WP(C) 382/2010 BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND,MEGHALAYA, MANIPUR,TRIPURA, MIZORAM AND ARUNA CHAL PRADESH) WP(C) NO.382 OF 2010 Sri Ramesh Ch. Sarma, S/O Late Nabin Ch. Sarma, Mechanic(Retired), Directorate of Physical Plant, Khanapara, Guwahati-22. & &.. & petitioner. - Vs - 1. The Vice Chancellor, Assam Agriculture University, Jorhat-13. 2. The Comptroller, Assam Agriculture University, Jorhat-13. 3. The Director of Physical Plant, Assam Agriculture University, Jorhat. 4. The Executive Engineer, Assam Agriculture University, Khanapara, Guwahati. & &.. & Respondent s BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY Advocates for the petitioner : Mr. S. Sarma Mr. G. Goswami, Ms. B. Devi Mr. HK Das Advocates for the respondents : Mr. P. Kataki, SC A.A.U. Date of hearing and delivery of judgment & order : 21.07.2011 JUDGMENT & ORDER (ORAL) Heard Mr. S. Sarma, learned counsel for the petitioner, and Mr. P. Kataki, learned standing counsel appearing for the respondents-University. 2. By this application under Article 226 of the Constitution of Ind ia, the petitioner has challenged the orders dated 15.06.2007 and 18.06.2007, di recting recovery of excess payment of salary made to the petitioner. 3. Facts, leading to the filing of this petition, may be stated in brief, as follows:- The petitioner was an employee of the Assam Agricultural Univers ity, Jorhat and was working as a Mechanic in the Directorate of Physical Plant u nder the Executive Engineer, DPP, Khanapara, Guwahati. He was supposed to retire from his service on July, 2007. However, by an order dated 30.05.2007, issued b y the respondent Department, his pay was held up and thereafter the petitioner w as served with another order dated 15.06.2007, by which he was treated to be ret ired from service with effect from 31.07.2004. It was also indicated in the orde r dated 15.06.2007 that the salaries, drawn in excess during the entire period f rom 31.07.2004, would be recovered from his pensionery benefits. 4. It has been contended on behalf of the petitioner that the whole exercise was carried out by the respondents-Department without giving any oppor tunity to the petitioner of being heard. Though the petitioner made several repr esentations before the respondent authorities concerned, but the concerned autho rities never acted upon on those representations. Hence this writ petition. 5. The respondent-University by filing affidavit has stated that th e date of birth of the petitioner was recorded in his Service Book as 09.07.1947 , at the time of his appointment, and, accordingly, he was supposed to go on ret irement, on 31.07.2007. However, the Director of Physical Plant, Assam Agricultu ral University, Jorhat, called for the original HSLC Admit Card of the petitione r for verification, and on verification, it was found over-written, and therefor e, it was sent to the Board of Secondary Education, Assam, for further necessary information. Consequently, on receipt of the information from the Board of Seco ndary Education, Assam, it was found that on 01.03.1966, Sri Ramesh Chandra Sarm a, Mechanic was 21 years 7 months and 22 days. Therefore, the date of birth of t he petitioner would have been 09.07.1944 instead of 09.07.1947. Accordingly, the respondent authority concluded that the petitioner ought to have retired from s ervice on 31.07.2004, on attaining the age of 60 years. 6. The respondents-University further stated that since the petitio ner overstayed in the service, the matter was taken up by the higher authorities and accordingly an order dated 15.06.2007 re-fixing his date of birth as on 09. 07.1944 was passed and accordingly, his date of retirement was fixed on 31.07.20 04. Consequently, the entire payment of salary made in excess from the date of h is retirement till his continuation of service upto 15.06.2007, was recovered fr om his pensionery benefits. 7. Learned counsel for the petitioner submitted that the entire exe rcise of ascertaining the age and date of birth of the petitioner was carried ou t by the authority concerned after the retirement of the petitioner from service , and without intimating him, or even without giving him any opportunity of bein g heard. 8. Apparently, there is no denial of the fact from the side of the respondents that no inquiry whatsoever was conducted for the said irregularities , before taking any decision to panelize the petitioner to deduct the excess sal ary paid to him from the so called date of retirement, fixed by the authority co ncerned. Admittedly, until the actual date of release from service the petitione r was continuously serving in the Department. 9. Mr. Kataki, learned counsel for the respondents strenuously subm itted that since continuation of the petitioner in service after the actual date of retirement was illegal, the salary paid to him during the additional excess period, was rightly recovered by the authority concerned. 