AFR Respondents: (i) Chhattisgarh Electricity Board Qoffym'w., Raipur (C6) (ii) Superintending Engineer, Chhattisgarh Electricity Board, ftajnandgoo S B : Hon'ble Shri Justice Satish Kumar Agnihotri. J. Shri Ajay ShrivdStava, counsel for the petitioner. Shri PKC Tiwari, Senior counsel with Shri Avinash K Mishra, counsel for the respondsnts. ORAL ORDER (4th January/2006) This petition has been filed under article 226, 227 of the Constitution of India challenging legality of the order dated 29.01.1996 (Annexure P/4) whereby the date of retirement of the petitioner hds been changed to the retrospectivedate from 01.01.1994 to 30.06.1988. 4.-/ .s - s> C Petitioner- COURT OF CHHATTIS6ARH AJ BILASPUR / ^(, i WP N0 611 OF 2001 Motilal Sahu, aaed 65 years S/o ^moli Sahu, Retired Lineman 6ra.de TI, MPEB Rajnondgaon (C6) Resident of Near (Surudwdra, Infront of Main Hospital, Rajnandgaon, Tah & Distt Rajnandgaon (C6) Versys 2) The facts in nutshell and releyant for the purpose of this petition are that the petitioner was appointed as Lineman Srade-II by ^J ^ ^^} the Superintendent Engineer, AAPEB, Rajnandgaon and continued work as Linemoui Srade-II till by order dated 01.01.1994 (Annexure P/l), he was retired from services w.e.f.01,01.1994 on attuinin9 the age of superannuation. The respondents by order dated 29.01.1996 cancelled the order dated 01.01.1994 whereby the petitioner w<is directed to retire w.e.f.01.01.1994. It wasordered that the petitioner ought to hme retired w.e.f.30.06.1.988 on attaining the cs.ge. of superonnuation of 58 years. I- !\ 3) Subsequently, by order dated 05.02.1996 (Annexure P/3), respondents treated period of service of the petitioner from 01.07.1988 to 31.12.1993 as re-appointrnent and the petitioner was granted basic pay scale as payable on 30.06.1988 andallowances minus payable pension. Accordingly, respondents catculated excess payment of fts.87,755/- (Rupees ei9hty seven thousand, seven hundred fifty n' five) as recoverable, due to excess working period of 5 years six months. After adjusting gratuity, ex9ratia and pension amount of Rs.59,779/- (Rupees fifty nine thousand, seven hundred seventy nine), balance arnount of Rs.27,755/- (Rupees twenty seven thousond, seven hundred fifty five) was directed to be recovered © Rs-600/- (Rupees six hundred) per month from the pension of the petitioner by order dated 09.12.1997 (Annexure R-6). 4) Shri Ajay ShrivdStava. learned counsei appearing for the petitioner submits that the orders dated 29.01.1996, 05.02.1996 and letter dated 09.12.1997 are bad and unlawful on the following grounds;- i) ii) That the petitioner has retired w.e.f.01.01.1994 by order dated 01.01.1994 passed by the respondents, not on account of any mis-representation made by the petitioner. The petitioner was allowed to work from 01.07.1988 to 31.12.1993 ond has been paid salary inclusive of increments, allowances etc. Order of the respondents to chonye date of retirement and to recover excess amount on the basis of treating the period from 30.06.1988 to 31.12.93 as re-appointment is unfair, un-reasonable and illegal; and The above stated orders (supra) passed by the ,'espondents involve civil consequences and as such, the same could not have been pexssed without putting the petitioner on notice. This amounts to flagrant violation of principles of natural justice. Learned counsel for the petitioner submits that the above stated orders dated 29.01.1996, 05.02.1996 & 09.12.1997 be quashed and rsspondents be directed to make payment of the deducted amount from the pension with interest. 5) Shri PKC Tiwari, learned Senior counsel with Shri Avinash K Mishra, learned counsel appearing for ttie respondents, submits that by mistake, the petitioner, who is Motital Sahu S/o Shri Amoli Sahu was allowed to work til! 31.12.1993. Actually this order dated 01.01.1994 was meant to be passed in co.se of other emptoyee, namely Shri Motilal S/o 5hri Amarnath. Learned counse! further contends that keepin9 in view the age and the date of birth, which have not been disputed by the petitioner, the petitioner has worked even after attaining the age of superannuation; and as such the petitioner was wrongly allowed to work and to obtain the same salary what he was getting prior to his retirement on supeninnuation. 