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Raj Narain Malviya v. Zila Panchayat & Another - WRIT - A No. 38194 of 2000 [2005] RD-AH 2416 (6 September 2005)


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       Civil Misc. Writ Petition No. 38194 of 2000


Raj Narain Malviya                                   Petitioner


Zila Panchayat, Sant Ravi Das Nagar

& another                                              Respondents.


Hon. Vikram Nath, J.

This petition has been filed with the prayer to quash the order dated 06.06.2000 passed by Apar Mukhya Adhikari/ Executive Officer, Zila Panchayat, Sant Ravi Das Nagar (respondent no. 2) whereby the date of birth of the petitioner was held to be 23.01.1929 and accordingly it was held that the petitioner was liable to retirement on 31.01.1987 and treating the said date to be the date of superannuation the payment made to the petitioner for the period beyond the date of superannuation would be adjusted in the pensionery benefits admissible to the petitioner.

The petitioner was initially appointed as vaccinator and has been working with the Zila Panchayat Varanasi. He was posted at Gyanpur and subsequently upon creation of Sant Ravi Das Nagar he be came employee of Sant Ravi Das Nagar. The petitioner was served with a notice dated 28.08.1993 that he was due to retire w.e.f 31.01.1994, Annexure 1 to the writ petition. Subsequently it appears that upon some complaint the petitioner was served with the order dated 05.10.1993 that the petitioner had continued in service beyond 58 years (age of retirement) on account of forged certificate with regard to his age and he was, therefore, suspended and an enquiry was set up appointing Karyadhikari Zila Parishad as the Enquiry Officer. A charge sheet dated 01.03.1994 was served upon the petitioner alleging two charges; firstly, that the petitioner by manipulation had altered the date of birth from 23.01.1929 to 23.01.1936, thereby, remained in service for 7 years beyond the age of retirement. The second charge was that on 14.08.1964 the then Chief Medical Officer Dr. S.N. Nath had directed the petitioner to furnish certificate with regard to his age but the petitioner deliberately did not furnish the School Leaving Certificate in order to conceal the correct date of birth.

Upon receipt of the charge sheet the petitioner requested for supply of certain documents, which were made basis of the charges. From perusal of the petition it is clear that large number of correspondence took place between the petitioner and the Enquiry Officer, however, the petitioner continued to insist that the Enquiry Officer, should first decide the request of supply of documents and also pass orders with regard to the preliminary objections as to whether the enquiry could be maintained or not. The last of the representation submitted by the petitioner in this regard is dated 22.07.1994. In paragraph 16 of the writ petition it is alleged that thereafter, petitioner did not receive any communication from the Enquiry Officer. In paragraph 17 of the petition it is alleged that he made 4 representations for payment of post retiral benefit but he was not paid any amount. In paragraph 18 it is alleged that the Director, Pension Directorate, Indira Nagar, Lucknow  vide letter dated 07.09.1994 also directed the District Magistrate,  Varanasi to take necessary action with regard to payment of post retiral benefits. It is  further alleged in paragraph 19 that despite the said direction no amount has been paid and that the petitioner has made several more representations.

In the year 1997 the petitioner preferred Writ Petition No.  9573 of 1997, which was disposed of, vide judgment and order dated 06.04.2000 with the direction to conclude the enquiry if not already concluded and also to pay post retiral benefits to which the petitioner may be entitled. Pursuant to the said order dated 06.04.2000 the impugned order dated 06.06.2000 has been passed, treating the date of retirement of petitioner as 31.01.1987 (not 31.01.1994) and for attachment of the excess payment made to the petitioner to be adjusted in the pensionery benefits.

Counter affidavit has been filed on behalf of Zila Panchayat in which it is mainly asserted that the petitioner's date of birth could not have been 23.01.1936 in view of the fact that the petitioner had been initially appointed on  01.08.1953 and, therefore, at that time his age would be less then 18 years, thereby, making his initial appointment illegal. Secondly it is alleged that in the Service Book the entry of the date of birth is made by different ink from the other entries in the Service Book. The third contention in the counter affidavit is that School Leaving Certificate, which was submitted by Raj Narain Malviya the date of the birth of the petitioner was recorded as 23.01.1929. The respondents have also placed on record an Enquiry Report dated 02.09. 1994. However, there is no reference to any final order having been taken by the competent authority nor any show cause notice having been issued to the petitioner pursuant to the submission of the enquiry report.

Rejoinder affidavit has also been filed by the petitioner in which the contents of counter affidavit are denied and it is reasserted that the date of birth was 23.01.1929.

