Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 242 (UTT)

Narayan Singh Jagwan v. State of Uttarakhand

2012-05-24

V.K.BIST

body2012
JUDGMENT : Present petition has been filed by the petitioner for the following reliefs: “I. Issue a writ, rule order or directions in the nature of certiorari calling for records and quashing the certificate issued by Gram Panchayat Adhikari dated 18.01.03 and reply letter dated 27.10.05 (Annexure-4) issued by the respondent no.3 and further to quash so called exparte inquiry as alleged in the said letter. II. Issue a writ, rule order or direction in the nature of mandamus commanding and directing the respondents to release petitioner’s post retiral benefits including pension, gratuity etc. forthwith including the arrears of said benefits accrued to the petitioner from the date of his retirement i.e. 31.12.02 with 12% interest per annum and further to direct the respondents to keep on making regular payment of post retiral benefits to petitioner month by month or as and when they fall due. III. Issue any other order or direction, which this Hon’ble Court may deem fit and proper under the circumstances of the case. IV. Award cost of the petition in favour of the petitioner.” 2. Brief facts of the case, as narrated in the writ petition, are that petitioner was appointed as Jeep Driver on ad-hoc basis on 01.12.1983 in U.P. Jal Nigam (now Uttarakhand Pey Jal Nigam). At the time of his appointment, the date of birth of the petitioner was recorded as 22.12.1948. Subsequently, the services of the petitioner were regularized on the post of Work Supervisor in the year, 1989. The correct date of birth of the petitioner is 22.12.1944. Having knowledge of the fact that his date of birth has wrongly entered in the service book as 22.12.1948, the petitioner moved to the authorities to correct his date of birth from 22.12.1948 to 22.12.1944 in his service book. The competent authority, after looking into the documents produced by the petitioner at the time of his regularization, corrected the date of birth of the petitioner as 22.12.1944 in his service book. On the basis of this corrected date of birth, the petitioner was superannuated on his completing 58 years of age. After his retirement, the petitioner submitted all required documents for release of his post retiral benefits. The petitioner also submitted a copy of the Family Register for the purpose of completing the formalities. In the said Family Register, the date of birth of the petitioner was wrongly shown as 1936. After his retirement, the petitioner submitted all required documents for release of his post retiral benefits. The petitioner also submitted a copy of the Family Register for the purpose of completing the formalities. In the said Family Register, the date of birth of the petitioner was wrongly shown as 1936. Respondents, on the basis of the date of birth shown in the Family Register, withheld the pension and other retiral benefits of the petitioner. The petitioner submitted several representations before the respondent authorities for release of his post retiral benefits. In his representation, the petitioner submitted that the said Family Register, which was submitted by the petitioner before the authorities, was issued after his retirement and it was just for the verification of the family members of the petitioner. The date of birth entered in the Family Register of the petitioner was not correct at all, as such, entry which was made on the basis of speculation cannot be looked into for the purpose of the retirement of the petitioner. It was also mentioned in the representation of the petitioner that it is evident from looking into the date of birth entries mentioned in the Family Register that the date of birth of petitioner’s son Balam Singh has been written as 1963 and date of birth of his grandson has been written as 19.06.1970, thus, the difference between the date of birth of father and son is only 7 years, therefore, such entries in Family Register are not reliable. 3. The respondent no.3 filed counter affidavit and supplementary counter affidavit. He, in his counter affidavit, has submitted that at the time of entering the service, the petitioner mentioned his date of birth as 22.12.1948. The respondent no.3, after the retirement of the petitioner, for the purpose of grant of pensionary benefits, enquired about the dependents of the petitioner. The petitioner submitted a certificate in which details of his dependants and their date of birth was mentioned. In the date of birth of the petitioner, some interpolation was found which created doubt and the respondents enquired into the matter. It was also found that if the date of birth of the petitioner stated in the Family Register is considered, then in that event, the petitioner has worked 8 years in excess, therefore, a