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Allowed in the service even after attaining superannuation.

Querist : Anonymous (Querist) 30 August 2011 This query is : Resolved 
LDC who is supposed to retire on attaining the superannuation on 30-6-2010. However, inadvertently he was allowed to continue in service upto 30-9-2010. After realising the mistake, the authorities issued order to the effect that the LDC deemed to have retired on 30-6-2010 and settled the terminal benefits on this order. The salary paid for July, August, September, 2010 was recovered from the retirement gratuity after taking an undertaking to that effect from the LDC.

Now the LDC issued a legal notice through a lawyer that the 3 months salary (for July, Aug, Sept. 2010) shall not be adjusted in the gratuity and hence the 3 months salary shall be paid.

As recovery is made after duly taking undertaking from the LDC. Now what is the reply to be given to the legal notice? Please advise.

LDC was allowed to continue in service beyond his superannuation.
Guest (Expert) 30 August 2011
The LDC can, of course be treated as superannuated on due date, but, his salary, less the amount of monthly pension and pension equivalent of gratuity, becomes due for the work done for the employer, as per the prevalent rules of fixation of pay.

His service can be regularised for taking due approval of the competent authority for extention of his service for the period of post-superannuation service, as the same was not on account of any fault on the part of the LDC.

It was a clear fault of the adminsitration due to slackness in discharge of duty of the concerned officer. However during extended period of service, his pay would be liable to be fixed, as mentioned already, which the concerned PAO of your office has to take due care of.

However, if liked, the amount as salary due to the employee can be recovered from the salary of the officer at fault, besides taking disciplinary action against him for sheer negligence of his duty.

NEEDLESS TO EMPHASIZE, THE EMPLOYEE CANNOT BE PENALISED FOR THE FAULT OF THE ADMINISTRATION. Any such undertaking taken from the employee is void and can be treated as taken under pressure by the authorities.
R.Ramachandran (Expert) 30 August 2011
There is a SC judgment saying that the employee cannot claim anything beyond the age of superannuation.

There is also another judgment by Guwahati HC to the contrary - distinguishing the SC Judgement.

In your case, the SC judgement will squarely apply and you will be able to successfully defend the department's action in recovering the amount from gratuity.

Please see attached the two relevant judgments.
prabhakar singh (Expert) 30 August 2011
you are well guided by Expert : R.Ramachandran
Guest (Expert) 30 August 2011
Dear Shri Ramachandran,

You may kindly like to see the case of not very early judgement (2006) in the attachment for your review and comments, where the Supreme Court has allowed pay even for a very long period of more than 10 years of service after due date of retirement.

I feel the case law attached with your opinion is not exhaustive and is merely an abstact provided by Manupatra Information Solutions Pvt Ltd., as that does not contain the complete background of the case, including judgment based on which the said petition was filed. I also feel that either the backgrounds of the said case would have been quite different or the learned counsel pf the petitioner would not have been able to fight the case effectively due to some deficiency of his knowledge about service laws and procedures.

I MAY LIKE TO POINT OUT that any employee cannot retire at his own unless formally ordered to be retired and relieved by the competent authority. So, denial of salary to the employee on account of the fault of the administration, would not at all be justified. Even otherwise, the employer loses the right to take any work after the due date of retirement of the employee, i.e., the due date
of termination of the master-servant relations.
Your valuable comments may enhance my knowledge, as well as the knowledge of others also. If he takes service of his employee he becomes liable to compensate him adequately, may or may not be in the interest of service.
prabhakar singh (Expert) 30 August 2011
Expert : PS Dhingra, CEO, Dhingra Group proceeds to protect the cause
Guest (Expert) 30 August 2011
Respected Prabhakar ji,

It is not that I am trying to protect the cause without any reason, but justice demands that. I have already added appropriate explanation in my reply.

