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2000 DIGILAW 1107 (PAT)

Brajendra Yadav v. State Of Bihar

2000-09-13

S.K.KATRIAR

body2000
Judgment S.K.Katriar, J. 1. Heard Mr. K.N. Diwakar for the petitioner, Mr. V.N. Sinha, earned Counsel for respondent Nos. 2 and 3 (Zila Parishad, Madhepura), and Mr. Chandeshwar Jha, earned Counsel for respondent Nos. 4 and 5 (Zila Parishad, Saharsa). 2. This writ petition has been preferred for an appropriate direction to respondent Nos. 2 and 3 to pay to the petitioner the salary for the period July 1996 to July 1998, and also seeks quashing of the impugned order bearing memo No. 34, dated 16.1.99 (Annexure 7), whereby it has been held that the petitioner shall be deemed to have retired from the services of respondent No. 2 with effect from 31.12.1994, and he has been called upon to refund the salary overdrawn by him for the period January 1995 to June 1996, for the reason that the petitioner has interpolated in the service records initially maintained by respondent Nos. 4 and 5, and thereafter by respondent Nos. 2 and 4. 3. According to the petitioner, he had joined the services of respondent Nos. 4 and 5 on 24.7.1958 as evidenced by the letter of appointment No. 3002, dated 24.7.1958 (Annexure 1), which is a typed copy of the original letter of appointment. The document marked Annexure 2 to the writ petition is also a typed copy of letter dated 24.7.1958, which appears to be the certificate of medical examination by the Civil Assistant Surgeon, Madhepura, saying that "his age according to his own statement 19 years and by appearance about 19 years." The erstwhile district of Saharsa was bifurcated into two districts and the district of Madhepura was carved out of the undivided district of Saharsa with effect from 7.10.1982. The petitioners services were thereafter transferred to the District Board, Madhepura. According to the petitioner, he was transferred to Kudratullah Unani Dwakhana, Madhepura, by letter of transfer dated 14.10.96, marked Annexure 4 to the writ petition, which is once again a typed copy of the letter of transfer. Pursuant to the transfer order, the petitioner continued to work up to July 1998. His salary for the period July 1996 to July, 1998 has not till date been paid, and prays for a direction to respondent Nos. 4 and 5 to pay the same. Pursuant to the transfer order, the petitioner continued to work up to July 1998. His salary for the period July 1996 to July, 1998 has not till date been paid, and prays for a direction to respondent Nos. 4 and 5 to pay the same. The petitioners further case is that the petitioner has suddenly been visited with the impugned order bearing memo No. 34, dated 16.1.99 (Annexure 7), issued by respondent Nos. 4 and 5, whereby it has been held that the petitioner interpolated with his service records. According to the original service records, his date of joining the services of respondent Nos. 4 and 5 is 26.7.1956, which has by interpolation been changed to 26.7.1958. Respondent Nos. 4 and 5 have, thereafter, found that according to the service record, the petitioner was 19 years of age on 26.6.56, 58 years of age being the age of superannuation in the service of respondent Nos. 2 and 5, he reached the age of superannuation on 31.12.94, and his continuance in service thereafter is attributed to the forgery committed by him in the original records. Therefore, he has by the impugned order been directed to refund the salary for the period January 1995 to June 1996. Hence the writ petition. 4. Let it be recorded that it is manifest from the brief as well as the original record placed before me that the petitioner has been known as Brajendra Mandal and Brajendra Yadav interchangeably, which is fairly common in Bihar. 5. While assailing the validity of the impugned order, earned Counsel for the petitioner submits that the impugned order has been passed without issuing any show-cause notice to the petitioner, and without affording an opportunity to meet the allegation. Mr. V.N. Sinha, earned Counsel for respondent Nos. 2 and 3, has invited my attention to his counter affidavit, Annexure A of which is a photocopy of the original office copy bearing letter No. 231, dated. 11.11.98, issued by respondent Nos. 4 and 5, to the petitioner calling him upon the submit in original the original letters of appointment and the proof of his date of birth. The petitioner has shown cause by his letter dated. 