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2013 DIGILAW 475 (ALL)

KHAYAT SINGH v. STATE OF U. P.

2013-02-08

TARUN AGARWALA

body2013
JUDGMENT Hon’bleTarun Agarwala, J.—Heard Sri N.C.Srivastava, the learned counsel for the petitioner and the learned standing counsel. 2. The present writ petition has been filed for the quashing of the order dated 16.1.2006 whereby the Executive Engineer informed the petitioner that he would retire w.e.f. 30.11.2006 as well as the order dated 29.7.2006 by which the representation of the petitioner was rejected by the Engineer-in-Chief. 3. The facts leading to the filing of the writ petition, as culled out from the affidavit that has been filed before the Court and the original service register that has been produced today is, that the petitioner was appointed on 18.11.1977 in the Irrigation Department. The Service Book of the petitioner was prepared in the year 1987 and, at that stage, the petitioner’s age was recorded as 31 years. In 1987 the petitioner was directed to appear before the Chief Medical Officer with regard to the verification of his date of birth. The petitioner appeared and the Chief Medical Officer, on the basis of his medical examination, issued a certificate dated 1.9.1987 indicating that as on 1.9.1987 the age of the petitioner was 35 years. On the basis of this certificate, the entry of 31 years in the service register was deleted and was substituted by the words “thirty-five years as on 1.9.1987 according to the C.M.O., Bijnore”. The original service book indicates that the petitioner as well as the Assistant Engineer both have signed on 26.4.1996 acknowledging the aforesaid entry with regard to the date of birth. 4. On the basis of the entry made in the Service Book indicating that the petitioner’s age is 35 years as on 1.9.1987, the date of birth would be 1st September, 1952. The age of superannuation of a Class-IV employee in Government service is 60 years and consequently, the petitioner would reach the age of superannuation on 1.9.2012. 5. It transpires that some audit objections were reported for the year 2002-03 with regard to the entries of the date of birth in the Service Book of the petitioner and, on the basis this audit objection, the Executive Engineer instituted an inquiry by constituting a Committee. 5. It transpires that some audit objections were reported for the year 2002-03 with regard to the entries of the date of birth in the Service Book of the petitioner and, on the basis this audit objection, the Executive Engineer instituted an inquiry by constituting a Committee. It further transpires that the committee submitted a report indicating that, on the basis of an application form alleged to have been written under the signature of the petitioner, his date of birth at the time of his appointment was 31 years and therefore, his date of birth should be 18th November, 1946. Based on this inquiry report, the Executive Engineer passed an order dated 19.4.2004 holding that the petitioner’s date of birth is 18th November 1946. 6. The order of the Executive Engineer dated 19.4.2004 is pasted in the service book of the petitioner, which indicates that a copy of the said order was earmarked to the petitioner but nothing has been brought on record to indicate that the said order was duly served upon the petitioner. 7. Taking 18.11.1946 to be the date of birth of the petitioner, the Executive Engineer issued a notice dated 16.1.2006 intimating the petitioner that he would retire on 30.11.2006. The petitioner represented, contending that the date of birth as 18th November, 1946 is incorrect and that his date of birth is 1st September, 1952 and therefore, he could not retire on 13th November, 2006. His representation fell on deaf ears and accordingly, the petitioner filed Writ Petition No.2750 of 2006, which was disposed of by an order dated 18th May, 2006 directing the Engineer-in-Chief to decide the representation of the petitioner. Based on the said direction, the Engineer-in-Chief rejected the representation of the petitioner by the impugned order dated 29.7.2006. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition. 8. Counter-affidavit and rejoinder-affidavit have been exchanged and, when the matter was being heard, the Court was unable to get a clear picture and accordingly directed the respondents to file a legible copy of the Service Book of the petitioner. The Court, in this regard, passed orders dated 16.10.2012, 19.11.2012 and 11.12.2012. Inspite of these orders being passed, which the learned standing counsel had communicated to the respondent No.2 as well as to the other authorities, the legible copy of the service record was not filed. The Court, in this regard, passed orders dated 16.10.2012, 19.11.2012 and 11.12.2012. Inspite of these orders being passed, which the learned standing counsel had communicated to the respondent No.2 as well as to the other authorities, the legible copy of the service record was not filed. Consequently, by an order dated 15.1.2013, the Court directed the respondent No.2, i.e., the Engineer-in-Chief, Work Charge Establishment, Irrigation Department Lucknow, to appear in person alongwith his explanation as to why action be not taken against him for non-compliance of the order of the Court. A copy of this order was given to the learned Standing Counsel for necessary communication. 