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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.2776/2002
with
Writ Petition No.4482/2002
...
Writ Petition No.2776/2002
Mansoor Khan s/o Gaffur Khan,
aged about 62 years,
R/o Pathanpura, Near Masjid,
Daryapur, District Amravati. .. PETITIONER
.. Versus ..
1. The State of Maharashtra,
through its Secretary,
Employment and Education
Department, Mantralaya,
Mumbai -32.
2. The Deputy Director of Education,
Amravati Division, Amravati.
3. The Education Officer (Secondary),
Zilla Parishad, Akola.
4. Municipal Council through its
Chief Officer, Murtizapur,
Dist. Akola.
5. The J.B. Municipal Council Hindi
High School, Murtizapur, through
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its Head Master, Murtizapur,
Dist. Akola. .. RESPONDENTS
Mr. Rashid Haque, Advocate for Petitioner.
Mr. N.R. Rode, AGP for Respondent Nos. 1 to 3.
Mr. R.L. Khapre, Advocate for Respondent No.5.
....
Writ Petition No.4482/2002
1. Sitaram s/o Shrinarayan
Khandelwal, Aged: Adult,
Occu.: Service, Head Master,
Jainarayanji Boob Nagar Parishad
Hindi Vidyalaya,
Murtizapur, Distt. Akola.
2. Satyanarayan s/o Sitaramji Attal,
Aged: Adult, Occu: Service,
Senior Clerk,
Jainarayanji Boob Nagar Parishad
Hindi Vidyalaya,
Murtizapur, Distt. Akola. .. PETITIONERS
.. Versus ..
1. The Municipal Council,
Murtizapur, Distt. Akola,
Through : Its Chief Officer.
2. The Additional Commissioner,
Amravati Division, Amravati.
3. The Deputy Director of Education,
Amravati Division, Amravati.
4. The Education Officer (Secondary),
Zilla Parishad, Akola.
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5. Mansoor Khan s/o Gaffur Khan,
aged about 62 years,
Occu: Retired Teacher,
R/o Pathanpura, Near Masjid,
Daryapur, District Amravati. .. RESPONDENTS
Mr. R.L. Khapre, Advocate for Petitioners.
Mr. Anjan De, Advocate for Respondent No.1.
Mr. N.R. Rode, AGP for Respondents No.2,3 and 4.
....
CORAM : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON : September 26, 2017.
PRONOUNCED ON : October 4, 2017,
JUDGMENT (per Manish Pitale, J. )
The question that arises for consideration in these two writ petitions is as to who was responsible for Mansoor Khan s/o Gaffur Khan (petitioner in Writ Petition No. 2276 of 2002 and respondent no.5 in Writ Petition No. 4482 of 2002) continuing in service for a period of one year beyond the date of his retirement and secondly whether the amount paid towards salary to the said employee for the additional period of service for one year was liable to be recovered and if so, from whom.
2. The facts leading up to filing of these two writ ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 4 WP2776&4482-02.odt petitions are as follows:-
Mansoor Khan s/o Gaffur Khan (hereinafter referred to as "the said employee") was born on 01.01.1941. He joined service on 23.07.1962 as Assistant Teacher in a school run by the respondent- Municipal Council, Murtizapur, and his service was regularized on 11.07.1966. Since the age of retirement in the said service was 58 years, the said employee was to retire from service on 31.12.1998.
3. But, on 29.05.1998 a circular was issued by the respondent-State Government increasing the age of retirement from 58 years to 60 years. Thus, the said employee who should have retired on 31.12.1998 upon attaining the age of 58 years, continued in service beyond the said date. Thereafter, on 02.02.1999 the respondent-State Government issued another circular withdrawing the earlier circular dated 29.05.1998, as a result of which the date of retirement from service was again brought back to 58 years. On 06.02.1999 the said employee submitted an application to the Headmaster of the School requesting that his pension case may not be sent since his services were to continue till 31.12.1999.
