Central Administrative Tribunal - Mumbai
Shankar Baluram Ladehllu vs Union Of India (Uoi) And Ors. on 10 November, 2006
Equivalent citations: 2007(1)SLJ316(CAT)
JUDGMENT Rama Das, Member (A)
1. The O.A. under reference has been filed against nonpayment of retiral dues to the applicant and demand for recovery of salary paid for services rendered for the period beyond the actual date of retirement. The documents annexed to the O.A. have been perused, written as well as oral submissions advanced by both applicant and respondents including affidavit filed by the respondents and applicant's reply thereto have been considered.
The applicant was appointed in the Railway service on 17.10.1968 and accordingly he was to retire on 31.10.1992. However, he retired on 18.6.2003 i.e. approximately 11 years later than the actual date of his retirement. Accordingly, he overstayed in service from 1.11.1992 to 17.6.2003. During the period of overstay, the applicant was also promoted as Junior Engineer Grade -I on 10.1.1997, and even thereafter he continued in that capacity till 18.06.2003 when he finally retired. Further, the respondents sent a letter to the applicant that since he had overstayed in the Railway service, recovery of Rs. 13,20,329 has to be made on account of payments made to him from 1.11.1992 to 17.6.2003, against which the applicant made a representation requesting for payment of retiral dues and pension. In response he was informed through the Western Railway Employees Union that his settlement dues could be released only after the recovery pertaining to the disputed period beyond his date of retirement. Applicant sent his pension papers to Bank of Maharashtra, Ulhasnagar Branch for payment of pension and other retiral dues, to which the Bank replied that pension could not be paid and he also received a letter dated 21.11.2005 from the respondents to that effect.
2. In support of his plea the applicant has submitted as under:
(a) The alleged overstay or continuation in Railway service after the date of superannuation was not by way of any fault of the applicant, rather he was allowed to continue by the Railway department themselves.
(b) Regular salary which the applicant has earned from 1.11.1992 to 17.6.2003 cannot be recovered from the applicant since he has actually rendered service to the Railways. Moreover, he is not responsible in any way for his continuation in service after the due date of retirement which was owing to the respondent's own action of omission or commission.
(c) The applicant has never been accused of committing any fraud in respect of his date of appointment or date of retirement. As a matter of fact the respondents ought to have issued a list of persons who were due to retire under Rule 76 of the Railway Service (Pension) Rules, 1993 much before the due date of retirement and the applicant ought to have been informed about his retirement in advance. This has not been done despite the fact that the respondents were in possession of all relevant papers including the service sheet/record of the applicant. It was the responsibility of the respondents to act in accordance with the record and appellant can not be penalised for their mistake. Further, under Chapter 7 of the aforesaid Rules, all the actions are to be taken in advance by the respondents by notifying the date of retirement of an employee and prepare necessary pension papers. Even as per Rule 88 of the said Rules the date of retirement is to be notified to the employee in advance. Since all these actions were not taken by the respondents, the applicant cannot be blamed for working/overstaying after 31.10.1992. Therefore, the respondents are squarely responsible for the alleged overstay in service and they cannot turn back and put the responsibility on the applicant.
(d) The applicant is not so literate as to know all about service records etc., which is borne out from the incorrect language written in various letters signed by him in the capacity of Union leader which have also been relied upon by the respondents in their affidavit to prove that he signs in English, so he is literate. Therefore, the primary responsibility of taking all steps under the Rules was that of the respondents and they can not now escape under the garb of alleged literacy of the applicant.
(e) The applicant further submits that no commensurate action has been taken by the respondents against the officers who allowed the applicant to continue in Railway service. Action taken against two Head Clerks does not reflect on the applicant and in no way implicates him as party to the mistakes committed by the two Head Clerks. In any case the penalty imposed on them is minor in nature. It is also not a case that the applicant connived with any officer/official for his alleged overstay. Thus the punishment cannot be imposed unless the applicant has committed proved misconduct.
(f) The allegations that applicant is a Union leader and he influenced the officials from taking steps to retire him is baseless. No evidence has been adduced by the respondents to prove as to how and in what manner applicant influenced anybody not to take steps to retire him as per Rules.