First Information Report was registered on 25.04.2003. It was also found that if the date of birth of the petitioner stated in the Family Register is considered, then in that event, the petitioner has worked 8 years in excess, therefore, a First Information Report was registered on 25.04.2003. It is also mentioned in the counter affidavit that the question of date of birth involves disputed question of fact, which cannot be dealt with under Article 226 of the Constitution of India and the petition is not maintainable and is liable to be dismissed. In paragraph 4 & 5 of the counter affidavit filed by respondent no.3, it is mentioned that the respondent no.3 also asked the Village Development Officer, Tilwara to supply a copy of the Family Register mentioning the date of birth of the petitioner, so that the pensionary benefits may be computed in favour of the petitioner. The date of birth of the petitioner mentioned in the copy of the Family Register was shown as 1936. It is also mentioned in the counter affidavit that since the respondents have evidence regarding date of birth of the petitioner in the year 1936, no retiral dues can be paid to the petitioner. Paragraph nos. 4 & 5 of the counter affidavit are being reproduced below: “(4) That the contents of Paragraph nos.-3, 4 and 5 of the writ petition are incorrect, misconceived hence vehemently denied. The deponent states that at the initial time of service of the respondents the petitioner mentioned the date of birth 22.12.1948. The respondent no.-3 enquired with regard about the dependence of the petitioner for the purpose of paying the pensionary benefits. Consequently, the petitioner submitted a certificate stating the details of dependant and their date of birth. In the date of birth of petitioner, there was interpolation therefore a doubt was created and thus the respondents enquired into the matter. If the date of birth stated in Family Register is considered then in that case the petitioner has worked 8 years in excess. In view of aforesaid facts and circumstances the department has no option but to lodge FIR dated 25.04.2003. A copy of the FIR is being filed herewith and marked as Annexure no.-1 to this Counter Affidavit. Initially the matter was reported to Patwari on dated 25.4.2003 and thereafter at present the matter is before the regular Police. In view of aforesaid facts and circumstances the department has no option but to lodge FIR dated 25.04.2003. A copy of the FIR is being filed herewith and marked as Annexure no.-1 to this Counter Affidavit. Initially the matter was reported to Patwari on dated 25.4.2003 and thereafter at present the matter is before the regular Police. The question of date of birth involves disputed question of fact which cannot be gone through in exercise of before under article 226 of the Constitution of India. The writ petition is not maintainable and is liable to be dismissed. The respondent no.-3 further vide letter dated 10.1.2003 wrote to Village Development Officer, Tilwara and requested to supply a copy of the Family Register in which the date of birth of petitioner is mentioned so that the pensionary benefits may be computed in favour of the petitioner. A copy of the letter 10.1.2003 written by respondent no.-3 to Village Development Officer, Tilwara is being filed herewith and marked as Annexure no.-2 to this Counter Affidavit. Subsequently a copy of the Family Register which mentions the date of birth of the petitioner was supplied to respondent no.-3 by the said Village Development Officer. A perusal of family register reveals that the date of birth of the petitioner is 1936. A copy of the Family Register which mentions the date of birth of the petitioner is being filed herewith and marked as Annexure no.-3 to this Counter Affidavit. (5) That with regard to the contents of Paragraph nos.-6 and 7 of the Writ Petition it is stated that certificate of Village Development Officer, Tilwara dated 7.1.2003 contains interpolation as regard the date of birth of the petitioner and most importantly it is not open for the petitioner at the fact of his service to allege that he has different date of birth. Since the respondents had credential evidence against the petitioner with regard that his date of birth is in the year 1936 as such no retiral dues at present can be paid to the petitioner. Assertion made to the contrary are denied.” 4. In his additional counter affidavit, the respondent no.3 has admitted that at the time of entering the service, the date of birth of the petitioner was entered as 22.12.1948. Assertion made to the contrary are denied.” 