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2014 DIGILAW 396 (JHR)

State of Jharkhand v. Radhika Devi

2014-03-13

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
ORDER The appellant-State of Jharkhand has challenged order dated 31.07.2012 passed in W.P.(S) No. 5028 of 2006 whereby, order dated 25.09.2001 communicating the respondent that he stood retired w.e.f. 31.01.1999 and order dated 19.12.2005 whereby, recovery of salary etc. paid to him after 31.01.1999 was ordered from the respondent, were quashed. 2. The facts, as pleaded by the respondent in the writ petition are that, he was appointed as Road Roller Driver on 01.06.1970 and his date of birth in the service book was recorded as 20.01.1947. By letter dated 25.09.2001 the respondent was informed that he has superannuated from service w.e.f 31.01.1999. Thereafter, another communication dated 31.01.2003 was issued to the respondent to the same effect. Challenging the communication dated 31.01.2003, the respondent moved the High Court in W.P.(S) No. 5659 of 2003 which was disposed of by order dated 21.11.2003 with an observation that the respondent shall be paid admitted retiral dues, legally payable to him, including salary for the period till he worked. This Court declined to interfere with the order of superannuation however, it was left open for the respondent to get his date of birth adjudicated by a competent Civil Court. The respondent thereafter, filed Title Suit No. 66 of 2004 seeking declaration that his correct date of birth is 20.01.1947 and accordingly, he would be entitled for service benefits. In the mean-time, by order dated 19.12.2005 recovery of salary etc. paid to the respondent between the period 01.02.1999 and March, 2001, was ordered. The Title Suit was decreed and an ex-parte order dated 02.01.2006 was passed declaring 20.01.1947 as the correct date of birth of the respondent. Since, an order of recovery was made vide order dated 19.12.2005, the respondent approached this Court in W.P.(S) No. 5028 of 2006 which was allowed by the impugned order dated 31.07.2012. 3. In the counter-affidavit filed before the Writ Court as also in the Letters Patent Appeal filed by the State of Jharkhand, a plea has been taken that, since there was interpolation in the service-book of the respondent an enquiry was instituted in the matter and it has been found that, in fact, the date of birth of the respondent would be 20.01.1941. A legal opinion was sought from the Government Advocate who, however, on the basis of horoscope produced by the respondent himself opined that the date of birth of the respondent should be 20.01.1947. A legal opinion was sought from the Government Advocate who, however, on the basis of horoscope produced by the respondent himself opined that the date of birth of the respondent should be 20.01.1947. However, by order dated 25.09.2001, the respondent was made to superannuate w.e.f. 31.01.1999. The appellants specifically denied that initially in the service-book, the date of birth of the respondent was recorded as 20.01.1941. Since, the respondent continued to work till March, 2001 illegally, by order dated 19.12.2005, recovery of salary etc. paid to him after 31.01.1999 was ordered. 4. Mr. Rajesh Kumar, G.P. V, the learned counsel appearing for the appellants has submitted that in the service-book the date of birth of the respondent was recorded as 20.01.1941 and in the year, 2000 when it was detected that interpolation has been done in the service-book, the matter was enquired into by a committee and opinion of the Government Advocate was also sought by the Department. The respondent was also directed to furnish evidence in support of his date of birth and therefore, it cannot be said that the respondent was not afforded an opportunity of hearing. It is submitted that, though vide letter dated 25.09.2001 the respondent was communicated that he stood retired w.e.f. 31.01.1999, the respondent approached this Court in the year, 2003 and he filed the Civil Suit in the year, 2004. It is thus, submitted that the respondent accepted his date of superannuation being 31.01.1999. The learned counsel has further submitted that the respondent chose to file the Title Suit in the Court at Bhagalpur which would not have territorial jurisdiction and ex-parte decree was obtained by the respondent and thus, the filing of the Title Suit was an abuse of the process of law. Assailing the order granting compensation of Rs. 2,00,000/-(two lacs), the learned counsel has submitted that admittedly the respondent did not work between the period April, 2001 till 2005 and therefore, grant of compensation for the said period was not justified. 