In fact, I am not in favour of exploitation of any employee merely with the reason that he happens to be a servant in master-servant relationship where he has no control of his own and depends solely on the legal network, that too only on specific approach to the law.
prabhakar singh (Expert) 30 August 2011
Respectable PS Dhingra ji,

My remark was intended to appreciate you,i could not follow what confused you.???
R.Ramachandran (Expert) 30 August 2011
Dear Mr. Dhingra,

Thanks for your update and for supplying the decision of the CAT Mumbai.

Mainly the decision of the CAT Mumbai is based on the premise that a 3 member decision by the Apex Court in Narasimha Sundaram's case has OVERRULED the decision of 2 member decision in the case of Radha Kishun.

This is factually incorrect for the reason that while the Narasimha's decision was rendered in the year 1993, the decision in Radha Kishun was given in the year 1997. Therefore the question of the 3 member bench overruling a SUBSEQUENT decision of 2 member decision just does not arise.

More over, in Narasimha's case the government pleaded that the officer played fraud. But the apex court finding that no action was initiated against the officer for having played any fraud, found no merit in the case and held that since the officer worked during the period, the salary has to be paid. Therefore, it has nothing to do with continuation of service beyond age of superannuation.

Therefore, the reliance placed by CAT Mumbai on Narasimha's case to decide Shankar Baluram's case is questionable.

In paragraph 5 of the CAT Mumbai decision, there are 5 earlier decisions cited and relied upon.

Paragraph (A) relates to Narasimha's case - which I have already discussed above.

PAra (B) relates to the case of Ramswaroop Masawan - this relates to re-employment beyond superannuation and claiming of retiral benefits for that period since the age of retirement was enhanced. The Court had held as under:
"3. In our view, the High Court was right. At the relevant time the age of superannuation was 55 years. The appellant stood superannuated on reaching that age and, in law, his continuance in service thereafter can only be treated as re-employment. In the Municipal Council in question no retiral benefits were available to Overseers who retired on 26-1-1970. Therefore, the appellant could not legitimately make a claim thereto."

Unfortunately, the CAT Mumbai, out of context picks up a line "his continuance in service thereafter can only be treated as re-employment" to butress its decision in Shankar's case.

Para (C) relates to the decision of Allahabad CAT decision in the matter of Komal. That decision was based on Narasimha's case. Therefore it suffers the same vice as explained above.

Para (D) the Delhi HC deals with the case of Premwati vs.MCD and court holds that it was more clearly covered by the case of Mastan Bee vs. G.M. South Central Railway.

Mastan Bee's case relates to claiming of family pension by a widow after a long gap and denial of such a benefit by the department on the plea that her husband was not in service at that point of time etc. One can clearly see that it has nothing to do with the question of continuation in service beyond the age of superannuation!

Para (E) talks about Upadhyaya's case. This case relates to the discrepancy in the date of birth and consequently the age of superannuation. Therefore, this case is also not the clear cut case of continuation of service beyond the pre-known age of superannuation.

Thus, the CAT Mumbai has adopted the saying "KAHIN KA EINT, KAHIN KA RODA, BHANUMATHI NE KUMB JODA" to some how reach benefit to Shankar Baluram.

Unfortunately, it is not known whether the Railways preferred any appeal against the Decision before the Apex Court.

In any case, I value the decision of the Apex Court in Radha Kishun's case since it was well-reasoned, speaking and logical and also latest in time.

I am also attaching for your ready reference the 5 decisions mentioned above.
Raj Kumar Makkad (Expert) 30 August 2011
Dhingra ji & R. Ramachndran both experts have done marvelous job. I salute both experts.
ashok kumar singh (Expert) 01 September 2011
nice job done by experts, great.
Guest (Expert) 03 September 2011
Respected Prabhakar ji,

Thanks for your clarification and, side by side, I am also sorry for not taking your appreciation in right spirit.
prabhakar singh (Expert) 03 September 2011
oh! Take it lightly,i did not even remember it.just your this post reminded.
Guest (Expert) 03 September 2011
Respected Shri Ramachandran,

I appreciate your detailed reply in a bid to clear the doubt. But, to my knowledge no such case contrary to the judgment of the CAT Mumbai has so far come to existence, in spite of the judgment to pay salary even for more than 10 years after superannuation. If any such case contrary to that judgment is in your knowledge, that would be thankfully appreciated, if supplied.

