The recovery of salary paid for the period of overstay in service beyond the due date of retirement is not permissible if the employee has discharged duties and worked during that period.

Sudhir Agarwal, J.

1. Heard Shri Chandra Shekhar Singh, learned counsel for petitioners and Shri Ravi Nath Tilhari, learned counsel for respondent.

2. This writ petition under Article 226 of Constitution has been filed by Union of India through General Manager, Northern Railway and other authorities of Railways assailing judgment and order dated 11.03.2016 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (herein referred to as, Tribunal) in Original Application (hereinafter referred to as OA) No. 438 of 2012. Tribunal has disposed of OA holding that applicant-respondent (Kaushalya Nandan Sharan Verma) (hereinafter referred to as, applicant) is entitled to following reliefs:

(i) He is entitled to salary for period 01.02.2010 to 31.01.2012.

(ii) No recovery of salary paid during aforesaid period can be made.

(iii) Recovery against aforesaid amount, if any, made is to be refunded.

(iv) Applicant is entitled to pensionary benefit as due on 31.01.2010 treating the same as date of retirement.

(v) All other retrial dues shall also be payable treating date of retirement as 31.01.2010.

3. There was dispute of date of birth of applicant. Tribunal has recorded a finding that date of birth of applicant is 01.02.1950. Applicant has challenged judgment of Tribunal to the extent date of birth has been held as 01.02.1950 instead of 01.02.1952 as claimed by applicant, hence to this extent judgment of Tribunal is confirmed. Now we shall proceed to decide the matter treating correct date of birth of applicant as 01.02.1950. It is also in dispute that applicant was allowed to work by petitioners till 31.01.2012 and during this period, for the work discharged, he was also paid emoluments as due. Later on, petitioners taking date of birth of applicant as 01.02.1950, observed that his date of retirement would have been 31.01.2010, passed an order on 10.05.2012 stating that Rs. 12,64,300/- is recoverable from applicant being amount of salary paid due to overstay in service after 31.01.2010 till 31.01.2012 and also issued a fresh pension payment order.

4. Tribunal has held that since applicant actually performed duty and paid salary for the work he had performed, same cannot be recovered but for the purpose of pension and other retrial dues, he is entitled for computation of said benefits treating his date of birth as 31.01.1950 and as if he retired on 31.01.2010.

5. This writ petition is confined to the question, "whether Tribunal has rightly held that Rs. 12,64,300/- being amount of salary paid for period of 01.02.2010 to 31.01.2012, can be recovered by petitioners or not?"

6. The fact disputed is that applicant actually discharged duties and salary was paid accordingly. Petitioners, however, relying on paragraph 1801 of Indian Railway Establishment Code (hereinafter referred to as, IREC) Volume-II, Clause (d), argued that the above recovery is legal and Tribunal has erred in taking a different view.

7. Para-1801 (d) of IREC-II reads as under:

"(d) In the absence of specific orders to the contrary, every Railway servant shall demist service on the due date of superannuation. In case, for whatever reason other than specific orders to that effect, a Railway servant continues in service, beyond such due date, the period of over-stay shall be treated as irregular and the pay/allowance etc. drawn during the said period shall be recovered."

(Emphasis added)

8. A perusal of aforesaid provision makes it clear that a Railway servant is contemplated to demit office on "due date of retirement" but in case he continues in service beyond such due date without any otherwise order passed by a competent authority, the period of overstay shall be treated as irregular and pay/allowance, etc., drawn during the said period shall be recovered.

9. The "due date of superannuation" is to be seen in light of Clause (a) of paragraph 1801 of IREC Vol. II, which reads as under:

"(a) Except as otherwise provided in this Rule, or any other Rule or order for the time be