4. In his additional counter affidavit, the respondent no.3 has admitted that at the time of entering the service, the date of birth of the petitioner was entered as 22.12.1948. It is also admitted in the additional counter affidavit that on 06.09.2002, the petitioner wrote to the Executive Engineer, Construction Division, Uttarakhand Pey Jal Nigam, Rudraprayag, annexing a copy of the certificate issued by the Gram Panchayat, Sandar for correction of date of birth. In the said certificate, the date of birth of the petitioner was mentioned as 22.12.1944. On the basis of the letter written by the petitioner and certificate issued by the Gram Panchayat, Sandar, the documents regarding date of birth was corrected. It is also mentioned in the additional counter affidavit that after the retirement of the petitioner, the Gram Vikas Adhikari, Tilwara issued date of birth certificate on 18.01.2003, in which the date of birth of the petitioner was mentioned as 1936. Thus, the respondents came to the conclusion that petitioner had played fraud with the department and submitted a forged date of birth certificate at the time of induction in service and due to this reason, the post retiral dues of the petitioner have not been released. The petitioner also submitted medical certificate issued by the Chief Medical Officer in the year 1991, in which the age of the petitioner was shown as 48 years. The respondent no.3, in his additional counter affidavit, further submitted that the alleged certificate of the Chief Medical Officer cannot be relied upon and the Jal Nigam is not liable to pay any pension, gratuity or provident fund to the petitioner, as he has not completed the qualifying service and has worked 8 years in excess. 5. Mr. Ravi Babulkar, learned counsel for the petitioner submitted that the enquiry against the petitioner, which the respondents have claimed to be initiated against the petitioner after his retirement, is totally against the law, inasmuch as, Article 351-A of the Civil Service Regulations, stipulates that no enquiry can be initiated after the retirement of the Government employee, without prior sanction of the Governor of the State. He also submitted that the respondents in treating the date of birth of petitioner as 1936 instead of 22.12.1944, which was in the service record at the time of retirement, is against the provisions of the Uttarakhand Recruitment to Services (Determination Of Date Of Birth) Rules, 2003, which provides that the date of birth of Government Servant recorded at the time of entry in the Government Service, shall be deemed to be for all purposes in relation of his service including eligibility for promotion, superannuating, premature retirement or retiral benefits and no application or representation shall be entertained for correction of such date of birth in any circumstances whatsoever. He submitted that thus, in view of these provisions, the petitioner when became the member of the service after his regularization in the year 1989, his date of birth was recorded as 22.12.1944 by the respondent authorities and now, respondent authorities cannot be permitted to change the same. He further argued that the date of birth entered in the Family Register has no legal validation attached to it and the same cannot be basis for determination of the date of birth, inasmuch as, the date of birth entered in the Family Register is on the basis of knowledge without any proof or certificate. Learned counsel for the petitioner also submitted that the Chief Medical Officer, Chamoli, Gopeshwar issued a certificate on 15.02.1991, at the time of regularization of the services of the petitioner, in which the age of the petitioner was mentioned as 48 years. He submitted that if the Medical Certificate of the Doctor is considered, then in that event, the date of birth of the petitioner was rightly mentioned as 22.12.1944. He submitted that the respondent authorities wrongly discarded the medical certificate issued by the Chief Medical Officer. 6. The only submission of the learned counsel for the respondents is that on enquiry, it was found that the date of birth of the petitioner is 1936 and not 22.12.1944. Learned counsel for the respondents submitted that in the Family Register, the date of birth of the petitioner was mentioned as 1936 and in view of this fact, the post retiral dues of the petitioner has rightly been withheld. Thus, by treating his date of birth as 1936, the petitioner has not completed the qualifying service for grant of pensionary benefits. Thus, by treating his date of birth as 1936, the petitioner has not completed the qualifying service for grant of pensionary benefits. He submitted that the Jal Nigam is not liable to pay any pension, gratuity or provident fund to the petitioner, as he has not completed the qualifying service and has worked 8 years in excess. 7. I have carefully considered the submissions of the learned counsel for the parties. 