concerned, we find that both the parties have led evidence in support of their respective submissions. Since, it is a disputed question of fact and the learned Tribunal has treated the date of birth of petitioner as 2nd July, 1948 and it being a question of fact, the finding of Tribunal in this regard cannot be interferred with by this Court in writ jurisdiction under Article 227 of the Constitution of India. Therefore, we are of the view that petitioner is not entitled to continue in service till 12.1.2020, as claimed by him on the basis of his so called date of birth i.e. 12.1.1960. Therefore, we are of the view that petitioner is not entitled to continue in service till 12.1.2020, as claimed by him on the basis of his so called date of birth i.e. 12.1.1960. The decision in this regard taken by the respondents on the basis of material available on record i.e. entry in service book and affidavit of the petitioner; that the date of birth of petitioner is 2nd July, 1948, is correct and no interference in the same is called for. 11. So far as second question is concerned, learned counsel for the respondents, during the course of arguments, fairly and frankly admitted that there was no fraud or misrepresentation on part of the petitioner in overstaying in the service or getting the salary and allowances during the period from 31st July, 2008 to 25th May, 2009. 12. The present case appears to be a case of bonafide nature. The petitioner was also having the documentary evidence in support of his case including the identity card issued by the respondents showing his name, post and date of birth, the other documents were also available on record. Admittedly, the respondent had not passed an order of his retirement treating his date of superannuation as 31st July, 2008. In these circumstances, we find that Master Circular issued by the Railway Board relied upon by the learned counsel for the respondents is not applicable in the facts and circumstances of the present case. There is no dispute that petitioner worked with the respondents during the period from 31st July, 2008 to 25th May, 2009 and he did not play any fraud or misrepresentation with the respondents in getting the salary and allowances of the alleged overstayed period. He got the salary and allowances for the work done by him. In these circumstances, we are of the view that respondents are not entitled to recover the salary and allowances paid to petitioner for the period from 31st July, 2008 to 25th May, 2009. In this connection, we may refer to a judgment of Hon'ble Apex Court in Syed Abdul Qadir & Ors vs. State of Bihar & Ors., reported in (2009) 3 SCC 475 , wherein the Hon'ble Apex Court held that recovery of excess payment of emoluments/allowances, if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, cannot be recovered. Para 57 and 59 of the judgment are reproduced as under:- “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation of fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and careless-ness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” 13. As already discussed above, the learned counsel for the respondents during the course of arguments fairly and frankly admitted that there was no fraud or misrepresentation on part of petitioner in overstaying in the service in the present case. In these circumstances, we are of the view that impugned order passed by respondents relating to recovery of the salary and allowances for overstaying period, as mentioned above, is liable to be set aside and the same is hereby set aside. 14. Consequently, the writ petition is partly allowed. The impugned order of Tribunal is set aside. In these circumstances, we are of the view that impugned order passed by respondents relating to recovery of the salary and allowances for overstaying period, as mentioned above, is liable to be set aside and the same is hereby set aside. 14. Consequently, the writ petition is partly allowed. The impugned order of Tribunal is set aside. The order passed by respondents to the extent, it relates to recovery of amount of salary and allowances from the petitioner for the period from 31st July, 2008 to 25th May, 2009 is set aside. It is made clear that in case any recovery has been made by the respondents from the petitioner of this period, then the same will be refunded to the petitioner within a period of two months. Stay Application No. 8878/2011 also stands disposed off. Parties are directed to bear their own cost.