{"id":80525,"date":"2004-08-30T00:00:00","date_gmt":"2004-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-subramani-vs-the-union-of-india-on-30-august-2004"},"modified":"2016-02-24T11:10:00","modified_gmt":"2016-02-24T05:40:00","slug":"d-subramani-vs-the-union-of-india-on-30-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-subramani-vs-the-union-of-india-on-30-august-2004","title":{"rendered":"D. Subramani vs The Union Of India on 30 August, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
D. Subramani vs The Union Of India on 30 August, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 30\/08\/2004\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE P.K. MISRA\nAND\nTHE HONOURABLE MR. JUSTICE A.K. RAJAN\n\n\nWRIT PETITION No.35209 OF 2003\n\nD. Subramani                   ..  Petitioner\n\n-Vs-\n\n1. The Union of India,\n   rep. by the General Manager,\n   Southern Railway,\n   Chennai  3.\n\n2. The Divisional Railway Manager,\n   Personal Branch,\n   Chennai Division,\n   Park Town, Chennai 3.\n\n3. The Senior Personal Officer,\n   Southern Railway, Madras Division,\n   Park Town, Chennai 3.\n\n4. The Station Superintendent,\n   Southern Railway, Madras Division,\n   Arakkonam Junction,\n   Arakkonam 631 002.\n\n5. The Registrar,\n   Central Administrative Tribunal,\n   Chennai 104.                 ..  Respondents\n\n\n        Petition filed under Article 226 of the Constitution of India for  the\nissuance of Writ of Certiorarified Mandamus as stated therein.\n\nFor Petitioner :  Mr.V.  Nithyanandam\n\nFor Respondents 1-4    :  Mr.S.  Balaji\n\n:O R D E R\n<\/pre>\n
(Order of the Court was made by P.K.  MISRA, J.)<\/p>\n
        Heard the learned counsels appearing for the parties.\n<\/p>\n
        2.   The  present  writ petition has filed against the order passed by
\nthe Central Administrative Tribunal, Madras Bench in O.A.No.392 of 200 3 dated
\n25.8.2003.  The aforesaid Original Application had been filed by  the  present
\npetitioner under the following circumstances.\n<\/p>\n
        The petitioner had joined service under the Union of India as a Portar
\nin Railways  on  9.1.1964.   At the time of his appointment, his date of birth
\nhas been entered as 8.10.1935 and on the  aforesaid  basis,  he  was  made  to
\nretire on  31.10.1993.    However,  the  petitioner filed an appeal before the
\nRailway Administration.  At that time, he was asked by the  Administration  to
\nrejoin  duty  on  12.11.1993  and  the period from 1.11.1993 to 11.11.1993 was
\ntreated as leave on average pay.  Subsequently, however, it was found that the
\ndate of birth as entered in the service records initially was correct and  the
\npetitioner was again terminated from service on 9.11.1995.  At that stage, the
\npetitioner filed  O.A.No.1354  of 1995.  During the pendency of O.A.No.1354 of
\n1995, the Tribunal had passed an interim order dated 2.7.1996, on the basis of
\nwhich, the petitioner was being paid 50% of the salary last drawn by  him  for
\nthe period  from 10.11.1995.  In the interim order, it has been indicated that
\nthe payment would be finally adjusted  after  the  disposal  of  the  Original
\nApplication.   Ultimately,  O.A.No.135  4 of 1995 was dismissed by order dated
\n10.2.1997.  While  dismissing  the  Original  Application,  wherein  the  main
\ncontention was relating to date of birth, the Tribunal directed as follows :-\n<\/p>\n
         7.    It is seen that an interim order was passed by a Bench of this
\nTribunal on 2.7.1996, on the basis of which, the applicant is being  paid  50%
\nof the  salary last drawn by him for the period from 10.11.199 5 onwards.  The
\ninterim order states that this payment would be  finally  adjusted  after  the
\ndisposal of  the  OA.    We  hereby  order  that  this payment be recovered as
\nadmissible under law from the amounts that may be due to the applicant on  the
\ntermination of his services, since the O.A has been dismissed.  .  .  .<\/p>\n
                3.   Thereafter,  a  circular dated 7.7.1999 was issued by the
\nRailway Board, wherein it was indicated :-\n<\/p>\n
         3.  The matter has been considered in this ministry in the light  of
\nthe  judgment  of the Supreme Court and it has been decided that, in all cases
