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2012 DIGILAW 457 (PAT)

Ashloka Devi v. Bihar State Electricity Board

2012-03-15

S.N.HUSSAIN

body2012
ORDER 1. Heard learned counsel for the petitioner and learned counsel for the respondents-Bihar State Electricity Board and its authorities. 2. This writ had been filed by the original petitioner namely Gaya (husband of Ashloka Devi) for the following reliefs:-. (i) For issuance of writ/writs in the nature of certiorari for quashing the order passed by respondent no.3 vide letter No.11/L-5030/2004/1212, Patna dated 20.05.2004 (Annexure-4) whereby and whereunder the date of retirement of the petitioner has been assessed as 31.07.1994 while the petitioner has retired on 31.07.1999, only on the basis of a fabricated reason of manipulation in the date of birth. (ii) For issuance of writ or writs in the nature of mandamus commanding the respondents not to curtail the retrial benefits on a fake and fabricated ground of overwriting in digit and not in words which are inscribed inwards on the service book. (iii) For issuance of direction or directions to the respondents to pay the entire retrial benefits with effect from 31.07.1999 which have been withheld in as much as the date of retirement of the petitioner has been assessed wrongly as 31.07.1994 instead of actual date of retirement i.e. 31.07.1999 by the respondents whereas the Committee formed for the assessment of the disputed date of birth of the workmen has decided the date of birth of the petitioner as 03.07.1939. (iv) For issuance of direction/directions and order/orders for which the petitioner is found entitled. 3. Learned counsel for the petitioner submits that her husband Late Gaya, who was the original petitioner of this writ petition, was appointed on 01.10.1959 on the post of Khalasi in the Bihar State Electric Supply Circle, Sasaram and in his service book his date of birth was specifically mentioned as 3rd July 1939 in letters as well as in words. He further submits that the age dispute was also settled by the authority concerned subsequently vide order dated 18.02.1999 by the Secretary of the Circle holding that the date of birth of the original petitioner was 03.07.1939. Accordingly, the original petitioner retired on 31.07.1999 as per the aforesaid date of birth having received the entire salary and emoluments accordingly. 4. He further submits that the age dispute was also settled by the authority concerned subsequently vide order dated 18.02.1999 by the Secretary of the Circle holding that the date of birth of the original petitioner was 03.07.1939. Accordingly, the original petitioner retired on 31.07.1999 as per the aforesaid date of birth having received the entire salary and emoluments accordingly. 4. Learned counsel for the petitioner further submits that without any prior notice or information or opportunity to place his case, the Joint Secretary of the Department issued letter dated 20.05.2004 (Annexure-4) holding that the date of birth of the original petitioner was 03.07.1934 as per the report of the Forensic Science Laboratory and hence his retrial benefits would be calculated accordingly. It is also stated by learned counsel for the petitioner that the original petitioner filed representation dated 08.07.2004 before the General Manager–cum- Chief Engineer of the Area giving the details, but no heed was paid to it and the original petitioner was constrained to file the instant writ petition on 09.08.2006. However, the original petitioner died on 18.10.2007 and his heir, namely his widow, was substituted vide order of this Court dated 01.09.2008. 5. On the other hand, learned counsel for the respondents-authorities vehemently opposes the contentions of learned counsel for the petitioner and states that due to large number of discrepancies in the date of birth recorded in the service book of the workmen posted under Electric Supply Circle Rohtas, Sasaram, the matter was under verification and hence even after the report dated 18.02.1999 submitted by the Committee constituted for the purpose vide Boards office order no.4140 dated 03.08.1995, the service books of the workmen posted at Electric Supply Circle, Rohtas were sent to the Forensic Science Laboratory and in its report dated 18.2.2003 the Forensic Science Laboratory assessed the date of birth of the original petitioner as 03.07.1934. The report dated 18.2.2003 submitted by the Forensic Science Laboratory had an overriding effect on the report dated 18.02.1999 submitted by the Committee (Annexure-2), hence on the basis of assessment of date of birth of the original petitioner by the Forensic Science Laboratory, the petitioner was declared to have attained the age of superannuation on 31.7.1994. 6. The report dated 18.2.2003 submitted by the Forensic Science Laboratory had an overriding effect on the report dated 18.02.1999 submitted by the Committee (Annexure-2), hence on the basis of assessment of date of birth of the original petitioner by the Forensic Science Laboratory, the petitioner was declared to have attained the age of superannuation on 31.7.1994. 