Kashi Ram v. Bihar State Electricity Board — 1997 DIGILAW 859 (PAT)

JUDGMENT Nagendra Rai, J. 1. The petitioner has challenged the order dated 19.5.1995 contained an Annexure-1 by which he has been superannuated w.e.f. 30.6.91. 2. The facts necessary for giving rise to the present application are that the petitioner was appointed as Low Tension Fuseman in the Bihar State Electricity Board (in short the Board) and later on he was promoted to the post of Junior Linesman and thereafter Selection Grade Linesman. According to the petitioner his date of birth is 11.6.36 and as such he should superannuate on 30.6.96 whereas according to the department the date of birth of the petitioner in service book is 11.6.1931. It appears that the Director Personnel after coming to know about the aforesaid interpolation in the service book of the petitioner made an enquiry and found that the date of birth of the petitioner is 11.6.1931 and not 11.6.1936 and thereafter he directed the concerned Executive Engineer to issue an appropriate order and in pursuance of which Annexure-1 has been issued by the Executive Engineer behind the back of the petitioner by which he has been retired w.e.f. 30.6.91 treating his date of birth as 11.6.1931. 3. Learned counsel for the petitioner submits that the decision by the Director, Personnel of the Board treating the petitioner's date of birth as 11.6.1931 in place of 11.6.1936 has been taken behind the back of the petitioner. He has also submitted that as admittedly the petitioner has worked upto 19.5.93, he is entitled for the salary upto the aforesaid period. The subsequent decision taken by the authorities to deduct the aforesaid amount paid to the petitioner from the post retirement benefit is not permissible in law. 4. Learned counsel appearing for the Board on the other hand by referring to the counter affidavit has stated that according to the stand of the Board the petitioner has played fraud and made interpolation in the Service Book, which is apparent from the perusal of the service book itself. In that view of the matter, he cannot be allowed to take benefit of his own fraud and the respondent Board has rightly deducted the aforesaid amount paid to the petitioner as salary from the post retirement benefit. 5. After hearing the parties it is evident that there is controversy with regard to the date of birth of the petitioner. In that view of the matter, he cannot be allowed to take benefit of his own fraud and the respondent Board has rightly deducted the aforesaid amount paid to the petitioner as salary from the post retirement benefit. 5. After hearing the parties it is evident that there is controversy with regard to the date of birth of the petitioner. According to the stand of the Board the date of birth of the petitioner is 11.6.1931 whereas according to the petitioner his date of birth is 11.6.1936. The Director, Personnel of the Board, has decided the matter admittedly behind the back of the petitioner. Once there was an entry of date of birth in the service book as 11.6.1936 and the department wanted to change the same on the ground of the fraud played by the petitioner then the same should have been done after compliance of the principle of natural justice. Admittedly, in this case no opportunity was given to the petitioner. In that view of the matter on the basis of that decision the authority cannot pass an order to deduct the amount paid to the petitioner from 1.7.91 to 19.5.93 as salary from the post retirement benefit. Accordingly, I am of the view that before taking any action against the petitioner the authority should first provide an opportunity to the petitioner and if it is found that the date of birth as stated by the petitioner is 11.6.1936 then he is entitled to his salary according to that date of birth, and in case it is found that the date of birth of the petitioner is 11.6.1931 and not 11.6.1936 and the interpolation was either due to fraud played by the petitioner or due to connivance then he is not entitled to the salary from July, 1991 till he is alleged to have worked upto 19.5.93. The said amount has to be recovered from the post retirement benefit of the petitioner. 6. The aforesaid question in my view has to be decided first by the Board within a period of four months from today after giving notice to the petitioner and thereafter the question of payment of post retirement benefit should be considered. 7. The said amount has to be recovered from the post retirement benefit of the petitioner. 6. The aforesaid question in my view has to be decided first by the Board within a period of four months from today after giving notice to the petitioner and thereafter the question of payment of post retirement benefit should be considered. 7. Learned counsel for the petitioner has further contended that even if the Board after enquiry finds that the date of birth of the petitioner is 11.6.1931, as the petitioner has continued to work beyond the date of superannuation upto 19.5.93 he is entitled to the salary and no order for refund can be passed for the salary paid to the petitioner from July, 1991 to 9th May, 1993. In this connection he relied upon judgments of the learned single judges of this Court reported in the case of Mubarak Hussain vs. The State of Bihar & Ors., (1996) 2 PLJR 166 and in the case of Dr. Bhagwan Das vs. The Vice Chancellor, Magadh University & Ors., 1997 (1) PLR 877. 8. In the case of Mubarak Hussain (supra) the petitioner was appointed as constable and his date of birth in the service book was 1st January, 1937 and he was allowed to perform his duty upto 22.4.95. According to the State in the matriculation certificate his date of birth was recorded as 1st January, 1936 but he suppressing the said fact got his date of birth recorded as 24th January, 1937. He should have superannuated in January, 1995 but he continued beyond that period and accordingly an order was passed for recovery of the excess amount paid to him from the post retirement benefit. Dealing with the said matter the learned single Judge held that the State cannot treat the date of birth of the petitioner as mentioned in the Matriculation Certificate as the same was not upon which the petitioner was in service. Dealing with the said matter the learned single Judge held that the State cannot treat the date of birth of the petitioner as mentioned in the Matriculation Certificate as the same was not upon which the petitioner was in service. However in paragraph-6 of the judgment his Lordship has observed that the respondent cannot recover any amount from the post retirement benefit of the petitioner with respect to the period the petitioner has actually performed his duties, if the respondents for one or the other reason allowed the petitioner to perform his duties upto 22nd April, 1995 even if the same was illegal, the petitioner having performed such duties and having received salary for the same no recovery with respect to such payment can be made from the petitioner. 