\nof irregular continuance in service beyond  the  age  of  superannuation,  the
\nperiod  of  over-stay  will  be  treated  as  wholly  irregular, for which the
\nemployee will be considered to be equally  responsible  and  immediate  action
\nwill be  taken  to recover the pay, allowances, etc.  paid to the employee for
\nthe entire period of over-stay.\n<\/p>\n
        4.  These orders will take effect from the date of issue and  all  the
\ncases  of  erroneous retention which have not yet been decided will be decided
\nin terms of these orders.  The cases already decided  otherwise  need  not  be
\nre-opened.<\/p>\n
                4.  On the basis of such circular, which was issued much after
\nthe  second  time retirement of the petitioner and dismissal of O.A.No.1354 of
\n1995, the order dated 26.11.2001 was issued directing that payment made to the
\npetitioner for the period from 1.11.1993 to 9.11.1995 has to be  recovered  as
\nover payment.  At that stage, the petitioner made a representation that he was
\nentitled  to salary for the aforesaid period, as he had actually rejoined duty
\nas per the orders passed by the Railway authorities.    However,  the  Railway
\nauthorities recovered the said amount and made payment towards pension for the
\nperiod  starting from 1.11.1993 on the ground that the petitioner had actually
\ncompleted the age of retirement on 31.10.1993 and  was  not  entitled  to  any
\nsalary thereafter.    The  petitioner,  thereafter,  filed  O.A.No.392 of 2003
\nbefore the Central Administrative Tribunal,  Madras  Bench  for  quashing  the
\nproceedings No.M\/P.3\/500\/PA.No.062\/2001 dated 26.11.2001 and for refund of the
\namount already  recovered,  which  was  dismissed.    Hence,  the present writ
\npetition.\n<\/p>\n
                5.  The main contention of the petitioner  is  to  the  effect
\nthat the petitioner was directed to rejoin duty on 12.11.1993 and continued as
\nsuch  till  9.11.1995  and  since  he had already worked as per the directions
\nissued by the Railway authorities, the salary paid to him should not have been
\nrecovered.  Learned counsel has also contended that while O.A.No.1354 of  1995
\nwas  pending,  as per the interim direction issued by the Tribunal, 50% of the
\nsalary payable was  paid  to  the  petitioner,  which  should  not  have  been
\nrecovered.\n<\/p>\n
                6.   So  far  as  the  amount which was paid to the petitioner
\npursuant to the interim direction in O.A.No.1354 of 1995 is concerned, we have
\nno hesitation in holding that  such  recovery  cannot  be  challenged  by  the
\npetitioner at  this  stage.    Payment  had  been made pursuant to the interim
\ndirection made by the Tribunal, wherein it  was  specifically  indicated  that
\npayment would  be  finally  adjusted towards the final disposal of the OA.  At
\nthe time of the disposal of O.A.No.1354 of 1995, the Tribunal gave a  specific
\ndirection for recovery of such amount.  The petitioner, even though challenged
\nsuch  order  in the High Court, his writ petition has been dismissed and t hus
\nthe matter became final.  In such view of the matter,  the  petitioner  cannot
\nraise  any  grievance  at  this  stage and his claim regarding recovery of the
\namount paid to him as per the interim order  passed  in  O.A.No.1354  of  1995
\ncannot be  mitigated.    The  contention  of  the petitioner is required to be
\nrejected.\n<\/p>\n
                7.  So  far  as  the  recovery  of  the  amount  paid  to  the
\npetitioner  between  12.11.1993  and  9.11.1995  is  concerned, the petitioner
\nstands on a surer footing.  It is to be noted that on the basis of the date of
\nbirth entered in the service register, the  petitioner  had  actually  retired
\nwith effect from 31.10.1993.  In the appeal, the higher authority directed the
\npetitioner  to  rejoin,  which  he  did  on 12.11.1993 and worked as such till
\n9.11.1995, when the Railway Board  overturned  the  decision  of  the  General
\nManager  and observed that the petitioner should have retired with effect from
\n31.10.1993.  It is obvious that the petitioner had rejoined duty on the  basis
\nof the direction issued by the Railway authorities and had actually worked and
\nsalary had  been  paid  to him.  When the petitioner had actually worked, even
