Rantu Kumar Gohain vs Assam Electronics Development ...
2021 Latest Caselaw 2611 Gua

                                                                Page No.# 1/12

GAHC010315982019




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/380/2020

         RANTU KUMAR GOHAIN
         S/O- UMANANDA GOHAIN, R/O- PUB JYOTI NAGAR, SRI SRI HARI DEV
         PATH, GUWAHATI, DIST- KAMRUP (M), ASSAM, PIN- 781020

         VERSUS

         ASSAM ELECTRONICS DEVELOPMENT CORPORATION LTD. AND 2 ORS
         A GOVT OF ASSAM UNDERTAKING, INDUSTTRIAL ESTATE,
         BAMUNIMAIDAN, GUWAHATI, DIST- KAMRUP(M), ASSAM, PIN- 781021,
         REP. BY ITS MD

         2:THE MANAGING DIRECTOR
         ASSAM ELECTRONICS DEVELOPMENT CORPORATION LTD
          INDUSTRIAL ESTATE
          BAMUNIMAIDAN
          GUWAHATI
          DIST- KAMRUP (M)
         ASSAM
          PIN- 781021

         3:THE MANAGER HRD DIVISION
         AEDCL
          INDUSTRIAL ESTATE
          BAMUNIMAIDAN
          GUWAHATI
          DIST- KAMRUP (M)
         ASSAM
          PIN- 78102
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                                             BEFORE
                     HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI


For the Petitioner      :        Shri A.D. Choudhury, Advocate,


For the Respondents :            Shri B. Chakraborty, Advocate,

Dates of Hearing        :        13.08.2021 & 24.09.2021.

Date of Judgment        :        29.10.2021.



                                    JUDGEMENT & ORDER

1. The extra-ordinary jurisdiction of this Court conferred by Article 226 of the Constitution of India is been sought to be invoked by means of the present petition. The petitioner is aggrieved by non-release of his service benefits after his retirement on 27.03.2019. Though the fact of over stay in service is not disputed, it is the case of the petitioner that no fault can be attributed to him for such over stay. On the other hand, as per the respondents, the over stay was possible only because of falsification of the date of birth of the petitioner while he had entered into the services under the respondent Corporation.

2. The facts in brief of the case is required to be narrated for better appreciation of the issue in hand.

3. It is the case of the petitioner that he had joined the respondent - Corporation namely Assam Electronics Development Corporation Limited (AEDCL) as a Technician. On 27.03.2019, the petitioner was asked to hand over all the official documents holding that he had ceased to be a regular employee of AEDCL on the ground of over stay in the post of Deputy Manager with the allegation of falsification of his date of birth. The petitioner alleges that no opportunity of hearing was given before passing of the order dated 27.03.2019.

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4. Though the aforesaid order dated 27.03.2019 is not the subject matter of challenge, the present writ petition has been filed with a prayer for issuing a direction to release the service benefits of the petitioner. The fact that the petitioner is a cancer patient has also been highlighted and it is submitted that he is suffering from tremendous financial hardships. Accordingly, the petition has been filed for a direction for release of the gratuity, leave encashment, revised arrear salary, 2(two) years provision fund and salary for the month of March, 2019.

5. I have heard Shri A.D. Choudhury, learned counsel for the petitioner whereas the respondent - Corporation is represented by Shri B. Chakraborty, along with Shri K. Gupta, learned counsel. The materials placed before this Court has been carefully examined.

6. Shri Choudhury, learned counsel for the petitioner has fairly submitted that the action of superannuating the petitioner on 27.03.2019 is not the subject matter of challenge and the grievances is only related to the retirement benefits. The entire controversy started after promotion of the petitioner to the post of Deputy Manager of AEDCL on 31.12.2018

whereafter a 3rd party had submitted an application under the RTI Act regarding the age / date of birth of the petitioner. As a consequence thereof, certain documents were asked for from the petitioner. It is the case of the petitioner that the relevant documents were destroyed in a flood and therefore he was not in a position to give the same and for that reason, the petitioner was not liable to be inflicted with any panel action. It has further been argued that there is no record of the matriculation examination pertaining to the petitioner and from the affidavit-in-opposition, it can be gathered that from the communication received from the Board of Secondary Education Assam (SEBA), the petitioner was of 17 years as on 01.03.1974 and calculating from the said data, the date of birth of the petitioner comes to 01.03.1957. It is the case of the petitioner that on the very next date i.e. 27.03.2019, the petitioner has been directed to hand over all official documents and he would be ceased to be a regular employee of AEDCL. The learned counsel submits that while recording his date of birth in the Corporation as 01.03.1959, there was no role played by the petitioner and Page No.# 4/12

therefore, he cannot be panelized because of the same. The learned counsel further submits that there is no allegation of fraud against the petitioner and therefore, the present writ petition is liable to be allowed.