9. Inspite of the aforesaid order, the Engineer-in-Chief did not appear on 31.1.2013 nor filed a legible copy of the service record. The Court had no choice but to issue a non-bailable warrant through the Chief Judicial Magistrate, Lucknow to secure the presence of the Engineer-in-Chief, on the date fixed, i.e., today. 10. The report of the Chief Judicial Magistrate, Lucknow indicates that the non-bailable warrant could not be executed as the Engineer-in-Chief had left for Allahabad. Today, when the matter was taken up, the Engineer-in-Chief was present in the Court and, on his behalf, an exemption application alongwith an affidavit has been filed. A supplementary affidavit has also been filed annexing the copy of the service book of the petitioner. Both are taken on record. The Court directed the Registrar General to take the Engineer-in-Chief in custody and again produce him after lunch at 2.15 p.m. which was duly done. 11. The Court has heard the learned counsel for the petitioner and the learned standing counsel at some length. The Court has also perused the application for exemption of the petitioner and the affidavit accompanying it. Nothing has been stated by the Engineer-in-Chief that he was not aware of the orders of the Court dated 16.10.2012, 19.11.2012 and 11.12.2012 by which the Court had directed the respondents to file a legible copy of the service record of the petitioner. Further, the Engineer-in-Chief admits in paragraph 7 of the affidavit that the order dated 15.1.2013 requiring him to appear in person on 31.1.2013, was duly received in his office on 17.1.2013. The Engineer-in-Chief, in paragraph 11, further indicated that he conducted an inspection of a Canal Bridge on 31.1.2013, thereby contending that on account of this inspection he could not appear before the Court. The Engineer-in-Chief, in paragraph 11, further indicated that he conducted an inspection of a Canal Bridge on 31.1.2013, thereby contending that on account of this inspection he could not appear before the Court. 12. The Court is constrained to observe, that the Engineer-in-Chief chose deliberately not to appear and, on the other hand, chose to inspect a Canal Bridge, which amounts to contempt in the face of the Court, i.e., contempt which the Judge sees with his own eyes for which it requires no evidence or witness and which the Judge can deal with it himself at once. For this, the Court has the power to imprison the person without trial, which is necessary in order to maintain law and order, inasmuch as, the course of justice must not be deflected or interfered with by those who strike it or strike it at a very foundation of our society and, therefore, this Court is of the opinion, that the Judge must have the power at once to deal with those who offended it. This power of summary punishment is a necessary power so as to maintain the dignity and authority of the Court. 13. No one is above the law. The dignity and authority of the Court cannot be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person and, the only weapon for the Court to protect itself is, the long arm of the Contempt of Court. Whoever tends to undermine the authority of law and bring it in disrepute will come within the purview of the contempt proceedings and the exercise of this power is not to vindicate the dignity of the Judge, but to uphold the majesty of the law and of the administration of justice. 14. In the instant case, the Court finds that the action of the Engineer-in-Chief is totally contumacious. He has shown scant regard to the orders of the Court. Inspite of repeated direction, he did not file the service record nor appeared in person when directed. Consequently, the petitioner is guilty of Contempt of the Court. At this stage, the Court can punish him and send him to jail if required, but will not do so. The Court has a large heart and is magnanimous and will not be cowed down by the action of the respondent. Consequently, the petitioner is guilty of Contempt of the Court. At this stage, the Court can punish him and send him to jail if required, but will not do so. The Court has a large heart and is magnanimous and will not be cowed down by the action of the respondent. There are other means by which the respondents could be penalized which the Court will deal with at a later stage. 