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Allahabad High Court · body

2023 DIGILAW 1779 (ALL)

Sheshmani Chaubey v. State of U. P.

2023-07-25

AJIT KUMAR

body2023
JUDGMENT Ajit Kumar, J. Heard Sri Shri Prakash Dwivedi, learned counsel for the petitioner and learned Standing Counsel for the State. 2. The petitioner who has been working as a jeep driver was served with a show cause notice dated 14.02.2019 requiring him to show cause as to why an enquiry may not be instituted regarding his date of birth. The basis of the show cause notice was a complaint made by the son of the employee stating therein that his uncle Rajmani Chaubey was five years younger to his father and since his uncle had already retired, how could his father be still in service as he ought to have retired before his uncle. 3. In response to the above show cause notice, petitioner submitted his reply annexing therewith the documentary evidence in the form of motor driving license, adhar card and medical certificate issued to him in the year 2002 in support of his date of birth recorded in his service record as 01.01.1963. 4. Some preliminary fact finding enquiry was got held by Assistant Consolidation Officer who submitted report on 04.09.2019 in which it was reported that in the school admission register it was found that on the back leaf there was no mention of the year and the admission role showed the name of petitioner at serial no.61 as son of Laxmi Dhar Chaubey and the date of birth recorded as 10.01.1952 but there was over writing. The report also stated that according to the headmaster of the school the original register is in a very old and shabby condition and it was on the basis of the affidavit furnished by Shesh Mani Chaubey that certificate regarding his date of birth as 01.01.1963 had been issued. The Settlement Officer (Consolidation) found reports to be very contradictory and since the original records relating to initial appointment of the petitioner were not traceable so he dropped the proceedings vide his order dated 10.10.2019. 5. However, it transpires from the record that further third party complaints were pursued before the Commissioner (Consolidation) who directed some fresh enquiry in the matter and again on the basis of same school records and other third party records, a fresh report was prepared, according to which his date of birth already entered in service book as 01.01.1963 was not believed and was claimed to be 10.01.1952 as per early school records. The Settlement Officer (Consolidation) returned a finding that the petitioner got fraudulently his date of birth recorded in Adhar Card, Identity Case and Voter Card and therefore, the departments concerned may be directed to correct the date of birth in their own records. 6. The petitioner since was taken to have retired on 01.01.2012 as per revised date of birth as 01.01.1952, the direction was issued by the Settlement Officer (Consolidation) to make recovery of the amount of salary already paid to him after his new revised date of retirement. 7. Learned counsel for the petitioner has argued that in the light of the provisions as contained under U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 until the date of birth recorded in the service record is sought to be altered on the basis of Class X certificate, the date of birth already recorded in the service book at the time of entry in service cannot be altered. When this writ petition was entertained vide order dated 15.10.2020, the order passed by the Settlement Officer (Consolidation) dated 09.02.2020 was stayed. 8. A counter affidavit filed on behalf of the respondents by learned Standing Counsel had an extract of the service book annexed with the same which showed the date of birth of the petitioner to be recorded as 01.01.1963. The photocopy filed, though was legible but it appeared as if transcribed on some piece of paper pasted upon the original subsequently and so this Court vide its order dated 04.07.2023 directed the Standing Counsel to produce the original service book and the same has now been placed before this Court. 9. Upon perusal of the original service book, I find that the date of birth to be recorded as 01.01.1963 in the same hand writing in which the other entries had been made at the time of preparation of service book and transparent cello tape had been placed so that no interpolation could be made which appears to be very old, at the time of preparation of service book in the year 1989 under the signature of Settlement Officer (Consolidation), Mirzapur, Varanasi. 10. Thus, from bare perusal of the original service book it is clear that the date of birth recorded in the service book is 01.01.1963 and that too of the time when the service book was initially prepared. 10. Thus, from bare perusal of the original service book it is clear that the date of birth recorded in the service book is 01.01.1963 and that too of the time when the service book was initially prepared. In the entire counter affidavit there is no averment to the effect that the petitioner ever made any application for the change of his date of birth recorded in the service book, nor the respondents have ever corrected this entry in the service book on the basis of any school records of petitioner, at any point of time. The entry thus is liable to be presumed to have been made on the basis of record available at the time of entry into service. 