You would like to appreciate that CAT's observation about "KAHIN KA EINT, KAHIN KA RODA, BHANUMATHI NE KUMB JODA" was also not incorrect, as most of the advocates prefer just to cite case laws even without any relevance to the case, rather than understanding properly and analysing the circumstances, loopholes and procedural flaws on the part of the administration/management pertaining to that particular case, which they try to handle.

You would also like to appreciate that no employer gets any right to take work from an employee after the date of superannuation without adequately compensating him.

You will also like to appreciate that in this partiocular case of a petty Lower Division Clerk (LDC) cannot be expected to play a fraud and get her employment continued beyong date of superannuation, as an LDC has a NO SAY in Government jobs, except doing petty jobs of indexing & filing, or receiving & despatching of dak, etc., NOT EVEN doing any noting & drafting in files at any stage.

You would also like to appreciate that an employee cannot get himself retired and relieved at his own unless formally retired and relieved by the competent authority.

You would also like to appreciate that if he has been allowed to continue even after due date of superannuation, his right to get compensation for the work done by him cannot be denied at all by any authority and he cannot be held responsible for the fault of the competent authority. ETHICS, RATIONALITY AND JUSTICE IS A MUST IN ANY GOVERNMENTAL ORGANIZATION IN A DEMOCRATIC SET UP.

In fact in my previous reply providing solution to the problem I did not deny the event of superannuation to be carried out on due date, which you can note from the very first sentence of my reply stating:

"The LDC can, of course be treated as superannuated on due date, but, his salary, less the amount of monthly pension and pension equivalent of gratuity, becomes due for the work done for the employer, as per the prevalent rules of fixation of pay."

If I have made a mention of his salary to be regulated LESS of Pension and Gratuity equivalent of Pension, that itself denotes that his superannuation was to be effected, but extension (only as a matter of re-employment) of his service, as per the practice being adopted in Government organizations was to be needed to regularise his extra service beyond the date of superannuation for the purpose of refixation and drawal of his salary.

I have already mentioned that the amount of said salary need be recovered from the salary of the Officer at fault, but not to deny the genuine claim of the LDC. If fact I personally applied this discretion myself when in an organisation I had to allow over time of the staff of a section when deployed on OT duty without due approval of the competent authority by a non-competent officer. I had to allow the staff OT but ordered to recover the whole amount from the salary of that officer, as the staff doing OTA was not at fault, rather obeyed the order of their superior.

Hope you would like to agree with my contentions.

About attachment made by you, I really appreciate your efforts to enhance my knowledge by doing so, but it would be nice of you if you kindly try to get the complete cases, as every judgment in each case has its peculiarity hidden in the background and circumstances of the case, and cannot be applied universally, without adjudging the ssimilarities of the individual cases. So, I am of the view that any such case, if not presented as it is in the court's judgment, is not so reliable in the sense that the same does not represent the real context for reference unless we are able to analyse that on the basis of the circumstances and facts pertaining to that case.
Raj Kumar Makkad (Expert) 03 September 2011
I strongly appreciate the views of Dhindra ji. It is true that most of lawyers without going through the background of the case law, go on citing it whereas the actual sense of the citation remain different than case in hand.

In the given matter, LDC has no power, right or authority to remain in service beyond his superannuation so this is the only fault of his superiors who are liable to be punished only and such LDC is required to retain his salary minus pension, pension on gratuity.

In nutshell, a detailed observation and stick reply has been produced by Dhingra ji. I pay special thanks for you Dhingra ji.
Guest (Expert) 04 September 2011
Thank you Shri makkad ji for your appreciation of my view points.


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