Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 1195 (JHR)

Rambilash Dubey v. State of Jharkhand

2008-10-20

R.R.PRASAD

body2008
JUDGMENT : The petitioner was appointed as Helper on 11.1.1960 and as per the case of the petitioner, the date of birth of the petitioner was recorded in the service book as 20.5.1939 and after discharging his duty efficiently, the petitioner got retired from the post of Pipe Fitter, Category II, Mechanical Sub-division Workshop, Tenughat on 31.5.1997 on attaining the age of superannuation of 58 years. But when the matter relating to payment of pension and gratuity was finalized, pursuant to order passed by this Court, petitioner could know that date of superannuation is being treated as 31.5.1992 in stead of 31.5.1997. Accordingly, the petitioner received a copy of letter no.83 dated 18.2.2003 issued by the Executive Engineer to the Sub-Treasury Officer, Tenughat wherein Rs.16,136/-was sought to be recovered from the pensionary benefit of the petitioner and, in fact, that has already been recovered which action, as per the petitioner, is never justified as before taking decision of altering the date of retirement from 31.5.1997 to 31.5.1992, no notice was ever issued to the petitioner to place his case and moreover, the respondents after five years of the retirement of the petitioner is not allowed to recover the amount said to have been drawn in excess by the petitioner from the pensionary amount in view of law laid down by this Court in this regard in several cases including in the case of Narayan Singh vs. State of Bihar and others as reported in [ 2004(1) JCR 324 ]. However, case of the respondents as has been made out in the counter affidavit is that when the pension papers were forwarded to the Accountant General, Bihar, Patna for final fixation of the pension and gratuity, it was found by the Accountant General that date of birth has been recorded at page 1 of the service book as 28.5.1939 over which there has been overwriting whereas leave account statement attached with the service book shows that the date of birth as 20.5.1934 and, therefore, Accountant General returned the service book of the petitioner for necessary verification and correction and thereupon petitioner was asked by respondent no.5, Executive Engineer, Mechanical Division, Banaso, Hazaribagh to make available the proof of date of birth but the petitioner failed to do so and then Executive Engineer, Mechanical Division, Birpur was also requested to make available document showing date of birth of the petitioner but when no reply was received, Deputy Secretary, Water Resources Department, Government of Jharkhand, respondent no.3 directed the Executive Engineer, Mechanical Division, Banaso, Hazaribagh vide his letter (Annexure C) to forward the pension paper showing date of birth of the petitioner as 20.5.1934. Accordingly, respondent no.5 made request to the Accountant General to fix final pension and gratuity of the petitioner taking his date of birth as 20.5.1934 and at the same time Respondent no.5 wrote a letter (Annexure 5) to Sub-Treasury Officer, Tenughat to recover excess amount of Rs.16,136/-paid to the petitioner as leave salary. On these backgrounds it was submitted on behalf of the State and also on behalf of the Accountant General that when some manipulation has been made with respect to date of birth which is evident from overwriting made in the service book, the authority is quite competent under certain provision of the pension rules to recover the said amount which has been drawn in excess. In support of his submission learned counsel has referred to a decision rendered in a case of State of Jharkhand and others vs. Smt. Girish Kumari Prasad and others (L.P.A. No.256 of 2003) and also a decision rendered in a case of Ram Chandra Singh and others vs. State of Jharkhand and others [ 2005(2) JLJR 705 ]. In support of his submission learned counsel has referred to a decision rendered in a case of State of Jharkhand and others vs. Smt. Girish Kumari Prasad and others (L.P.A. No.256 of 2003) and also a decision rendered in a case of Ram Chandra Singh and others vs. State of Jharkhand and others [ 2005(2) JLJR 705 ]. Having heard learned counsel appearing for the parties, it does appear that the petitioner was allowed to get retired on 20.5.1997 on attaining the age of superannuation of 58 years taking the date of birth of the petitioner as 20.5.1939 but subsequently on being pointed out by the office of Accountant General about the discrepancy of the date of birth recorded in the service book as 20.5.1939 suspected to be manipulated by overwriting not tallying with the date of birth recorded as 20.5.1934 in the leave account statement the date of birth recorded as 20.5.1939 was taken to be incorrect date of birth without giving any opportunity to the petitioner to have his say in the matter, though, according to the counter affidavit, the petitioner was called upon by giving letter to explain in this regard but there has been no proof that such letter had ever been received by the petitioner. Further it appears that respondent no.5 in order to make enquiry with respect to date of birth also wrote letter to District Superintendent of Education, Muzaffarpur but respondent no.5 without getting any positive reply took the decision that the date of birth of the petitioner is 20.5.1934 instead of 20.5.1939. In this respect, it may further be noted that the petitioner has annexed transfer certificate as Annexure 6 to the writ application showing date of birth as 20.5.1939. Thus, it is evidently clear that without giving opportunity to the petitioner to have his say in the matter the decision has been taken with respect of date of birth as 20.5.1934 and thereby consequential order was passed. Under the circumstances, the order passed by the respondent regarding date of birth of the petitioner being 20.5.1934 and the subsequent order under which Rs.16,136/-was sought to be recovered under Annexure 5 are hereby set aside for the simple reason that before passing such order, the petitioner was not given any opportunity of being heard in the matter. Under the circumstances, the order passed by the respondent regarding date of birth of the petitioner being 20.5.1934 and the subsequent order under which Rs.16,136/-was sought to be recovered under Annexure 5 are hereby set aside for the simple reason that before passing such order, the petitioner was not given any opportunity of being heard in the matter. Under the situation, I do not consider it be expedient to decide the question regarding authority of the respondent to recover the amount allegedly drawn by the petitioner in excess. Under the circumstances, the petitioner is directed to make representation along with a copy of this order as well as any other documents relating to date of birth before the respondent no.5, who will be taking decision on the representation within a period of three months from the date of receipt of the representation. With the aforesaid direction, this writ application is disposed of.