(g) The Railway Board's letter dated 7.7.1999 conveying that the period of overstay would be treated as wholly irregular and on that basis action would be taken to recover the pay and allowances paid to the applicant for the entire period of overstay is not legally tenable in view of Supreme Court rulings on the issue. For the same reason, amendment of Rule 1801(d) of Indian Railway Establishment Code Vol. II vide above letter is also unconstitutional and liable to be quashed and set aside. The above amendment is also violative of the provisions of Articles 14 and 16 of the Constitution. In any case the said amendment in Rule 1801 (d) referred to above has been expressly issued in view of the judgment of the Supreme Court in Radha Kishun v. Union of India in SLP (C) No. 3721 of 1997 with a view of plug the loophole in the existing rules. Issuance of such a circular clearly establishes that earlier a situation existed when employees were allowed to continue beyond date of retirement and also paid for the services rendered. If that was not true, there was no need for the amendment.
(h) Further the applicant was not given any notice prior to the alleged recovery of Rs. 13,20,2329. In any case no recovery can be made from the retiral dues since he has effectively and actually worked during the period under reference.
(i) On the facts and circumstances stated above, the impugned action is against the principles of natural justice and violative of Articles 14 and 16 of the Constitution of India. Therefore, the impugned recovery of the amount mentioned above is also illegal.
3. In view of the facts stated above, the applicant has prayed for the following reliefs:
(a) The records of the case may be called and examined by this Tribunal and respondents may be restrained from recovering any amount from the applicant paid to him as salary for the period 1.11.1992 to 17.6.2003.
(b) This Tribunal may permanently restrain the respondents from making recovery of alleged amount of Rs. 13,20,329 from the pension and other retiral dues of the applicant or from any other source.
(c) This Tribunal may hold that the respondents are not entitled to recover any amount from the applicant for the alleged period of overstay.
(d) Directions may be given to the respondents to pay pension to the applicant on the basis of promotion of the applicant as Junior Engineer Grade -I and not as Turner Grade I.
(e) Respondents may be directed to pay arrears of pension, gratuity, provident fund, commutation pension, leave encashment etc., with interest thereon.
(f) For the payment of interest on delayed payments, he has relied upon the following rulings:
(i) H.R. Kamath v. Railway Board and Anr. (1994) 27 ATC 640,
(ii) State of Kerala and Ors. v. M. Padmanabhan Nair ,
(iii) Union of India v. Justice S.S. Sandhawalia (Retd.) and Ors. ,
(iv) Shri K. Mayachari v. Union of India, through Central Railway, Bombay in O.A. 129/92 CAT, Bombay Bench, Bombay.
(v) Mahesh Kumar Sharma v. General Manager (Complaints) Northern Railway and Anr. 1998(3) SLJ 381 (PB-ND) (CAT).
(vi) He has further cited Rule 87 of the Railway Services (Pension) Rules, 1993 which reads as follows:
87. Interest on delayed payment of gratuity.-(1) If the payment of gratuity has been authorised after three months from the date when its payment become due on superannuation and it is clearly established that the delay in payment was attributable to administrative lapse, interest at such rate as may be specified from time by the Central Government in this behalf on the amount of gratuity in respect of the period beyond three months shall be paid.
4. Apart from the prayer made in the O.A., the Counsel for the applicant made undermentioned oral submission:
(a) He has not disputed the basic facts regarding date of retirement i.e., 1.11.1992 and the fact of applicant's continuation in service from 1.11.1992 to 17.6.2003.
(b) He is neither asking for counting of excess service period towards pensionary benefits nor higher pension.
(c) The pensionary benefits have been wrongly withheld and a demand for recovery for payments made during the period 1.11.1992 to 17.6.2003 has also been made illegally.
(d) It is not the case of the respondents that any disciplinary action was taken against the applicant for any fraud or wrongful conduct or any misrepresentation.
(e) It was incumbent upon the respondents by their own rules that a list of retiring officials should have been published and the applicant should have been notified about his date of retirement and steps should have been taken to retire him on the correct date as per records in their possession.
(f) The ruling in the case of Radha Kishun v. Union of India and Ors. 1997 SCC (L&S) 1185 dt. 28.2.1997 relied upon by respondents is a two Judges Bench ruling and stands superseded by a three Judges Bench judgment in the case of State of Bihar v. Narasimha Sundram date 28.1.1993.