6) Learned counsel for the respondents further submits that the respondents have taken decision on humanitarion ground to treat the period as re-cypointment, so that the petitioner could not be deprived of his salary for the work, he had done in the office. The petitioner is not entitled to his full salary but only last pay drawn as on 30.06.1988 with allowances minus pension admissible and payable to him. 7) I have heard learned counsel for the parties and perused the records appended to the petition as well as the return filed by the respondents. It is evident that Annexure P/l order dated 01.01.1994 clearly mentions the name of the present petitioner as Shri Motilal Sohu S/o Shri Amoli Sahu. Further Srders, which were passed on 29.01.1996, 05.02.1996 and 09.12.1997 state the same name i.e. Shri Motilal Sahu S/o Shri Amoli Sahu, name of the petitioner. Contention of the respondents is that this order was meant for other employee namely Motilal S/o Amarnath is not sustainabls and deser-ves to be rejected. ~ 8) It appears that other employee, namely, Shri AAotilal S/o Amarnath hds accepted his retirement w.e.f.01.07.1988 and was granted his pensionery benefits accordingly. The petitioner has worked and vws ordered to retire from his seryices w.e.f.01.01.1994 and as such, the petitioner cannot be denied payment of his salary, which had already been paid to him. 9) Subsequently, by order dated 29.01.1996 and 05.02.1996, the Officers of the respondents woke up from iong slumber after a period of 8 years to pass such an order that the age o-f retirement be chouiged with retrospective effect from 01.01.1994 to 30.06.1988. 10) The Supreme Court in the case of Kaildsh Sinoh Vs State of Bihar and others (2005 AIft SCW 3273) has held as under : "6. So far as post-retiral benefits are concerned it is submitted that ihey may not be admissible to him. We fail to appreciate the submissions made on behalf of the respondents in the background ofthe facts indicated in -ttie , eaflier paragraph. The respondents took work fpom 1he appellant without wiy disputQy He would obviously be enti+led to his salary and -there is no reason as to why he diould be denied the post-retiral benefi+s. t-lis total service comes to 32 years. We have already adyerteci to the fact that the medical report has not been placedon -the record, nor as to what is meant by ihe term "ayerage age", has been explained to us. In tfie totality of / •the facts and •ftie circumstances of Ihis case, we find no good reason to deny those benefits to the appellant. " 11) In other decision in the matter of Sahib Ram Vs State of Haryana and others {1995 SCC (L&S) 248} the Supreme Court has held that the petitioner had received higher salary not on account of any mis-interpretation made by the petitioner but by wrong construction or calculation by other Officers for which the employee cannot be held to be at fau!t. It was further held that the amount paid till date may not be recovered from the employee. In the instant case, there may be some mis-caicutations or wrong construction by the Officers of the Board for which the petitioner cannot be held responsibie as he had not continued in service tit! 31.12.1993 on the basisof any mis-representation made by him. ^ 12} In the case of Shagwan Shukla. S/o Sgrab.jit Shukla Vs Union of India and others {1994 (6) Supreme Court Cosss 154}, wherein the basic pay of the emptoyeewas reduced to Rs.181/- from Rs.190/- per month retrospectiyely w.e.f.18.12.1970; the Supreme Court hetd as under :- "The appellant has obyiously been visited wiifi civil consequences but he had been gmnted no oppor'hinity to show cause against -the reduction of his basic pay. He was not even put on notice before his pay was reduced by ihe department and the order cauie +o be made behind his bach without following any procedure known to law. Theiy has, itius, been a flagrant viotation of 1he principles of naiural justice and the appellant has besn fnade l-o suffer huge financiaf loss wiihout being heard. Fair phy in ac+ion warrants that no such order which has the effect of an employee suffering civil consequences shoutd be passed without putting -the (sic employee) concerned to no+ice and giving him a hearing in the inatter. ° In the present case, no show cause notice affording an opportunity of hearin9 to the petitioner was issued before the impugned orders dated 29.01.1996,05.02.1996 and 09.12.1997 were passed. 13) Accordingly, the petitioner is entitled to the same salary what he had received before the retirement and thereafter" he is further entitled to the retiral benefits as admissible and payable to him in accordance with law. 14) For the reasons stated above, the petition succeeds and is a!lowed accordingly. However, the petitioner u/ill not be entitled to any interest as the amount has in fact not been recovered from him but hasbeen deducted from his pension and gratuity, provided the respondents make full payment of the deducted amount from pension and 9ratuity within a period of two months. 'iadms 15} Under these circumstances, no order as tocosts. Sd/- Satish K. Agaihotri Judge