16.11.98 (Annexure B to the counter-affidavit of respondent Nos. 4 and 5). I am thus convinced that petitioner was afforded adequate opportunity to meet the allegation of interpolation and to establish the correct date of birth. The petitioner has shown cause by his letter dated. 16.11.98 (Annexure B to the counter-affidavit of respondent Nos. 4 and 5). I am thus convinced that petitioner was afforded adequate opportunity to meet the allegation of interpolation and to establish the correct date of birth. The petitioners contention is, therefore, rejected. 6. This takes me on to the question of validity of the impugned order (Annexure 7). Earned Counsel for the petitioner assails it on various grounds. He has taken me through Annexure 2 to the writ petition which is purportedly his letter of appointment and, in his submission, is dated 24.7.1958. He has also taken me through Annexure 3, purportedly the doctors report on medical examination of the petitioner at the time of his appointment which is dated 24.7.1958. In his submission, these two documents are enough to establish that he had joined the services of respondent Nos. 2 and 3 in July 1958. In view of the position that Annexures I and 2 of the writ petition are typed copies of the originals, we have called upon the earned Counsel for respondent Nos. 2 and 3, as well as respondent Nos. 4 and 5, to produce the original records maintained in the routine course of business which have been produced before me. We shall, therefore, go by the original documents. Mr. Chandeshwar Jha has first of all placed before me the Payment Roll Register of 1956-57 maintained by the undivided and erstwhile district of Saharsa. Columns 1 and 2 of the relevant page of the same relating to the petitioner reads as follows: Shri Brajendra Mandal join 27th July, by joining letter No. 3002 dated 24.7.1956, August, 1956. The other column bears the signature of Dr. Gauri Shankar Singh, Medical Officer, which is dated 23.9.56. Earned Counsel for respondent Nos. 2 and 3 has produced before me Pay Register of 1957-58 to show that the petitioner had been paid his first increment on 26.7.1957, and the second increment was paid on 26.7.1958. In that view of the matter, on perusal of the original records, I have not the slightest hesitation in holding that the petitioner had joined the services of respondent Nos. 2 and 3 on 25.7.1956. In that view of the matter, on perusal of the original records, I have not the slightest hesitation in holding that the petitioner had joined the services of respondent Nos. 2 and 3 on 25.7.1956. The documents marked Annexures 1 and 2 to the writ petition are obviously a dishonest attempt to mislead this Court by producing typed copies of the original after causing interpolations engineered by the petitioner himself. 7. It takes me on to the question of the date of birth of the petitioner. Earned Counsel for the petitioner has relied on the doctors report of examination at the time of his appointment marked Annexure 2 to the writ petition which, according to the petitioner, is dated 24.7.58, is a typed copy of the original. Earned Counsel for the respondent Nos. 4 and 5 have produced before me the original file containing the doctors report in original. It would be manifest on a bare reading of the same that there is an attempt to change the date of this letter from 24.7.1956 to 24.7.1958. It is only the very last figure of that date, i.e., 6 has been changed by a crude attempt, the ink of the two is different, the style is fundamentally different, and above all 8 and 6 stand side by side. A hurried attempt has been made to erase 6 and it is substantially still there. I have not the slightest manner of doubt that this forgery in the original record has been done by the petitioner himself or at any rate at his instance. A similar attempt has been made by the petitioner, or at any rate at his instance, to change his date birth in the service record. 1937 has obviously been changed to 1940. The original 19 is still there, and the figure 37 has been changed to 40 very crudely. The ink of the two are different, the style is quite different, and the superimposition of 40 on 37 is clear to the naked eyes. In that view of the matter, I reach the conclusion that the petitioner has committed forgery in the original records and respondent Nos. 2 and 3 have rightly determined 1.1.1937 as the petitioners date of birth. In that view of the matter, I reach the conclusion that the petitioner has committed forgery in the original records and respondent Nos. 2 and 3 have rightly determined 1.1.1937 as the petitioners date of birth. Further more, the impugned order seems to have been passed after keep application of the mind in a closely reasoned order, the same cannot be faulted, and is hereby upheld. 