Recovery of salary for alleged overstay requires proof of employee fraud through duly constituted proceedings.

The petitioner, appointed as an Assistant Surgeon on 29 November 1973, had his original service book destroyed in a fire. A fresh service book recorded his date of birth as 27 March 1949, although documentary records from the Board of School Education and the Government Higher Secondary School, Poonch, indicated his date of birth as 27 March 1947

Following a vigilance complaint alleging manipulation of his date of birth, FIR No. 19/2006 was registered under Section 5(2) of the J&K Prevention of Corruption Act read with Section 420 RPC. The respondents thereafter directed that the petitioner be deemed to have retired on 31 March 2005, upon attaining the age of 58 years, and initiated steps for recovery of salary allegedly received during the period of overstay

The petitioner challenged these actions before the High Court in SWP No. 437/2007, later transferred to the Central Administrative Tribunal, Jammu Bench, and renumbered as TA No. 4002/2021. The Tribunal dismissed the TA, holding that the petitioner was responsible for the altered date of birth. The petitioner consequently invoked Article 226 of the Constitution before the High Court, contending that the adverse orders were passed without notice or a departmental enquiry

Whether the respondents could alter the petitioner’s date of superannuation and seek recovery of salary without issuing notice or conducting an enquiry in compliance with the principles of natural justice?

Whether the petitioner could be denied salary received for the period of alleged overstay merely on the basis of a presumption that he had manipulated his date of birth, while criminal proceedings remained pending and no departmental finding had been recorded?

Whether the petitioner was entitled to provisional pension and retention of salary subject to an undertaking pending the outcome of the criminal or departmental proceedings?

The Court exercised judicial review jurisdiction under Article 226 of the Constitution and applied the principle of audi alteram partem, holding that an adverse administrative action affecting civil and monetary consequences cannot ordinarily be sustained without notice and a meaningful opportunity of hearing

It further applied the rule that a strong presumption is not a substitute for legally established proof; the fact that the petitioner benefited from the altered date of birth did not, by itself, establish that he had committed or authorised the manipulation

The Court also recognised that salary paid for work actually performed could be recovered only upon establishing that the petitioner’s continued service resulted from fraud, tampering, or manipulation attributable to him

The criminal proceedings under Section 5(2) of the J&K Prevention of Corruption Act read with Section 420 RPC, and any duly constituted departmental proceedings, remained the proper forums for determining culpability

The Court accepted that the documentary record supported 27 March 1947 as the petitioner’s actual date of birth and that the service book reflected 27 March 1949

However, no visible interpolation established who had altered the record, and the respondents had neither conducted a departmental enquiry nor afforded the petitioner an opportunity to explain the discrepancy

Although the petitioner was the beneficiary of the altered date, that circumstance created only a presumption and could not replace proof of personal involvement

Since the criminal case was still pending, and no departmental finding had established fraud or manipulation by the petitioner, the orders directing retrospective retirement and recovery of salary violated natural justice. The Tribunal erred by treating the vigilance finding and the petitioner’s alleged benefit as conclusive proof of guilt

The petitioner was held entitled to provisional pension and retention of the salary received for the period during which he worked after 31 March 2005. These benefits were made conditional upon his furnishing an undertaking that, if convicted by the criminal court or found guilty in duly constituted departmental proceedings of manipulating or tampering with his date of birth, he would refund the entire salary received after 31 March 2005 with interest at 6% per annum