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2014 DIGILAW 496 (JHR)

Md. Zubair v. Jharkhand State Electricity Board

2014-04-11

APARESH KUMAR SINGH

body2014
Judgment Heard learned counsel for the parties. The original petitioner worked and retired from the post of Line Inspector under the General Manager-cum-Chief Engineer, Dhanbad Area Electricity Board on 31st March, 1997. The original petitioner was retired on the said date as he allegedly had continued beyond the natural date of his retirement that should have been 31st January, 1993 as per his date of birth on 23rd January, 1933. 2. The aforesaid controversy had reached the Patna High Court earlier in CWJC No. 1517 of 1997 (R) where the original petitioner was aggrieved by the action of the respondents treating his date of birth as 25th January, 1938. The said writ petition was disposed of vide judgment dated 20th May, 1998 with a direction that respondents should make an inquiry after giving an opportunity of hearing regarding fixing of date of birth of the petitioner herein within stipulated period. It was also observed that if the petitioner was to retire in the month of January, 1998 as a result of such inquiry and speaking order passed thereupon, all consequential benefits from the date when he had been prematurely retired should be made available to the said petitioner within the stipulated period. 3. The inquiry conducted thereafter through expert opinion of Forensic Science Laboratory, Patna was against the petitioner. He therefore challenged it in W.P.(S) No. 2572 of 2002 before this Court and in the judgment rendered on 21st April, 2004, Annexure-1, the learned Single Judge of this Court after noticing the judgment passed in the case of the petitioner in CWJC No. 1517 of 1997 (R) as also taking into account the expert opinion of the Forensic Science Laboratory, Patna, came to the view that the approach adopted by the respondent authority and the reasons assigned by him is correct and justified, and, therefore, no relief was granted to the petitioner. The said writ petition was dismissed. However, with regard to the payment of arrears of retrial dues, the petitioner was allowed to represent before the competent authority, who, in turn, was directed to decide it on merits within stipulated period and if any amount was found payable, the same were directed to be paid to him. The said writ petition was dismissed. However, with regard to the payment of arrears of retrial dues, the petitioner was allowed to represent before the competent authority, who, in turn, was directed to decide it on merits within stipulated period and if any amount was found payable, the same were directed to be paid to him. Pursuant to the said direction passed in earlier writ petition being W.P.(S) No. 2572 of 2002 as aforesaid, the respondents while granting the post retrial benefits to the petitioner sought to recover a sum of Rs. 3,45,859/- by letters impugned herein dated 29th May, 2004 and 26th June, 2004. The same is under challenge in the writ petition stating that since the petitioner had served during the extended period from February, 1993 to March, 1997 without any misrepresentation on his part, the said amount of salary ought not to have been recovered. 4. Learned counsel for the petitioner has assailed the impugned action of the respondents stating that no case of established fraud or misrepresentation has been made on the part of the deceased employee by the respondents and there is no pleading to that effect in the counter affidavit. 5. Learned counsel for the petitioner has relied upon a judgment rendered in the case of State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 . It is further submitted on his behalf that when the original petitioner has already died and has been substituted by his legal heirs, such a course of recovery should not be approved as it would be rather unjust upon the legal heirs who are entitled to the admissible post retirement benefits of the deceased employee. In support of the aforesaid submission he has relied upon a judgment rendered in the case of N.D.P. Namboodripad (Dead) )-Vs.- Union of India & others .reported in (2007) 4 SCC 502 . 6. On the contrary, learned counsel for the respondents have submitted that if the Forensic Science Laboratory Report showed an overwriting in the entry column in the service book of the deceased employee which led to his continuance beyond his natural date of retirement i.e. January, 1993, the emolument and salary which he withdrew as a result thereof amounts to unjust enrichment to which such an employee was not entitled. He has relied upon a judgment rendered in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 417 . 7. In the instant case, from the available materials on record and the pleadings of the parties, it appears that the deceased employee continued in service upto 31st March, 1997 i.e. beyond the date his natural date of retirement i.e. 31st January, 1993. However, from the pleadings on record, it does not appear that the respondents have been able to attribute any deliberate act upon the deceased employee that he continued as such on account of his own misrepresentation or fraud. The employee was a Line Inspector under the respondents obviously not holding any post of such authority or was himself in the custody of his service records. It appears that the concerned controlling officer of the employee also had a responsibility to ensure that an employee who is otherwise scheduled to retire on a particular date, does not continue in service beyond that date. The employee seems to have continued for four years thereafter and also discharged his duties for which he was paid salary. 8. In the present case, it also appears that the original petitioner i.e. employee has died during the pendency of the instant writ petition on 19th October, 2011 whereafter his legal heirs have been substituted in his place. It does not appear from the pleadings on record as to whether the entire amount of Rs.3,45,859/- had actually been recovered or not. The document at Annexure-4 indicates that a sum of Rs. 44,220/- is payable to the petitioner as gratuity. 9. Be that as it may, in the facts and circumstances of the case, it appears that it could be rather unjust to deprive the legal heirs of the deceased employee of the admissible amount of post retirement benefits of original petitioner now on the ground that an amount of Rs.3,45,859/- was paid in excess to the said person for salary for the period 1st February, 1993 to 31st March, 1997. 10. The judgment relied upon by the petitioner reported in (2009) 3 SCC 117 (Supra) therefore, appears to be applicable to the facts of the instant case . 10. The judgment relied upon by the petitioner reported in (2009) 3 SCC 117 (Supra) therefore, appears to be applicable to the facts of the instant case . In the judgment relied upon by the petitioner in the case of N.D.P. Namboodripad (Supra) also, recovery from the legal heirs of the deceased employee was not found to be justified by Hon'ble Supreme Court. In the judgment relied upon by the respondent i.e. Chandi Prasad Uniyal (Supra) apparently the salary in excess were paid to the appellant due to irregular or wrong pay fixation which was recovered by Respondent-State and was upheld by Hon'ble Supreme Court. 11. In the instant case, the original petitioner had duly served and discharged his duties for the post till he was superannuated on 31st March, 1997. As it appears from the opinion of Hon'ble Supreme Court expressed in para 14 thereof in the judgment in the case of Chandi Prasad Uniyal (Supra), in cases of extreme hardships, an order of recovery may not be warranted though the employee concerned did not have a legal claim to draw salary or emolument in excess of what was permissible in law. In the instant case, since the original petitioner had died, it therefore appears that it would lead to extreme hardship to the legal heirs of the deceased to deprive them of the admissible death cum retiral dues of the employee by allowing the respondents to recover an amount which was paid to him as salary for the period 1st February, 1993 to 31st March, 1997 when he had admittedly served and discharged his duties for the said post. Therefore, the impugned orders dated 29th May, 2004 and 26th June, 2004 issued by the Respondent-Board is interfered to the extent that it seeks to recover the amount of Rs. 3,45,859/- paid to the original petitioner in lieu of his salary for the aforesaid period from the admissible death cum retiral dues of the said petitioner now being claimed by the legal heirs of the deceased employee. 12. The Respondent-Board would therefore release any outstanding admissible death cum retiral dues of the deceased employee to his legal heirs within a reasonable period. 13. Accordingly, the writ petition is allowed in the aforesaid manner.