5. In addition to the above submissions he has relied upon various judgments to substantiate his contentions. It would be worthwhile to examine the applicability of each of the judgments relied upon by the applicant:
(A) State of Bihar v. Narasimha Sundaram (supra)- In this case the Hon'ble Supreme Court has held that:
So far the question of payment of arrears of salary is concerned, we do not find any merit in the contention of learned Counsel for the appellant that the respondent can be refused his emoluments for the period in question as no proceedings were ever initiated for inquiry as to the alleged fraud played by the respondent on the department. It is not denied that the respondents worked till 30th September, 1989 and in that view we confirm that part of the impugned judgment which referred to the salary. The respondent should be paid his arrears of salary, if not already paid, within two months from today.
The Hon'ble Supreme Court directed that arrears of salary be paid. As regards pension it was directed that as against payment of full pension as granted by Hon'ble High Court, 50% may be delayed upto completion of proceedings against the employee which may be completed within six months.
(B) Ramswaroop Masawan v. Municipal Council and Anr. dt. 22.4.1998-In this case the Hon'ble Supreme Court held that the continuance in service beyond retirement is to be treated as re-employment.
(C) Komal v. Union of India and Ors. 2003(2) ATJ 67 dt. 26.02.2003-In this case the Hon'ble CAT Allahabad Bench considered the question of payment of retiral benefits where the applicant continued in service after superannuation for a period of nine months and whether salary beyond the period of superannuation should be deducted from the retiral benefits. It was held that there was no allegation against him that he in any manner misled the department in permitting him to continue in work after retirement or committed any fraud in respect thereof. Therefore, it was directed to refund the amount to the applicant. Reliance was placed in the case of State of Bihar v. Narsimha Sundaram (supra) (D) Delhi High Court - Writ Petition No. (C) No. 33/2005 dt. 9.2.2005-Premwati v. Municipal Corporation of Delhi and Ors. 2005(2) ATJ 3-The question which came up for consideration in this case was whether in case of continuance in service after the date of superannuation, the authorities can recover the salary paid for the period after superannuation. The question was answered in the negative. However, it was held that salary and pensionary benefits are not admissible concurrently.
The petitioner in this case was a School Attendant stated to be illiterate who was to superannuate on 31.7.2000. The petitioner had claimed payment of salary for the month of July, 2003 and retiral benefits w.e.f. 31.7.2000. the respondents re-commenced recovery proceedings in respect of salary paid after 31.7.2000 i. e., due date of retirement and also not released retiral benefits to the petitioner. While deciding the matter, the Hon'ble Delhi High Court considered the case of Radha Kishun (supra) which was held to be distinguishable. On the contrary the Hon'ble Delhi High Court observed that the case of S.K. Mastan Bee v. General Manager, South Central Railway and Anr. , would clearly apply on the facts in issue. In this case the Hon'ble Supreme Court went to the extent of stating that an obligation is cast on the employer to ensure that all benefits are extended to such employees. Further as against the order in the case of Radha Kishun (supra), the Hon'ble High Court considered a later order of the Hon'ble Supreme Court in the case of Ramswaroop Masawan v. Municipal Council and Anr. (supra) wherein the Apex Court viewed the continuance in service beyond retirement as synonymous to re-employment. In another case of Sahib Ram v. State of Haryana and Ors. , the Hon'ble Supreme Court refused to permit the recovery of payments where no misrepresentation had been made by the employee concerned.
(E) Supreme Court in Civil Appeal No. 548 of 2003 arising out of Order of Hon'ble Allahabad High Court State of U.P. and Anr. v. Shiv Narain Upadhyaya, dt. 28.7.2005. In this case the respondent - employee was to superannuate on 30.3.1990. He was wrongly allowed to work for three months more and was superannuated on 31.1.1991. The Hon'ble Supreme Court observed as below:
...We find that the respondent-employee had rendered service till the order dated 31.1.1991 was passed. It would not be equitable to direct refund of salary received by him upto 31.1.1991 beyond the actual date of superannuation i.e., 30.9.1990. However, the period beyond the actual date of superannuation i.e from 30.9.1990 to 31.1.1991 shall not be reckoned towards his retiral benefits.
