High Court
Case Details
WP(C) 6329/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr . D. Bhattacharjee, learned Standing Counsel, APDCL. The petitioner, who is a retired employee of the APDCL has filed this wr it petition challenging the order dated 08.02.2010 (Annexure-4). He has also cha llenged the Annexure-5 and 6 communications both dated 03.03.2010, proposing to recover the excess salary allegedly drawn by the petitioner during the period fr om 01.04.2007 to 29.12.2008. As per the recorded date of birth of the petitioner in his service book, which is 31.03.1948, the petitioner with the then retirement age of 59 years wa s to attain the age of superannuation w.e.f. 01.04.2007. However, because of the alteration in the said recorded date of birth converting it to 12.05.1949, he c ontinued to service under the respondents up to 29.12.2008 from which date he wa s released from service in reference to the earlier date of birth dated 31.03.19 48. The petitioner was issued with the show cause notice dated 26.11.2008 (A nnexure-1) asking him to explain as to why the excess payment made during the ov er stay in service should not be recovered. In the show cause notice referring t o the recorded date of birth in the service book, which is 31.03.1948, it was co ntended that the same was scored off with the substitution of another date of bi rth which is 12.05.1949 without any authentication. It was alleged that the peti tioner was responsible for such change of date of birth and consequently over st ay in service. Referring to the particular school certificate dated 23.06.2008 t hat was produced by the petitioner in support of the altered date of birth 12.05 .1949, it was conveyed in the show cause notice that such a certificate produced after 45 years of leaving the school is not acceptable. In reply to the said show cause notice (copies of which not enclose to t he writ petition, but enclosed to the counter affidavit), the petitioner contend ed that at the time of entering the service, he did not submit his school certif icate, but later on, he had submitted the certificate of 2008. In the show cause reply, the petitioner agreed to the decision conveyed in the show cause notice. However, he prayed for mercy in view of his alleged ignorance and being a lowly paid employee of the APDCL. After the aforesaid exercise, the authority in the APDCL, passed the imp ugned orders releasing the petitioner from service w.e.f. 29.12.2008 and directi ng for recovery of the excess amount, which the petitioner had drawn as salary b y remaining in service for the period from 01.04.2007 to 29.12.2008. Mr. Biswas, learned counsel for the petitioner submits that since the petitioner rendered service for the aforesaid period, there is no question of any recovery . He submits that the respondents having taken the service from the petitioner, he was rightly paid his monthly salary and thus the same cannot be recovered. Mr. Bhattacharjee, learned Standing Counsel, APDCL on the other hand, in referen ce to the aforesaid show cause notice and the reply thereto and also the entries in his service book, submits that since the petitioner was responsible for over stay in service, there is nothing wrong on the part of the APDCL authority to o rder for recovery of the excess amount which the petitioner had drawn by over st aying in service. In this connection, he has also referred to the particular dec ision of the APDCL ordering for recovery in case of any over drawal by its emplo yees. I have considered the submissions made by the learned counsel for the pa rties and have also perused the materials on record. Although Mr. Biswas, learned counsel for the petitioner has expressed ig norance as to who was responsible for alteration of his date of birth in his ser vice book, but the fact itself would speak. Firstly, the original date of birth recorded in his service book i.e. 31.03.1948 was scored off so as to substitute by 12.05.1949. Not only that, the petitioner tried to justify the same by produc ing a school certificate of 2008, which was after 45 years of leaving the school in which he had allegedly studied. The petitioner had entered into the service of the respondents in 1968 and his date of birth was recorded in the service boo k as 31.03.1948. If the petitioner was aggrieved by such date of birth recorded in his service book, it was incumbent on his part to pray for correction of the same at appropriate time. However, be did nothing of the sort, but instead produ ced the school certificate of 2008. In the meantime, his date of birth was also altered to 12.05.1949. It was in above circumstances, APDCL authority issued the show cause notice and as to what was his reply to the show cause notice, that h as been noted above. Above being the position, it cannot be said to be a case of total ignora nce on the part of the petitioner for his over stay in service. He was aware of the true state of affairs and at the same time the respondents were also respons ible in not detecting the matter at the appropriate time. Based on the purported correction in the service book in respect of the date of birth of the petitione r, he was allowed to continue his service up to 29.12.2008. It was only at that point of time, noticing the illegality committed in his service book, the respon dents issued the show cause notice to the petitioner and thereafter passed the i mpugned orders.
Decision
In view of the above, I am of the considered view that there is contribu tory negligence on the part of both the petitioner and the APDCL authorities. In view of the above, it is hereby provided that so far as the proposal for reco very of amount for the over stayed period is concerned, the APDCL authorities ar e entitled to recover only 50% of the amount, which the petitioner has over draw n by remaining in service for the period from 01.04.2007 to 29.12.2008. Consequently, the retirement benefits of the petitioner including pensio nary benefits shall be calculated on the basis of the actual date of retirement of the petitioner, which is 31.03.2007. Writ petition partly succeeds. However, no order as to cost.