State Of Bihar & Ors vs Pandey Jagdishwar Prasad

Pandey Jagdishwar Prasad .........Respondent

JUDGMENT

TARUN CHATTERJEE,J.

1. Leave granted.

2. This appeal is directed against an order passed

by a Division Bench of the High Court of

Judicature at Patna, by which the respondent

had questioned the legality and validity of an

order dated 22nd of August, 2006 passed by a

learned Judge of that Court, whereby the

1 learned Judge had rejected the Writ Petition

filed by the respondent.

3. The Writ Petition was filed by the respondent

raising grievances against the order of the

appellant dated 4th of December, 2004 directing

recovery of the amount of salary for two years

paid to the respondent on account of a dispute

with regard to his date of birth despite the fact

that the respondent had worked during that

period. The appellant, by the order dated 4th of

December, 2004, as noted herein earlier,

directed recovery of the salary on the basis of

that order, which was affirmed by a learned

Judge of the High Court. Therefore, the only

question that was raised before the Division

Bench was whether the order passed by the

State Authority dated 4th of December, 2004 and

affirmed by the learned Judge was justified or

not. The Division Bench, by the impugned

order, had allowed the appeal and set aside the

2 order of the learned Judge and quashed the

order of the authority effecting recovery from the

retiral dues and also directed the appellant to

return and repay the amount recovered till the

date of payment. It is this order, which is now

under challenge before us by way of a Special

Leave, which on grant of leave, was heard in

presence of the learned counsel for the parties.

4. Before we consider the questions raised

before us in support of the appeal, let us

narrate the relevant facts leading to the filing of

this appeal.

5. The respondent, at the relevant point of time,

was working as a Correspondence Clerk (class

III) in the office of the Executive Engineer, Rural

Engineering Organisation, Works Division,

Sasaram in the State of Bihar. On 14th of

August, 1973, the service book of the

3 respondent was opened and two dates of birth

of the respondent viz. 11th of February, 1944,

and 11th of February, 1946, were recorded

simultaneously in his service book. It may be

mentioned here that inspite of two dates of birth

having been entered into service of the

respondent, the State Authorities did not correct

or delete any of the dates mentioned above for

the entire period the respondent was in

employment with the State Authorities.

According to the first mentioned date of birth,

the respondent ought to have retired on 28th of

February, 2002. But he retired on 29th of

February, 2004 according to the other

mentioned date of birth in his service book. As

noted herein earlier, on 4th of December, 2004, a

reasoned order was passed vide memo no. 340,

in the context of an order dated 11th of October,

2004, passed in C.W.J.C. No. 12886 of 2004, in

which the respondent claimed for payment of

4 retirement benefit such as pension, gratuity,

leave encashment, etc.

6. By this order, the respondent was ordered to

be retired on 28th of February, 2002, on the

basis of his date of birth mentioned in his

service book i.e. 11th of February, 1944, which

was based on his matriculation certificate. As

noted herein earlier, by the order dated 4th of

December, 2004, the appellant passed an order

directing recovery of the excess amount drawn

by the respondent.

7. Thereafter, on 12th of February, 2005, by the

memo Nos. 30 and 31 of the Executive

Engineer, Work Division, Sasaram sanctioned

the amount of gratuity and also ordered for

deduction of excess amount from group

insurance of the respondent in twenty equal

installments. The Executive Engineer R.E.O.

5 Works Division, Sasaram through the memo no.

05 dated 4th of March, 2005, made a refixation

of the amount paid to the respondent under

Bihar Government Employees Essential Group

Insurance Scheme. Aggrieved thereafter, the

respondent filed a Writ Petition before the High

Court of Judicature at Patna and the High

Court, by an order dated 2nd of August, 2006,

dismissed the writ petition of the respondent, in

which it was observed that he was not entitled

to refund as he had worked beyond the date of

his superannuation for which he alone was

responsible.

8. Feeling aggrieved by this order of the learned

Judge of the High Court, the respondent filed an

appeal before the Division Bench of the High

Court which quashed the recovery order issued

by the appellant, as well as the orders of the

learned Judge. The Division Bench, as noted

6 herein earlier, directed refund of the amount

already recovered from the respondent with

interest at the rate of 6 percent per annum from

the date of recovery till the date of payment.

Being thus aggrieved, the appellant has filed

this appeal before this Court.