15. Coming to the merits of the case, the Court finds that pursuant to the certificate issued by the Chief Medical Officer, the petitioner’s date of birth was recorded in the service book in the year 1987 and the signatures of the petitioner and the Assistant Engineer were recorded again in the service book in 1994. The action of the respondents in retiring the petitioner w.e.f. 30.11.2006 is based upon the order of the Executive Engineer dated 19.4.2004. The Court is of the opinion, that the action taken by the respondent was patently erroneous and arbitrary. The Court finds that no opportunity or notice was given to the petitioner by the Executive Engineer before passing the order dated 19.4.2004. The inquiry proceeding was done behind the back of the petitioner. It is not known as to whether the order of the Executive Engineer dated 19.4.2004 was ever communicated to the petitioner. The Court is of the opinion that any change in the service book of the petitioner entails civil consequences and consequently, it is imperative that if any change in the date of birth is made, the same can only be done after giving notice and an opportunity of hearing to the employee concerned. In the instant case, this has not been done. The action of the respondents, in changing the date of birth, was wholly arbitrary and without any authority of law. 16. In the light of the aforesaid, the impugned notice dated 16.1.2006 and the order dated 29.7.2006 rejecting the representation of the petitioner cannot be sustained and is quashed. The writ petition is allowed. 17. The question is, what relief the petitioner can be granted at this stage. If the petitioner had continued in service on the basis of the original entry indicating that he was 35 years as on 1.9.1987, the petitioner would have continued to work till 1.9.2012. Consequently, as on date, the petitioner cannot be reinstated. The writ petition is allowed. 17. The question is, what relief the petitioner can be granted at this stage. If the petitioner had continued in service on the basis of the original entry indicating that he was 35 years as on 1.9.1987, the petitioner would have continued to work till 1.9.2012. Consequently, as on date, the petitioner cannot be reinstated. The only relief which the Court can grant is to compensate him in terms of money for the loss which he has suffered with regard to his salary. It has been stated that at the time when the petitioner had retired, he was getting a salary approximately @ Rs.9000/- per month. The actual amount is not before the Court. 18. Considering the fact that the petitioner has wrongly been retired coupled with the fact that the principle of ‘’no work and no pay’ is also applicable, but, in the instant case, the fault solely lay with the respondents in wrongfully retiring the petitioner, the Court is of the opinion, that 50% of the salary should be paid to the petitioner. 19. Consequently, a writ of mandamus is issued commanding the respondent Nos.2 and 3 to calculate the wages payable to the petitioner from the date of his retirement on 30.11.2006 till 1.9.2012 out of which 50% shall be paid to the petitioner within six weeks from today. The petitioner’s length of service would be calculated keeping in mind that he would retire on 1.9.2012 and all post retirement dues, etc. would be re-calculated on that basis within the same period. Arrears, if any, would be paid accordingly within two months thereafter. In the event, the respondents are required to deduct income tax on the arrears of salary, the same shall not be deducted from the 50% of wages, but the component toward the income tax would be paid by the respondents to the income tax authorities in addition to the amount paid to the petitioner. 20. In view of the action of the Engineer-in-Chief in not complying with the orders of the Court, the Court imposes a cost of Rs.20,000/- upon the respondent No.2, i.e., the Engineer-in-Chief, who is present in the Court for his contumacious action, ignoring the dignity of this Court. 20. In view of the action of the Engineer-in-Chief in not complying with the orders of the Court, the Court imposes a cost of Rs.20,000/- upon the respondent No.2, i.e., the Engineer-in-Chief, who is present in the Court for his contumacious action, ignoring the dignity of this Court. The said amount shall be deposited before the Registrar General of this Court within three weeks from today, failing which, the Registrar General would initiate the recovery as arrears of land revenue. The amount so deposited will be deposited before the High Court Legal Services Committee. 21. The Court finds, that the Court had directed issuance of non-bailable warrant by its order dated 31.1.2013, notice of which was received by the Judicial Magistrate, Lucknow on 4.2.2013. The Court is constrained to observe that the non-bailable warrant could not be executed when there was ample time for the Magistrate to get the warrant executed. The Court is of the opinion, that a casual approach had been adopted by the Chief Judicial Magistrate. In future, the Chief Judicial Magistrate should be cautious and ensure that the orders of the Court are complied immediately. 22. In view of the fact that the respondent No.2, Engineer-in-Chief, has appeared before the Court, no further action is now required to be taken pursuant to the non-bailable warrant which was issued pursuant to the order dated 31.1.2013. 23. Registry to supply a copy of this order to the Registrar General within two weeks for necessary information and action and with a request to send the extract of the order to the Chief Judicial Magistrate concerned for necessary information and action. A copy of the order be also supplied by the Registry to the Administrative Judge concerned within the same period. ——————