7. It is further submitted that the petitioner was appointed as Technician on 18.02.1987 and he was promoted in 1990. Thereafter, he was further promoted to the rank of Supervisor in 1997, Assistant Manager in 2011 and thereafter to the post of Deputy Manager and during such promotions, the service book of the petitioner was thoroughly examined and no anomalies were found. It is also submitted that the petitioner has made a number of representations which unfortunately were not considered.

In support of his submission, the learned counsel for the petitioner has relied upon the following decisions:-

1. (2009) 3 SCC 117 (State of Bihar and Ors. vs. Pandey Jagdishwar Prasad).

2. 2018 (5) GLT 432 (Syeda Safida Begum vs. State of Assam & Ors.)

8. Per contra, Shri B. Chakraborty, learned counsel for the respondents submits that the order dated 27.03.2019 had made a specific allegation of falsification of records pertaining to the date of birth of the petitioner and admittedly the said order is not a subject matter of challenge which means that the petitioner has accepted the allegation. By drawing the attention of this Court to the affidavit-in-opposition filed on 12.01.2021, it is submitted that in paragraph 4 thereof, it has been categorically stated that the statement of the petitioner that he had passed the Higher Secondary Examination in 1981 is incorrect. It has been stated in the affidavit that the petitioner had passed the HLSC examination in the year 1974 and had actually passed the Higher Secondary Examination in 1977 which would be evident from the certificate submitted by him along with the application dated 01.07.1985 to the Corporation in connection with his appointment. It is pertinent to be mentioned that at the time of making Page No.# 5/12

the application for appointment, neither the HSLC Pass certificate nor the Admit Card of the HSLC examination was produced and it was only upon verification with the SEBA that the actual date of birth of the petitioner would be gathered by the Corporation. It has been specifically pleaded that the petitioner's actual date of birth is 01.03.1957 and not 01.03.1959 as was mentioned in the Biodata annexed with the application. In paragraph 6 of the affidavit-in-opposition, a similar averment has been made regarding the actual date of birth of the petitioner and that he was to retire from service on 01.03.2017 on attaining the age of superannuation. Categorical allegation of "false misrepresentation of facts as regards his date of birth" have been made by means of which the petitioner has over stayed in service. It has further been stated that immediately on receipt of the correct information regarding the date of birth from the SEBA, action was taken to retire him from service.

9. As regards the ailment of the petitioner, Shri Chakraborty, the learned counsel has submitted that the medical expenses of Rs.4,27,675/- (Rupees Four Lakh Twenty Seven Thousand Six Hundred Seventy Five) have already been reimbursed and further the petitioner is entitled for medical benefit upto Rs.10 lakhs per year for 10 years after his retirement.

10. By drawing the attention of this Court to paragraph 12 of the affidavit-in-opposition, the learned counsel for the AEDCL has submitted that after making the calculation, an amount of Rs.43,000/- (Rupees Forty Three Thousand) approx is found to be recoverable from the petitioner. However, no steps have been taken for making the said recovery. The relevant portion of the aforesaid paragraph 12 of the affidavit-in-opposition is extracted herein below:-

"Admissible amount of retirement benefit to the petitioner and undue amount drawn by him during the period of over stay are mentioned below:-

Gratuity :                                Rs. 10,99,950/-
Leave Encashment :                        Rs. 7,33,300/-
Amount of Revised Arrear salary

payable to w.e.f. 01.04.2016 to 31.03.2017 : Rs. 1,08,129/-

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Total : Rs. 19,41,379/-

Further, the amount to be recovered for over stayed period 01.04.2017 to 28.02.2019 Rs. 19,84,015/-"

11. By drawing the attention of this Court to the reply of the petitioner to the inter office memo dated 13.03.2019 whereby he was asked to submit the relevant document pertaining to his date of birth, it is submitted that the said reply dated 15.03.2019 is absolutely vague and the excuse of flood has been taken to justify the misplacement of the document. Shri Chakraborty, the learned counsel has argued that though in a given case such an excuse may be tenable, in the instant case while the other documents- certificate by Royal Telegraph and Wireless Institute, Madras (pages 15, 16, 17, 18, 19 & 20 of the writ petition) dated 01.10.1983 are readily available only that particular document regarding the date of birth has been stated to be misplaced / missing. The said explanation also needs to be examined from the point of view that even at a time of entering into the services, the petitioner had tactfully avoided submission of the relevant document. It is further submitted that as the petitioner deliberately did not cooperate for obtaining the original certificate, the Corporation had to approach the SEBA for resolution of the dispute.