9. We have heard the learned counsel appearing

on behalf of the parties and perused the

materials on record as well as the impugned

judgment. It appears that the department raised

a controversy in regard to the date of birth after

about 31 years of service of the respondent. It is

an admitted position now that the amount

directed to be recovered, has already been

recovered from the retiral dues of the

respondent which has been ordered by the

Division Bench to be refunded to the respondent

with interest @6%. It is true that the date of

birth mentioned in the Matriculation Certificate

7 should be treated as the date of birth of the

respondent. But it would be open to the

employee to place documents before the

authorities that the date of birth shown in the

service book taken from the matriculation

certificate was incorrect. There has been no

such document placed on record to corroborate

the same except an affidavit sworn by the

respondent, which is on record. Therefore, the

respondent ought to have retired on 28th of

February, 2002, on the basis of his

matriculation certificate which shows his date of

birth as 11th of February, 1944 as recorded in

his service book. The learned counsel

appearing on behalf of the appellant argued that

since the service book of the respondent was in

custody in which one of the date was mentioned

as 11th of February, 1944, he ought to have

retired on 28th of February, 2002, and therefore,

he had fraudulently continued to serve the

8 appellant till 29th of February, 2004 thereby

receiving undue payment of salary and other

allowances. We find no merit in this argument.

It is to be noted that there was no question of

fraud committed by the respondent before the

learned Single Judge or even before the Division

Bench of the High Court. The Division Bench,

in the impugned judgment, had on this account

subsequently mentioned this, which is quoted

as under :-

"In the present case, there was no dispute about the fact that there is no allegation of misrepresentation or fraud purported to have been perpetrated by the appellant-original writ petitioner."

10. Such being the position and in the absence of any

allegation of the misrepresentation or fraud made by the

appellant, the appellant cannot be permitted to raise the

allegation of misrepresentation or fraud for the first time in

this Court. Moreover, for the sake of argument, even if we

consider that the respondent had fraudulently entered

9 another date of birth in his service book, as had been

alleged, it should have come to the notice of the authorities

during his course of service, and not after he had attained

the age of superannuation after the expiry of the date

mentioned in the service book which was based on the

affidavit of the respondent. To the contrary, none of the

officials responsible had noticed this during his service

period, even during his time of promotions when the service

book was required to be inspected by the officials. Therefore,

it clearly points out to the gross negligence and lapses on the

part of the authorities concerned and in our view, the

respondent cannot be held responsible to work beyond his

date of birth as mentioned in the matriculation certificate

when admittedly in the service book after affidavit, some

other date of birth was also evident. In view of the aforesaid

circumstances, the appellant ought to have deleted the date

of birth entered in the service book of the respondent on the

basis of his affidavit as the appellant had already accepted

the date of birth of the respondent on the basis of his

matriculation certificate which was also produced by the

10 respondent. The appellant alleged that the respondent had

entered a second date of birth in his service book at a later

period of time. The respondent vehemently negated this

contention stating that two dates of birth were entered

simultaneously in his service book by the department

officials. It is not needed for this Court to verify the veracity

of the statements made by the parties. If at all the

respondent entered the second date of birth at a subsequent

period of time, the authorities concerned should have

detected it and there should have been a detailed enquiry to

determine whether the respondent was responsible for the

same. It has been held in a catena of judicial

pronouncements that even if by mistake, higher pay scale

was given to the employee, without there being

misrepresentation or fraud, no recovery can be effected

from the retiral dues in the monetary benefit available to

the employee. This Court in the case of Kailash Singh vs.

The State of Bihar and Ors., [2004 (1) PLJR 289 (SC)],

held that recovery sought to be made from the salary of the

employees on the ground of alleged over stay in service on

11 the basis of age assessed or considered, despite the fact that

the employee has worked during the period of alleged over

stay could not be made. In Sahib Ram vs. State of

Haryana & Ors., [1995 Supp. (1) SCC 18], this Court has

held that even if by mistake, higher pay scale was given to

the employee, without there being misrepresentation or

fraud, no recovery can be effected from the retiral dues in the

monetary benefit available to the employee.

11.As noted hereinearlier, in the service book of

the respondent, two dates of birth have been

mentioned, which is not permissible. It cannot

be conceived of that the authorities could not

examine the possibility of two dates of birth to

be entered in the service book of the

respondent. They ought to have deleted the

initial date of birth based on the matriculation

certificate if the appellants were of the view that

the affidavit sworn by the respondent was

correct and the date of birth appearing in the

12 matriculation certificate must be found to be

incorrect, it is needless to say that the affidavit

sworn by the respondent must be on the basis

of documents produced by the respondent to

show that the date of birth entered in the

service book initially was incorrect. Instead,

the appellant had not issued any notice of

retirement of the respondent on 28th of

February, 2002, which was the date for

retirement of the respondent on his attaining

superannuation, i.e. on the basis of the date of

birth shown in the matriculation certificate. On

the other hand, the appellant allowed the

respondent to work and got works from him

and paid salary. Only for the first time, the

appellant took note of two dates of birth after he

had completed two years from the date of his

actual date of retirement. Without going into

the question whether the appellant was justified

after completion of two years from the actual

13 date of retirement to deduct two years' salary

and other emoluments paid to the respondent,

we may say that since the respondent had

worked during that period without raising any

objection from the side of the appellant and the

appellant had got works done by the

respondent, we do not think that it was proper

at this stage to allow deduction from his retiral

benefits, the amount received by him as salary,

after his actual date of retirement. Considering

the fact that there was no allegation of

misrepresentation or fraud, which could be

attributed to the respondent and considering

the fact that the appellant had allowed the

respondent to work and got works done by him

and paid salary, it would be unfair at this stage

to deduct the said amount of salary paid to him.