5. Per contra, Mrs. Ritu Kumar, the learned counsel appearing for the respondent has contended that as per Rule 290 of the Jharkhand Service Code, custody of the service-book remains with the Department and therefore, the allegation that interpolation was made in the service-book at the instance of the respondent, is contrary to Rule and cannot be taken note of. 5. Per contra, Mrs. Ritu Kumar, the learned counsel appearing for the respondent has contended that as per Rule 290 of the Jharkhand Service Code, custody of the service-book remains with the Department and therefore, the allegation that interpolation was made in the service-book at the instance of the respondent, is contrary to Rule and cannot be taken note of. She has further contended that an enquiry was instituted in the matter which was an ex-parte enquiry in which the respondent was not summoned by the Department. The order dated 25.09.2001 was issued by the Department without issuing any show-cause notice to the respondent and thus, order dated 25.09.2001 asking the respondent to superannuate w.e.f. 31.01.1999, was illegal. The learned counsel has relied upon the judgments of the Hon'ble Supreme Court reported in AIR1981SC1481and (2007) 7 SCC 689 and contended that, since the respondent was illegally not permitted to discharge his work, he could not have been denied the benefit of salary etc. On these grounds, the order dated 25.09.2001 and 19.12.2005 have been assailed by the learned counsel while supporting the order passed by the learned Single Judge. 6. We have heard the learned counsel appearing for the parties and considered the submissions made by the learned counsel appearing for the parties. 7. It appears that the learned Single Judge proceeded on the premise that initially the date of birth of the writ petitioner was recorded as 20.01.1947 and that the judgment dated 02.01.2006 of Munsif-I, Bhagalpur in Title Suit No. 66 of 2004 attained finality. It further appears that the learned Single Judge assumed that, the date of birth of the writ petitioner was changed to 20.01.1941 without any notice to him. Whereas, in the counter-affidavit filed in the writ proceeding, the respondents have taken a stand that in the service-book, the date of birth of the writ petitioner (respondent herein) was recorded initially as 20.01.1941 and after some interpolation it was changed to 20.01.1947. It further appears that, the date of birth of the respondent was affirmed as 20.01.1941, after the opinion sought from the Government Pleader and the recommendation of the committee which was constituted on 28.08.2000 and the respondent was also required to furnish proof in support of his date of birth. It further appears that, the date of birth of the respondent was affirmed as 20.01.1941, after the opinion sought from the Government Pleader and the recommendation of the committee which was constituted on 28.08.2000 and the respondent was also required to furnish proof in support of his date of birth. It further appears that the respondent produced horoscope in support of his date of birth and therefore, the learned Single Judge erred in assuming that “undisputely, the Executive Engineer without any notice to the petitioner, had made correction in the column of date of birth of the petitioner”. It is also apparent that the appellants have disputed the fact that initially in the service-book, the date of birth of the respondent was recorded as 20.01.1947. The learned counsel appearing for the respondent relied upon a decision of the Hon'ble Supreme Court in “Sarjoo Prasad Vs. The General Manager and another” reported in AIR 1981 SC1481to contend that the date of birth of the respondent was changed in violation of the principles of natural justice. In view of the facts disclosed in the writ petition by the respondent himself that in August, 2001 he submitted his horoscope and duly notarized affidavit in support of his claim that his actual date of birth is 20.01.1947, the contention of the counsel for the respondent cannot be accepted. 8. It is a matter of record that in the prescribed format submitted by the respondent for release of retiral benefits, he has mentioned his date of birth as 20.01.1941. By letter dated 25.09.2001, the respondent was communicated that he stood superannuated w.e.f. 31.01.1999 however, the respondent approached this Court in the year, 2003. By order dated 21.11.2003 passed in W.P.(S) No. 5659 of 2003, the learned Single Judge declined to interfere with the order of superannuation and the said order was not challenged by the respondent. The date of superannuation of the respondent having been confirmed as 31.01.1999, in the present proceeding the learned Single Judge could not have interfered with the order dated 25.09.2001 whereby, the respondent was communicated that he has superannuated from service w.e.f. 31.01.1999. Thus, challenge to order dated 25.09.2001 by the respondent in W.P.(S) No. 5028 of 2006 was barred by res-judicata as by order dated 21.11.2003 in W.P.(S) No. 5659 of 2003 the learned Single Judge had declined to interfere with the order of superannuation of the respondent. 9. Thus, challenge to order dated 25.09.2001 by the respondent in W.P.(S) No. 5028 of 2006 was barred by res-judicata as by order dated 21.11.2003 in W.P.(S) No. 5659 of 2003 the learned Single Judge had declined to interfere with the order of superannuation of the respondent. 9. It further appears that after the order was passed in W.P.(S) No. 5659 of 2003, the respondent filed Title Suit No. 66 of 2004 in the Court of Munsif at Bhagalpur seeking relief that his date of birth should be declared as 20.01.1947 and the order retiring him w.e.f. 31.01.1999 be declared as illegal. In the Suit, a relief was sought against the State of Jharkhand however, the Suit was filed in a Court at Bhagalpur within the territorial jurisdiction of the Patna High Court. Though, the respondent himself had approached this High Court in W.P.