Judgment:
A. Hazarika, J.
1. By making this application under Article 226 of the Constitution on India, the petitioner has approached this Court seeking issuance of Writ/Writs commanding the respondent authorities not to deduct the amount of Rs. 2,60,393/- (Rupees two lakhs, sixty thousand, three hundred and ninety three only) from his pensionary benefits, which was drawn by the petitioner as salary for a period of 30 months, i.e. from 1.1.2000 to 30.6.2002 and pay pensionary benefits to the petitioner to which he is entitled to. The pensioner has also prayed for quashing the letter dated 29.6.2004 issued by Respondent No. 3 and consequent thereto for a direction to the respondent authorities to regularize the service period of the petitioner from 1.1.2000 to. 30.6.2002, purportedly to be overstay period beyond his date of superannuation.
2. The petitioner's case in a narrow compass, is that, he was appointed on 23.7.1964 as a Work-charged Roller Driver under the Sub-Divisional Officer, PWD Rangia (NH) Sub-Division vide letter No. 2A70-84 dated 20.7.1964. His service as Roller driver was confirmed vide Government. Circular No. APB/95.77/49 dated 6.3.1978 and since then he has been continuing in the said post as a regular employee. At the time of entry to the post, the petitioner's date of birth was recorded as 24.6.1944, based on his school leaving certificate dated 1.7.1965. The petitioner accordingly went on superannuation on 30.6.2002 on reaching the age of superannuation at 58 years of age. The petitioner accordingly submitted his pension papers to the respondent No. 3, i.e. The Executive Engineer, PWD (Roads), Barpeta Division, Barpeta, who after doing the needful prepared the pension papers on the basis of the service book of the petitioner and submitted it to the Accountant General, Assam vide letter No. 6166 dated 1.11.2002 for sanction of pension. The respondent No. 4, i.e. The Accountant General, Assam in receipt of the same vide letter No. Pen-6/K-23091/PR/G/PWD/232/02/358 dated 5.5.2003 addressed to the respondent No. 3 informed that as recorded in page 1 of the service roll of the petitioner his date of birth is recorded as 1.4.1942 and accordingly he ought to have retired on superannuation on 31.12.1999. However by the aforesaid letter it was also informed that the date of birth, as recorded as 26.4.1944 at page-1 of the service book and an attested copy of school certificate attached in its support, allowed him to retire on superannuation on 30.06.2002. By the said letter respondent No. 4 further requested the respondent No. 3 to amend the petitioner's date of superannuation as 31.12.1999 in his service book and pension papers and to assess the over drawn pay and allowances and leave salary encasement and to intimate the same to his office for recovery from his pensionary benefits. Otherwise, respondent No. 3 was given the option to move the Finance Department for sanction of the overstayed period from-1.1.2000 to 30.6.2002 as reemployment. On receipt of the said letter dated 5.5.2003 respondent No. 3 sent a letter to the respondent No. 2. i.e. Chief Engineer (Roads) PWD, Assam on 28.1.2004 informing about the contents of the letter dated 5.5.2003 and requested him to take up the matter with the competent authority for sanctioning the over stayed period from 1.1.2000 to 30.6.2002 by the petitioner in service as re-employment. However, respondent No. 2 vide communication dated 23.12.2004 made it clear that as per office memorandum dated 1.2.1992 of Personnel 'A' Department, if any officer found overstayed in service beyond the date of superannuation, no proposal for regularisaiion of overstayed period shall be entertained and the amount drawn during the said overstayed period shall be recovered from the DCRG of the said officer. However, before issuing the letter dated 23.12.2004, when the matter of regularization of the period of over stay beyond the date of superannuation of service of the 'petitioner was pending before the higher authority, the respondent No. 3 of his own, requested the respondent No. 4 to deduct an amount of Rs. 2,60,393/- drawn by the petitioner as salary for a period of 30 months, i.e. the alleged overstayed period from 1.1.2000 to 30,6.2002, from pensionary benefits of the petitioner. Being aggrieved by the aforesaid action of the authority, left with no alternative, thepetitioner has approached this Court seeking relief/reliefs as hereinabove indicated.
