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Ahibaran Prasad v. G.M., U.P.S.R.T.C. & Another - WRIT - A No. 10213 of 1997  RD-AH 2202 (31 August 2005)
Civil Misc.Writ Petition No.10213 of 1997
Ahibaran Prasad ....................................... Petitioner
General Manager, Uttar Pradesh State
Roadways Transport Corporation,
Terhi Kothi, Lucknow and another...................Respondents
By means of the present writ petition, the petitioner has approached this Court for issuing a writ of certiorari quashing the order dated 1.4.1997 (Annexure 7 to the writ petition) and issuing a writ of mandamus directing the respondents not to interfere in the functioning of the petitioner.
The petitioner was appointed as unskilled fitter helper in Uttar Pradesh State Roadways Transport Corporation, Central Workshop, Kanpur on 19.2.1958. At the time of appointment of the petitioner, the police verification was conducted by the police authorities and the petitioner has passed the High School Examination in the year 1956. In the year 1964, the petitioner was promoted as skilled workman. The petitioner sent his application before the Group Engineer on 28.9.1966 by which the petitioner has requested to appear in ITI Examination as private candidate. Subsequently, in the year 1987, the petitioner was promoted on the post of Specialist and in the year 1995, as Specialist first. All of a sudden in the year 1996, the Chief Manager, Uttar Pradesh State Roadways Transport Corporation, Central Workshop, Kanpur, send a charge sheet against the petitioner by which a charge has been levelled against the petitioner that the petitioner has cheated the Corporation by committing fraud for getting employment under the Corporation. The charge-sheet as well as the other papers were given to the petitioner on 12.8.1996. Petitioner submitted a reply and explained to the respondent No.2 that when the petitioner got the employment there was no particular age for recruitment. The petitioner meet with an officer concerned and got the appointment. It is wrong to say that the petitioner has ever cheated the Corporation. It has further been stated that from 1966 till 1996, no action has been taken against the petitioner and all of a sudden, a charge sheet has been given. After inviting the reply, the respondent has appointed an Enquiry Officer against the petitioner. During the enquiry, the petitioner has also enclosed each and every fact, which was on the basis of the relevant record. The Investigation Officer submitted his report and has clearly exonerated the petitioner of the charges, which was levelled against the petitioner. But the respondent No.2 again sent a show cause notice on 28.2.1997 to the petitioner, with the remark that the respondent No.2 is not agree with the investigation, which was conducted by the penal Enquiry Officer, Kanpur. The petitioner again submitted a reply but the respondent No.2 passed termination order dated 1.4.1997. It has been stated that before the show cause notice, the officers have enquired into the matter and has stated that in the year 1958, when the petitioner was given appointment there was no minimum age fixed for appointment and the various employees, who have been appointed, have completed the service and has already retired. It has further been stated that at the time of entrance into the service, the petitioner was High School and a report of the Police Verification (Annexure 1 to the writ petition) clearly goes to show that the same has been mentioned in the said certificate the date of birth of the petitioner is mentioned as 27.8.1940. It has also been submitted on behalf of the petitioner that the petitioner has not conceal any fact at any time as the certificate of High School was submitted and the same was verified by the authorities, therefore, no liability has been fixed upon by the petitioner.
The notices were issued to file a counter affidavit. The counter affidavit has been filed on behalf of the respondents. It has been stated that during verification by the police, in column No.8, the petitioner has mentioned his educational qualification High School in 1956 but he has left column No.7 of police verification form blank, which relates to age, deliberately because if the petitioner would have mentioned his age, he would not have been given employment as the petitioner was minor at that time. The petitioner has deliberately concealed this fact. It has further been submitted that the fraud played by the petitioner came into light only in the year 1996 and as such, a charge sheet was given to the petitioner. In paragraph 4 of the counter affidavit, the respondents have stated that one Sri K.S.Nigam has already retired. Sri K.S.Nigam also concealed his age and got appointment on 1.6.1954. As soon as, it came to the knowledge of the respondents he was immediately retired.
On the other hand, the petitioner submits that at the time of appointment, a full verification regarding date of birth was verified by the respondents and the petitioner was given appointment and was permitted to continue. It was only in the year 1996, the charge sheet has been given against the petitioner that the petitioner has obtained the appointment concealing the fact that the petitioner was major at that time. The further contention of the petitioner is that in the earlier investigation, the Investigation Officer has clearly given a report that there was no fault on the part of the petitioner, it was due to the mistake of the office. The petitioner was given appointment, meaning thereby no liability can be fixed upon the petitioner. It has further been submitted that the petitioner has reached the age of superannuation and now the petitioner has already retired. The effect of the order dated 1.4.1997 is that the petitioner will not give the retiral benefits for which the petitioner is entitled.