(F) Hon'ble Supreme Court in Shyam Babu Verma and Ors. v. Union of India and Ors. 1994(2) SLJ 99 (SC) : 1994 SCC (L&S) 683, dt, 08.02.1994-In this case higher pay scale was given in 1973 erroneously to the petitioner which was reduced in 1974. The Hon'ble Supreme Court held that since petitioners received the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. The petitioners were in no way responsible for payment of higher salary. Principle of equal pay for equal work was upheld.
(G) Hon'ble Supreme Court - Sahib Ram v. State of Haryana and Ors. (supra) dt. 19.09.1994.
The Hon'ble Supreme Court opined as below:
Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.
The Hon'ble Supreme Court opined that both salary and pensionary claims are not admissible concurrently. If the applicant is to be paid salary upto the month of July, 2003, the entitlement of payment of pension cannot extend upto that date but will remain upto the date of retirement.
6. The Counsel for the appellant further argued that the decision of Hon'ble Apex Court in case of Narasimha Sundaram (supra) is a judgment of larger Bench consisting of three Judges and therefore, it will be binding precedent over the judgment of Apex Court given by smaller Bench consisting of two Judges. In support of his contention learned Counsel has placed reliance in case of Mahanagar Railway Vendors' Union v. Union of India 1994SCC (L&S) 735 wherein Hon'ble Apex Court ruled "the decision given by larger Bench (3 Judges Bench) would prevail over the decision given by smaller Bench (2 Judges Bench)".
Hombe Gowda Education Trust and Ors. v. State of Karnataka 2006 (1) SCT 197 it was held by Hon'ble Apex Court that the law laid down by the Constitution Bench of Supreme Court and Coordinate Benches is binding on the subordinate Court ignoring such law will be a judicial impropriety.
Sreedharan Kallat v. Union of India and Ors. 1995 SCC (L&S) 960. In this case the High Court judgment affirmed by Supreme Court that Central Administrative Tribunal not only commenting upon such judgment but denying the binding effect thereof on the ground of alleged inconsistency with rules. Such a view of the Tribunal - held against judicial comity and propriety.
In case of State of Maharashtra and Ors. v. Mana Adim Jamat Mandal 2006(2) SCT 204 Hon'ble Apex Court in Para 12 observed:
12. The same view was reiterated in the case of Union of India and Ors. v. Raj Rani and Ors. . In that case the payment of solatium and interest has been settled by a three-Judges Bench in Union of India v. Hari Krishan Khosla 1993 Supp. (2) SCC 149. which held that the respondents were not entitled to the payment of interest and solatium. A contrary view of a two-Judges Bench decision in Rao Narain Singh v. Union of India was brought to the notice of this Court and this Court held that in view of three-Judges Bench decision held in Hari Krishan Khosla case, the ratio of Rao Narain Singh case is no longer a good law.
Hindustan Aeronautics Ltd. v. Income Tax Commissioner, Karnataka-I, Bangalore . Hon'ble Apex Court in Para 7 observed:
7. ...the circulars or instructions given by the Board are not doubt binding in law on the authorities under the Act but when the Supreme Court or the High Court has declared the law on the question arising for consideration it will not be open to a Court to direct that a circular should be given effect to and not the view expressed in a decision of the Supreme Court or the High Court....
7. It has been further pleaded on behalf of the appellant that judgments of Hon'ble Supreme Court lay down the law of the land and supercede any subordinate legislation in whatever form. Decisions of the Apex Court is supreme and therefore binding on all subordinate Courts and Tribunals. In view thereof any circular/instruction issued by departments will not stand where an issue has been settled by the Apex Court. For this proposition, reliance has been placed on:
1. Hindustan Aeronautics Ltd., Bangalore v. Commissioner of Income-tax, Karnataka AIR 2000 SC 2176.
2. Judge E. D'Souza v. Union of India and Anr. O.A. No. 751/2004 decided by the Bombay Bench on 22.7.2005.
3. Shreedharan Kallat v. Union of India and Ors. 1995 SCC (L&S) 960.
4. Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr. .
In the last case quoted above, the Apex Court has made the following observations:
When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.
