WPSS/3704/2017 of MOHAN RAM Vs STATE OF UTTARAKHAND, THROUGH PRINCIPAL SECRETARY

IN HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (S/S) No.3704 of 2017

Mohan Ram

..…Petitioner

State of Uttarakhand …..Respondents

Advocate: Mr. B.N. Molakhi, Advocate for the petitioner. Mrs. Indu Sharma, Brief Holder for the State of Uttarakhand.

Hon’ble Sharad Kumar Sharma, J.

The brief facts of the case are that the petitioner was inducted as Fireman in respondents-department, in District Champawat, as back as on 22.07.1980. Owing to the ardent services rendered by the petitioner, he was promoted on the post of Fire Service Driver in 1988. As per the date of birth, as recorded in the service records of the petitioner, which was 03.08.1954, the petitioner was to attain the age of superannuation as per the aforesaid date of birth recorded, in the service records but it is contented by the respondents that admittedly due to the clerical mistake of the department the petitioner was permitted to discharge his services by way of an extension of period even beyond the attainment of age of superannuation, with effect from 01.9.2014 to 30.09.2016. It is the salary, for the services which was rendered for this period, which was paid to the petitioner, which was sought to be recovered by the respondents by passing the order on 02.08.2017, contenting thereof that the amount of salary paid to the petitioner for the period from 01.9.2014 to 30.09.2016 was beyond his actual entitlement, which he was otherwise entitled to received under law for the services rendered by him.

2. Few facts which are not disputed is that the petitioner did perform his official duties, for the period from 01.9.2014 to 30.09.2016, that is the disputed period during which he was paid with the salary for the services rendered by him. It is not the case of the respondents, that the petitioner had continued into the services, on account of playing any fraud or misrepresentation for rendering the service from 01.9.2014 to 30.09.2016. Hence, as such the

impugned order which has been issued by the respondents on 02.08.2017, directing to recover the amount for the said period would be bad in the eyes of the law, particularly because when the petitioner has rendered his services on account of voluntary services, which was taken by the respondents, maybe that it was beyond the extended period after attainment of age of superannuation on 31.08.2014. In fact even the impugned order does not observe that the extended period of service rendered by the petitioner, was by way of exercising any fraud, as such and hence the remuneration, which was paid to the petitioner from 01.09.2014 to 30.09.2016, would in fact be remuneration, which was paid to him in lieu of services rendered by him to the department after the attainment of the age of superannuation on 31.08.2014.

3. Since the amount which has been sought to be recovered by the impugned order, in fact is an earning which was accruing to the petitioner, owing to the services rendered by him, in which he was not found to be at all instrumental in any manner whatsoever in wrongful continuance into the services, the said amount could not be recovered from the petitioner after his attainment of the age of superannuation or discontinuance of his services with effect from 30.09.2016.

4. The learned counsel for the respondent-State had submitted that the petitioner would not be entitled to receive the salary for the extended period of services rendered by him, owing to the implications of the ratio laid down in the judgment of (2012) 8 Supreme Court Cases 417 Chandi Prasad Uniyal and Others vs. State of Uttarakhand and Others and particularly the reference has been made to the contents of para 8 and 13 of the said judgment, which is extracted hereunder:-

“8. We are of the considered view, after going through various judgments cited at the bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.

13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other

hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.”

5. In fact if para 8 and 13 of the said judgment is taken into consideration, that no amount could be recovered subject to the condition, that the employee has not continued into the services owing to the fraud, which has been played by him, over the department but which was admittedly, the continuance of petitioner for the extended period of services after the attainment of his age of superannuation was on account of admittedly the mistake, which was committed by the department itself. Hence, the onus of bringing the fact of knowledge of age of superannuation, was well within the domain of the knowledge of the respondents and if they have voluntarily taken services for the period extended, the remuneration which was paid to the petitioner would be in lieu of the services rendered by him and since it was not fraud, which was committed by the petitioner, the same could not be have been recovered by issuing the impugned order which is under challenge.

6. Hence the excess payment of public money, which often is prescribed to be paid to an employee for the services rendered, it could only be recovered, when there is an inquiry conducted by the respondents holding him to be instrumental in exercising fraud or misleading the competent authority in procuring an order of continuance of service, even after the attainment of the age of superannuation. Since that being not the case pleaded by the respondents in the counter affidavit, the ratio of Chandi Prasad Uniyal, (Supra) stands altogether on different footing, then which is subject matter of consideration in the instant case.

7. Even if, the impugned order is taken into consideration the petitioner has contended that the passing of the impugned order directing to recover the amount for the salary paid for the services rendered, with effect from 01.9.2014 to 30.09.2016, in fact no action could have been taken for recovery in pursuance to the impugned order of 02.08.2017 as the inquiry, which was conducted in fact no finding has been recorded attributing any responsibility on the petitioner, to have deprived the respondents for permitting him to continue to

rendered services for the extended period of services as referred to in the impugned order of 02.08.2017. In that eventuality, whatsoever amount has been paid to the petitioner would be deemed to be remuneration, which he has earned for the services rendered and which was by way of voluntarily act of services taken by the respondents according to their own administrative instructions issued by them.

