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2010 DIGILAW 425 (ORI)

Parikshita Bala v. Orissa Council of Sports

2010-06-24

A.S.NAIDU

body2010
JUDGMENT A.S. NAIDU, J. : The petitioner was serving as a watchman in the establishment of Orissa Council of Sports. It is alleged that erroneously the petitioner was made to retire on 30th Janu¬ary 1995 after completion of twenty six years of service. Accord¬ing to the petitioner his date of birth being 11th June 1938, his year of retirement should have been 1998. Being aggrieved by the said action the petitioner has approached this Court, inter alia, praying to direct the opposite party-authorities to pay arrear salaries of the petitioner in the revised scale of pay from 1st July 1995 to 30th June 1998 together with leave salary, gratuity and other retirement benefits including monthly pension with interest @ 9 per cent per annum. 2. The scenario of facts reveal that the petitioner was duly recruited and appointed as a watchman in the year 1969 in the establishment of opposite party No.1, Orissa Council of Sports. He was discharging his duties to the best of his ability and there was no blemish in his service career. On 25.1.1995 opposite party No.1 intimated the petitioner that he is going to retire from service on attaining the age of superannuation w.e.f. 30.6.1995. The petitioner received such information and filed a representation before the authority stating that his date of birth being 11th June 1938, he will attend the age of sixty years on 30th June 1998. Thus, the notice issued intimating the peti¬tioner to retire from service w.e.f. 30th June 1995 is not cor¬rect. The authorities however did not take any steps to rectify their mistake. Consequently, the petitioner approached the Orissa Administrative Tribunal in O.A. No. 549(C)/1995. 3. While matter stood thus, it is alleged, after conduct¬ing preliminary enquiry the authorities were satisfied that the year of birth of the petitioner was 1938 and not 1935. The Minis¬ter, who was the Vice Chairman of Orissa Council of Sports, assured the petitioner that justice shall be done to him. On the basis of such assurance the petitioner withdrew O.A. No. 549(C)/1995 which was pending before the Tribunal. It is alleged that though the petitioner has approached the authorities on several occasions no action was taken, as such he has approached this Court. 4. On the basis of such assurance the petitioner withdrew O.A. No. 549(C)/1995 which was pending before the Tribunal. It is alleged that though the petitioner has approached the authorities on several occasions no action was taken, as such he has approached this Court. 4. After receiving notice, a counter affidavit has been filed by opposite party No.1 admitting that the petitioner was serving as a watchman in the establishment of opposite party No.1 and that he retired from service w.e.f. 30th June 1995 on attain¬ing the age of retirement. It is averred that in the service book the date of birth of the petitioner has been mentioned as 11th June 1935. Accordingly, due notice was issued to the petitioner on 25th January 1995 and he was made to retire after observing all paraphernalia. The claim of the petitioner that his date of birth is in fact 11th June 1938 and not 11th June 1935 is stoutly denied. The averment that the petitioner had filed a representa¬tion enclosing school leaving certificate and other documents and prayed to rectify the date of birth is admitted by opposite party No.1 in their counter affidavit. But then, it is stated that on the basis of the materials produced before the authority at the time of recruitment, the date of birth of the petitioner was reflected in the service book as 11th June 1935. The school leaving certificate which the petitioner had produced along with representation was issued fifty years after he left the school and two years after his retirement from service. The certificate issued by the Officer-in-charge, Pattamundai P.S. that the date of birth of the petitioner was 11th June 1938 on the basis of horoscope produced before him, was issued in the year 1993. All the documents having been obtained after the dispute commenced, it is stated the same cannot be relied upon. The averments with regard to the fact that Hon’ble Minister considered his case and a decision was taken to pay him all arrear benefits is stoutly denied in the counter affidavit. It is stated that in consonance with the service Rules there is no power to take such a decision. According to opposite party No.1 as the petitioner retired from service on 30.6.1995 and such retirement was not stayed by the Orissa Administrative Tribunal, the question of recalling the order does not arise. It is stated that in consonance with the service Rules there is no power to take such a decision. According to opposite party No.1 as the petitioner retired from service on 30.6.1995 and such retirement was not stayed by the Orissa Administrative Tribunal, the question of recalling the order does not arise. That apart, it is submitted that the peti¬tioner approached the Tribunal with the self-same grievance and withdrew the said original application, thus the present Writ Petition seeking self-same relief is not tenable in law. 5. After receiving counter affidavit, the petitioner has filed a rejoinder affidavit enclosing several documents/note sheets, copies of which were obtained by him under the Right to information Act. it is also pleaded that the Committee had au¬thorized the Vice Chairman to examine and settle the claim of the petitioner. On enquiry it was found that in fact there was a mistake in recording the date of birth of the petitioner. In view of the said decision of the Vice Chairman, the authority should have paid the petitioner all back wages and other service bene¬fits. 6. This aspect of the submission is stoutly denied by the opposite parties. According to opposite party No.1 the decision taken by the Vice Chairman was never approved in consonance with the service Rules. Thus, the petitioner cannot insist for imple¬mentation of the same. 7. Admittedly, the petitioner entered into the service way back in the year 1969 and his service book was prepared at that relevant time. According to opposite party No.1 the year of birth of the petitioner was reflected as 1935 on the basis