11. Under the U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974, the date of birth initially recorded in the service book cannot be changed except in the case where the high school certificate is produced to get the date of birth changed. The relevant provisions of 1974 Rules are reproduced hereunder: "3. The date of birth of a government servant as recorded in the certificate of his having passed the High School or equivalent examination, or where a government servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service book at the time of his entry into government service, shall be deemed to be his correct date of birth or age, as the case may be for all purposes in relation to his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever." 12. In service jurisprudence the service/employment is defined as contract of employment between employer and employee and until the employer comes to find in any in house enquiry that such a contract has been the result of fraud which made it to believe a false statement made as truth to offer employment, it cannot just proceed to annul the contract upon a third party complaint. In the present case there is no finding that petitioner played any fraud or suppressed a fact from his employer to seek employment, instead, the department while dropping the enquiry in the year 2019 proceeded afresh on repeated persuasion of a third party to discharge petitioner from service. In the present case there is no finding that petitioner played any fraud or suppressed a fact from his employer to seek employment, instead, the department while dropping the enquiry in the year 2019 proceeded afresh on repeated persuasion of a third party to discharge petitioner from service. It embarked upon a fact finding enquiry and returned finding qua date of birth against the petitioner on the basis of a register that was too old and in a too shabby condition to be relied upon. 13. Still further, the documents of Adhar Card and Driving License were disbelieved without holding any enquiry and getting correct information from the issuing authorities of these documents. Direction for taking steps to get date of birth corrected in official records like driving license and Adhar Card etc. by issuing authorities, was beyond the competence of employer which can be said as the basis to hold petitioner guilty of any fraud or misrepresentation for seeking employment. What further surprises the Court is that instead of removal of petitioner from service as the respondents were much confident about the findings returned in enquiry, they made him to retire retrospectively and that too without altering or modifying the date of birth in service record. All this shows that respondents were not even sure about the correctness of findings in the departmental enquiry which they had conducted upon a repeated complaint of a third party. This approach of respondents especially when they are State is certainly not approved of. While exercising on a third party complaint, the employer must first enquire as to why such a complaint was moved by a third party at the fag end of service career of employee or after his putting substantial service in employment. Third party complaints are often guided by local village animosity and/or someone in family or relation going envious of employee, without having any stake involved at all. An employer in usual course in matters of contract of service, as I would term it, must ignore such complaints when they are made by a third party after taking long time of his entry in employment. In cases where any stake of a third party is involved, employer must investigate the motive of complaint. An employer in usual course in matters of contract of service, as I would term it, must ignore such complaints when they are made by a third party after taking long time of his entry in employment. In cases where any stake of a third party is involved, employer must investigate the motive of complaint. Complaints made with mallicious motive by close relatives of employees must be outrightly rejected and must not be investigated unless a truth is discovered which, if had been disclosed at the time of entry into employment, would have rendered an employee totally ineligible but then even in such cases, if complainant had the knowledge and he did not come early, should be discouraged for making complaint at the fag end of service career. Further in the matter of preliminary enquiry motive appears to be oblique with an intention to harass the employee, it must reject at that stage itself. A lawful contract of employment deserves to be honoured so long as it is not the result of fraud committed for seeking it. Long blotless service rendered by an employee, whose work has been subject matter of appreciation, cannot suddenly be fired for such vexations complaints. 14. In the present case after going through early school records of petitioner earlier no substance was found in the complaint and so proceeding was dropped vide order dated 10.10.2019. Under the circumstances, repeated complaint by the son was sufficient to draw inference that son had the only motive to harass his father may be, for the reason he married to a woman after death of his wife. 15. In view of the above, the order impugned dated 19.02.2020 retiring the petitioner contrary to the date of birth recorded in the service book which has never been changed, merely on the basis of third party complaint cannot be sustained in law and so deserves to be quashed. Accordingly, writ petition succeeds and is, allowed. The order dated 19.02.2020 (Annexure no.5 to the writ petition) is hereby quashed. 16. The petitioner shall be treated to be in service as per the date of birth recorded as 01.01.1963 in the service book and shall be paid all emoluments and other service benefits including pension etc. accordingly. 17. Original records are returned to learned Standing Counsel appearing for the State.