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2022 DIGILAW 1870 (RAJ)

Punam Chand Rawal v. State Of Rajasthan

2022-06-27

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present petition has been filed against the order dated 23.07.2015 whereby the petitioner-Punam Chand Rawal has been directed to be declared to be superannuated w.e.f. 31.10.2010 and it has been directed that the amount of extra CPF paid to him would be recovered. 2. At the outset, it is relevant to submit that during pendency of the present writ petition the petitioner-Punam Chand Rawal had expired and his legal representatives were ordered to be taken on record. 3. Brief facts of the case are that the petitioner was appointed on 26.12.1990 with the respondent-Devsthan Department and at the time of appointment, his date of birth in the record was recorded to be 05.10.1959 which was based on the "Janmpatrika" submitted by him. On 01.10.2011, a complaint by one Arvind was filed with an averment that the date of birth of the petitioner is 05.10.1950 and not 05.10.1959. On the complaint being received, a show cause notice was issued to the petitioner to submit the relevant document pertaining to his date of birth. No response to the said notice was filed by the petitioner and therefore, an explanation was called from the school of the petitioner. Vide communication dated 02.09.2011, an explanation was submitted by the school authorities along with a copy of the first admission register whereby the date of birth of the petitioner was entered as 05.10.1950. In view of the explanation as submitted by the school authorities and in view of the fact that no response was filed on behalf of the petitioner in reply to the show cause notice, order dated 23.07.2015 was passed by the respondent-authorities whereby he was declared to be superannuated w.e.f. 31.10.2010. It was also directed that the CPF amount paid to the petitioner for the period of 31.10.2010 to 23.07.2015 would be recoverable from him. Aggrieved against the said order the petitioner has filed the present petition. 4. It has been submitted on behalf of the petitioner that the document as submitted by the school authorities was itself not reliable as there are certain discrepancies in the same. It has been pointed out that in the said register the caste of other students was mentioned whereas that of the petitioner was not mentioned which makes it unreliable. 4. It has been submitted on behalf of the petitioner that the document as submitted by the school authorities was itself not reliable as there are certain discrepancies in the same. It has been pointed out that in the said register the caste of other students was mentioned whereas that of the petitioner was not mentioned which makes it unreliable. He further argued that an application was submitted by the petitioner to the respondent authorities specifically stating that he never went to school and was illiterate. Counsel therefore submitted that in view of the said fact any document of any school is totally uncalled for and cannot be related to the present petitioner. 5. Counsel further submitted that after the application being submitted by the petitioner, the respondent authorities called for certain documents from him and in pursuance to the same he submitted both the documents as required. A perusal of the said documents shows that the date of birth as mentioned by him was correct and therefore, the order impugned is liable to be set aside. 6. Per contra, learned counsel for the respondents submitted that the first response whatsoever was submitted by the petitioner only after the impugned order being passed by the respondent authorities. Before the said order being passed, the petitioner did not file any reply to the show cause notice and therefore, the respondent authorities had no other option than to pass the impugned order. Counsel further submitted that the fact as stated by the petitioner in the application that he is illiterate stands totally contrary to the entry in the service record of the petitioner wherein it has clearly been mentioned that he was 5th class fail. Counsel therefore submitted that the document being a signed document by the petitioner himself and an essential part of the service record cannot be said to be unreliable. 7. Heard learned counsel for the parties and perused the material available on record. 8. A bare perusal of the record shows that firstly the ground taken by the petitioner that he is illiterate and never went to any school is negatived by the entry in the service record itself. The service record is an essential document of the petitioner maintained on basis of the information received by the employee himself and therefore, the entry in the same cannot be disputed. The service record is an essential document of the petitioner maintained on basis of the information received by the employee himself and therefore, the entry in the same cannot be disputed. Secondly, the petitioner was specifically called upon by the Department to submit a document of proof relating to his date of birth but the same was not responded to. Thirdly, the petitioner never specifically denied the document as submitted by the school authorities. Moresoever, when called upon to submit further documents, no document pertaining to the date of birth of his brother was submitted by the petitioner. In the opinion of this Court, the said document would have been the most reliable document which could have helped the respondent authorities to reach to a specific conclusion regarding the date of birth of the petitioner. Fourthly, the documents as submitted by the petitioner himself show that different dates of birth have been recorded in different documents of the petitioner. The aadhar card of the petitioner records his year of birth to be 1957 whereas the voter card issued on 09.09.1995 records his age to be 40 years on 01.01.1995. 9. Therefore, in the present circumstances there are four different dates of birth available on record pertaining to the petitioner. In terms of law, the most relevant and reliable document would be the date of birth entered in the first register of admission of the school and as mentioned above, the same is 05.10.1950 and therefore, that can only be the date to be relied upon and has rightly been relied upon by the respondent authorities. 10. In view of the above observations, this Court is not inclined to interfere in the impugned order to the extent it declares the superannuation of the petitioner w.e.f. 31.10.2010. 11. In the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) (2015) 4 Supreme Court Cases 334, the Hon'ble Apex Court held as under: "18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. v. Rafiq Masih (White Washer) (2015) 4 Supreme Court Cases 334, the Hon'ble Apex Court held as under: "18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." 12. In view of the ratio as laid down in Rafiq Masih's case (supra), the present case where the petitioner has already expired, it would be harsh qua legal representatives of the petitioner if recovery of the CPF amount is now sought to be made. Therefore, the order dated 23.07.2015 is quashed only to the extent it directs for recovery of the CPF amount already paid to the petitioner for the period of 31.10.2010 to 23.07.2015. 13. Resultantly, the present writ petition is partly allowed. 14. All the pending applications also stand disposed of.