8. Hence, the respondents cannot be permitted to take advantage of their own wrong by permitting an employee to continue to work even after attainment of the age of superannuation and thereafter as an afterthought and even much after the discontinuance of service in 30.09.2016, passing an order of recovery on 02.08.2017, would be bad in the eyes of law for the reason being that if the impugned order is taken into consideration, in fact it does not spell out that the respondents had ever applied their independent mind based on the findings of the inquiry report submitted with regards to the action of the respondents, of permitting the petitioner to discharge his services beyond the period of attainment of the age of superannuation on 31.08.2014.

9. In that eventuality, this Court is of the view that the petitioner was not at all instrumental in any manner whatsoever hence no amount, which was paid to him for the services rendered could be recovered by the respondents by passing the impugned order and that too without compositely taken into consideration the reports of the inquiry or attaching any rational in the impugned order for directing to recover the amount from the petitioner for the excess period of services rendered by him. Hence, the direction issued for recovery of the amount seems to be cursory in nature and without application of mind in the light of the totality of the facts and circumstances and particularly in the light of the findings, which has been recorded in the inquiry report. Hence the impugned order cannot be sustained. The impugned order of 07.08.2017 is hereby quashed. The writ petition is allowed.

10. As per the principles laid down by the Hon’ble Apex Court in the judgment reported in (1993) 2 Supreme Court Case 162 Union of India vs. Harnam Singh, the Apex Court has held that an employee once inducted into the services as per the rules of recruitment, he would be entitled to continue in

service unless the services are dispensed with or other ground contained in the relevant Service Rules after following due procedure. The service conditions of an employee inducted into the services are to be regulated by the employer i.e. the appointing authority of the petitioner and if he is permitted to continue after the attainment of age of superannuation, he cannot be blamed in any manner whatsoever.

11. In judgment reported in (1998) 1 Allahabad Civil Journal 596 Ram Khelwan Pathak vs. State of U.P. and others the Coordinate Bench of Allahabad High Court, while dealing with almost similar issue where an employee was permitted to continue to render services even after the attainment of age of superannuation was subject matter of consideration and the learned Single Judge based upon the ratio laid down by the Hon’ble Apex Court in the following judgments:-

(i)JT 1996 (2) Supreme Court 236 S.V. Bhima Bhatta and Others vs. State of Karnataka. State of Karnataka.

(ii)(1997) 1 Supreme Court 353 Mehmood Hasan and Others vs. State of U.P. of U.P.

(iii)(1994) 2 Supreme Court Cases 621 Shyam Babu Verma & Others vs. Union of India. vs. Union of India.

(iv)(1996) Allahabad Civil Journal 1130 Harish Chandra Srivastava vs. State of U.P. vs. State of U.P.

(v)(1965) Suppl. 1 Supreme Court Case 149 Gabriel Saver Fernandesvs. State of Karnataka vs. State of Karnataka

had laid down that if the employee is continued even after the attainment of the age of superannuation, the salary paid to him cannot be recovered. Para 9 of the aforesaid judgment reported in Allahabad Civil Journal 1998 is extracted hereunder:-

“8. In case where an employee has worked beyond the period of his retirement the residue period should be treated as fortuitous as has been held by Hon'ble Supreme Court in S. V. Bhima Bhatta and another v. State of Karnataka and others. The matter also came to be considered in another case in Mahmood Hasan and others v. State of U. P. and others. JT 1997 (I) SC 353 where the employees were reverted to lower post as their promotion was against rule, it

was held that those who will have to step down on account of correctional process need not refund the pecuniary or other benefits enjoyed by them for they had actually worked during that period. There is yet another direct authority on the point in Shyam Babu Varma and others v. Union of India and others (1994) 2 SCC 621. In which the Apex Court dealing with the similar situation, ruled that since the petitioner received higher pay scale not due to fault or his own, it shall not be just and proper to recover the salary already paid to him. Division Bench of this Court had the occasion to deal with the similar controversy in Harish Chandra Srivastava v. State of U. P. and others (1996) 3 UPLBEC 1840. In that case also, an order was passed without giving an opportunity, to withhold superannuation benefits to the petitioner, who was wrongly promoted and was paid the higher salary, it was observed that the impugned order was liable to be quashed not only on the ground of want of affording reasonable opportunity of being heard to the petitioner but also on the ground that the petitioner cannot be held responsible for securing promotion on the higher scale of pay by misrepresenting the department and therefore, payment of salary cannot be recovered. Also see Gabriel Saver Fernandes v. State of Karnataka (1965) Suppl. (1) SCC 149.”

12. The amount of salary paid to the petitioner for the extended period of services rendered by him from 01.9.2014 to 30.09.2016, was only an amount which was paid by way of remuneration reckoning the services rendered by the petitioner for the extended period, which he was permitted to perform his duties as consequence of the wrongful decision of the respondents themselves, the respondents cannot make out any capital out of it, by directing to recover the amount from the petitioner. No amount of recovery could have been made by the respondents from retirement benefits of the petitioner hence the amount if any, which has been recovered for the aforesaid period of service is directed to be reimbursed to the petitioner within period of two months from the date of production of certified copy of this judgment.

Arti

(Sharad Kumar Sharma, J.)

19.07.2022