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2002 DIGILAW 672 (PAT)

Bhawanand Jha v. Bihar State Electricity Board

2002-06-26

AFTAB ALAM

body2002
Judgment 1. In I.A.No. 999 of 2002 it is stated that the sole petitioner died on 14.9.2001 leaving behind a widowed wife and three sons whose names are stated in paragraph-1 of the Interlocutory application. 2. The writ petition arises from a dispute regarding the date of birth, and consequently the date of retirement, of the deceased petitioner who was an employee of the Bihar State Electricity Board. His heirs, therefore, can pursue this matter in respect of the monetary claims, if any, of the deceased petitioner. The sons have jointly authorised the mother (the widow of the deceased petitioner) to get herself substituted in place of her husband and to prosecute this case on their behalf also. The prayer is allowed. 3. Let the name of the deceased sole petitioner be deleted from the records of the case and be substituted by the name of his widowed wife who has appeared by filing Vakalatnama. 4. Sri Bhawanand Jha (the deceased) was a Class-Ill employee of the Bihar State Electricity Board. In his Service book his date of birth was recorded as 24.1.1938 and on that basis he superannuated from service on 31.1.1998. It appears that the Board was in the process of examining the validity and correctness of entries regarding the dates of birth of a large number of its employees and the case of Sri Bhawanand Jha also seems to be under investigation. In those circumstances, he was examined by a medical board on 8.2.1998 i.e. after his date of superannuation. The medical board assessed his age between 60 & 62 years and taking the mean of the two determined it as 61 years. On that basis the Board fixed his date of retirement on 28.2.1997 and proceeded to settle the retiral dues of the deceased employee on that basis. Sri Bhawanand Jha then came to this Court challenging the action of the Board in fixing his date of retirement on 28.1.1997. 5. On hearing Mr. Thakur, counsel appearing for the petitioner and Mr. R.K. Dutta, Additional Standing Counsel for the Board, I feel that the Board is clearly in error and the grievance of the deceased employee cannot be said to be without substance. It is noted above that the petitioner retired from service on 31.1.1998. According to the Board his correct date of retirement was 28.1.1997. R.K. Dutta, Additional Standing Counsel for the Board, I feel that the Board is clearly in error and the grievance of the deceased employee cannot be said to be without substance. It is noted above that the petitioner retired from service on 31.1.1998. According to the Board his correct date of retirement was 28.1.1997. The correction in his date of birth and consequently in the date of his retirement is sought to be made on the basis of the medical examination made on 8.2.1998 when the workmen had ceased to be in the employment of the Board either on the basis of his actual date of retirement (31.1.1998) or, according to the Board, his correct date of retirement (28.1.1997). 6. In a case where an employee continues in employment beyond the lawful date of retirement by adopting any fraudulent means and by preventing the matter to come to the notice of the competent authority in time, it may stilt be open for the employer to take remedial measures and to redetermine the employees lawful date of retirement and the consequential emoluments/retiral dues etc. because fraud vitiates every action. But normally, the proceedings for redetermining the dates of birth/retirement of an employee must be held and completed during the employees tenure of service, more so, when the matter is within the knowledge of the employer. In this case it is undeniable that the case of the petitioner was within the knowledge of the competent authority and the determination of his date of birth was in process. In his case, therefore, the competent authority ought to haven taken special care to have the matter decided before the severence of the relationship of employer and employee on the petitioner reaching the age of retirement on the basis of the entry in his Service book. 7. It may be stated that Mr Dutta relied upon two earlier orders passed by this Court taking the view that once an employee allowed himself to be examined by the medical board without making any protest he cannot be allowed to subsequently challenge the findings of the medical board. In my view those orders have no application to the facts of this case. 8. Those orders were rendered in cases in which the medical examinations were made before the retirement of the concerned employee from service. In my view those orders have no application to the facts of this case. 8. Those orders were rendered in cases in which the medical examinations were made before the retirement of the concerned employee from service. In this case Shri Bhawanand Jha was examined by the medical board after he had ceased to be an employee of the Board either on the basis of his actual date of retirement or on the basis of his correct date of retirement, according to the Board. Therefore,the assessment of his age was not made under the administrative authority of the Board. 9. For all these reasons, I am satisfied that 31.1.1998 being the actual date of retirement must be taken as the basis for settlement of the retiral dues of the deceased employee. 10. For the reasons stated above the impugned order as contained in annexure-5 is set aside and the Board is directed to settle the lawful dues of the petitioner and make payment of his arrears of salary, if any, and the retiral dues taking 31.1.1998 as his date of retirement. 11. This writ petition is allowed but with no order as to costs.