Gauhati High Court
Bharat Sanchar Nigam Ltd And 2 Ors vs Narapati Kalita on 3 November, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
Page No.# 1/4
GAHC010046862019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1532/2019
1: BHARAT SANCHAR NIGAM LTD AND 2 ORS.
REP. BY CHAIRMAN - CUM- MANAGING DIRECTOR, BHARAT SANCHAR
NIGAM LTD., CORPORATE OFFICE, H.C. MATHUR LANE, JANPATH, NEW
DELHI- 110001
2: THE CHIEF GENERAL MANAGER BSNL
ASSAM TELECOM CIRCLE BSNL BHAWAN PANBAZAR GUWAHATI - 784001
3: THE GENERAL MANAGER TEZPUR TELECOM DISTRICT
DIST.- SONITPUR ASSAM PIN - 78400
VERSUS
NARAPATI KALITA
S/O LT. JUGARAM KALITA, R/O VILL- KAMARCHUBURI, TEZPUR,
BHARTAK BIHAR, PO -TEZPUR, DIST.-SONITPUR, ASSAM, PIN- 784001
Advocate for the Petitioner : MR. B PATHAK
Advocate for the Respondent : MR. N BORAH
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE KAKHETO SEMA
ORDER
Date : 03-11-2021 Heard Mr. B. Pathak, learned counsel for the petitioners. Also heard Mr. N. Borah, learned counsel, appearing for the sole respondent/original applicant.
Page No.# 2/4 This is a writ petition filed by Bharat Sanchar Nigam Limited (BSNL) against the order dated 07.08.2018 passed by the Central Administrative Tribunal, Guwahati Bench, Guwahati in Original Application No.260/2018.
The respondent/original applicant, who was working in a Group-C post in BSNL, was aggrieved by order dated 11.06.2018 issued by the Sub- Divisional Engineer (HR & Administration), Office of the General Manager, Telecom District, BSNL, Tezpur, Sonitpur, by which it was directed that the respondent/original applicant had reached the age of superannuation on 31.01.2016. The basis was a School Leaving Certificate dated 01.03.1973 which was suddenly discovered by the respondent/original applicant, at the fag end of the service of the respondent/original applicant. The said Certificate stated that the respondent/ original applicant had left the School in the year 1972 and at that time he was about 16 years of age. Making the calculation thereof, his date of birth was treated to be 1956 and consequently his date of retirement was treated as 31.01.2016. This order was put to challenge by the respondent/original applicant before the Central Administrative Tribunal.
Apart from that, an amount of Rs.14,39,408/- (Rupees Fourteen Lakhs Thirty Nine Thousand Four Hundred and Eight) was also sought to be recovered from the respondent/original applicant on the ground that he had taken the excess amount between 2016 to 2018 having worked on the post without having any authority to do so.
As far as the recovery of the amount is concerned, the Tribunal on the basis of the law laid down by the Hon'ble Apex Court in the case of State of Punjab & Ors. -Vs- Rafiq Masih (White Washer) & Ors. , reported in (2015) 4 SCC 334 has held that recovery from a retired Page No.# 3/4 employee for an excess payment given mistakenly is not permissible as it would cause unnecessary hardship to the employee. In this case, the respondent/original applicant is a Group-C employee and definitely the recovery of an amount of Rs.14,39,408/- will cause hardship to the him. Moreover, it is not that he has received the amount for nothing but has worked for the post and thus received his salary. Even the order giving him a retrospective retirement in the year 2016 is also wrong inasmuch as in such cases, the settled position is that normally the date of birth which is recorded in the Service Book of an employee, which is a date of birth recorded at the time when the employee initially entered in service should not be changed or tempered with, particularly at the fag end of one's service, unless there are compelling reasons for doing so or there is a case of fraud.
The only reason assigned for changing the date of birth of the respondent/original applicant is a School Leaving Certificate, which is dated 01.03.1973 issued by the Headmaster of Government Aided Barabhag Kalag High School, which says that Narapati Kalita, i.e. the respondent /original applicant, left the School on 01.03.1972 and his age at that time according to the Admission Register was 16 years 1 month.
Neither the Headmaster of the School, nor the original records were examined. This finding is not based on a High School Leaving Certificate of the respondent/ original applicant, which could have been of a Board and then a valid presumption would have been made as to the date of birth of the respondent/original applicant. The authenticity of this Certificate still needs to be examined. The Tribunal has, therefore, rightly held as under:-
Page No.# 4/4 "9. Since the applicant is a Group C employee, no recovery can be affected from the applicant. Since the ratio laid down in the case of Rafiq Masih (supra) and the DoPT OM dated 02.03.2016 is applicable in the case of applicant apropos recovery, we do not think it proper to send the matter to the respondents on the issue of recovery, and therefore, respondents are directed not to effect the recovery of Rs.14,39,408/- from the applicant towards excess pay and allowances paid in excess.
10. Regarding the other relief(s), as prayed for by the applicant in this OA, applicant is directed to send the copy of this OA along with this order to the respondents within a period of 10 days from the date of receipt of this order. He is also at liberty to file a comprehensive representation with the given time. On receipt of the same, the respondents are directed to consider the case of the applicant, as per rules, by treating the copy of the OA as a representation of the applicant. The respondents shall take a decision within a period one month from the date of receipt of copy of the OA and this order after affording the applicant an opportunity of hearing. Such a time limit is considered sufficient considering the fact that the applicant has neither been getting any pay and allowances nor any pension."
We find no ground to interfere with the present writ petition and accordingly, the same is dismissed.
JUDGE CHIEF JUSTICE Comparing Assistant