IMPORTANT POINT
An employer cannot recover salaries paid for work rendered by an employee beyond their retirement age if the employee was allowed to continue working based on the date of birth recorded in their service book, as this would amount to 'begar' prohibited under Article 23 of the Constitution.

JUDGMENT :

Hon'ble J.J. Munir,J.

1. Heard Mr. Aditya Vikram Bisen, Advocate holding brief of Mr. Samarth Singh, learned Counsel for the petitioner, Mr. Vimlesh Kumar Rai, learned Counsel appearing for respondent No. 2 and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State.

2. The petitioner's husband, the late Videsh, was a Safai Karmachari in the employ of the Nagar Palika Parishad, Ujhani, District Budaun (for short, 'the Nagar Palika'). He was a Class-IV employee.

3. The petitioner's case is that her husband was appointed in the establishment of the Nagar Palika on 01.11.1980. Her husband's date of birth recorded in the service book was 28.01.1961 and he retired from service upon attaining the age of superannuation on 31.01.2021. The petitioner's further case is that upon retirement from service, for reasons best known to the respondents, her husband did not receive any post retiral benefits for his long service that he had faithfully rendered. He died on 02.02.2023, leaving behind him, the petitioner as his widow and other family members. The deceased's family, including the petitioner, are without any financial support. There is an averment in paragraph No.12, again made to the effect that the petitioner's husband retired from service on 31.01.2021 and till date has not received his post retiral benefits (which means till the date of his death), now due to her on account of her husband's services with the Nagar Palika.

4. The petitioner has asserted that she made a representation dated 18.04.2023 to the Executive Officer of the Nagar Palika, but in vain. She made a further representation with a request that post retiral benefits due to her husband be paid to her on 19.06.2023, which too did not yield result. Claiming inaction in the matter, the petitioner instituted the present writ petition on 17.07.2023, praying that a mandamus be issued to the respondent to forthwith release post retiral benefits due to her husband on account of services rendered by him.

5. On 21.07.2023, when this writ petition came up for admission, it was admitted to hearing and on the stay application, an interim mandamus was issued to the Executive Officer of the Nagar Palika to ensure payment of provident fund, leave encashment dues, family pension, arrears of family pension and gratuity to the petitioner, on account of her deceased husband's services, within a period of four weeks or show cause by the date fixed why the interim mandamus be not made absolute.

6. A counter affidavit was filed by the Executive Officer of the Nagar Palika, where the stand taken, in substance, finds place in paragraph Nos.4 and 6 of the affidavit, which read:

"4. That the contents of paragraph no. 8, 9, 10, 11 and 12 of the writ petition are not admitted as stated. In reply thereto, it is submitted that prior to date of actual retirement of husband of petitioner, i.e., 31.01.2021 at the age of 60 years according to his admitted date of birth, i.e. 28.01.1961 as stated by petitioner herself in paragraph no. 6 of writ petition and admittedly recorded in his service book also according to certificate dated 28.01.1981 issued by Primary Health Centre, Ujhani, Budoun in which he was 20 years old, an alleged Mark-Sheet and Certificate of the husband of the petitioner dated 20.05.1990 as private student issued by Principal, Girls Junior High School, Ujhani, Budaun was inserted in his service record by husband of petitioner showing his date of birth as 28.01.1964 and he continued in service up to his death i.e. 02.02.2023 as has been admitted by the petitioner herself in paragraph no. 10 of the writ petition and her representation dated 18.04.2023 (Annexure No. 2 to writ petition). The copy of Certificate dated 20.01.1981 issued by P.H.C. and Marks-Sheet Certificate dated 10.05.1990 are being filed herewith and marked as ANNEXURE NO. CA-1 to this affidavit.

6. That the contents of paragraph nos. 15, 16, 17, 18, 19 and 20 of the writ petition ar