(S) No. 5659 of 2003, he filed Title Suit in the Court at Bhagalpur. The motive of the respondent becomes clear from the fact that the Title Suit No. 66 of 2004 was decreed ex-parte by order dated 02.01.2006. The learned counsel appearing for the State of Jharkhand has rightly contended that filing of the Suit in a Court which has no territorial jurisdiction, was an abuse of process of the Court. It is further submitted that the State of Jharkhand has challenged the ex-parte judgment and decree dated 02.01.2006 in T.A. No. 134 of 2011. 10. It is also a matter of record that when it was suspected that some interpolation has been done in the service-book of the respondent, an enquiry was instituted in the matter and by order dated 28.08.2000 a committee was constituted. The committee in its report dated 17.02.2001 recorded that there is overwriting in the date of birth of the respondent recorded in the service book. The overwriting has been seen both in the digits and words and it has been opined that the date of birth of the respondent was changed from 20.01.1941 to 20.01.1947. Having regard to the fact that had the date of birth of the respondent been 20.01.1941, the respondent would not have been appointed, as he would have attained 29 years at the time when he was appointed as Road Roller Driver on 01.06.1970, the Committee recommended that the Executive Engineer after proper verification should take decision in the matter. Having regard to the fact that had the date of birth of the respondent been 20.01.1941, the respondent would not have been appointed, as he would have attained 29 years at the time when he was appointed as Road Roller Driver on 01.06.1970, the Committee recommended that the Executive Engineer after proper verification should take decision in the matter. It is further recorded by the Committee that the fact that the original horoscope on the basis of which the date of birth of the respondent was allegedly recorded as 20.01.1947 was with the respondent, a fact which would make the claim of the respondent suspicious as the original horoscope should have been attached with the service-book of the respondent. It further appears that opinion was sought from the Government Pleader on 03.05.2001 and by letter 05.05.2001 the Government Pleader opined that the date of birth of the respondent can be taken as 20.01.1947. The opinion of the Government Pleader was based on the fact that in the horoscope produced by the respondent his date of birth was recorded as 20.01.1947. It is also matter of record that by letter dated 25.09.2001, the respondent was communicated that he stood retired from service w.e.f. 31.01.1999. However, there is no reason whatsoever disclosed by the respondent indicating the motive due to which the date of birth of the respondent could have been changed by the Department by making interpolation in his service-book rather, the respondent himself was a beneficiary of the change in his date of birth from 20.01.1941 to 20.01.1947 and therefore, it was incumbent upon the respondent to explain and establish that there was no interpolation in his service-book. In “State of T.N. Vs. T.V. Venugopalan” reported in (1994) 6 SCC 302 , the Hon'ble Supreme Court has held that no amount of evidence produced by an employee after his retirement from service, can be taken into consideration for altering his date of birth. In view of the aforesaid facts, the reliance placed by the learned counsel for the respondent on Rule, 290 and Rule 54 of the Jharkhand Service Code, is misplaced. 11. The learned Single Judge has held that, the respondent was illegally not permitted to discharge his duty and therefore, awarded Rs. 2,00,000/-(two lacs) to the respondent. As the respondent was correctly made to superannuate w.e.f. 31.01.1999 we find no justification for award of compensation to the respondent. 11. The learned Single Judge has held that, the respondent was illegally not permitted to discharge his duty and therefore, awarded Rs. 2,00,000/-(two lacs) to the respondent. As the respondent was correctly made to superannuate w.e.f. 31.01.1999 we find no justification for award of compensation to the respondent. However, order of recovery issued to the respondent by letter dated 19.12.2005 cannot be sustained as by order dated 21.11.2003 in W.P.(S) No. 5659 of 2003, a direction was issued to the appellants herein by this Court, to pay the salary to the respondent for the period he actually worked and the said order has not been challenged by the Department and therefore, the salary etc. paid to the respondent for the period during which he actually worked, cannot be recovered. 12. In view of the aforesaid, we find sufficient grounds for interfering with the impugned order dated 31.07.2012 and accordingly, the order dated 31.07.2012 passed in W.P.(S) No. 5028 of 2006 is set-aside and this Letters Patent Appeal is allowed with the aforesaid modification. 13. Vide order dated 01.03.2014, the I.A. No. 1313 of 2014 was allowed whereby, Smt. Radhika Devi was substituted in place of the original respondent.