12. Shri Chakraborty, the learned counsel has also drawn the attention of this Court to Annexure-III of the affidavit-in-opposition which is the application form of the petitioner seeking for a job. In his personal data, the petitioner has given his date of birth as 01.03.1959 and as testimonial has given the HSLC Pass Certificate which does not contain the date of birth.

13. Contending that this Court in exercise of its equity jurisdiction has to examine the conduct of the parties, in the instant case, the petitioner is guilty of suppression of material facts and the over stay could happen only because of the modus operandi of the petitioner by entering into the services of the Corporation by stating a wrong fact which has got material bearing in the service of the petitioner. Shri Chakraborty, the learned counsel for the Page No.# 7/12

respondents placed his reliance on the following case law:-

1. (2010) 1 SCC 440 (Registrar, Cooperative Societies Haryana and Others vs. Israil Khan and Ors.).

2. (1997) 9 SCC 239 (Radha Kishun vs. Union of India and Ors.).

14. Rejoining his submission, Shri Choudhury, the learned counsel for the petitioner submits that by submitting the application form it was the Higher Secondary Examination which was relevant and therefore, the same was mentioned and no illegality can be attributed simply because of the fact that the HSLC certificate containing the date of birth was not enclosed. As regards the second point that order dated 27.03.2019 is not the subject matter of challenge, Shri Choudhury, the learned counsel has contended that only there were three days which were remaining and the petitioner was otherwise suffering from ailment. It is further submitted that no order of recovery was passed and there was determination of the amount.

15. The rival submissions of the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined.

16. At the outset, this Court is reminded of the jurisdiction of this Court conferred by Article 226 of the Constitution of India wherein this Court acts as a Court of equity. The discretionary power is to be exercised with circumspection wherein the conduct of the parties is of immense significance. Such conduct of the parties is not restricted to the Court proceedings only but would be relevant from the point from where the cause of action has arisen. It is true that an unfettered power is conferred to this Court to do justice to a deserving party, such powers are to be exercised with self imposed restrictions.

17. Under the aforesaid backdrop, let us now examine the issue which has arisen for determination. The petitioner is claiming the post-retirement benefits after his superannuation on 27.03.2019. The office order dated 27.03.2019 by which the petitioner was directed to Page No.# 8/12

hand over charge is on the premises that the petitioner had over stayed in his service through falsification of his actual date of birth which is 01.03.1957. In the job application of the petitioner, he had stated his date of birth to be 01.03.1959. This serious allegation, as has been observed earlier has not been challenged which was also clarified in the hearing of this case. The application submitted by the petitioner while entering into the services of the respondents which is of crucial importance has not been annexed to the writ petition and it is only in the affidavit-in-opposition of the respondent - Corporation that the said application has been annexed. In the said application, the petitioner has given his date of birth as 01.03.1959 and no documents, whatsoever, were given to support the said date of birth. Under such circumstances, the Corporation was left with no other option but to accept the said date of birth as correct. The problem arose when a query was raised regarding the date of birth of the petitioner and accordingly the Corporation asked for the necessary certificate from the petitioner to substantiate his date of birth as 01.03.1959. The said action of the Corporation cannot be termed as unreasonable inasmuch as the Corporation is an Undertaking of the State and is accountable of all transactions including the monthly salaries. Further, the contention of the petitioner that no opportunity was granted to him also falls through. The explanation of the petitioner is not only vague but also unacceptable inasmuch as in a selected way only the certificate pertaining to his date of birth went missing in the flood whereas the other testimonials were very much available. Under such circumstances, the verification exercise undertaken by the Corporation with the SEBA was the only recourse available and from the reply it came to be known that the actual date of birth of the petitioner was 01.03.1957 instead of 01.03.1959 and as a consequence thereof the petitioner had over stayed in his service for almost 2(two) years. Such over stay in the office is only because of the incorrect date of birth given by the petitioner at the time of entering into the services and therefore, it is the petitioner who is the architect of the present situation which has arisen.