3. I have heard Mr. P. Kataki, learned Counsel appearing for the petitioner, Also heard Ms. B. Bhuyan, learned Standing Counsel, PWD appearing for respondent Nos. 1, s2 and 3. None appeared for respondent No. 4.1 have carefully perused the materials on record.
4. Mr. Kataki, learned Counsel appearing for the petitioner has submitted that the date of birth of the petitioner was recorded in the service book of the petitioner as 24.6.1944 on the basis of his school leaving certificate whereas his date of birth was recorded in the service roll as 1.1.1942 which is available in the office record of respondent No. 4. As per the date of birth recorded in the service book, the petitioner went on retirement on 30.6.2002 on reading the age of superannuation. Neither the respondent authorities nor the petitioner was aware of any anomaly in this regard. When the respondent No. 3 forwarded the pension papers of the petitioner to the respondent No. 4, the said discrepancy in the date of birth came to the notice of the authorities. As per the date of birth as recorded in the service roll, the petitioner had already served for a period of 30 months beyond the age of his superannuation. However, during that period petitioner has drawn regular salary as well as discharged his duties regularly. Respondent No. 3 initially, on the discovery of the said anomaly, made an attempt vide his letter dated 28.1.2004 to the respondent No. 2 requesting him to take up the matter with the competent authority for sanctioning the overstayed period from 1.1.2000 to 30.6.2002 by the petitioner in service as re-employment. When the matter was pending before the higher authority for consideration, all of a sudden, respondent No. 3 withdrew the said letter dated 28.1.2004 and by letter dated 29.6.2004 he requested respondent No. 4 to deductan amount of Rs. 2,60,393/- drawn by the petitioner as salary for a period of 30 months, i.e. from 1.1.2000 to 30.6.2002 purportedly to be overstayed period beyond his date of superannuation from the pensionary benefits of the petitioner. While requesting respondent No. 4 to deduct the aforesaid amount, the respondent No. 3 did not consider the fact that during the aforesaid period the petitioner discharged his duties regularly and that was no fault on the part of the petitioner of the said irregularity. Respondent authorities also did not consider it fit to conduct an enquiry for the said irregularity before taking decision to penalize the petitioner by deducting the amount paid as salary to the petitioner, a grade-IV employee. Thereby violating the principles of natural justice.
5. Mr. Kataki has strenuously urged that the petitioner has served the department as roller driver to the best of his ability and satisfaction of all concerned. Thus, action of the respondent authorities to deduct an amount of Rs. 2,60,393/- drawn by the petitioner as salary for the said period is out and out illegal, inasmuch as, before taking the aforesaid action, the petitioner was not served with any notice and the said action was taken by the authority behind the back of the petitioner. The same is therefore not sustainable in law.
6. In support of his submission, Mr. Kataki has placed reliance to the decision of this Court in Smti Charubala Devi v. State of Assam and Ors. reported in 1997(3) GLT 299 wherein in almost similar circumstances this Court at Para-19 held as follows:
This being the position...the petitioner herein was allowed to continue till 1.11.92, this was because of mistake or fault on the part of the authority. The authority earlier did not take proper steps to correct the date of birth of the petitioner and the petitioner continued in service till 1992. The question is whether the petitioner should be given benefit of pension, for that particular period, the petitioner has received salary for this period. The service was also utilized by the authority. For the ends of justice and in order to not cause any prejudice to the petitioner I direct that the authority shall determine pension of the petitioner as on 1.11.92 the date on which she was released from service. The pension shall be given by the authority within a period of three months from the date of receipt of this order.
