High Court
Case Details
WP(C) 5545/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER(ORAL)
Legal Reasoning
Heard Mr. M.H. Ahmed, learned counsel appearing for the petitioner. The Assam K hadi and Village Industries Board (hereinafter referred to as (cid:28)the Khadi Board (cid:29)) is represented by Advocate Mr. P.N. Goswami.
Decision
2. While serving as a Manager in the Bardua Adarsha Ghani Kendra of the Kha di Board, the petitioner retired from service on 30.06.2002 and in this case he challenges the deduction from his retirement benefits, made through the impugned order dated 20.09.2006 (Annexure-6) issued by the Chief Executive Officer of th e Khadi Board. The retirement age in the Khadi Board is 60 years and since the petitioner was born on 15.11.1937, he ought to have retired on 01.12.1997. But he was made to superannuate belatedly after 55 months on 30.06.2002. Consequentl y for alleged overdrawal Rs.1,16,535/- which is 50% of the excess salary drawn b y the retiree from December, 1997 to June, 2002 was deducted from the CPF, leav e salary and gratuity dues of the petitioner. Further some of Rs.5119/- as sho rtfall in cash during the petitioner’s tenure was also deducted by the employer. 3. The petitioner projects that he was born on 15.11.1937 and his date of b irth was correctly recorded in the petitioner’s Service Book. Therefore, he sub mits that the excess service rendered by the petitioner beyond 60 years is on ac count of the lapses of the employer who gave him notice of retirement only on 17 .05.2002 (Annexure-8), by stating that he over-served and therefore the salary f or the excess period will be recovered from the retiring employee. 4. The employees of the Khadi Board do not get any pension and therefore af ter petitioner’s retirement on 30.06.2002, his CPF, leave salary and gratuity du es were due but these remained unpaid for long period. The aggrieved retiree ac cordingly filed the WP(C) No.7764/2005 which was disposed of on 18.11.2005 (Anne xure-5) with direction to calculate the retirement dues and to disburse the dues to the petitioner, as per his entitlement. Thereafter the retirement dues were quantified and as earlier noted, Rs.1,16,535/- is sought to be recovered as 50% of the excess drawal for the 55 months extra service from December, 1997 to Jun e, 2002. 5. Representing the Khadi Board, Mr. P.N. Goswami learned counsel submits t hat the non-retirement of the petitioner in December, 1997 must be through conni vance of the petitioner with the employees of the establishment section of the K hadi Board and accordingly it is argued that the salary drawn unauthorizedly for 55 months is required to be recovered from the retirement dues payable to the p etitioner. The counsel relies upon the case of Radha Kishun Vs. Union of India reported in (1997) 9 SCC 239 to submit that the departmental action for recovery of the salary for the excess service beyond the superannuation date should not be interfered by the court. But what is relevant here is that the petitioner’s role for the excess s 6. ervice rendered by him is not at all established. Moreover, the Khadi Board ha s not ordered any inquiry or proceeding against the concerned employees who are responsible for ensuring that employee is retires on due date. Therefore, the p rojection of connivance made by the counsel for the Khadi Board is merely in the realm of conjecture since the petitioner’s role with any such alleged connivanc e is not at all established through any due process. 7. Admittedly, the employee never sought any correction of his date of birt h and since 15.11.1937 is the birth date recorded in the petitioner’s Service Bo ok, the employer should have been vigilant about the petitioner’s date of retire ment. But they failed to serve any retirement notice to the employee in the yea r 1997 and in fact, the petitioner was intimated of his retirement 5 years later only through the notice dated 17.05.2002 (Annexure-8), where allegation of over stay was leveled. It must also be borne in mind that the petitioner had actuall y worked between December, 1997 to June, 2002 and therefore he was paid his sala ry for the service rendered during this period. 8. But now through the impugned order of 20.09.2006 (Annexure-6), the emplo yer is trying to recover 50% of the 55 months salary from the retirement dues ow ed to the petitioner. Since service in the Khadi Board is not pensionable, all that a retiree receives is CPF, leave salary and gratuity dues on superannuation . Here as can be seen, the employer is trying to deduct 50% of the 55 months sal ary paid to the petitioner from his retirement dues and the net result is that t he petitioner is being offered only Rs.63,052/- on superannuation. 9. Furthermore on the deduction of the cash shortfall of Rs.5119/-, no conc lusive finding is available to show that the petitioner is responsible for the c ash shortfall during 2002-2003. Therefore, the recovery of this amount ordered from the petitioner’s retirement dues is found to be unjustified. 10. Having concluded thus and bearing in mind the decision of the Apex Court in Kailash Singh Vs. State of Bihar reported in (2005) 13 SCC 576, I am of the view that the recovery of the salary paid to the petitioner from December, 1997 to June, 2002 is wholly unjustified. The deduction of Rs.5119/- is also consi dered to be unjust since the responsibility of the retiree have not been establi shed through any due process for the said shortfall. Therefore, the deduction f rom the retirement benefits ordered by the Chief Executive Officer of the Khadi Board on 20.09.2006 (Annexure-6) is held to be bad in law. Consequently the res pondents are directed to disburse the full retirement benefits to the petitioner without deduction. 11. As the petitioner is deprived of his retirement dues since the last ov er 12 years, the respondents are directed to ensure early disbursal within 6 wee ks from today. This case accordingly stands allowed without any order on cost. The respondent Khadi Board however are at liberty to initiate departmental proce edings, if so advised, against the concerned staff who might be responsible for overlooking the actual retirement date of the employee.