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2014 DIGILAW 24 (ALL)

KISHORE RAM v. STATE OF U. P.

2014-01-06

SURYA PRAKASH KESARWANI

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JUDGMENT Hon’ble S.P. Kesarwani, J.—In this writ petition the petitioner has prayed for following reliefs: (i) A writ, order or direction in the nature of certiorari quashing the impugned order dated 2.10.2001 (Annexure (5) to the writ petition) passed by the respondent No. 4. (ii) A writ, order or direction in the nature of mandamus commanding the respondent Nos. 3 and 4 to not to interfere with the services of the petitioner as Beldar till he attains the age of superannuation in accordance with the date of birth recorded in his service book. (iii) A writ, order or direction in the nature of mandamus commanding the respondent No. 4 to not realise a sum of Rs. 50,577/- from the petitioner as mentioned in the impugned order. (iv) Any writ, order or direction in the nature of which this Hon’ble Court may deem fit and proper in the facts & circumstances of the case ; and (v) Award the cost of the writ petition to the petitioner. 2. Briefly stated the facts of the present case are that the petitioner was engaged as Beldar by respondent No. 4, Nagar Khetra Samiti, Chandauli on daily wage basis in the year 1986. By an order dated 31.7.1992 (Annexure 2), services of the petitioner was regularized on the post of Beldar in Nagar Khetra Samiti, Chandauli in the pay-scale of Rs. 750-940. Subsequently, the petitioner submitted a certificate issued by the Chief Medical Officer, Varanasi certifying that the age of the petitioner is 38 years on 3.4.1999. Thereupon a notice dated 29.8.2001 (Annexure 3) was issued by respondent No. 3 requiring the petitioner to inform within seven days. Whether he has received education in any institution or not. This notice was replied by the petitioner vide letter dated 4.9.2001 (Annexure 4), that the petitioner was regulairsed according to Rules and he has submitted a certificate of age obtained from the Chief Medical Officer, Varanasi. Subsequently, it came to light that during the academic session 1961-62, the petitioner was a student of Class-X in Mahendra Technical Inter College, Chandauli. Under the circumstances, respondent No. 3 sent a letter No. 166/u0ia0p0 @2001@dated 12.9.2001 (Annexure CA-2) to the Principal, Mahendra Technical Inter College, Chandauli to verify the date of birth of the petitioner. Subsequently, it came to light that during the academic session 1961-62, the petitioner was a student of Class-X in Mahendra Technical Inter College, Chandauli. Under the circumstances, respondent No. 3 sent a letter No. 166/u0ia0p0 @2001@dated 12.9.2001 (Annexure CA-2) to the Principal, Mahendra Technical Inter College, Chandauli to verify the date of birth of the petitioner. Thereupon, the Principal, Mahendra Technical Inter College, Chandauli sent a letter dated 5.10.2001 (Annexure CA-3) informing the respondent No. 3, that as per college records, the date of birth of the petitioner is 8.7.1940. Thus, in view of the fact that the petitioner has deliberately suppressed his actual date of birth according to which he attained the age of superannuation on 31.7.2000 and the petitioner fraudulently continued in service by suppression of fact and misrepresentation with regard to his age, the petitioner’s service was terminated with immediate effect and recovery of Rs. 50,577/- for the period of continuation beyond the age of superannuation from 1.8.2000 was directed vide order dated October, 2001 (Annexure 5). Aggrieved with this order, the petitioner has filed the present writ petition. 3. Learned counsel for the petitioner submits that he does not have any matriculation or high school certificates and therefore, he could not submit school leaving certificate of his date of birth. He submitted a certificate obtained from the Chief Medical Officer, Varanasi certifying his age as 38 years as on 3.4.1999 and, therefore, he cannot be said to attain the age of superannuation on 31.7.2000. He further submits that the impugned order is wholly illegal and violative of principles of natural justice. He further submits that he has not played any fraud. He relied on the judgments of Hon’ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks Mumbai, AIR 1999 SC 22 and G.M. Bharat Cooking Coal Ltd. West Bangal v. Shiv Kumar Dushad, (2001) 1 UPLBEC 655 and judgment of this Court in the case of Ali Ahmad v. U.P. State Electricity Board and others, (2001) 1 UPLBEC 543. 