8. The respondents, apart from filing written reply, submitting oral arguments, have also filed an affidavit with a view to bring more documents pertaining to the issue to which a rejoinder have also been filed by the applicant. The respondents have made the following submissions:
(a) The Counsel for the respondents vehemently pleaded that in view of the ratio laid down by the Hon'ble Supreme Court in the case of Radha Kishun v. Union of India and Ors. (supra), dt. 28.2.1997, the claim of the petitioner should be rejected forthwith. In this case, the petitioner had joined the service and admittedly his date of birth was 13.5.1933 and accordingly he was to retire on 31.5.1991. Instead, he remained in service till 31.5.1994. The Hon'ble Apex Court opined that:
It is 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. Secondly, though he should be entitled to some compensation for the service rendered, however, if such condition is accepted it would be field day for manipulation with impunity and one would get away on the plea of equity and misplaced sympathy.
Under the circumstances the petitioner was dismissed. In the appellants case facts are similar to the present case, hence this ruling is squarely applicable to the petitioner's case.
(b) While it is a duty of the respondents to issue a list of retiring officer/officials and take necessary steps for procedural formalities, the responsibility also rests with the petitioner. It was pointed out that the petitioner as against the claim of illiteracy, is in fact a union of leader and he has been signing number of documents in that capacity. The respondents produced many letters annexed to the affidavit to show that the petitioner has been signing in English and even the letters are drafted in English. Therefore, to say that the petitioner is an illiterate person is not correct.
(c) Counsel for the respondents has further pointed that the younger brother of the applicant has a pension account in the Bank of Maharashtra, Ulhasnagar Branch where the petitioner had also his pension account. It is evident from the record of the Bank that his younger brother who was Appraiser in the Collector of Customs of Mumbai at the time of retirement, retired on 31.12.1994, therefore, it cannot be said that the appellant was ignorant of the fact that he had to retire before his younger brother.
(d) The contention that no action has been taken on anybody in the establishment for the lapse allowing the appellant to be continued for long years beyond the date of retirement is not correct. It is pointed out that the departmental action has been taken against erring officials, a charge-sheet was issued to Mrs. Meena More and Shri Nitin Kuwar who were working as Head Clerks responsible for the steps to be taken for appellant's retirement. These two officials were also punished as mentioned in the copy of the letter annexed to the affidavit.
(e) The Counsel has also emphasised that the case of State of Bihar v. Narasimha Sundaram (supra) relied upon by the appellant is distinguishable and obviously not applicable to the present case. He reiterated that this case is totally covered by the ruling in the Radha Kishun's case (supra).
(f) The learned Counsel for the respondents has also stated that all other judgments cited by the appellant are distinguishable and not applicable to the present case. On the contrary he argued that the case of State of Bihar v. Narasimha Sundaram (supra) is not applicable to the facts of the present case. He referred to para of the said decision, wherein Hon'ble Apex Court disposed of the appeal with the following directions:
5. In the circumstances, we modify the directions of the High Court in the impugned judgment relating to the payment of post-retiral benefits by permitting the appellant-State to delay the payment of pension for some time and dispose of the pending proceedings under the Bihar Pension Rules as expeditiously as possible but not later than six months from today and we further direct that in accordance with the final orders which are passed in the proceedings, the appellant - State shall immediately pay whatever benefits the respondent is found entitled to. We also make it clear that the respondent shall be entitled to challenge in accordance with law any order which is passed against him hereafter under the Rules. The appeal is disposed of. There will be no order as to costs.
He argued that Apex Court has not laid down any law but simply given direction.
(g) In support of his contention learned Counsel has placed reliance on the decision of Apex Court in case of Haryana State Coop. Land Development Bank v. Neelam 2005(2) SLJ 218 (SC) : 2005 SCC (L&S) 601, A decision as is well known and is an authority for what it decides and not what can logically be deduced therefrom.
(h) He further argued that the judgment in case of Radha Kishun (supra) is not per incuriam. Reliance has been placed in case of Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. the head note (A) reads as under:
(A) Per incuriam decision-A ruling making specific reference to earlier binding precedent may or may not be correct -But it cannot be said to be per incuriam-View of law taken by Constitution Benches in Parija's case reported in 2001 AIR SCW 5016 : AIR 2002 SC 296 and in other series of cases namely Chandra Prakash case in 2002 AIR SCW 1573 : AIR 2002 SC 1652, Abdul Gani's case in (2002) 10 SCC 437 and Arya Samaj case in (2004) 8 SCC 30-Cannot thus be said to be per incuriamto earlier decision in Raghubir Singh's case in AIR 1989 SC 1933.
