1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.3868/2005 (Ram Chandra Vs. Food Corporation of India & Ors.) Date of order : May 29th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. H.K. Purohit, for the petitioner. Mr. Nitin Trivedi, for the respondents. In this writ petition, the petitioner has prayed to declare him entitled to get payment for services rendered in Food Corporation of India beyond 28.2.1996, more specifically from 1.31996 to 24.10.1997. Further, it is prayed that the recovery of the amount by the respondents vide Annexure P/1 for the period from 1.3.1996 to 24.10.1997 may be declared illegal. However, it is prayed that the impugned letter dated 8/9.6.2005 Annexure-P/3 issued by the respondent No.3 may be set aside and the respondents may be directed to make payment of Rs.1,45,947/- along 2 with interest at the rate of 12% per annum from the date it became payable till the actual date of payment. According to the facts of the case, the petitioner was initially appointed in the Central Food Department of India on 13.2.1962 on the post of Shifter. Thereafter, he was transferred to Food Corporation of India where he worked till his superannuation. All of a sudden the petitioner was relieved from services on superannuation on 25.10.1997 when he was working as Dusting Operator (Class-IV employee) in the F.C.I. Till that date he was performing duties in the Office of F.C.I. Against the order of superannuation dated 25.10.1997, a writ petition was preferred before this Court by the petitioner being SB Civil Writ Petition No.59/1999 raising his claim for retirement on 28.2.1998 and for payment of pension. This Court vide order dated 27.7.2001 while dismissing the writ petition filed by the petitioner directed the respondents that “.... it is expected from the respondents to determine the amount payable to the petitioner and pay the same to the petitioner. This exercise may be completed within a period of one month from the date of submission of a certified copy of this order. If the decision on either of the claims of the petitioner go adverse to him, he is free to approach this Court by way of filing a petition. No 3 order as to cost” In pursuance of the above order passed in the earlier writ petition filed by the petitioner, a letter was issued to the petitioner on 4.10.2001 showing therein the amount of terminal benefits upto 28.2.1996 and in that letter recovery of Rs.1,45,947 was shown for the period of service rendered by the petitioner beyond 28.2.1996 and by that letter cheque of Rs.2,47,131/- was sent to the petitioner after deducting the aforesaid amount of Rs.1,45,947/-. In this writ petition, the petitioner is not raising voice against the date of his superannuation fixed by the respondents as 28.2.1996 because his claim for his superannuation w.e.f. 28.2.1998 was earlier rejected by this Court. Meaning thereby, in this writ petition, the petitioner is claiming that although the respondents have fixed his superannuation age as pm 28.2.1996 but without any fault of the petitioner, he was allowed to continue on the post upon which he was working till 24.10.1997 and during this period he has actually performed the duties and for that purpose he was paid salary, therefore, even if the period commencing from 1.3.1996 to 24.10.1997 is not counted for the purpose of reckoning the qualifying service for grant of pension the petitioner is entitled for the salary because for this period he had performed his duties and he was paid salary for 4 performing work which is admittedly allowed by the respondents, therefore, the salary which is paid to the petitioner in lieu of his work during the period commencing from 1.3.1996 to 24.10.1997 cannot be recovered from the petitioner because it is against the principles of natural justice, so also, he has been paid salary for that period while taking work from the petitioner. In this writ petition, the petitioner is claiming salary, which is paid to him for services rendered by him w.e.f. 1.3.1996 to 24.10.1997 and in that period, the petitioner was allowed to work by the respondents and work was taken from him, therefore, there is no question of recovery of salary, which is paid to the petitioner for this period. Therefore, as per the petitioner, salary which is paid to the petitioner beyond the date of superannuation cannot be recovered because for the said period, the petitioner performed the duties and the respondents took work from the petitioner, therefore, the deduction of salary from his retiral benefits is unjust, unreasonable and against the fundamental principles of governance. Therefore, the petitioner has prayed for quashing the order of recovery, so also, prayed to pay the amount of C.P.F. amount, which is deducted from the salary of the petitioner for the said period. In support of his contention, the petitioner 5 has invited the attention of this Court towards the judgment reported in WLR 1995 Raj 446 (Narayan Ram Vs. State of Raj. & Ors.) and 1991 (2) RLR 410 (Bhanwar Singh Vs. State of Raj. & Ors.) whereby the Coordinate Bench of this Court in both the above cases, held that employee cannot be said to refund the salary for the period for which he has actually worked after superannuation date. Per contra, the respondents by way of filing reply, first of all raised an objection that this writ petition deserves to be dismissed on the ground of res judicata because the claim of the petitioner in respect of entitlement of his services rendered after the period beyond 28.2.1996 as the actual date of superannuation on attaining the age of 58 years was already decided by learned Central Government Industrial Tribunal, Jaipur vide order dated 31.8.2004 and the same was never challenged by the petitioner before any appropriate forum. It is also submitted that the earlier writ petition filed by the petitioner was also dismissed in which the petitioner has claimed for superannuation w.e.f. 28.2.1996. Meaning thereby as per the adjudication made by the Tribunal, the petitioner has not been held entitled for services till 28.2.1996, therefore, this writ petition is barred by principle of res judicata. Further, it is submitted that the petitioner 6 was initially appointed in the Food Department of Government of India as Shifter on 13.2.1962 and his services were regularized w.e.f. 4.3.1981 and after constitution of Food Corporation of India, the services of the petitioner were transferred to Food Corporation of India in the month of March, 1969. Therefore, as per superannuation age prescribed for the employees of Food Corporation of India, the petitioner was required to be retired on attaining the age of 58 years but due to confusion and the fact that the petitioner had opted for services of the answering respondents, he was to be retired on attaining the age of 58 years but due to bonafide mistake that he had opted for the food department while exercising his option, he was not relieved from the services till 28.2.1996 but when