4. On the other hand, learned Standing counsel submits that the fact that petitioner was a student of Class-X in the academic session 1961-62 in Mehendra Technical Inter College, Chandauli is wholly undisputed and the same has not been denied either in the writ petition or in the rejoinder-affidavit. 4. On the other hand, learned Standing counsel submits that the fact that petitioner was a student of Class-X in the academic session 1961-62 in Mehendra Technical Inter College, Chandauli is wholly undisputed and the same has not been denied either in the writ petition or in the rejoinder-affidavit. A clear assertion in this regard in the impugned order as well as in paragraph 19 of the counter-affidavit has been made which has not been denied. The letter of Principal of the college and other documents have also been filed as documentary evidences. He submits that the fact that the petitioner was a student in the Mahendra Technical Inter College, Chandauli also stand corroborated by the averments made by the petitioner in paragraph 21(B) of the writ petition wherein he admitted that he appeared in high school examination in the year 1962, but he could not get success and has not seriously looked into the date of birth mentioned in the mark-sheet. He submits that thus, the fact with regard to the date of birth as communicated by the principal of the college on the basis of college record is wholly undisputed and the petitioner played fraud by concealing/suppressing the material fact with regard to his date of birth which was well within his knowledge. He deceived the respondents and illegally obtained a certificate of age from the Chief Medical Officer, Chandauli. He submits that the salary illegally drawn by the petitioner for the period from 1.8.2000 till the date of his termination, was the result of fraud committed by the petitioner and as such the impugned order of recovery is wholly valid. 5. I have heard Sri Vinod Kumar, learned counsel for the petitioner and Sri Ram Sewak, learned Standing Counsel appearing for respondent Nos. 1 and 2. No one is present on behalf of respondent Nos. 3 and 4 even in the revised call. 6. From the perusal of the notice dated 29.8.2001 (Annexure 3) issued to the petitioner, it is evident that the respondent No. 3 has clearly asked the petitioner to inform whether he has received education in any institution. Petitioner submitted a vague reply dated 4.9.2001 (Annexure 4) and again suppressed the material facts with regard to his date of birth which was well within his knowledge. Petitioner submitted a vague reply dated 4.9.2001 (Annexure 4) and again suppressed the material facts with regard to his date of birth which was well within his knowledge. The finding recorded in the impugned order that the petitioner was a student of Mahendra Technical Inter College, Chandauli during the academic session 1961-62 has neither been denied in the writ petition nor the averments made in this regard in the counter-affidavit filed on behalf of respondent No. 4 have been disputed by the petitioner. The fact that the petitioner was a student of Mahendra Technical Inter College, Chandauli during the academic session 1961-62 in Class X has been admitted by the petitioner in paragraph 21(B) of the writ petition which is reproduced below : “21(B) That since the petitioner is not having matriculation certificate/High School certificate therefore the petitioner could not submit any school/college leaving certificate verifying his date of birth either at the time of initial engagement or at the time of regularisation. It is submitted that though the petitioner has appeared in High School Examination in the year 1962 but he could not get successful and the petitioner has neither seriously looked into the date of birth entered into mark-sheet nor he could think of raising any objection with regard to inaccurate date of birth in view of fact that the petitioner failed in such examination.” 7. From the facts of the case and findings recorded in the impugned order, it is evident that the date of birth of the petitioner is 8.7.1940 and thus, his date of retirement comes to 31.7.2000. Therefore I find no illegality in the impugned order denying the continuation in service after 31.7.2000. 