(i) Learned Counsel for the respondents further argued that the recovery can be made from the employee if the payment has been made by mistake. He has placed reliance on the following decisions:
Shanthakumari P.J. v. State of Kerala and Ors. 2006(1) ATJ 321, the head note reads as under:
Pay fixation-Recovery-Recovery of amount on account of over payment-If an employee has received any amount contrary to a statutory provision the mistake is mutual since the administration as well as the employee is bound by the statutory provision - Paying and receiving the amount contrary to the statutory provision is illegal - A mutual mistake has to be shared by both the parties.- Hence unless there is a statutory bar in recovering the amount, any amount paid by mistake could be recovered depending upon the facts and circumstances of each case -The view that recovery can be made only when employee has contributed to the mistake not sustainable.
(j) In case of Union of India and Ors. v. Sujatha Vedachalam (Smt.) and Anr. 2000 SCC (L&S) 882 Hon'ble Apex Court directed that recovery of excess payment on account of wrong fixation of pay to be recovered in easy instalments.
(k) In the case of O.K. Udayasankaran and Ors. v. Union of India and Ors. 1996(2) SCSLJ 05. It was held by Hon'ble Apex Court that wrong pay given to re-employed ex-servicemen in LIC on the basis of incorrect fitment in the light of instructions - Authorities reduced the pay on the basis of correct fitment - No illegality.
(1) While summarising the contentions, the Counsel for respondents vehemently refuted the plea of the applicant and stated that the applicant knowingly overstayed in service and does not deserve to be paid for the overstay period. Recovery by the department is justified.
9. It is noted that following facts emerge out of the above narration:
(a) Applicant was due to retire on 1992 but he continued and overstayed in service upto 18.6.2003.
(b) His retiral dues have not been paid rather a demand has been made by respondents for recovery of Rs. 13,20,329 being salary and allowances paid for the period of overstay i.e. 1.11.1992 to 17.6.2003.
(c) He has been informed that payment of pension and other retiral dues could be paid only after recovery of the aforesaid amount.
(d) All service records of the applicant were in the possession of the respondent.
(e) It was obligatory for the respondents under the Rules to issue a list of retiring officials/officers and take all necessary steps to retire them. Admittedly this was not done by respondents.
(f) Admittedly, applicant was never accused of any fraud, misrepresentation or connivance with anyone so as to manage continuation in service.
(g) No action has been taken by respondents against the applicant for the continuance in service.
(h) The action taken against 2 Head Clerks does not implicate the applicant in any way.
(i) There is no proved misconduct on the part of the applicant or evidence of influence on the issue because of his position as a Union leader.
(j) On the contrary he was promoted as a Junior Engineer Grade-I on 10.1.1997 i.e. during the period of overstay. Promotion must have been granted after perusing the records by respondents.
(k) From the evidence filed by the respondents he has signed in English on the letters issued as Union leader but the English language written appears to be that of semi-literate person. In any case being literate or illiterate does not have much bearing on the issue. Even in case of a highly literate official, it is the department which has to take all steps under the Rules.
(1) There is nothing on record to show that applicant was actually aware about his date of superannuation.
(m) Respondents continued to make payment of salary afterthe date of retirement and they must have ensured correctness of the payments.
(n) Respondents have also made deductions like P.F. etc. which indicates due application of mind. So they are an equal party.
(o) It cannot be disputed that he has rendered services upto 17.6.2003.
(p) Various rulings quoted by applicant indicate:
1 Salary paid for the period beyond superannuation cannot be recovered. However, salary and pensionary benefits are not admissible concurrently.
2. It is obligatory for employer to extend all benefits to employee.
3. Such continuation is equal to re-employment.
4. No recovery can be made if applicant has not misrepresented facts or misled the department.
5. No recovery can be made as applicant not responsible for payment of salary.
6. In case of State of Bihar v. Narasimha Sundaram (supra), the payments were allowed even when applicant had committed a fraud.