4. On 02.09.1999 the said employee moved an
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application before the Chief Officer of the respondent Municipal Council stating that his date of birth was required to be corrected from 01.01.1941 to 01.01.1943. Along with the said application, the said employee submitted an affidavit and documents from the Registrar of Births and Deaths, in support of his claim. On 20.09.1999, the Chief Officer of the respondent-Municipal Council sent a letter to the said employee stating that no change could be made in the service book as regards his date of birth because any step for making such change could have been taken within 5 years of the date of joining of service. On 29.09.1999, the Chief Officer of the respondent Municipal Council sent another letter to the said employee regarding his retirement from service, wherein it was clearly stated that upon completion of age of 58 years he would retire from 01.01.2000. Accordingly, the said employee continued in service till 31.12.1999 and then retired from service.
5. On 22.04.2000, the Headmaster of the School forwarded the pension case of the employee to the Education Officer, but, on 22.08.2000 it was returned on the ground that the pension case papers were not sent by the Chief Officer of the respondent-Municipal Council. In this situation, as his ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 6 WP2776&4482-02.odt pension papers were not being processed, the said employee submitted a representation dated 25.05.2001 to the Education Officer requesting that his pension papers be processed so that his terminal benefits and his pension could be disbursed. The employee sent further representation on 06.06.2001 to the Education Officer. But, on 21.06.2001 the Education Officer sent a letter to the Headmaster of the School to ascertain as to who was responsible for retirement of the employee on 31.12.1999 instead of 31.12.1998. On 04.07.2001 the Deputy Director of Education, directed the Education Officer to conduct an enquiry into the matter and on the same day the Chief Officer of the respondent-Municipal Council issued a notice to the employee to attend enquiry proceedings. The employee could not attend the proceedings due to ill-health and on 23.07.2001 the Chief Officer of the respondent-Municipal Council submitted a report to the Standing Committee opining that the said employee, the Headmaster and concerned clerk of the School were responsible for the retirement of the employee on 31.12.1999 instead of 31.12.1998.
6. On the basis of the said report submitted by the Chief Officer, the Standing Committee of the respondent-Municipal Council passed a resolution directing that the recovery of the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 7 WP2776&4482-02.odt amount of salary of one additional year paid to the employee shall be made 50% each from the Headmaster and the concerned clerk of the School. It was recorded in the resolution that the employee could not be held responsible in the matter. In view of the aforesaid resolution of the Standing Committee of the Municipal Council, the said employee sent representations and reminders to the Chief Officer requesting for release of his pension and other terminal benefits.
7. The Headmaster and the concerned clerk of the School filed an appeal before the General Body of the Municipal Council against the aforesaid resolution dated 06.08.2001 of the Standing Committee, but, the said appeal was dismissed on 05.10.2001 by a resolution passed by the General Body. Aggrieved by the same, the said persons filed appeal/revision before the Director of Municipal Administration, who directed the Additional Commissioner to decide the appeal/revision. In the meanwhile on 05.11.2001 only provisional pension of the employee was released and a recovery of an amount of Rs.1,04,563/- (Rs. One Lakh Four Thousand Five Hundred and Sixty Three only) was shown against him. The said employee filed a Writ Petition No. 2276 of 2002 before this Court praying for quashing of the communication of the Deputy Director of ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 8 WP2776&4482-02.odt Education regarding recovery of amount from him and for further directions to finalise his pension case and to release all benefits due to him with interest.
8. On 02.09.2002, the Additional Commissioner dismissed the appeal/revision filed by the Headmaster and the concerned clerk of the School, thereby confirming the resolution dated 06.08.2001 of the Standing Committee of the Municipal Council whereby amount was directed to be recovered from them. Aggrieved by the same, the Headmaster and the concerned clerk filed Writ Petition No. 4482/2002 before this Court praying for quashing of the said resolution dated 06.08.2001 passed by the Standing Committee of the Municipal Council, as also the resolution passed by the General Body of the Municipal Council dismissing their appeal and further the order passed by the Additional Commissioner dismissing their revision. They contended that the recovery sought to be made from them was unjustified and that they could not be held responsible for the retirement of the said employee on 31.12.1999 instead of 31.12.1998.