8. The judgments relied by the learned counsel for the petitioner do not support the case of the petitioner. In the case of Ali Ahmad (supra) the challenge to the date of birth was made on the basis of date of birth mentioned in the high school certificate. The case of Whirlpool Corporation (supra) relates to cancellation of renewal already granted under the Trade and Merchandise Marks Act, 1958. In the case of Ali Ahmad (supra) the challenge to the date of birth was made on the basis of date of birth mentioned in the high school certificate. The case of Whirlpool Corporation (supra) relates to cancellation of renewal already granted under the Trade and Merchandise Marks Act, 1958. In the case of G.M. Bharat Cooking Coal Ltd. (supra) the employee’s date of birth in form ‘b’ register was entered as year 1932 while on the basis of particulars submitted by him at the time of acquiring certificate of Gas Testing and Mining Sirdarship in the year 1973 his date of birth was mentioned as 9.2.1946. In view of this discrepancy he was directed to appear before the Medical Board and the Board reported his age to be 52 years as on 13.10.1988. On this basis his date of birth was taken as 13.10.1936 and date of superannuation as 13.10.1996. On these facts in para 17 of the report, Hon’ble Supreme Court observed that the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer in untrue and incorrect and the burden can be discharged only by providing acceptable evidence of a clinching nature. Hon’ble Supreme Court held that High Court erred in interfering with the date of birth/age of the respondent as determined by the appellant. 9. So far as the question of recovery of salary drawn by the petitioner for the period from 1.8.2000 till the date of his discontinuation is concerned, ordinarily such recovery cannot be made, if continuation in service beyond the age of retirement is not the result of concealment, suppression or fraud. But in the present set of facts the petitioner misrepresented and deliberately suppressed the materials facts with regard to his date of birth. He suppressed the fact with regard to his date of birth as mentioned in the college records and that he appeared in the academic session 1961-62 in high school examination and mark-sheet was issued to him. The fact that he was student of Class -X in Mahendra Technical Inter College, Chandauli during the academic session 1961-62 has not been disputed by the petitioner. The fact that he was student of Class -X in Mahendra Technical Inter College, Chandauli during the academic session 1961-62 has not been disputed by the petitioner. Despite the specific notice to the petitioner issued by respondent No. 3 dated 29.8.2001 requiring him to inform whether he had studied in any institution or not, he deliberately suppressed the fact in his reply dated 4.9.2001 (Annexure 4), that he was a student of Class-X in academic session 1961-62 in Mahendra Technical Inter College, Chandauli and instead he merely stated that he was appointed on daily wage basis and was subsequently regulairzed and he submitted the certificate of age issued by Chief Medical Officer, Varanasi. This again shows that the petitioner not only suppressed the fact about his date of birth but also misrepresented. Thus, the petitioner misrepresented and played fraud by suppressing his actual date of birth to continue in service even after attaining the age of retirement on 31.7.2000. Under the circumstances the recovery of Rs. 50,577/- from the petitioner for the period 1.8.2000 till date of his discontinuation by the impugned order is wholly justified. There is no error in the impugned order. 10. Hon’ble Supreme Court in the case of Yogeshwar Prasad and others v. National Institute of Education Planning and Administration and others, (2010) 14 SCC 323 paras 29 and 31 held that the amount paid to the appellant-employees pursuant to the grant of higher pay-scale should not be recovered unless it was the case of mis-representation or fraud. Similar view was taken by Hon’ble Supreme Court in the case of Sahib Ram v. State of Haryana and others, (1995) Supp (1) SCC 18 para 5, State of Bihar and others v. Pandey Jagdishwar Prasad, (2009) 3 SCC 117 para 15, Chandi Prasad Uniyal and others v. State of Uttarkhand and others, (2012) 8 SCC 417 para 14. 11. In view of the above, the writ petition has no merit and therefore deserves to be dismissed. It is, however, clarified that all post retiral benefits shall be available to the petitioner in accordance with law treating his date of retirement as 31.7.2000. 12. In result, writ petition fails and is hereby dismissed with the aforesaid observations.