\nthough it ultimately transpired that he had crossed the age of  superannuation
\nby then, salary already paid to him should not have been recovered.  This view
\nof  ours, receives considerable support from the decision of the Supreme Court
\nreported in 2003(1) CTC 182 (STATE OF MADHYA PRADESH AND OTHERS v.    MOHANLAL
\nSHARMA),<\/a> wherein it was observed :-\n<\/p>\n
         3.    In  that view of the matter, the appeal deserves to be allowed
\nand the order under challenge is set aside.  Before we part with the case,  we
\nwould like to observe that since the respondent has served on the basis of the
\njudgment  under challenge for six months, the appellants shall not recover the
\nsalary which has already been paid to the respondent during that period.<\/p>\n
                8.  Learned counsel appearing for the respondents has  however
\nsubmitted that in view of the fact that the date of birth had been found to be
\ncorrectly  recorded, the petitioner had no right to continue in service beyond
\n1.11.1993, and therefore, he was not entitled  to  any  salary  for  the  said
\nperiod.   It  was further contended that since pension has been calculated and
\npaid with effect from 1.11.1993, the petitioner  cannot  get  the  benefit  of
\nsalary as well as the pension for the very same period.\n<\/p>\n
                9.   Learned  counsel appearing for the respondents has placed
\nstrong reliance upon the decision of the Supreme Court reported  in  1997  SCC
\n(L&S) 1185 (RADHA  KISHUN  v.    UNION OF INDIA AND OTHERS).  In the<\/a> aforesaid
\ncase, there was no dispute regarding the date of birth of the employee working
\nunder the Telecommunication Department.  On the admitted date of birth, namely
\n13.5.1933,  the  Government  servant  should  have  been  made  to  retire  on
\n31.5.1991.  However,  such  person  continued  till  31.5.1994.  Subsequently,
\nsteps were being taken to recover  the  amount  paid  to  such  person  beyond
\n31.5.1991.   Original  Application was filed before the Central Administrative
\nTribunal, which having been rejected, the matter was brought  to  the  Supreme
\nCourt by the quondam employee.  It was observed :\n<\/p>\n
         .  .  .  It would be an obvious case of absolute irresponsibility on
\nthe  part  of  the  officer  concerned  in  the  establishment  in the section
\nconcerned for not taking any  action  to  have  the  petitioner  retired  from
\nservice on  his  attaining  superannuation.    It  is true that the petitioner
\nworked during that period, but when he is not to continue to be in service  as
\nper law,  he has no right to claim the salary etc.  It is not the case that he
\nwas re-employed in the public interest, after attaining superannuation.  Under
\nthese circumstances, we do not find any illegality in the action taken by  the
\nauthorities in refusing to grant the benefits.<\/p>\n
                10.   After carefully going through the aforesaid decision, we
\nare of the opinion that the said decision is not applicable  to  the  peculiar
\nfacts and circumstances of the present case.  Admittedly, after the petitioner
\nhad  actually  retired,  there  was  a direction by the Railway administration
\nasking him to rejoin and on that basis, the petitioner rejoined on  12.11.1993
\nand continued  until he was again made to retire on 9.11.1995.  It is not that
\nthe petitioner on his own, by some fraudulent methods  continued  in  service,
\nbut  he had rejoined after a few days gap by virtue of the order passed by the
\nRailway Administration.  The ratio of the aforesaid decision is not  therefore
\napplicable  and  in  our  opinion, the ratio of the subsequent decision of the
\nSupreme Court reported in 2003(1)CTC 182 (cited supra) is more befitting.\n<\/p>\n
                11.  It has to be noticed that the direction for  recovery  of
\nthe amount  has  emanated on the basis of the circular issued in 1999.  Before
\nsuch circular was issued, no steps were taken for recovery of the amount.   As
\na  matter  of fact, the circular itself was made applicable only from the date
\nof issuance of the circular and should not have been applied to  the  case  of
\nthe petitioner, who had retired much before the issuance of the said circular.
