Case Note & Summary
The petitioner, K. G. Nangardhane, was a Head Master at Nagar Parishad Vidyalaya, Pavani, District Bhandara. He entered service on 23.7.1962 with his date of birth recorded as 30.8.1937. He claimed to be a confirmed employee prior to 1965 and entitled to retire at age 60 on 30.8.1997. However, the Education Officer (Secondary), Zilla Parishad, Bhandara issued a communication dated 7.10.1997 to the Chief Officer, Municipal Council, Pavani, stating that the petitioner's date of birth was 2.5.1937 and he had already completed 60 years on 2.5.1996, and thus salary paid from 2.5.1996 onwards should be recovered. The petitioner challenged this communication. The court noted that the petitioner had actually performed his duties till 30.8.1997 and that the Deputy Director of Education had earlier informed the Chief Officer on 26.8.1997 that the petitioner would complete 60 years on 30.8.1997. The petition was admitted on 23.12.1997 and by order dated 15.12.2000, the court directed provisional payment of pensionary/terminal benefits as if retired on 2.5.1996, keeping the question of terminal benefits open. The court held that the impugned communication directing recovery was unsustainable as it was issued without affording an opportunity of hearing to the petitioner and in the absence of any misrepresentation or fraud. The court allowed the petition, quashed the impugned communication, and directed that the petitioner be treated as having retired on 30.8.1997 with all consequential benefits.
Headnote
A) Service Law - Recovery of Salary - Bonafide Mistake - Recovery of salary paid to an employee for work actually performed cannot be ordered without affording an opportunity of hearing and in the absence of any misrepresentation or fraud by the employee. The court held that the impugned communication directing recovery was unsustainable as it was issued without hearing the petitioner and the petitioner had actually worked during the period. (Paras 5-6) B) Service Law - Date of Birth Dispute - Superannuation - Where there is a dispute regarding date of birth and the employee continues to work beyond the alleged superannuation date, the employer cannot unilaterally determine the date of birth and order recovery of salary without following due process. The court noted that the petitioner's date of birth was recorded as 30.8.1937 in service records and he was allowed to work till 30.8.1997. (Paras 2-3)
Issue of Consideration
Whether the recovery of salary paid to the petitioner for the period from 2.5.1996 to 30.8.1997, during which he actually performed duties, can be ordered without affording an opportunity of hearing and in the absence of any misrepresentation or fraud by the employee.
Final Decision
The court allowed the writ petition, quashed the impugned communication dated 7.10.1997, and directed that the petitioner be treated as having retired on 30.8.1997 with all consequential benefits including pension and terminal benefits.
Law Points
- Recovery of salary paid for work actually performed
- bonafide mistake
- opportunity of hearing
- date of birth dispute
- superannuation