8. This takes me on to the last contention of the earned Counsel for the petitioner, namely, to the question of recovery of arrears of salary for the period January, 1994 to June, 1996 as ordered for by the impugned order. He invites my attention to the judgment of a learned Single Judge of this Court in support of his submission that in any view of the matter, after superannuation of an employee, he should not be called upon to refund salary even if overpaid. It is manifest from a plain reading of the judgment that no allegation of forgery or interpolation or fraud had been alleged in any one of those cases. I am reminded of the judgment of the Court of Appeal in England in Lazarus Estates Ltd. V/s. Beasley (1956) 1 All E.R. 341, wherein Lord Denning observed as follows: ...I cannot accede to this argument for a moment. No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.... Earned Counsel for respondent Nos. 2 and 3 has rightly placed reliance on a Full Bench judgment of this Court reported in 1987 PLJR 1091 : 1988 BLJR 1 Rita Mishra V/s. Director, Primary Education. He has further placed reliance on the judgment of the Supreme Court reported in 1997(2) PLJR 129 Radha Kishen V/s. Union of India, paragraphs 3, 4 and 5 of which are relevant in the present context, and are set out herein below for the facility of quick reference: 3. He has further placed reliance on the judgment of the Supreme Court reported in 1997(2) PLJR 129 Radha Kishen V/s. Union of India, paragraphs 3, 4 and 5 of which are relevant in the present context, and are set out herein below for the facility of quick reference: 3. The earned Counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowance from 1.6.1991 to 26.6.1994 and that he is also entitled to the payment of provisional pension, Death-cum-retirement gratuity, leave encashment, commutation of pension amount, GPF 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 of absolute irresponsibility on the part of the officer concerned in the Establishment in the section concerned 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 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. 4. It is then contended that the petitioner would have conveniently secured gainful employment elsewhere and having worked, he cannot be denied of the legitimate mate 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 filed day for manipulation with impunity and one would get away on the plea of equity and misplaced sympathy. It cannot and should not be given countenance. 5. 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 filed day for manipulation with impunity and one would get away on the plea of equity and misplaced sympathy. It cannot and should not be given countenance. 5. 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 petitioners retirement on his attaining the age of superannuation. In that view of the matter, I agree with the submission advanced on behalf of respondent Nos. 2 and 3 that there is no question of refund of the overdrawn salary drawn for the period the petitioner has overstayed in service on account of fraud, forgery and interpolation. The contention is, therefore, rejected. 9 Counsel for the petitioner has lastly submitted that he should be paid the arrears of salary for the period 15.10.1996 to 30.7.1998. He relies on the letter dated 14.10.1996 (Annexure 4) which, in his submission, is the letter of transfer issued by respondent Nos. 2 and 3. In his submission, therefore, he had continued under orders of the authorities. Once it is held that he had reached the age of superannuation on 31.12.1994, there is absolutely no question of any payment thereafter, particularly in view of the position that the petitioner is responsible for the forgery in the original service records. The contention is, therefore, rejected. 10. Before I part with this case, I must express my feelings with regard to the bravado shown by the petitioner in causing forgery in the original records maintained by the office of respondent Nos. 2 to 5. Respondent Nos. 2 and 3 have not risen to the occasion and made an examine of the petitioner. I am informed at the bar that Zila Parishad, Madhepura, is at the moment in a state of supersession and the powers are vested in the Deputy Development Commissioner, Madhepura. In that view of the matter, the Deputy Development Commissioner, Madhepura, is hereby directed to lodge an FIR against the petitioner forthwith. 11. The writ petition is dismissed.