9. On 18.02.2003, this Court passed an order granting Rule in Writ Petition No. 2276 of 2002 filed by the employee, ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 9 WP2776&4482-02.odt further directing by way of interim relief that after subtracting the amount of Rs.1,04,563/- (Rs. One Lakh Four Thousand Five Hundred and Sixty Three only) from the terminal and retiral benefits of the said employee, the rest of the amount of his terminal benefits be released to him. The Chief Officer of the respondent-Municipal Council was directed to deposit the said amount of Rs.1,04,563/- (Rs. One Lakh Four Thousand Five Hundred and Sixty Three only) in this Court, which was to be invested with any Nationalised Bank. The said writ petition was directed to be heard along with Writ Petition No. 4482 of 2002, filed by the Headmaster and the concerned clerk.
10. On the same day i.e. on 18.02.2003, this Court passed an order admitting Writ Petition No. 4482/2002 and no interim relief was granted preventing deductions. It was directed that so far as the deductions were concerned from the petitioners in the said writ petition, the Municipal Council would open monthly R.D. account with any Nationalised Bank and deposit the amount in the said R.D. account.
11. Both the writ petitions have come up for final hearing before this Court. Mr. Rashid Haque, learned counsel appearing on behalf of the petitioner in Writ Petition No. 2276 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 10 WP2776&4482-02.odt of 2002 submitted that the recovery sought to be made from the terminal benefits of the said petitioner/employee was wholly unjustified because he had actually worked for the period of one year upto 31.12.1999 and that he could not be blamed for having continued in service beyond 31.12.1998 as the respondent-State Government itself had increased the age of retirement from 58 years to 60 years. It was also contended that there was no notice ever issued to him regarding his date of retirement and in the communication dated 29.09.1999, the Chief Officer of the respondent-Municipal Council had clearly stated that the petitioner/employee would continue in service till 31.12.1999. It was submitted that since the petitioner/employee was paid for the period of one year for which he had actually worked, no recovery could be made against him.
12. Mr. R.L. Khapre, learned counsel appearing for the Headmaster and the concerned clerk of the School- the petitioners in Writ Petition No. 4482 of 2002, contended that the resolution dated 06.08.2001 passed by the Standing Committee of the respondent-Municipal Council directing recovery of the said amount from them, was wholly unjustified and that they could not be held responsible for the payments ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 11 WP2776&4482-02.odt made to the said employee for having worked for an additional period of one year. It was contended that the notice of retirement and all steps concerned with the same were to be taken by the Chief Officer of the Municipal Council and that in view of the documents on record, it could not be said that there was any default committed by the Headmaster or the concerned clerk for retirement of the said employee on 31.12.1999 instead of 31.12.1998.
13. Mr. Anjan De, learned counsel appearing for the respondent-Municipal Council relied upon Rule 134-A of the Maharashtra Civil Services (Pension)Rules, 1982 and submitted that the action of recovery undertaken by the Municipal Council was justified and that the resolution dated 06.08.2001 passed by the Standing Committee of the Municipal Council directing recovery from the Headmaster and the concerned clerk was justified. Alternatively, it was submitted that the said employee knew about his date of retirement and that therefore, he was not entitled to the salary paid to him for the additional one year of service, although he had actually worked for the said period. The learned counsel relied upon judgment of the Hon'ble Supreme Court in the case of Radha Kishun .vs. Union of India - (1997) 9 Supreme Court Cases 239, ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 12 WP2776&4482-02.odt in support of his contentions.
14. We have heard the learned counsel for the parties and considered the material on record. The facts that emerge from the documents on record are that before the date on which the said employee was to retire, the respondent-State Government had issued a Circular dated 29.05.1998 increasing the age of retirement from 58 years to 60 years. Therefore, there was no question of the said employee retiring on 31.12.1998, upon attaining the age of 58 years. Accordingly, his pension case was also not processed. Thereafter, the said Circular was withdrawn by the respondent-State Government by issuing Circular dated 02.02.1999. This subsequent Circular bringing back the age of retirement from 60 years to 58 years specifically provided that those employees who though had completed age of 58 years but continued in service, would retire on the last day afternoon of the month of issuance of the aforesaid Circular. But, no steps were taken by the respondent- Municipal Council to retire the said employee even on the last day of February,1999.