10. However, fact remains that the respondents authority duly utiliz ed the best services of the experienced petitioner till his date of retirement. Understandably, had there been a vacancy in the post, even then, probably, a new incumbent would have joined in the post and almost similar amount of salary wou ld have been paid by the respondents to the new incumbent, during the aforesaid period. 11. Learned counsel for the petitioner by referring to a decision of this Court, reported in 2008(3) GLT 97 : Manohari Das Vs. State of Assam & Ors. , submitted that in a similar situation, for a similarly situated Government emp loyee this Court, relying on the decision rendered by the Hon’ble Apex Court as well as this High Court held that the petitioner would be entitled to the salary for the period, during which he rendered the service in the Department. The rel evant extracts of the decision in Manohari Das(supra) read as follows: 7. While rendering the aforesaid judgment in Charubala (supra) this Court reli ed upon the decisions of the Apex Court reported in MANU/SC/0332/1967 <javascrip t:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0332/1967’,’1’);> : (1967)IILLJ266SC (State of Orissa v. Dr. (Miss) Binapani Devi and <javascript:f nOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0328/1977’,’1’);>Ors.), MANU/SC/0328/1977 : [1978]1SCR145 (R.S. Kallolimath v. <javascript:fnOpenGloba lPopUp(’/citation/crosscitations.asp’,’MANU/SC/0443/1981’,’1’);>State of Mysore and Anr.) and MANU/SC/0443/1981 : (1981)IILLJ380SC (Sarjoo Prasad v. The General Manager and Anr.). In the cases mentioned hereinabove, the Hon’ble Apex Court h as held that the authority is under a duty to give a person against’ whom an enq uiry is held, an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority whi ch is sought to be relied upon to his prejudice. For that purpose, the person, a gainst whom an enquiry is held, must be informed of the case he is called upon t o meet and the evidence in support thereof. Duty to act judicially would, theref ore, arise from the very nature of the function intended to be performed. It nee d not be shown to be super added. If there is power to decide and determine to t he prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essential of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rul e of law and importance thereof transcends the significance of a decision in any particular case. Therefore, Mr. Kataki is correct in contending that the impugn ed order was passed in violation of principles of natural justice which has caus ed prejudice and visited the petitioner with adverse civil consequences. 9. Considered the rival submission advanced by the, learned Counsel for the part ies. In view of the materials available on record, there is no dispute to the fa ct that the petitioner has rendered service for the period alleged to be oversta yed, i.e. 1.1.2000 to 30.6.2002. However, as per decisions rendered by the Hon’b le Apex Court as well as this Court, the petitioner would be entitled to his sal ary for the said period and thus there is no reason as to why he should be depri ved of the salary for that period. 10. From the pleadings including the records made available before this Court an d also considering the facts and circumstances of the case in its entirety, this Court find no reason to deprive the petitioner of the salary for the period afo resaid for which he actually rendered his service. 12. Accordingly, in view of the above, without lingering the discuss ions any further, accepting the view expressed in Manohari Das(supra), I allow t he writ petition and set aside the impugned orders, for violation of the princip le of natural justice which has naturally caused prejudice to the petitioner whi ch resulted in adverse civil consequences. 13. In terms of the decisions of the Apex Court and this Court as di scussed above, the petitioner would be entitled to his salary for the entire per iod during which, he rendered his experienced service to the respondents departm ent. 14. Consequently, I direct the respondents-authority concerned to re pay and refund the amount of the petitioner’s salary, from 31.07.2004 till the a ctual date of his release from service i.e. May, 2007. I further direct the auth ority concerned to refund the dues deducted from the petitioner taking the date of his retirement, on and from the actual date of release from service. It is al so made clear that all necessary payment as stated above shall be released by th e respondent authority to the petitioner within a period of three months from th e date of receipt of a certified copy of this order. 15. With the above observations and directions, this writ petition i s disposed of. However, considering the facts and circumstances, I pass no order as to costs.