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2018 DIGILAW 744 (ALL)

PRAYAG NARAIN DUBEY v. U. P. S. R. T. C.

2018-03-29

RAJIV JOSHI

body2018
JUDGMENT Hon’ble Rajiv Joshi, J.—Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri M.M. Sahai, learned counsel for the respondents. 2. The petitioner-a conductor in U.P. State Road Transport Corporation, filed the present writ petition under Article 226 of the Constitution, challenging the order dated 29.10.2002 passed by respondent No. 2-Assistant Regional Manager, U.P. State Road Transport Corporation, Auraiya, wherein it was recorded that his date of birth in the service record was 25.2.1952 instead of 25.2.1958. The petitioner prayed for quashing of the said order and further a direction in the nature of mandamus commanding the respondents not to retire the petitioner on the basis of date of birth shown as 25.2.1952. 3. The brief facts as reflect from the record are that: The petitioner was initially engaged as Labour (Mazdoor) in U.P. Government Roadways in 1974 and thereafter, he was promoted as a Conductor on 29.7.1983. The date of birth of the petitioner in Junior High School Certificate Examination, which he passed in 1971 was recorded as 25.2.1958. In the Certificate of High School Examination, 1980, a copy of which has been appended as annexure-2,, petitioner’s date of birth is also recorded as 25.2.1958. The Regional Manager vide impugned order dated 29.10.2002, however, directed that the date of birth of the petitioner will be treated as 25.2.1952 instead of 25.2.1958 on the basis of medical certificate said to have been submitted by the petitioner to the department at the time of his initial appointment. The present writ petition was dismissed by the Court vide judgment dated 23.7.2014. Challenging the judgment and order of learned Single Judge, the petitioner preferred Special Appeal No. 778 of 2014, which was finally allowed by a Division Bench quashing the judgment and order dated 23.7.2014 and the matter was remanded back for fresh decision by the appropriate Court. The operative portion of the judgment and order dated 28.8.2014 passed in Special Appeal No. 778 of 2014 reads thus : “It is clear from the aforesaid order of the corporation dated 2.2.2002 containing the seniority list that till 2002, the date of birth of the appellant in the record of the corporation was shown as 25.2.1958 and it has been changed after making interpolation thereafter. Considering the facts that the service record of the petitioner was with the corporation and he had no opportunity to look into the same, it can be safely said that the change in date of birth of the appellant, if any,was made at the corporation level itself. In view of above facts and circumstances, appeal is allowed. Impugned order dated 23.7.2014 is quashed and the matter is remanded back for a fresh decision by the appropriate Court within a period of three months from the date of production of a certified copy of the present order.” 4. The judgment passed in the Special Appeal specifically recorded the date of birth of the petitioner was shown as 25.2.1958 in the seniority list till 2002 and it was changed after making interpolation thereafter. It is further recorded that change in his date of birth, if any, was made by the Corporation level itself. Although, initially, it was recorded as 25.2.1958. In view of the aforesaid findings recorded by the Division Bench while allowing the Special Appeal, the impugned order cannot be sustained and date of birth of the petitioner is to be taken and treated as 25.2.1958 in place of 25.2.1952. 5. Now, the only question that remains to be determined is with regard to the payment of salary to the petitioner as the petitioner has already been retired from service on 28.2.2010 by the Corporation treating his date of birth as 25.2.1952, although, he was entitled to serve the Corporation till attaining the age of 60 years i.e. upto 28.2.2018 on the basis of his date of birth as 25.2.1958. 6. In this regard, submission of the learned counsel for the petitioner is that the petitioner was arbitrarily retired from service treating his date of birth to be 25.2.1952 even though, he would have attained the age of superannuation on 28.2.2018 on the basis of his date of birth as 25.2.1958 and there being no fault on the part of the petitioner, he is entitled for entire service benefits including the arrears of salary from 28.2.2010 to 28.2.2018 and consequential retiral benefits. 7. In support of his contention, he has placed reliance on the decision of the Hon’ble Apex Court in the case of Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Ltd. and others, 2016 (16) SCC 683. 7. In support of his contention, he has placed reliance on the decision of the Hon’ble Apex Court in the case of Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Ltd. and others, 2016 (16) SCC 683. The decision relied upon by the learned counsel is short one and is reproduced hereinbelow for ready reference: “1. It is not a matter of dispute, that the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of his retirement dated 31.12.2002 by filing writ petition No. 751 of 2003. The same was allowed by a learned Single Judge of the Punjab and Haryana High Court, on 14.9.2010. The operative part of the order is extracted here under: “Accordingly the present writ petition is allowed; order dated 31.12.2002 (Annexure P-4) is quashed. The petitioner would be treated to be in continuous service with all consequential benefits. However it is clarified that since the petitioner has not worked on the post maxim of “no work, no pay” shall apply and the consequential benefits shall only be determined towards terminal benefits. However there will be no order as to costs.” 2. The denial of back wages to the appellant by the High Court vide its order dated 14.9.2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.9.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject-matter of challenge before this Court. 3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”. 4. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”. 4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extend of denying wages to the appellant, for the period from 1.1.2003 to 31.12.2005 deserves to be set aside. The same is accordingly hereby set aside. 5. The appellant shall be paid wages for the above period within three months from today. His retiral benefits, if necessary, shall be re-calculated on the basis thereof, and shall be released to him within a further period of three months. 6. The instant appeal is allowed in the above terms.” 8. On the other hand, learned counsel for the respondent contended that since the petitioner has not worked after his retirement on 28.2.2010,therefore, he is not entitled for full salary/wages for the period thereafter, even though, the order impugned is held to be absolutely illegal. He placed reliance upon paragraph 27 of the decision of Hon’ble Apex Court in the case of P.V.K. Distillery Limited v. Mahendra Ram, (2009) 5 SCC 705 , which reads as under: “Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.” 9. I have considered the rival submissions advanced by learned counsel for the parties and, in my view, since the order impugned is apparently illegal as per the findings recorded by the Division Bench in the judgment rendered in the aforesaid Special Appeal and the date of birth of the petitioner is to be taken as 25.2.1958, therefore, he would be entitled to all consequential benefits till the age of his retirement i.e. 28.2.2018, for the reason that fault lies with the respondents in not having utilised services of the petitioner from 28.2.2010 to 28.2.2018. Had the petitioner been allowed to continue in service till 28.2.2018, he would have readily discharged his duties and therefore, there being no fault on the part of the petitioner, the principle of “no work no pay “ would not be attracted and the ratio as laid down in the case of Shobha Ram Raturi (Supra), applies with full force to the facts and circumstances of the present case. In so far as the decision relied upon by learned counsel for the respondent in the case of P.V.K. Distillery Limited (supra) is concerned, suffice it to say that this decision relates to termination of service and reinstatement and not retirement, hence it has no application to the present case. 10. For the reasons recorded hereinabove, the writ petition succeeds and is allowed. The impugned order dated 29.10.2002 is hereby quashed. The respondents are directed to treat the petitioner in continuous service till 28.2.2018 and pay the entire arrears from 28.2.2010 to 28.2.2018 accordingly including the retiral benefits treating his date of birth as 25.2.1958. No order as to costs.