15. It is also on record that the said employee had moved an application for correction of date of birth in his ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 13 WP2776&4482-02.odt service record. It was on 20.09.1999 that the Chief Officer of the Municipal Council communicated to the said employee that such correction or change in the date of birth could not be made, as such change could have been made only within 5 years of joining service. Thereafter, on 29.09.1999, the Chief Officer of the Municipal Council sent a letter to the said employee clearly stating that he would stand retired on 01.01.2000 i.e. after 31.12.1999. Accordingly, the said employee continued to work and draw his salary till 31.12.1999.
16. It was much later, when the pension case of the said employee was to be processed that the Education Department noticed the fact that the said employee had retired on 31.12.1999 and directed the Municipal Council to hold an enquiry into the matter. The pension case of the said employee was not processed and it was much later on 05.11.2001 that only provisional pension was released to him, showing recovery of an amount of Rs.1,04,563/- (Rs. One Lakh Four Thousand Five Hundred and Sixty Three only) from him. The Municipal Council conducted an enquiry and its Standing Committee passed a resolution dated 06.08.2001 holding that the Headmaster and the concerned clerk of the School were ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 14 WP2776&4482-02.odt responsible for the said employee continuing in service upto 31.12.1999 and directed recovery of the said amount to be made against them.
17. In the backdrop of these facts, it is necessary to examine as to who was responsible for the said employee retiring on 31.12.1999 and whether under the relevant Rules, any recovery could be made either from the said employee or the Headmaster and the concerned clerk of the School. In this context, Rules 134-A and 135 of the aforesaid Rules, are relevant and they are quoted below:-
"134-A. Recovery and adjustment of
excess amount paid-
If in the case of a Government
servant, who has retired or has been allowed to retire,-
(i) it is found that due to any reason whatsoever an excess amount has been paid to him during the period of his service including service rendered upon re-
employment after retirement, or
(ii) any amount is found to be payable by the pensioner during such period and which has ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 15 WP2776&4482-02.odt not been paid by or recovered from him, or
(iii) it is found that the amount of licence fee and any other dues pertaining to Government accommodation is recoverable from him for the occupation of the Government accommodation after the retirement, then the excess amount so paid, the amount so found payable or recoverable shall be recovered from the amount of pension sanctioned to him:
Provided that, the Government shall give a reasonable opportunity to the pensioner to show cause as to why the amount due should not be recovered from him:
Provided further that, the amount found due may be recovered from the pensioner in instalments so that the amount of pension is not reduced below the minimum fixed by Government.
135. Date of retirement to be notified.
When a Government servant retires from service,-
(a) a notification in the Official Gazette in the case of a Gazetted Government servant, and ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 16 WP2776&4482-02.odt
(b) an office order in the case of a Non-
gazetted Government servant, shall be issued specifying the date of retirement within a week of such date and a copy of every such notification or office order, as the case may be, shall be forwarded immediately to the Audit Officer:
Provided that where a notification in the Official Gazette or an office order, as the case may be, regarding the grant of leave preparatory to retirement to a Government servant is issued, a further notification or office order that the Government servant has actually retired on the expiry of such leave shall not be necessary unless the leave is curtailed and the retirement is for any reason ante-dated or postponed."
18. It is evident from the said Rules that when an employee to whom these Rules apply retires, a notification is to be issued. It is further clear that if any recovery of excess amount paid to an employee, is to be made, such an employee is required to be given a reasonable opportunity to show cause as to why such recovery should not be made. In the present case, the respondent-Municipal Council was entirely ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 17 WP2776&4482-02.odt responsible for taking all steps in respect of issuing notice/notification for the retirement of the said employee. There were no such steps undertaken by the respondent- Municipal Council for retirement of the said employee on 31.12.1998. This was obviously because, the respondent-State Government had issued a Circular dated 29.05.1998 increasing the age of retirement from 58 years to 60 years. It was when the said Circular was withdrawn, the respondent-Municipal Council was expected to initiate the process of retirement of the said employee. The Chief Officer of the respondent- Municipal council informed the said employee that no change could be made in the date of birth in his service record and by letter dated 29.09.1999, specifically informed him that he would retire after 31.12.1999 on 01.01.2000. Thus, the said employee continued in service upto 31.12.1999 entirely because of the respondent-Municipal Council, consciously informing him about his date of retirement being 31.12.1999.
