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2020 DIGILAW 587 (ALL)

Chandra Mukhi v. Union Of India Through G. M.

2020-02-24

MANISH KUMAR, MUNISHWAR NATH BHANDARI

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JUDGMENT : Manish Kumar, J. 1. The present writ petition has been preferred by the petitioner for following reliefs which are quoted hereunder:- (i) For quashing of the judgment dated 28.07.2000 passed in Review Petition No. 23 of 1997 passed by opposite party No. 6 (ii) For quashing of the judgment dated 07.07.1997 passed in Original Application No. 256 of 1994 passed by opposite party No. 6 (iii) For quashing of the judgment dated 12.02.1994 passed by Assistant Engineer (M.G.) North-Eastern, Railways, Gonda, by which the husband of the petitioner was retired from service in illegal and arbitrarily manner (iv) For directing the opposite parties to make full payment of salary to the petitioner from 14.02.1992 till 12.02.1994 treating husband of the petitioner as in continuous service with all consequential benefits. (v) For directing the opposite parties for payment of entire pensionary benefits to the petitioner with interest at market rate and also direct the opposite parties for payment of family pension to the petitioner. 2. A dispute about date of birth of petitioner’s husband exists. According to petitioner, the correct date of birth of her husband is 15.10.1942 but in Card "A" it was entered as 02.02.1935 due to which he was retired by order dated 12.02.1994 with effect from 14.02.1994. Felling aggrieved by the order dated 12.02.1994, the petitioner’s husband preferred an Original Application No. 256 of 1994 before the Central Administrative Tribunal. 3. It was stated that applicant joined service in the Railways as “Gangman” on 19.04.1966 at the age of about 24 years. By the order dated 12.02.1994, he was made to retire with effect from 14.02.1994 at the age of 52 years by treating his date of birth to be 02.02.1935 whereas it was 15.10.1942. 4. In support of the contention raised above, the learned counsel for the petitioner has placed reliance on Card "B", seniority list and medical reports wherein the date of birth of her husband was entered as 15.10.1942. 5. The date of birth of the husband was changed by the authorities from 15.10.1942 to 02.02.1935 in Card "A". It has further been submitted that entry of date of birth in the service book is a conclusive proof and it cannot be altered subsequently without affording any opportunity of hearing. 6. 5. The date of birth of the husband was changed by the authorities from 15.10.1942 to 02.02.1935 in Card "A". It has further been submitted that entry of date of birth in the service book is a conclusive proof and it cannot be altered subsequently without affording any opportunity of hearing. 6. The learned Tribunal has failed to consider that Card "A", wherein the date of birth was shown as 02.02.1935, is a subsequent document, hence the same was wholly irrelevant and could have taken as primary evidence for the purpose of ascertaining the date of birth. 7. The learned Tribunal has ignored the provisions of law under which the date of birth entered in the service book is taken as conclusive evidence for the purpose of retirement and it cannot be altered subsequently. It has further been submitted if it is presumed that the date of birth of the husband was 02.02.1935, he would have been 31 years of age at the time of his initial appointment in the year 1966 whereas the maximum age for entering in the service was 25 years and if the date of birth of the husband is taken as 15.10.1942, he was about 24 years i.e. less than 25 years at the time of initial appointment. 8. Per contra, the learned counsel representing the Railways produced the service book in compliance of the earlier order of this Court. In the service book, date of birth of petitioner’s husband was entered as 02.02.1935 and the same was verified by him by putting his signature and thumb impression. 9. Since the date of birth was verified by the petitioner’s husband himself and if there was no alteration in the service book then there would arise no occasion for providing any opportunity of hearing. 10. It has further been contended that the husband of the petitioner was initially appointed as "Causal Labour" in the Department in the year 1956 and the services were regularized in the year 1996. 11. It has further been contended by the learned counsel for the Railways that after attaining the age of superannuation, an employee cannot dispute about his date of birth entered in the service record. 12. 11. It has further been contended by the learned counsel for the Railways that after attaining the age of superannuation, an employee cannot dispute about his date of birth entered in the service record. 12. After hearing the learned counsel for the respective parties and examining the record which was produced before this Court, the date of birth of petitioner’s husband entered in the service book as 02.02.1935 which was verified by the husband by putting his signature and thumb impression. 