of the materials produced by the petitioner. The petitioner had signed the service book where his age has been clearly reflected. A copy of the first page of service book is annexed as Annexure-4. According to the petitioner when he signed the service book, his date of birth was mentioned as 11th June 1938, but then subse¬quently it had been changed to 1935 without conducting any en¬quiry and without giving any notice to him. A perusal of the first page of the service book also reveals that there is over¬writing and it is clear that the date of birth which was reflect¬ed in the service book at the first instance had been changed at a latter stage. A perusal of the first page of the service book also reveals that there is over¬writing and it is clear that the date of birth which was reflect¬ed in the service book at the first instance had been changed at a latter stage. It is not known as to who changed the same as there is no endorsement to that effect. The note sheet, a copy of which is filed as Annexure-9 to the rejoinder affidavit, also reflects that the date of birth mentioned in the service book was overwritten. The matter was placed before the Minister, State Sports, Culture and Youth Services and Science Technology who happens to be the Vice Chairman of opposite party No.1. He had endorsed to wait till a judicial decision is taken. According to the petitioner, he was intimated that if he withdraw the case filed by him before the Orissa Administrative Tribunal, the authorities shall consider his grievance. Learned counsel for the petitioner further relied upon the resolution passed in the General Body Meeting held on 13.3.2001. Agenda No. 12 of the said meeting reads as follows:- “The Governing Body authorized Vice Chairman, OCS to examine and settle the claims of parikshita Bala regarding his date of retirement for rendering justice to a dedicated retired watchman of OCS.” 8. In spite of the aforesaid clear position, it is alleged that no action was taken by the authorities to rectify the date of birth of the petitioner and pay him the benefits of three years service. 9. Learned counsel for opposite party No.1, on the other hand, submits that the documents produced by the petitioner cannot be relied upon as the same were obtained much after the litigation commenced. It is further submitted that as no order has been passed by the competent authority to rectify the mis¬take, if any, in the date of birth, it has to be taken that the recording made in the service book is justified. 10. Heard learned counsel for the parties at length. Perus¬al of the pleadings as well as the documents annexed clearly reveal that the recording of the date of birth made in the serv¬ice book has been tampered or overwritten. A perusal of the same does not clearly reveal as to what was the correct date of birth of the petitioner. There is also no endorsement as to when such interpolation or correction was made. A perusal of the same does not clearly reveal as to what was the correct date of birth of the petitioner. There is also no endorsement as to when such interpolation or correction was made. The petitioner all along raised objection with regard to change of his date of birth. According to him, in the service book it had been clearly men¬tioned that, his date of birth was 11th June 1938, but then, it was subsequently changed to 11th June 1935. The order sheets produced and marked as Annexure-9 series, also reveal that the authorities were satisfied that the date of birth was tampered/changed at a latter stage. Law is well settled that the date of birth entered in the service book cannot be altered at a later date without giving any opportunity to the petitioner to explain he same. It appears that without initiating any proceed¬ing and without conducting any enquiry or asking the petitioner to show cause, suo motu the date of birth was changed by the authorities. Even otherwise, before issuing notice of retirement it was incumbent upon the authorities, who are the custodian of the same, to ascertain as to when and how the date of birth ap¬pearing in the service book was tampered and thereafter take action for retirement. The petitioner has in fact obtained school leaving certificate as well as other materials, revealing that his date of birth in fact was 11th June 1938 and not 11th June 1935. The said documents have been discarded only on the ground that they were obtained at a latter date. The authorities should have taken little more pain to ascertain the correct date of birth of the petitioner specially in view of the fact that the same was tampered in the service book. They lost sight of the fact that the entry in the school records were made long back, only the copy of such recording was obtained after the dispute commenced. Admittedly petitioner is a class-IV employee and is a poor man. He was made to retire three years early. 11. Considering the facts and circumstances of the case, this Court feels that it will be just and proper to direct to take into consideration the three years service, i.e. from 1995 to 1998 towards calculation of his retirement benefits. Admittedly petitioner is a class-IV employee and is a poor man. He was made to retire three years early. 11. Considering the facts and circumstances of the case, this Court feels that it will be just and proper to direct to take into consideration the three years service, i.e. from 1995 to 1998 towards calculation of his retirement benefits. So far as the claim for salary for the said period is concerned, as the petitioner has not discharged his service within the said period nor he has enclosed any document made or any averment in the Writ Petition to the effect that he was not gainfully engaged after his retirement, this Court feels that ends of justice and equity will be better served if the principles of “no work no pay” is applied to the case in hand. Accordingly, this Court dispose of the Writ petition with a direction that the petitioner shall not be entitled to any salary, but then he shall be entitled to service benefits for the period from 1995 to 1998. In other words, while calculating his retirement benefits, the authority shall calculate the same notionally adding three years of serv¬ice. With the aforesaid observation, the Writ petition is dis¬posed of. Petition disposed of.