(q) Judgment of Larger Bench will supersede judgment of smaller Bench.
(r) Ruling of Apex Court would override any circular or rules.
(s) Supreme Court decision is the law of the land.
(t) Case of Radha Kishun relied by respondents is not only distinguishable but superceded by a larger Bench.
(u) The fact of applicant's younger brother's retirement on the basis of a given date of birth in 1994 may be true but it is not clear how it is connected with applicant's case.
(v) The rulings cited for payment of interest on delayed payment of retiral benefits clearly permit payment of interest.
10. We have carefully considered the facts which have emerged as above.
(a) In view thereof we are of the opinion that ratio laid down in all Rulings cited on behalf of the applicant are applicable to the case of the applicant.
(b) Therefore, continuance in service beyond retirement age is to be treated as re-employment as held by Hon'ble Apex Court in case of Ramswaroop Masaswan (supra).
(c) Thus, in view of decision of Apex Court in case of State of Bihar v. Narasimha Sundaram (supra) we are of the considered opinion that the respondents are not justified in withholding the retiral dues of the applicant including provident fund contributed upto 17.7.1993 and in making recovery of salary paid to him during the entire period of overstay from the retiral dues of the applicant because respondents cannot refuse his emoluments for period in question as no proceedings were ever initiated against the applicant as contemplated by Section 9 of the Railway Service (Pension) Rules, 1993.
(d) The judgment of Apex Court in Radha Kishun (supra) relied upon by learned Counsel for respondents is delivered by a smaller Bench consisting of two Judges in which the decision of larger Bench consisting of three Judges was not noticed. Thus, the ratio of Radha Kishun's case will not be a binding precedent as against the judgment of larger Bench on the subject.
(e) We are unable to appreciate the contention of the learned Counsel for the respondents that the Hon'ble Apex Court has not laid down any law but simply issued direction. From the observation of the Hon'ble Apex Court in case of State of Bihar v. Narasimha Sundaram (supra), it is crystal clear that the applicant had worked on the post and he has been paid salary which cannot be subsequently recovered in view of the fact that there is no allegation against him that he in any manner mis-led the department in allowing him to continue in work even after retirement. Therefore, ratio of decision of the larger Bench which is quoted in Para 3 of the above judgment is applicable to the facts of the present case with full force.
(f) It is the contention of the respondents that recovery of amount of salary paid to him as a result of continuance of service is being made as per Railway Board letter dated 07.7.1999 amending the Rule 1801(d) IREC-II, we are unable to accept the contention of learned Counsel for the respondents in view of the settled legal position in case of Hindustan Aeronautics Limited (supra) wherein it was held:
The effect that the circulars or instructions given by the Board are not doubt binding in law on the authorities under the Act but when the Supreme Court or the High Court has declared the law on the question arising for consideration it will not be open to a Court to direct that a circular should be given effect to and not the view expressed in a decision of the Supreme Court or the High Court to direct that a circular should be given effect to and not the view expressed in a decision of the Supreme Court or the High Court.
Thus the amended provision of Rule 1801(d) shall be viewed in the light of decision of Hon'ble Apex Court in case of State of Bihar v. Narasimha Sundaram (supra) which is binding precedent under Article 141 of the Constitution.
11. In view of the foregoing discussions, O.A. succeeds. It is accordingly allowed with the following directions:
(1) The applicant would be entitled for salary from 01.11.1992 to 17.6.2003, however this period will not be counted for pensionary benefits.
(2) He will be entitled for pensionary benefits due as on the actual date of retirement i.e. on 31.10.1992.
(3) Respondents are directed to pay all retiral dues including P.F., DCRG, Commuted pension, leave salary and Group Insurance till 31.10.1992 on the basis of post held by him as on 31.10.1992 i.e. of Turner Grade I. (4) Respondents are directed to pay interest @ 08% on retiral dues from the date when such dues became payable till the date of actual payment.
(5) Respondents are restrained from recovering any amount paid as salary and allowances with effect from 1.11.1992 to 18.6.2003.
(6) Respondents are restrained from recovery of Rs. 13,20,329 from applicant's pension and other retiral dues.
(7) Respondents are directed to comply with above directions forthwith and in any case not later than 02 months from the date of communication of this order.
No costs.