6. Learned counsel for the respondents further submits that the date of retirement of the original petitioner has not been curtailed, rather it has been corrected on the basis of report submitted by the Forensic Science Laboratory treating it as clerical error in the Service Book and retrial benefits have also been paid to the petitioner accordingly. He also submits that in view of the report of the Forensic Science Laboratory, the original petitioner attained the age 60 years on 31.7.1994 which is the age of superannuation, but he worked even after the age of superannuation on the basis of overwriting in the date of birth, recorded in his Service Book and hence for the period the original petitioner worked even after the age of superannuation he had been paid wages and the same has not been recovered from him. 7. Learned counsel for the respondents avers that only after receiving report dated 18.2.2003 from Forensic Science Laboratory the overwriting in the date of birth, recorded in the service book of the original petitioner came to the notice of the respondents and thereafter order dated 20.5.2004 was passed on the basis of the report of the Forensic Science Laboratory. He further avers that before receipt of the report submitted by the Forensic Science Laboratory some excess payments had been received by the petitioner to which he was not entitled and in addition to that he had also been paid his all retrial dues as stated hereunder:- A-Under Group Insurance Scheme Rs.24,334.00 through Cheque No.359623 dated 25.2.2000; B-Leave encashment Rs.31327 through Cheque No.366946 dated 16.5.2000. C-Gratuity Rs.16208 through cheque no.98 2477 dated 22.5.2004. D-The G.P.F. amount of Rs.51905 through cheque no.745020 dated 14.2.2002; and E-Arrear of pension Rs.30645+ Rs.13703= Rs.44348 through cheque No.991987 dated 17.8.2004. 8. C-Gratuity Rs.16208 through cheque no.98 2477 dated 22.5.2004. D-The G.P.F. amount of Rs.51905 through cheque no.745020 dated 14.2.2002; and E-Arrear of pension Rs.30645+ Rs.13703= Rs.44348 through cheque No.991987 dated 17.8.2004. 8. Considering the entire facts and circumstances of this case as well as the materials on record it is quite apparent that the only basis for the impugned action taken by the authorities against the original petitioner is the report of the Forensic Science Laboratory dated 18.02.2003 (Annexure-A to the counter affidavit) in which result of the examination of the service book had been detailed in the following manner:- “At the first page Sl.5 of the first part of Service Book of Sri Gaya marks of overwriting has been found on the last digit 9 of the year 1939. Previous visit 4 had been detected (illegible) digit 9. Therefore, previous date of birth reads as 3.7.1934.” 9. A perusal of the photo copy of the service book of the original petitioner it shows that in its column no. 5, the date of birth of original petitioner had been mentioned as “3rd July 1939” which has also been mentioned in words clearly as “(3rd July Nineteen hundred & thirty nine) only. Furthermore, both the 9 mentioned in 1939 appears to be in similar writing. There may be an overwriting in the last 9 but that will not prove that the date of birth given as 3rd July 1939 is wrong and the correct date of birth was 3rd July, 1934, especially when the date, month and year had been clearly noted in the Service Book as “3rd July, 1939 (3rd July Nineteen hundred & thirty nine) only”. 10. However, neither the report of the laboratory nor the impugned order of the authority show that there was any discrepancy or overwriting in the year of birth noted in words in the service book which was clearly Nineteen hundred and thirty nine. This aspect of the matter has been very strangely overlooked not only by the Forensic Science Laboratory, but also by the authority concerned which had passed the said order which is under challenge in this case, although it was their duty to consider the matter in its entirety before taking such decision. 11. This aspect of the matter has been very strangely overlooked not only by the Forensic Science Laboratory, but also by the authority concerned which had passed the said order which is under challenge in this case, although it was their duty to consider the matter in its entirety before taking such decision. 11. Furthermore, in any view of the matter before passing the impugned order it was the duty of the authorities to send notice to the original petitioner and give opportunity to him to present his case as he was going to be adversely affected by that order. Hence, the impugned order also suffers from violation of the principles of equity and natural justice. 12. In the aforesaid facts and circumstances, it is quite apparent that the date of birth had been correctly noted in the service book as 3rd July, 1939 which had been also settled by the authorities concerned vide order dated 18.02.1999 and the original petitioner was rightly allowed to continue till the date of his superannuation, i.e. 31.07.1999, whereafter he was entitled to all the post retrial benefits as per the aforesaid calculations. 13. Accordingly, the impugned order dated 20.05.2004 (Annexure-4) issued by the Joint Secretary of the Department is hereby quashed and this writ petition is allowed with a direction to the authorities to calculate all the retrial dues, including pension and family pension of the original petitioner as well as of his widow namely the substituted petitioner as per the aforesaid finding of this Court. 14. If the payment has already not been made to the petitioner as per the aforesaid calculation, the balance amount shall be paid to the petitioner and if any amount has been recovered on the basis of the impugned order it must be returned to the petitioner expeditiously, preferably within a period of three months from the date of receipt of a copy of this order.