\nAs  indicated  in  the  circular,  cases  already decided should not have been
\nre-opened.\n<\/p>\n
                12.  The Tribunal has referred to the earlier  order  made  in
\nO.A.No.1 354  of  1995.  However, the Tribunal has missed the vital point that
\nthe earlier O.A.  was directed against the order of retirement on the basis of
\nthe disputed date of birth.  At that stage, the question of recovery of amount
\nalready paid had not arisen nor such question was raised before  the  Tribunal
\ndirectly or  indirectly.   The direction of the Tribunal regarding recovery of
\nthe amount related to payment of 50 % of salary made pursuant to  the  interim
\ndirection of the Tribunal.  There was no direction in O.A.No.1354 of 1995 that
\nthe  amount which had already been paid to the petitioner prior to the date of
\nhis  second retirement was to be recovered.  The Tribunal, without  noticing
\nthe  aforesaid aspect, has observed that the question had already been decided
\nin O.A.No.1354 of 1995.  As a matter of fact,  the  question  cropped  up  for
\nconsideration  only  after  the  Railway authorities issued the proceedings in
\n2001.\n<\/p>\n
                13.  For the aforesaid reasons, we are inclined to  allow  the
\nwrit petition  in  part.    While  rejecting  the contention of the petitioner
\nregarding recovery of the amount paid to the petitioner  as  per  the  interim
\norder  passed  by  the  Tribunal  dated  2.7.1996  in O.A.No.1354 of 1995 , we
\nobserve that so far as the salary for the period from 12.11.1993 to  9.11.1995
\nis  concerned,  such period may be treated as reemployment and the salary paid
\nto the petitioner should not have been recovered  and  such  recovered  amount
\nshould be  refunded  to  the  petitioner.   Since the petitioner had been paid
\npension for the said period, the amount of pension paid for  the  period  from
\n12.11.1993  to  9.11.1995  should  be  calculated and adjusted and the balance
\namount for the period from 12.11.1995 to 9.11.1995 should be paid.   This  may
\nbe done within a period of three months from the date of receipt of the order.
\nIf  the  petitioner  is  entitled  to  any other retirement benefits, the same
\nshould also be finalised within the said period.\n<\/p>\n
                14.  The writ petition is accordingly allowed in part.   There
\nwould be no order as to costs.\n<\/p>\n
Index :  Yes
\nInternet:  Yes<\/p>\n
dpk<\/p>\n
To<\/p>\n
1.  The Union of India,
\nrep.  by the General Manager,
\nSouthern Railway, Chennai 3.\n<\/p>\n
2.  The Divisional Railway Manager,
\nPersonal Branch,
\nChennai Division,Park Town, Chennai 3.\n<\/p>\n
3.  The Senior Personal Officer,
\nSouthern Railway, Madras Division,
\nPark Town, Chennai 3.\n<\/p>\n
4.  The Station Superintendent,
\nSouthern Railway, Madras Division,
\nArakkonam Junction, Arakkonam 631 002.\n<\/p>\n
5.  The Registrar, Central Administrative Tribunal,
\nChennai 104.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court D. Subramani vs The Union Of India on 30 August, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30\/08\/2004 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE A.K. RAJAN WRIT PETITION No.35209 OF 2003 D. Subramani .. Petitioner -Vs- 1. The Union of India, rep. by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-80525","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nD. 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