7. While rendering the aforesaid judgment in Charubala (supra) this Court relied upon the decisions of the Apex Court reported in : (1967)IILLJ266SC (State of Orissa v. Dr. (Miss) Binapani Devi and Ors.), : [1978]1SCR145 (R.S. Kallolimath v. State of Mysore and Anr.) and : (1981)IILLJ380SC (Sarjoo Prasad v. The General Manager and Anr.). In the cases mentioned hereinabove, the Hon'ble Apex Court has held that the authority is under a duty to give a person against' whom an enquiry 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 which is sought to be relied upon to his prejudice. For that purpose, the person, against whom an enquiry is held, must be informed of the case he is called upon to meet and the evidence in support thereof. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed. It need not be shown to be super added. If there is power to decide and determine to the 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 rule of law and importance thereof transcends the significance of a decision in any particular case. Therefore, Mr. Kataki is correct in contending that the impugned order was passed in violation of principles of natural justice which has caused prejudice and visited the petitioner with adverse civil consequences.
8. On the other hand, Ms. B. Bhuyan, learned Standing Counsel, PWD appearing on behalf of respondent Nos. 1, 2 and 3 has submitted that the affidavit-in-opposition has been filed in this case on behalf of the respondents abovementioned, wherein it has been contended that the date of birth of the petitioner was recorded in the service book as 24.6.1944 on the basis of school certificate and as such, his date of superannuation falls on 30.6.2002. Petitioner accordingly went on superannuation on 30.6.2002 based on the date of birth entered in the service book but when the pension papers, service book etc. were submitted to the office of the Accountant General (A & E) alongwith other pension papers after the superannuation of the petitioner, it came to the notice of the authorities that the date of birth of the petitioner as per service roll is 1.1.1942. Therefore, the respondent No. 4 had requested the respondent No. 3 that if the date of birth of the petitioner was found to be correct as 1.1.1942 as recorded in service roll, the overstayed period from 1.1.2000 to 30.6.2002 may be regularized as re-employment with the approval of the Government or to recover the pay and allowances of the petitioner for the over stayed period in terms of office memorandum of personal (A) department dated 1.2.1992. However, that could not be done inasmuch as, the office memorandum dated 1.2.1992 states that if any officer is found over stayed in service beyond the date of superannuation, no proposal for regularization of overstayed period shall be entertained and the amount drawn during the said overstayed period shall be recovered from the DCRG of the said officer, more so, the petitioner had applied before the authority to recover the salary drawn by him for the overstayed period from his outstanding amount of pension due to him vide his application dated 23.1.2004. Ms. Bhuyan, learned S.C., therefore, submitted that having given the aforesaid undertaking the petitioner is now estopped from challenging the action taken by the respondents in recovering his pay and allowances for the overstayed period from his retirement benefit.
9. Considered the rival submission advanced by the, learned Counsel for the parties. In view of the materials available on record, there is no dispute to the fact that the petitioner has rendered service for the period alleged to be overstayed, i.e. 1.1.2000 to 30.6.2002. However, as per decisions rendered by the Hon'ble Apex Court as well as this Court, the petitioner would be entitled to his salary for the said period and thus there is no reason as to why he should be deprived of the salary for that period.
10. From the pleadings including the records made available before this Court and 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 aforesaid for which he actually rendered his service.
11. Therefore, in view of the discussions and observations made above as well as the decisions rendered by the Apex Court in Dr. Miss Binapani Devi, R.S. Kallolimath, Sarjoo Prasad and also in Smti Charubala Devi (supra) rendered by this Court, the impugned communication dated 29.6.2004 is set aside for violation of principles of natural justice and direct the authority not to deduct the amount of Rs. 2,60,393/- from the DCRG of the petitioner. I further direct the authority to dis-burse the pension of the petitioner taking the date of release as on 30.6.2002. It is also made clear that the pension of the petitioner shall be released by the authority within a period of three months from the date of receipt of a certified copy of this order.
12. The petitioner shall obtain a certified copy of this order and shall produce the same before the authority to do the needful in terms of the order. The records produced by Ms. Bhuyan, learned standing counsel, PWD is returned. This disposes of this writ application, however, considering the facts and circumstances of the case, there shall be no order as to cost.