I have heard Sri Anil Kumar Aditya, learned counsel for the petitioner and Sri L.K. Dwivedi, learned counsel for the respondent, Zila Panchayat, Sant Ravi Das Nagar and have also perused the record.

From perusal of the record it is clear that no action was taken by the respondents on the enquiry report dated 02.09.1994 and the matter was left at that stage. At the same time the respondents did not make payment of post retiral benefits to the petitioner neither from the date till which he actually worked according to the recorded date of birth i.e. 23.01.1936 nor from the date from which the respondents decided to retire the petitioner taking into consideration the date of birth  mentioned in the  complaint i.e. 23.01.1929. The result is that even though the petitioner retired on 31.01.1994 but still has not been paid any post retiral benefits. This inaction on the part of the respondents shows the mala fide on their part and also their intention to harass the petitioner. There is no averment in the counter affidavit that  at any time the amount due, according to them, to the petitioner was calculated or finalized. Further no  communication was ever sent to the petitioner informing him the details of the amount due to the petitioner and also communicating him the amount sought to be adjusted.

The arguments advanced on behalf of the petitioner is that according to the rules relating to change of date of birth no amendment or alteration could have been done at such late stage when the petitioner had already retired. Secondly no misconduct was established against the petitioner. The date of birth was recorded in the service book by the appointing authority (respondents). There is no allegation that the petitioner ever manipulated or changed the date of birth or had given any wrong information. In so far as the letter issued in the year 1964 is concerned it was contended by the petitioner that he had never received the letter and even if it is assumed to have been served on the petitioner, the respondents ought to have taken action against him at that time and not after 30 years. The respondents after issuing the letter ought to have brought it to a logical end by sending reminder in that respect and taking a final decision at that time, but there is nothing on record to show that the respondents ever made any effort to collect any information from the petitioner or to make an inquiry at that time and after 30 years are now deliberately and with malafide intention bent upon to harass the petitioner. The counsel for the petitioner has relied upon certain decisions of this Court with regard to the contention that date of birth could not have been altered at the fag end of service. Secondly that no inquiry could be conducted after retirement of the petitioner in respect of any misconduct alleged to have been committed more than 4 years before retirement and once an employee had worked he was entitled to the salary for the work done and such salary could not be recovered.

But without going in all those contentions, I am convinced that the respondents have not acted bonafide and the alleged enquiry report dated 02.09.1994 was an exparte report without affording any opportunity to the petitioner who had been repeatedly insisting to furnish the necessary documents which was never done and no action was taken on the said inquiry report till date as the same was never furnished to the petitioner, neither any show cause notice was given nor any final orders were passed. After such a long lapse of time the respondents cannot be permitted to act upon the said exparte report.

There are catena of decisions that an employee cannot seek change in date of birth recorded in the service book, at the fag end of his career or at any stage as a matter of right. The basis of recording the date of birth in the service book is very well settled. Once the said entry is made the same cannot be altered, ordinarily either on the request of the employee or the employer, without strictly following the procedure prescribed. In the present case the employer is trying to alter the date of birth after the retirement and that too on a complaint made by some stranger and that too on basis of some private document. If such practice is allowed to develop it would result into unnecessary harassment to the employee on account of personal enemities.

Further the petitioner has admittedly worked till the age of retirement calculated from the recorded date of birth, which the employee admittedly allowed to continue. No fault of the petitioner has been found to be proved or established as no final decision was taken on the alleged inquiry report of 1994. The petitioner would therefore be entitled to the salary  for the period he has worked and the impugned order to that extent also cannot be sustained. There is yet another reason for not permitting any deduction from the amount due is that it has already been held above that there could not be any change in the date of birth of the petitioner as recorded. The petitioner is thus entitled to receive his post retiral benefits treating his date of birth recorded in the service book to be correct and not the disputed date of birth as alleged by the respondents, which they failed to establish.  

In this view of the matter the order dated 06.06.2000 impugned in the present writ petition passed by the respondent no. 2 cannot be sustained and deserves to be set aside.

In the result, the writ petition succeeds and is allowed.  Impugned order dated 06.06.2000 passed by the respondent no. 2 is set aside. Petitioner shall be deemed to be in service till 21.09.1994 and would be entitled to all the post retiral benefits, treating this date as the date of superannuation. The dues shall be paid within a period of three months from the date of production of certified copy of this order.

The petitioner is also entitled to interest as the delay in payment is not attributable to the petitioner nor is there  any fault of the petitioner rather the action of the respondents is neither bona fide nor legally sustainable. Considering the facts and circumstances of the case it is directed that the petitioner would be entitled to 8% simple interest on the amount due as per retiral benefits from the date of retirement till the date the amount is paid.  

Dated: 06.09.05

v.k.updh. (104)  



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