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2012 DIGILAW 683 (HP)

Deep Ram v. State of H. P.

2012-10-05

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, Judge: 1. Petitioner was engaged on daily wage basis in the respondent-department in the year 1984. He was regularized on 27.01.1998 as Forest Worker. He has given his date of birth as 12.05.1952 at the time of his regularization. Petitioner has submitted Annexure P-IV at the time of his regularization, whereby his date of birth has been recorded as 12.05.1952. This was issued by the Registrar, Birth & Death, Gram Panchyat Badhalag, District Solan. A complaint was filed against the petitioner on 16.08.2005, stating therein that the date of birth of the petitioner was 1943 and not 12.05.1952. The inquiry was entrusted to Assistant Conservator of Forests on 23.11.2006. The Assistant Conservator of Forests found that the date of birth of the petitioner was 1943 and not 12.05.1952. Thereafter, the petitioner was issued a show-cause notice on 19.12.2006, to which the reply was filed. The disciplinary authority, being not satisfied with the reply, instituted disciplinary proceedings against the petitioner, under Rule 14 of the CCS (CC&A) Rules, 1965 on 08.01.2007. The complainant, Shri Karan Singh, has also approached this Court, seeking a direction to the respondents to decide the departmental proceedings expeditiously by filing C.W.P. No. 709 of 2007, which was disposed of on 08.10.2007. Thereafter, the inquiry officer submitted the report to the disciplinary authority. Petitioner was served with a copy of the inquiry report alongwith a show-cause notice on 03.03.2008. Petitioner filed reply to the same. Thereafter, the order, dated 28.03.2008 was passed, whereby the petitioner was removed w.e.f. 30.06.2003. Petitioner filed an appeal against the order, dated 28.03.2008. He also filed C.W.P. No. 6126/2010, seeking a direction to the authorities to decide the appeal expeditiously. The same was disposed of by this Court on 29.09.2010. The appellate authority dismissed the appeal on 30.12.2010. In order to complete the facts, it would be apt at this stage to give reference to C.W.P. No. 9416/08 (O.A. No. 1334/08). This petition was disposed of by this Court on 10.12.2009. Petitioner was conferred with work charge status in sequel to judgment, dated 10.12.2009 w.e.f. 01.01.1994 vide office order, dated 04.05.2011. 2. Mr. S.R. Chauhan, learned counsel for the petitioner has strenuously argued that the date of birth of his client was rightly recorded as 12.05.1952 at the time of his regularization on the basis of Annexure R-III, dated 05.12.1997. Petitioner was conferred with work charge status in sequel to judgment, dated 10.12.2009 w.e.f. 01.01.1994 vide office order, dated 04.05.2011. 2. Mr. S.R. Chauhan, learned counsel for the petitioner has strenuously argued that the date of birth of his client was rightly recorded as 12.05.1952 at the time of his regularization on the basis of Annexure R-III, dated 05.12.1997. He then contended that the inquiry has not been held against his client in accordance with law. He lastly contended that the recovery of `3,76,966/-could not be ordered. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the date of birth of the petitioner was 1943 and not 12.05.1952. He then contended that the petitioner has been given ample opportunity to prove his date of birth. He then contended that as per the record of the Gram Panchayat and School Leaving Certificate, the date of birth of the petitioner is 1943. He lastly contended that the petitioner has concealed and misrepresented the facts at the time of his regularization. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The petitioner at the time of his regularization has given his date of birth as 12.05.1952. The same was entered in his service record. The certificate of date of birth was issued in 1997. A preliminary inquiry was instituted against the petitioner after the receipt of the complaint on 16.08.2005. The Assistant Conservator of Forest has found the date of birth of the petitioner to be 1943 instead of 12.04.1952. The departmental proceedings have been initiated against the petitioner under Rule 14 of the CCS(CC&A) Rules, 1965 on 08.01.2007. The petitioner has been given ample opportunity during the course of departmental proceedings. The inquiry report is self speaking. The inquiry officer has dealt with the entire evidence, oral as well as documentary, by rightly coming to the conclusion that the date of birth of the petitioner was 1943 and not 12.05.1952. The order, dated 28.03.2008, whereby the penalty of removal has been imposed upon the petitioner, is reasoned and self contained. The order of the appellate authority, dated 30.12.2010 is also reasoned. All the contentions raised by the petitioner, in his grounds of appeal, have been dealt with by the appellate authority in depth. 6. Mr. The order, dated 28.03.2008, whereby the penalty of removal has been imposed upon the petitioner, is reasoned and self contained. The order of the appellate authority, dated 30.12.2010 is also reasoned. All the contentions raised by the petitioner, in his grounds of appeal, have been dealt with by the appellate authority in depth. 