Salary is to be paid even if employment is irregular: CAT to government

Srinagar, Feb 16: The Central Administrative Tribunal (CAT) in Srinagar has held that the State cannot take any work from any employee without payment of salary, even if the employment is irregular.

A bench comprising M S Latif, Member (J), and Prasant Kumar, Member (A), said this while relying on a verdict of the Supreme Court which underscored, “Even if the appointment is irregular, the appellant had discharged the duties and in place of duties, he had to be paid and the State cannot take any work from any employee without the payment of any salary.”

The tribunal was adjudicating upon a plea by an employee of the Handicrafts Department, who was retired in 2019 in terms of an order dated December 11, 2019, and was deemed to have retired on superannuation from the government service with effect from January 31, 2010, after her Date of Birth (DoB) certificate proved to be fabricated.

The department had retired the employee after the BOSE in response to communication confirmed to it that her DoB was January 17, 1952, and not January 17, 1960, as entered in her service record.

In compliance with an order by the tribunal, the BOSE through its records attested to the fact that the DOB certificate of the employee was fake.

Countering the plea of the employee, the government contended that the same was liable to be dismissed with a further direction to her to reimburse the state exchequer the excess amount drawn by her as salary amounting to Rs 49,79,787.

“Without going into the question as to whether the applicant ought to have been retired based on her DoB, wrongly entered in the service book, the fact remains that she has worked for the period, that too, to the entire satisfaction of the respondents and it will be unjust and unfair to deny her the emoluments for the period she has worked that is from February 1, 2010, upto January 31, 2019,” the court said, relying on judgment of the apex court titled State of Bihar and others versus Pandey Jagdishwar Prasad and judgment of the apex court titled as State of Bihar and others versus Pandey Jagdishwar Prasad.

While the court noted that the respondents in their reply had not denied that the applicant had not worked during the period in dispute, it said: “She has actually performed her duties and was even paid for that period and any recovery of amount for the period the applicant has worked would be iniquitous, harsh and arbitrary to such as extent as would far outweigh the equitable balance of the employer’s right to recover.”

To this effect, the tribunal said that it was supported by a judgment of the Allahabad High Court titled Union of India through General Manager, Northern Railway versus Kaushalya Nandan Sharan Verma and another as also judgment passed by the Jharkhand High Court titled Krishna Murari Prasad versus State of Jharkhand and others.

Regarding the submission by counsel for the respondents that the applicant was liable for recovery of excess salary drawn by her, the tribunal said: “This argument of the learned counsel, in the facts and circumstances of the case, is distinguishable given the law cited as any such recovery would tantamount to Begaar since the applicant has worked for the aforesaid period.”

Disposing of the plea, the tribunal directed the respondents to consider her case and determine her entitlement for the release of her emoluments following rules for the period she had worked in the department beyond the period of her actual retirement which is January 31, 2010, till the issuance of impugned order dated October 11, 2019.

However, the tribunal said: “It is made clear that the applicant shall not be entitled to any retiral or allied benefits beyond January 31, 2010. It is further made clear that this order should not have any effect on any criminal proceedings initiated in the matter.”