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Union Of India And Another v. Central Administrative Tribunal And Another - WRIT - A No. 33995 of 2003  RD-AH 268 (7 August 2003)
CIVIL MISC. WRIT PETITION NO. 33995 OF 2003
Union of India & anr. ......... Petitioners
Central Administrataive Tribunal
& anr ......... Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble D.P. Gupta, J.
(By Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed against the judgment and order of the Central Administrative Tribunal dated 5/2/2003 by which the claim of the respondent employees has been allowed and the recovery notice against him has been quashed.
Facts and circumstances giving rise to this case are that respondent no.2 Shri Raj Bahadur was the employee of the Railways. He retired on 10/5/1995 though he reached the age of superannuation in 1992. His retiral benefits had been calculated as stood retired in 1995. The Railways passed the order of making recovery and to make further adjustments in his pension. The said order was challenged and the learned Tribunal has allowed his petition partly to the extent that administration shall not recover the amount already paid but he would be deemed to have retired on reaching the age of superannuation as per the rules. Hence this petition.
Shri Tarun Verma, learned Counsel appearing for the petitioner has submitted that if the employee had been permitted to work for a period of about 3 years even after reaching the age of superannuation, the order of the Tribunal cannot be justified, as it so occurred by the mischief played by the employee for which he cannot be rewarded and the order of the Tribunal runs counter to the law laid down by the Hon'ble Supreme Court, thus the judgment is liable to be set aside.
In Radha Kishun Vs. Union of India, JT (1997) 9 SCC 239 while considering the similar case the Hon'ble Apex Court held that if an employee permitted to continue in office after reaching the age of superannuation, he cannot claim benefit for the post-superannuation period and it was observed as under:-
"It is true that the petitioner worked during that period, but would not continue to be in service as per law, he has no right to claim his salary etc. It is not the 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."
In State of Bihar Vs. Narsimha Sundram, AIR 1994,SC 599, the Hon'ble Supreme Court considered a case where an employee worked after reaching the age of superannuation by suppressing his age and held that making recovery of salary etc. in such a case is not permissible without holding a proper enquiry.
In State of Rajasthan Vs. R. Dayal (1997) 10 SCC 419 the Hon'ble apex Court held that if benefit had wrongly been confirmed by a bona fide mistake, it can be rectified at any stage.
The learned Tribunal considered and relied upon the judgment of the Hon'ble Apex Court wherein it has been held that if a payment has been made to an employee without any misrepresentation or fraud on his part, the same cannot be recovered as it would cause him a great hardship for the reason that he has spent the said amount of money considering his own and in that view thereof, the learned Tribunal allowed the petition partly only restraining the authority to make recovery of amount already paid to him. The judgment and order of the learned Tribunal is in consonance with the law laid down by the Hon'ble Supreme Court in Shyam Babu Verma & ors Vs. State of Union of India & ors, 1994 (2) SCC 521, Sahib Ram Vs. State of Haryana & ors, 1995 Suppl (1) SCC 18; and V Gangaram Vs. Regional Joint director & ors AIR 1997 SC 2776 wherein it has consistently been held that if money has wrongly been paid to an employee it should not be recovered, provided employee has not played any mischief/fraud in it.
The Hon'ble Supreme Court in Radha Kishun (Supra) also issued a direction that department should also hold enquiry against those officers, who permitted the employee to continue in service after reaching the age of superannuation. Admittedly in the instant case, no enquiry has been held against any officer, nor there has been any explanation in respect thereto i.e., under what circumstances an employee had been allowed to continue in service after reaching the age of superannuation. Petitioner did not make any attempt even to know as who could be responsible for his continuation after attaining the age of superannuation. There is nothing on record to show that the said employee had made any representation or played any fraud by suppressing his actual age or made any manipulation in his service book.
The learned Tribunal has taken a sympathetic view and passed an order to do substantial justice as the son of the employee suffers from Cancer and the employee has spent a lot of money on his treatment.
The order has been passed on humanitarian considerations. We do not see any reason to interfere with the order impugned.
The petition is accordingly dismissed.
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