6. Mr. S.R. Chauhan, learned counsel for the petitioner has relied upon the date of birth certificate, dated 05.12.1997. Petitioner has placed the same on record vide Annexure P-IV. There is an over writing in date of birth certificate. This over writing has not been explained by the petitioner. Now, as far as the medical certificate relied upon by the petitioner, Annexure P-III is concerned, there is also an over writing in the same. Figure ‘45’ has been scored off and figure ‘48’ has been written. The Court has compared Annexure P-III with Annexure R-VIII at page 92 of the paper-book. In the copy of Parivar register, Annexure P-V, the date of birth of the petitioner is 1943. In the certificates issued by the Secretary, Gram Panchayat, Badhalag, dated 28.12.2004 and 03.09.2007, the date of birth of the petitioner has been shown to be 1943. Shri Mahinder Kumar, the then Secretary, Gram Panchayat Badhalag has admitted in his statement that there were only two parivar registers and in both these registers, the date of birth of the birth of the petitioner was recorded as 1943 and there was no other register, showing the date of birth of the petitioner as 1952. Shri Roop Ram, the than Vice President, Gram Panchayat, Badhalag in his statement has deposed that the date of birth certificate of the petitioner was prepared/issued by the Secretary, Gram Panchayat, Badhalag on 05.12.1997, which record was not shown to him and as a witness, he signed the certificate. Petitioner has not led any tangible evidence to rebut the certificates issued by the competent authority on 28.12.2004 and 03.09.2007. Petitioner has written ‘Nil’ against the column of educational qualification. However, it is evident from the bare perusal of School Leaving Certificate, placed on record by the respondent-State, which was also taken into consideration by the inquiry officer that the petitioner joined the Government Primary School, Durgapur on 26.10.1951 and he left the School on 10.01.1957. The parivar register and School Leaving Certificate have been prepared by the authorities in discharge of their official duties. 7. The parivar register and School Leaving Certificate have been prepared by the authorities in discharge of their official duties. 7. Petitioner has claimed that he was borne on 12.05.1952. It cannot be accepted since the petitioner has been admitted in Government Primary School, Durgapur on 26.10.1951. Petitioner had to superannuate after attaining the age of 58 years on 30.06.2003. He has illegally and unauthorizedly worked from 30.06.2003 to 28.03.2008. Thus, there is no illegality in the order, whereby he has been called upon to deposit a sum of `3,76,966/-. In the instant case, the petitioner has misrepresented and concealed the facts at the time of his regularization, on the basis of which, he has worked for more than five years beyond his date of superannuation, i.e., 30.06.2003. In normal circumstances, where a workman has neither misled nor mis-represented, he is entitled to his salary for the period he has worked beyond the age of his superannuation. It is reiterated that in the instant case, the petitioner was not at all entitled to get the salary beyond 30.06.2003. 8. The petitioner has been conferred work charge status w.e.f. 01.01.1994 vide office order, dated 04.05.2011. He has been conferred with this benefit on the basis of the judgment of this Court rendered in C.W.P. 9416/2008 (O.A. No. 1334/2008), which was disposed of on 10.12.2009. The petitioner at the time of passing of this judgment was not in service, since he was removed from service vide office order, dated 28.03.2008. Petitioner ought to have brought this fact to the notice of the Court at the time of hearing of C.W.P. 9416/2008 (O.A. No. 1334/2008). 9. Mr. S.R. Chauhan, learned counsel for the petitioner has relied upon Kailash Singh Vs. State of Bihar and others (2005) 13 Supreme Court Cases 576. This judgment is not applicable to the facts and circumstances of the present case. In this case, the dispute as to date of birth of appellant arose due to loss of original service-book by the employer State and Medical Board was constituted by the employer State to determine the age of workman. In the case in hand, the petitioner has given a wrong declaration at the time of his regularization by mentioning his date of birth as 12.05.1952 instead of 1943 and has also concealed his educational qualification. Thus, the petitioner is not entitled to any equitable relief. 10. In the case in hand, the petitioner has given a wrong declaration at the time of his regularization by mentioning his date of birth as 12.05.1952 instead of 1943 and has also concealed his educational qualification. Thus, the petitioner is not entitled to any equitable relief. 10. Their Lordships of the Hon’ble Supreme Court in a recent judgment in Chandi Prasad Uniyal and others versus State of Uttarkhand and others, (2012) 8 SCC 417 have held that any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. Their Lordships have held as under: “13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered. 16. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant’s salary in twelve equal monthly installments starting from October 2012.” Petitioner’s case does not fall in any exceptional category since he has concealed the material facts at the time of regularization and has also relied upon certificates, which were not genuine. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. However, before parting with the judgment, the Tehsildar (Recovery), Solan, District Solan, H.P., i.e., respondent No. 5, is directed to recover a sum of 3,76,966/- from the petitioner, within a period of two months from today. No costs.