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Jharkhand High Court · body

2012 DIGILAW 236 (JHR)

Shekhar Chandra Mitra v. State of Jharkhand

2012-02-15

D.N.PATEL

body2012
Judgment D. N. PATEL 1. The present writ petition has been preferred mainly for challenging the change of date of birth that instead of 7th May, 1949, it should have been 7th May, 1950 on the basis of matriculation certificate; and it has also prayed for the payment of salary for the period running from May, 2002 to January, 2006 and from January, 2006 onwards alonwith penal interest @ 18% per annum. 2. Counsel for the petitioner submitted that the petitioner was appointed with the respondents and as per his matriculation certificate, his date of birth was inserted in his service book as 7th May, 1950, which the was corrected later on as May, 1949 on the basis of medical examination of the petitioner, which is at Annexure2 to the memo of the present petition. 3. It is further submitted by the counsel for the petitioner that once the service book itself reflects the date of birth as 7th May, 1950, it cannot be altered by the respondents and therefore, the retirement given to the petitioner is one year earlier than the actual date of retirement. 4. Counsel for the petitioner has also submitted that a criminal complaint has been filed against the petitioner regarding fabricated document, namely school matriculation certificate and a chargesheet has also been filed, and this criminal case is pending before the competent trial court. For this criminal complaint and charges, the petitioner was put under suspension with effect from 28th December, 2005. A notice was also given by the respondents dated 6th January, 2006, which is at Annexure8 to the memo of this present petition and the same is also under challenge. 5. Counsel for the respondents submitted that initially, the petitioner was appointed on 1st February, 1969. He had not given any proof of his date of birth at that time and in 1992, when he gave his matriculation certificate, the date of birth of the petitioner, on the basis of matriculation certificate, was incorporated in the service book as 7th May, 1950, but thereafter, the petitioner was sent for medical examination and as per Annexure2, the age of the petitioner was found to be 22 years as on 7th May, 1971, which gives the birth year of the petitioner as 1949. Moreover, there is a criminal case filed against the petitioner by one Sri Baleshwar Singh about forgery of the document, namely the matric certificate. This false and fabricated document was inquired into by the police and ultimately, the chargesheet was filed against the present petitioner before the competent trial court. As the criminal case has been filed against the petitioner, the petitioner was put under suspension with effect from 28th December, 2005 and a notice was given to the petitioner dated 6th January, 2006 to give reply to the allegations, which this petitioner has never given. 6. Counsel for the respondents also submitted that this notice dated th January, 2006 has not been replied and therefore, on the basis of the birth date dated 7th May, 1949, the petitioner has been retired by the respondents in the month of May, 2009 and therefore, there is no substance in this writ petition, hence, the same may be dismissed. Petitioner will be paid salary as per law for the work actually done by the petitioner. 7. Having heard counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition on the following facts and reasons.: (i) The petitioner was appointed in the year 1969. At the relevant time, the petitioner had no proof of his date of birth and therefore, in the year, 1992, when the petitioner supplied matriculation certificate, the service book was opened and the birth date, as per the matriculation certificate, was inserted in the service book as 7th May, 1950. (ii) It further appears from the facts of the case that the petitioner was sent for medical examination and as per Annexure 3. 2, the medical certificate dated 7th May, 1971, petitioner's age was 22 years. Keeping in mind these aspects of the matter, the birth year of the petitioner will be 1949 instead of 1950. (iii) It further appears from the facts of the case that one Sri Baleshwar Singh has filed a criminal complaint against the present petitioner, which has been inquired into by the concerned police and it has been found out that the matric certificate supplied by the petitioner for getting the job and for getting the birth date inserted in the service book as 7th May, 1950 has been found to be false and fabricated documents. (iv) On the basis of the police investigation, the F.I.R. has been converted into chargesheet against the present petitioner and the case is pending before the concerned trial court. Thus, the petitioner is facing a serious charges under Section 471 of the Indian Penal Code and such other allied Sections and therefore, the petitioner was put under suspension with effect from 28th December, 2005. (v) Counsel for the respondents gave a notice dated 6th January, 2006 seeking explanation from the petitioner about the charges levelled against him, but till today, no reply has been given by the petitioner. Counsel for the petitioner submitted that the petitioner was sick in the year, 2003 suffering from heart attack and therefore, reply was not given in the year, 2006. This contention is also not accepted by this Court. Sickness was of the year, 2003 whereas, the notice given by the respondents is dated 6th January, 2006. (vi) Moreover, the petitioner has also retired in the year, 2009. In view of these facts, it appears that the very basis of date of birth alleged by the petitioner as 7th May, 1950 is a false and fabricated document. In a criminal case, there is an investigation made by the police and the document, upon which the petitioner is harping upon, too much, is no more a valid document in the eye of law. This contention raised by the respondents is also fortified by the document annexed in the counter affidavit, filed by the respondents which is at AnnexureD, which is a letter written by the Principal of the concerned school, who is alleged to have been issued the matriculation certificate, as per the petitioner. The Principal of the concerned District School, Dhanbad communicated this letter to the respondents on 3rd May, 2000. (vii) Moreover, looking to AnnexureD to the counter affidavit, it appears that the matric certificate, which is at AnnexureC, is not of the petitioner, but, of one Sri Birbal Prasad. Thus, the document, which is heavily relied upon for the birth date of the petitioner as the May, 1950 is also not confirmed by the Principal of the concerned school. 8. As a cumulative effect of the aforesaid facts and reasons, no error has been committed by the respondents in retiring the petitioner in the month of May, 2009 and therefore, this writ petition is hereby, dismissed. 8. As a cumulative effect of the aforesaid facts and reasons, no error has been committed by the respondents in retiring the petitioner in the month of May, 2009 and therefore, this writ petition is hereby, dismissed. As the petitioner was put under suspension, I hereby, direct the respondents to make the payment of the salary and such other benefits, which are legally payable to the petitioner for the work actually done by the petitioner, within a period of twelve weeks from the date of receipt of a copy of an order of this Court. Same and except this aspect of the matter, rest of the prayers are not accepted by this Court.