8. It is settled law that date of birth entered in the service record at the time of entry in the Government service, shall be deemed to be the date of birth of an employee for all practical purposes, like grant of promotion or payment of post retiral benefits etc. The petitioner, at the time of his regularization, himself wrote to the competent authority that at the time of entering in service, his date of birth was wrongly recorded as 22.12.1948, whereas his actual date of birth is 22.12.1944. In support of this submission, he also supplied certificate issued by the Chief Medical Officer. Thus, petitioner fairly stated before the respondent authorities for correction in his date of birth, otherwise, the respondent authorities was bound to treat the date of birth as his actual date of birth, which was entered at the time of joining of his service. By getting his date of birth changed, the petitioner did not gain anything. Thus, he was fair enough in getting his date of birth changed. The competent authority, after due consideration, accepted the same and changed the entry. After the retirement from service, the respondents could not initiate enquiry in the matter and if enquiry was at all necessary, the same should have been done, after taking prior sanction from the Governor of the State, as provided in Regulation 351-A of the Civil Service Regulations. If the Doctor’s report is also considered, in that event also, the date of birth of the petitioner is of the year 1944. The respondents adopted unheard method and committed illegality by relying on the Family Register for determining the date of birth of the petitioner. Legally, this could not be done. This was done to harass the petitioner. If the Doctor’s report is also considered, in that event also, the date of birth of the petitioner is of the year 1944. The respondents adopted unheard method and committed illegality by relying on the Family Register for determining the date of birth of the petitioner. Legally, this could not be done. This was done to harass the petitioner. Infact date of birth entered in the service record at the time of entry in the service, should be treated as actual date of birth and by treating the same, all benefits should be given to the petitioner for which he is legally entitled. In the case of “All India Reserve Bank Retired Officers Association and others Vs. Union of India and others” reported in AIR 1992 Supreme Court 767, the Hon’ble Supreme Court has held that pension is not a charity or bounty nor is it gratuitous payment solely dependent on the whims or sweet will of the employer. Relevant portion of the judgment is quoted below: “The concept of pension is now well known and has been clarified by this Court time and again. It is not a charity or bounty nor is it gratuitous payment solely dependent on the whim or sweet will of the employer. It is earned for rendering long service and is often described as deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution.” 9. In the case of “Salabuddin Mohamed Yunus Vs. State of Andhra Pradesh” reported in 1984 (Supp) Supreme Court Cases 399, the Hon’ble Supreme Court has also held that the pension being a fundamental right which could only be taken away or curtailed in the manner provided in the Constitution. 10. In view of above discussion, it is held that respondent- Uttarakhand Pey Jal Nigam committed illegality by treating 1936 as actual date of birth of the petitioner, which was shown in the Family Register of the petitioner. The date of birth of the petitioner, recorded in the service record, is the correct date of birth for all practical purposes. 10. In view of above discussion, it is held that respondent- Uttarakhand Pey Jal Nigam committed illegality by treating 1936 as actual date of birth of the petitioner, which was shown in the Family Register of the petitioner. The date of birth of the petitioner, recorded in the service record, is the correct date of birth for all practical purposes. I have no hesitation to say that the action of the respondents by not releasing the post retiral dues of the petitioner for last ten years is deliberate, arbitrary, unreasonable and illegal. Petitioner is entitled for all post retiral benefits with interest. Consequently, writ petition is allowed. Respondents are directed to release petitioner’s all post retiral benefits including pension, gratuity etc. including the arrears of said benefits accrued to the petitioner from the date of his retirement i.e. 31.12.2002 till date, with 12% annual interest within a period of one month from the date of production of a certified copy of the order. Since the petitioner, who is a senior citizen of 70 years, has been harassed unnecessarily after his retirement, a cost of Rs. 20,000/-(Twenty Thousand Only) is also imposed on respondents, who shall pay the same to the petitioner within one month from the date of production of certified copy of the order.