the papers of the terminal benefits was sent to the Headquarter Office for the finalization of the retiral benefits then it is revealed that the petitioner had opted for the services of Food Corporation of India, so he is not entitled to retain in service after attaining the age of 58 years. When above information was received from the Headquarter Office, the petitioner was relieved immediately from the services on 25.10.1997, therefore, there is no question of illegality in retiring the petitioner and treating his superannuation age as 28.2.1996. The petitioner cannot claim any retirement benefits beyond said period, therefore, the recovery of the amount of 7 Rs.1,45,947/-, which is paid to the petitioner for the period before the date of superannuation was rightly ordered to be deducted from his retirement benefits, there is no illegality on the part of the respondents. The petitioner is obviously not entitled to get any benefits after attaining the age of superannuation on 28.2.1996, therefore, the question of paying CPF amount for the said period does not arise. In para No.3 and 4 of the reply, it is stated by the respondents that due to bonafide mistake, the petitioner was allowed to work after 28.2.1996 similarly in para 7 of the reply, it is specifically stated by the respondents that inadvertently the workman was permitted to continue even after his superannuation date which is 28.2.1996 but it does not confer any legal right upon him to be in service till attaining the age of 60 years. Therefore, the recovery made on account of services rendered by the petitioner beyond the age of superannuation is perfectly legal and justified the petitioner's claim is totally unfounded because by mistake and inadvertently he was permitted to continue even after the age of superannuation. Therefore, this writ petition is liable to be dismissed. Learned counsel for the respondents has invited my attention towards the judgment rendered in case of Radha Kishan Vs. U.O.I. & Ors., reported in 8 1997 SCC (L&S) 1185 while citing above judgment, it is submitted that Hon'ble Apex Court held that the employee is not entitled for any monetary benefits for the services rendered beyond the age of superannuation and in that case a disciplinary action was ordered against those officers who allowed the employee to continue even after attaining the age of superannuation. Therefore, the petitioner is not entitled for the relief prayed for against the recovery of amount of salary from his retiral benefits. I have considered the rival submissions made by the parties and perused the entire record of the case. First of all this writ petition cannot be rejected on the ground of res judicata raised by the respondents because the Central Government Industrial Tribunal, Jaipur adjudicated the matter with regard to entitlement of superannuation age in which the petitioner had claimed the superannuation after attaining the age of 60 years but in this case, the petitioner is not raising any voice for his retirement w.e.f. 28.2.1996 but the petitioner is claiming relief that the recovery of Rs.1,45,947/- which was paid to him in lieu of the work performed by him after 28.2.1996 till 24.10.1997 – the day on which the petitioner was relieved. The contention of the petitioner is that even though the petitioner has been 9 held entitlement for continuing in service till attaining the age of 58 years on 28.2.1996. The respondents cannot deduct or recover the salary which is paid to him for rendering his services. Further, it is submitted that respondents themselves admitted in the reply that due to confusion whether the petitioner is entitled to be retired after attaining the age of 60 years as an employee of Food Department or entitled for retirement after attaining age of 58 years as an employee of F.C.I. he was allowed to work inadvertently by the respondents themselves and upon perusal of service record when it came to the knowledge of the respondents that as per option of the petitioner, he became employee of F.C.I., therefore, he was to be retired after attaining the age of 58 years, therefore, the petitioner was immediately relieved but it is nowhere stated in the reply that for continuity any misrepresentation was made by the petitioner or petitioner is liable for continuance in service after 28.2.1996. Therefore, in my opinion, the judgment cited by learned counsel for the respondents in case of Radha Kishan (supra), the Hon'ble Apex Court has held that officers of the respondents department due to absolute irresponsibility allowed the employee to work after attaining the age of superannuation. In that case, admittedly the employee was to be retired on 1.6.1991 but due to irresponsibility on the part of the officers concerned in the establishment, employee was 10 allowed to work. But here in this case, the facts are altogether different because there was confusion left with the respondents whether the petitioner is required to be treated as an employee of the Food Department of India or employee of F.C.I. when the position was clarified by the Headquarter Office that the petitioner is required to be treated as an employee of F.C.I. after transfer from Food Department he is to be retired after 58 years of age and not 60 years, which is superannuation age of department of Food Department. Therefore, in the reply filed by the respondents, it is admitted that due to mistake and inadvertently upon confusion, the petitioner was not retired after attaining the age of 58 years on 28.2.1996. therefore, in my opinion, the petitioner cannot be held responsible for continuance in service after attaining the age of 58 years, which is 28.2.1996. Therefore, the facts of the judgment cited by the learned counsel for the respondent is entirely different then the facts of the present case. In view of above discussions, I am of the opinion that writ petition deserves to be allowed because the petitioner performed the work in the Food Corporation of India w.e.f. 1.3.1996 to 24.10.1997 and he has been paid salary for the work rendered by him and he was allowed to work due to confusion by the 11 respondents for which petitioner cannot be held responsible. Therefore, the remuneration paid for the said period cannot be deducted because for the said period, the petitioner had worked and performed his duties as an employee. Accordingly, the writ petition is allowed. Consequently, the order Annexure-1 to the extent of making recovery of Rs.1,45,947/- from the petitioner is set aside. The respondents are directed to refund Rs.1,45,947, which is deducted from his retiral benefits within a period of one month from the date of receipt of certified copy of this order. It is also made clear that the petitioner is entitled for retiral benefits till his date of superannuation which is 28.2.1996 as adjudicated by Central Government Industrial Tribunal, Jaipur, so also by this Court in the earlier writ petition. No order as to costs. (GOPAL KRISHAN VYAS), J. arun