18. The question therefore, which requires to be answered is as to whether the authorities are justified to recover the amount paid to the petitioner during the tenure of his over stay. The petitioner has relied upon the case of Pandey Jagesdeswar Prasad (supra) to contend Page No.# 9/12

that no deduction can be made from the retiral dues of the incumbent. However, in the said case it is a finding of fact that there was no evidence of fraud or misrepresentation on behalf of the incumbent and two entries as regards the date of birth of the incumbent was found. The facts are wholly different from the present case wherein the petitioner has knowingly put an incorrect date of birth at the time of entering into the services and the benefit would accrue only to the petitioner.

19. In the case of Syeda Safida Begum (supra) relied upon by the petitioner is clearly distinguishable as there is a finding of the Court that wrong entry in the service book was not because of any misrepresentation or fraud committed by the petitioner.

19. The Hon'ble Supreme Court in the case of Radha Kishun (supra) relied upon by the respondents has clearly laid down that continuance in service beyond the date of superannuation without there being re-employment in public service will not entitle an incumbent to claim salary. The Hon'ble Court has gone to the extent of stating that notwithstanding the incumbent has worked during the aforesaid period, the departmental action for recovery is not liable to be interfered with. For ready reference, the relevant paragraphs 3 & 4 are extracted herein below:-

"3. The learned counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowances from 01.06.1991 to 26.06.1994 and that he is also entitled to the payment of provisional pension, death-cum- retirement gratuity, leave encashment, commutation of pension amount, GPF money and the amount deposited under CGHS on the plea that he retired from service on 31.05.1994. We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the above said date when admittedly he was to retire on 31.05.1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the establishment in the section concerned for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the Page No.# 10/12

case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits.

4. It is then contended that the petitioner would have conveniently secured gainful employment elsewhere and having worked, he cannot be denied of the legitimate salary to which he is entitled. Though the argument is alluring, we cannot accept the contention and given legitimacy to the illegal action taken by the authorities. If the contention is given acceptance, it would be field day for manipulation with impunity and one would get away on the plea of equity and misplaced sympathy. It cannot and should not be given countenance."

20. In the case of Israil Khan (supra) relied upon by the respondents the Hon'ble Supreme Court has clearly laid down that there is no principle that any excess payment to employees should not be recovered back by the employer and only on condition that such excess payment was made not on account of misrepresentation or fraud that recovery may not be made. For ready reference, the relevant paragraphs 7 & 9 are extracted herein below:-

"7. There is no "principle" that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled :

"(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous."

9. What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment."

21. Shri Choudhury, the learned counsel for the petitioner has contended that no order of Page No.# 11/12

recovery has been passed and therefore, the petitioner would be entitled to his post- retirement benefits. The aforesaid contention cannot be countenanced in view of the clear stand of the respondent in the affidavit-in-opposition. Amongst others, in paragraph 12 of the said affidavit-in-opposition, the Corporation has worked out the admissible amount which would have been otherwise payable to the petitioner which comes to Rs.19,41,379/- (Rupees Nineteen Lakh Forty One Thousand Three Hundred Seventy Nine) and at the same time the amount paid to the petitioner during the period of over stay from 01.04.2017 to 28.02.2019 which is Rs.19,84,015/-(Rupees Nineteen Lakh Eighty Four Thousand Fifteen) and therefore, it transpires that about Rs. 43,000/-(Rupees Forty Three Thousand) approx has been paid in extra to the petitioner and the Corporation has decided not to take steps for recovery of the amount which exceeds his retirement benefits.

22. As regards the medical condition of the petitioner, this Court has noted that an amount of Rs.4,27,675/-(Rupees Four Lakh Twenty Seven Thousand Six Hundred Seventy five) has already been reimbursed as medical expenses and the Corporation has put on records its commitment to honour medical benefits upto Rs. 10 lakhs per year for 10 years after the retirement.

23. Though, no argument has been advanced regarding the bar to recover from the gratuity, the Gratuity Act itself provides for adjustment from the loss due to the action of the incumbent which is quantified and in the instant case such amount has already been quantified.

24. What is of concern in this case is that the petitioner has not challenged the basic premises on which the recovery is made i.e. the allegation of falsification of records by the petitioner in incorporating an incorrect date of birth which obviously was done with the intention to make wrongful gain. In absence of such challenge, this Court is left with no other option but to come to a conclusion that the petitioner has accepted the said allegation.

25. Under the aforesaid facts & circumstances, this Court is of the opinion that no case for Page No.# 12/12

interference in exercise of powers under Article 226 of the Constitution of India is made out and accordingly the writ petition is dismissed. The Corporation would however be liable to bear the medical expenses to the admissible extent as stated in paragraph 11 of the affidavit- in-opposition.

26. No order as to cost.

JUDGE

Comparing Assistant