9. In the case of Dr. Bhagwan Das (supra) the controversy was about the date of birth of the petitioner of that case. The authority after hearing the parties decided his date of birth as 7th January, 1926 on the basis of which he should have superannuated on 31st January, 1986 but he continued upto January, 1989. The learned single judge agreeing with the finding of the authority held that as the petitioner has worked and has been paid salary upto January, 1989 the same cannot be recovered from him. 10. In my view the aforesaid cases are not an authority on the point that if an employee continued to work after superannuation then he is entitled to salary for the said period even if he continued in service by playing fraud or committing manipulation. The observations in those cases were made after taking into consideration the facts and circumstances of those cases. In the former case as stated above it was found that the petitioner superannuated according to the correct date of birth recorded in the service book and in the latter case only a casual observation has been made. 11. In the case of State of Bihar vs. Narasimha Sundram reported in AIR 1994 S.C.599, the respondent of that case continued in service beyond the period of his retirement by playing a fraud. He claimed his salary for his actual work done by him beyond the period of superannuation. He also claimed his post retirement benefit. This Court allowed both the prayers. He claimed his salary for his actual work done by him beyond the period of superannuation. He also claimed his post retirement benefit. This Court allowed both the prayers. Dealing with the question regarding payment of salary for continuing in service beyond the date of superannuation, the Apex Court upheld the order of this Court for the reason that no proceedings were ever initiated for enquiry as to the alleged fraud played by the respondent on the department. The said decision is an authority that in case it is found that the person remained in service beyond the date of his superannuation by playing a fraud then he is not entitled to the salary for the period as he has worked beyond the period of his superannuation. 12. Recently in the case of Radha Kishun Vs. Union of India & Ors., (1997) 1 S.C.J. 613 , the Apex Court has considered the question which is in controversy in this case. There the petitioner attained the age of superannuation on May, 1991 but remained in service till May, 1994. He claimed the salary for the period he had worked. Dealing with the aforesaid matter the Apex Court in paragraphs 3, 4 & 6 of the judgment has held as follows; The learned counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowances from 1.6.91 to 26.6.94 and that he is also entitled to the payment of provisional pension, Death-cum-retirement gratuity, leave encashment, commutation of pension amount, G.P.F. money and the amount deposited under CGHS on the plea that he retired from service on May 31, 1994. We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the above said date when admittedly he was to retire on May 31, 1991. It would be an obvious case or absolute irresponsibility on the part of the officer concerned in the establishment in the concerned section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits. It is then contended that the petitioner would have conveniently secured gainful employment elsewhere and having worked, he cannot be denied of the legitimate salary to which he is entitled to. Though the argument is alluring, we cannot accept the contention and give legitimacy to the illegal action taken by the authorities. If the contention is given acceptance, it would be field day for manipulation with impugnity and one would get away on the plea of equity and misplaced sympathy. It cannot and should not be given countenance. Under those circumstances, we dismiss the petition with a direction to the Government of India to take appropriate disciplinary action against all the persons concerned for their deliberate dereliction of duty in not ensuring the petitioner's retirement on his attaining the age of superannuation. 13. Thus, in my considered view if a person has continued to work even after attaining the age of superannuation then only because he has worked for a certain period he is not entitled to salary for the aforesaid period as a matter of right. If he continued in service because of the fraud, manipulation, connivance or in breach of statutory provision then he is not entitled to salary for the period he has worked. Fraud, manipulation vitiates every action and employee cannot be allowed to take benefit of his own wrong. If this will be allowed as held by the Apex Court then it will be field day for manipulation with the impugnity and one would get away on the plea of equity and misplaced sympathy. 14. During the course of argument learned counsel for the petitioner submits that the amount paid to the petitioner as salary for the period beyond the superannuation has already been recovered from the post retirement benefit of the petitioners. 14. During the course of argument learned counsel for the petitioner submits that the amount paid to the petitioner as salary for the period beyond the superannuation has already been recovered from the post retirement benefit of the petitioners. If the matter is decided by the Director, Personnel of the Board in favour of the petitioner the aforesaid amount should be refunded to the petitioner with 12% interest to be calculated from the date of recovery of the aforesaid amount from the post retirement benefit. 15. In the result, the order contained in Annexure-1 determining the age of the petitioner is quashed and the Board is directed to proceed with the matter as directed above. 16. With the aforesaid direction this application is allowed.