Sitaram Shrinarayan Khandelwal ... vs The Municipal Council And 4 Ors
2017 Latest Caselaw 7775 Bom

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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

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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

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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

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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

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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,

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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

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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

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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,

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

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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

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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

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

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(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

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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

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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

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

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

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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.