Accordingly, we are in agreement with the

Division Bench decision that since the

respondent was allowed to work and was paid

14 salary for his work during the period of two

years after his actual date of retirement without

raising any objection whatsoever, no deduction

could be made for that period from the retiral

dues of the respondent.

12.In Kailash Singh vs. State of Bihar & Ors.

[2005 (13) SCC 576], this Court observed that

the employer-State would not be entitled to

recover the salary paid in excess after the due

date of superannuation. In our view, this

decision was practically based on the

concession made by the State before this Court.

Again in Hari Singh vs. State of Bihar & Ors.

[2000 (10) SCC 284], this Court held that since

the Government had never put the employee on

notice to indicate that the date of birth as

entered in the service book was incorrect

though it could have done so and since no

notice had been given to the employee

concerned for accepting a date of birth other

15 than the one entered in the service book, the

order of retirement could not be sustained.

From the aforesaid decision, it is evident that it

was the duty of the State to put the employee

on notice about his date of retirement and not

having done so, the appellant was not entitled

to recover the excess amount paid to the

respondent.

13. A further argument was advanced by the learned

counsel for the parties before the High Court as well as

before us on the applicability of Rule 96 of the Bihar Finance

Rules for settlement of dispute regarding the date of birth. In

view of our discussions made herein above and in view of the

fact that we have accepted the observations of the Division

Bench of the High Court that since the appellant had allowed

the respondent to work beyond his due date of

superannuation without raising any objection and in the

absence of misrepresentation and fraud to be attributed to

the respondent, it is not necessary for us in the peculiar

16 facts and circumstances of the case to go into the question of

interpretation of Rule 96 of the Bihar Finance Rules which is

kept open for decision in an appropriate case.

14.Before parting with this order, we may refer to a

decision of this Court strongly relied on by the

learned counsel for the appellant, namely,

Radha Kishun vs. Union of India and Ors.,

[(1997) 9 SCC 239]. Learned counsel for the

appellant relying on this decision sought to

argue that even if the respondent had worked

after his due date of superannuation without

having any objection from the appellant, the

appellant was entitled to deduct the amount

already received by the respondent from his

retiral benefits. This case, in our view, is clearly

distinguishable from the present case. In the

above-mentioned case, there was no dispute as

to the date of retirement of the appellant in that

appeal, as there was no controversy in the date

of birth of that appellant. There was only one

17 date of birth mentioned, and he had not retired

on the basis of his date of birth so entered.

Therefore, he had wrongly extended his service

beyond the date of his superannuation. But in

the present case, there were two dates of birth

recorded in the service book of the respondent.

Therefore, there was a clear confusion in the

mind of the respondent as to whether the

appellant had accepted his corrected date of

birth as entered in his service book when

admittedly authorities concerned did not serve

any notice of retirement on the basis of the

initial entry of date of birth in his service book.

It should also be kept in mind that the

respondent might have expected that second

date of birth shown in the service book was

accepted by the authorities for that reason he

was allowed to continue in his service and was

paid salary. In the absence of any proof that

the respondent had manipulated his date of

18 birth by entering a second date at a later stage,

and that he had any malafide intentions to

continue his service, beyond his date of his

retirement, we are of the view that the decision

in the case of Radha Kishun vs. Union of

India and Ors. (Supra), would not be

applicable in the facts of the present case.

15.There is another aspect in this matter. Although

we have directed that the excess amount paid

for two years to the respondent as salary cannot

be recovered from the respondent, but we make

it clear that for fixing the retiral benefits, the

period of two years in respect of which salary

was received by the respondent cannot be taken

into consideration and the respondent would be

entitled to fixation of retiral benefits as on the

date of his superannuation i.e. 28th of February,

2002.

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16.Accordingly, we do not find it necessary to

interfere with the order of the Division Bench of

the High Court in the peculiar facts and

circumstances of the case in the exercise of our

power under Article 136 of the Constitution

accepting the directions made in paragraph 15

of this judgment.

17.For the reasons aforesaid, the appeal is

dismissed subject to above directions. There

will be no order as to costs.

..............................J. [TARUN CHATTERJEE]

NEW DELHI .........................

......J. DECEMBER 11, 2008 [AFTAB ALAM]

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