13. There is no alteration or cutting in the date of birth in the service book. Service book was also shown to the learned counsel for the petitioner and after the perusal of the same, he was unable to dispute the entry in the service book containing date of birth as 02.02.1935. There was no cutting or alternation in the entry in the service book. 14. If the contention of the petitioner is accepted that the date of birth of her husband is 15.10.1942 then at the time of initial appointment as "Causal Labour" in the year 1956, the age of the husband would have been about 14 years whereas the admissible age for entry in the service was between 18 to 25 at that time. So at any stretch of imagination the petitioner’s husband would have not been given appointment and if it is calculated on the date of birth of 02.02.1935 the age would have been about 24 years which is within the maximum age limit of 25 years, thus the contention of the learned counsel for the petitioner cannot be accepted. 15. Since there is no change or alteration in the date of birth in the service book by the Department and the entry of date of birth is verified by the husband of the petitioner, there was no occasion for providing any opportunity of hearing. According to the petitioner admittedly entry in the service book is the conclusive proof of determination of date of birth than three documents i.e. Card "B", medical reports and seniority list would be irrelevant for the purposes of determination. 16. The Apex Court in the case of Union of India Vs. Harnam Singh, 1993 AIR 1367, has been held that the date of birth entered in the service book is relevant for the reason that right to continue in service stands decided by its entry in the service book. 16. The Apex Court in the case of Union of India Vs. Harnam Singh, 1993 AIR 1367, has been held that the date of birth entered in the service book is relevant for the reason that right to continue in service stands decided by its entry in the service book. A government servant, who has declared his age at the initial stage of the employment is precluded from making a request for correction of his age. Only exception to claim correction in date of birth is if he is in possession of the irrefutable proof relating to his date of birth and must do so without unreasonable delay. 17. In the case of Union of India & Ors. Vs. Kantilal Hematram Pandya, 1995 SCC (3) 17, it has been held that the stale claim and belated applications for alteration of the date of birth recorded in the service book after unexplained and inordinate delay, that too on the eve of retirement need to be scrutinized carefully and interference is made sparingly and without circumspection. In the present case, the dispute of date of birth was raised after attaining the age of superannuation. 18. Petitioner’s husband filed the Original Application before Central Administrative Tribunal, to question the date of birth when he himself had verified it in the service record by putting his signature and thumb impression. 19. Under these circumstances, this Court does not find any illegality in the judgment dated 28.07.2000 passed in Review Petition No. 23 of 1997 and the judgment dated 07.07.1997 passed in Original Application No. 256 of 1994, hence does not call for any interference by this Court. 20. As far as prayer for payment of pension with other post retiral benefits and family pension are concerned, petitioner's husband retired from service with effect from 14.02.1994 but till date no post retiral benefits have been extended. Withholding of retiral is arbitrary and unfair on the part of the employer. The plea that the husband of the petitioner did not approach for payment of these benefits is legally not tenable. 21. The learned counsel for the Railways failed to show anything on record that the Railways had made any effort or initiated the procedure for payment of pension prior or even thereafter on the retirement of petitioner’s husband. 22. The Apex Court in the cases of D.S. Nakara & Others Vs. 21. The learned counsel for the Railways failed to show anything on record that the Railways had made any effort or initiated the procedure for payment of pension prior or even thereafter on the retirement of petitioner’s husband. 22. The Apex Court in the cases of D.S. Nakara & Others Vs. Union of India, 1983 AIR 130, 1983 SCR (2) 165, Grid Corporation of Orissa And Others Vs. Rasanadas Das, (2003) 10 SCC, 297 and U.P. Raghavendra Acharya And Others Vs. State of Karnataka And Others, (2006) 9 SCC 630 , it has been been held that pension is not a bounty but it is hard-earned benefit for long service which cannot be taken away. It is treated to be deferred salary. It is akin to right of property. The payment of pension does not depend upon the discretion of the Government. It is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. 23. The Apex Court in the case of State of Kerala And Ors. Vs. M. Padmanabhan Nair, 1985 AIR 356, 1985 SCR (2) 476 has held that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but a valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. 24. For the reasons mentioned hereinabove, the petitioner shall approach the competent authority within a period of ten days alongwith the certified copy of the order of this Court for payment of retiral dues and family pension and the authorities are directed to complete the necessary formalities and make the payment of due amount to the petitioner within a period of two months with 6 percent simple interest. The writ petition to claim retiral benefit is allowed while dismissing on the claim of the petitioner for taking the date of birth of her husband as 15.10.1942.