19. In this situation, upon the Deputy Director of Education and the Education Officer requiring the Municipal Council to later institute an enquiry, the respondent-Municipal Council initiated its action for making recovery of the said amount. We find that neither the said employee nor the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 18 WP2776&4482-02.odt Headmaster and the concerned clerk of the school could be held responsible for the payment of salary to the said employee till 31.12.1999. It is also an undisputed fact that for the period between 31.12.1998 and 31.12.1999, the said employee actually worked in the School for which he was paid salary. The judgment of Radha Kishun .vs. Union of India (supra) relied upon by the learned counsel appearing for the Municipal Council can be of no assistance to the respondent- Municipal Council because it was held in that case that the petitioner -employee was entirely responsible for having worked for a period of three years beyond the date of his retirement.
20. In the instant case, we find from the material on record that initially because of the Circular dated 29.05.1998 issued by the respondent-State Government increasing the age of retirement from 58 years to 60 years and thereafter due to the actions of the respondent-Municipal Council itself, the said employee stood retired on 31.12.1999 instead of 31.12.1998. In the case of State of Bihar and others .vs. Pandey Jagdishwar Prasad - (2009) 3 Supreme Court Cases 117, the Hon'ble Supreme Court has held that when the employee was allowed to retire as per later date of birth, when two dates ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 19 WP2776&4482-02.odt of birth were entered in his service book, no recovery of salary paid for extra period could be made from the retiral dues of such employee when there was no fraud or misrepresentation made out. In the present case also we do not find any material to hold that a fraud or misrepresentation was committed by the said employee when he was retired on 31.12.1999 instead of 31.12.1998. We also find that there was no default on the part of the Headmaster and the concerned clerk of the School because it was entirely for the Municipal Council to initiate steps for retirement of the said employee. Therefore, the respondent - Municipal Council was not justified in passing the resolution dated 06.08.2001 and fastening the liability for recovery of the said amount on the Headmaster and concerned clerk of the School. We do not find any justification for recovery of the amount towards salary paid to the said employee for the extra period for which he actually served in the School. We hold that the steps taken by the respondent- Municipal Council for recovering the said amount were wholly unjustified and that they are unsustainable.
21. Accordingly, we allow both the writ petitions. The resolution dated 06.08.2001 passed by the Standing Committee of the Municipal Council and consequent resolution ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 20 WP2776&4482-02.odt dated 05.10.2001 passed by the General Body of the Municipal Council, as also the order dated 02.09.2002 passed by the Additional Commissioner are quashed and set aside. Accordingly , the petitioners in Writ Petition No. 4482/2002 i.e. the Headmaster and the concerned clerk of the School are absolved from any liability towards recovery of the said amount of Rs.1,04,563/- (Rs. One Lakh Four Thousand Five Hundred and Sixty Three only). It is further held that the respondent-Municipal Council is not entitled to recover the aforesaid amount from the petitioner in Writ Petition No. 2276 of 2002.
22. Consequently the amount of Rs.1,04,563/- (Rs. One Lakh Four Thousand Five Hundred and Sixty Three only) deposited in this Court by the respondent-Municipal Council as per interim order dated 18.02.2003 in Writ Petition No. 2276 of 2002 and invested in a Nationalised Bank, shall be disbursed to the petitioner therein i.e. Mansoor Khan s/o Gaffur Khan along with accrued interest. We also direct that the amounts deducted by the respondent-Municipal Council from the petitioners in Writ Petition No. 4482 of 2002 and deposited in the R.D. account with the Nationalised Bank as per interim order dated 18.02.2003, be disbursed along with accrued ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:55 ::: 21 WP2776&4482-02.odt interest to the petitioners in the said Writ Petition No. 4482 of 2002.
23. Rule is made absolute in the aforesaid terms. No order as to costs.
(Manish Pitale, J. ) (R.K. Deshpande, J.)
...
halwai/p.s.
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