The petitioner has placed reliance upon U.P. Recruitment of Service Determination of Date of Birth Rules, 1974 and has submitted that in view of the aforesaid rules, the date of birth of a government servant recorded in his service book is of High School or equivalent examination will be treated to be the correct date of birth. The date of birth recorded in the High School certificate has been recorded into service book, therefore, the respondents at this stage cannot say that the petitioner was not eligible or minor at the time of appointment. As the petitioner has been permitted to continue for a considerable long time for about 30 years, therefore, the order of termination only on the ground that when the petitioner was appointed was not major for the purposes of appointment. The relevant rules is being quoted below:-
1. Short title and commencement.- These rules may be called the Uttar Pradesh Recruitment to Services Determination of Date of Birth Rules, 1974.
2. They shall come into force atonce.
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 represetn6tiaon shall be entertained for correction of such date or age in any circumstances whatsoever.
4. These rules shall have effect, notwithstanding anything contrary contained in the relevant service rules or orders."
The further reliance has been placed by the petitioner of the Division Bench judgment of this Court in Ishwari Dutt Joshi Vs. State of U.P. and another reported in 1990 (3) UPLBEC 1551 and has submitted that date of birth shown in the High School Certificate is final and conclusive prove if at the time of entrance in service the employee concerned was High School and has submitted the same for the purposes of verification of his age. The another judgment relied upon by the counsel for the petitioner in Roop Singh Yadav Vs. State of U.P. reported in 1987 AWC Page 1394 . The Division Bench of this Court has held that determination of date of birth if there is a difference in date of birth recorded in service records, and High School certificate and if the person concerned has passed the High School before entering into service, Rule 2 of the U.P. Recruitment Services (Determination of date of Birth) Rules, 1974, will be applicable. Another judgment has been relied by the counsel for the petitioner reported in Madhav Prasad Vs. Coal India Limited and others in 2005(2) ESC, Page 1293. The reliance has been placed upon Paras 1 and 14 of the said judgment. It has been held in the aforesaid case that "after completion of 42 years of service without reference to the actual undisputed date of birth recorded in service book, only on the presumption that minimum age must have been 18 years at the time of entering into service, if the date of birth according to High School Certificate has been recorded and if subsequently, it has been found that at the time of recruitment, the petitioner was below 18 years, therefore, the termination or retiring that employee will not be justified."
The another judgment has been relied by the counsel for the petitioner in U.P. Power Corporation Ltd. and another Vs. Satya Narain (Driver) and another reported in 2005 ESC Page 1246 It has been observed by the Division Bench of this Court that "The Court has to exercise an equitable discretion in the matter. The Court has to judge whether it is a fit and proper case for entering into the factual dispute. Both these problems are solved very largly, if not wholly by taking a good grip over the facts whereafter the law looks after itself and the equitable finger can be seen to point quite clearly and unmistakenly in one direction only." It has also been held by the Court that "an employee concerned cannot be made to suffer for wrong of another.
I have heard learned counsel for the petitioner and the learned Standing Counsel and have perused the record.
From the record, it is clear that the document of police verification, which has been annexed in the writ petition, it has been mentioned that the petitioner is High School passed and date of birth in the High School certificate was recorded. The petitioner was given appointment in the year 1958 and from 1958 up to 1996, the respondents have not taken any action that the petitioner was below 18 years at the time of entrance into service. After a lapse of about 28 years of service rendered by the petitioner in the corporation, the respondents suddenly awake that the petitioner's appointment was not in accordance with law.
I have considered the rival submission made on behalf of the parties and have perused the decisions, which have been cited and mentioned above. In my opinion, it will be very harsh at this stage that the order of termination against the petitioner, if permitted to hold valid, which is only on the ground that when the petitioner was given appointment the petitioner was below 18 years of age. As the respondents had permitted to continue the petitioner for a period of 38 years and from the report it has also been verified that the liability has been shifted upon the respondents corporation regarding issue of appointment in favour of the petitioner.
In such a way, I am of the view that the order of termination-dated 1.4.1997 (Annexure 7 to the writ petition) cannot be sustained and is hereby set aside. The petitioner will be treated in service till date of retirement and will be entitled for all the benefits. As the petitioner has already retired, he is also entitled for pension and other retiral benefits, the same may also be paid by the respondents. The aforesaid exercise regarding payment to the petitioner, all the benefits will be done by the respondent No.2 within a period of four months from the date of production of the certified copy of this order.
With these observations the writ petition is disposed of. There shall be no order as to costs.
Dated: August , 2005
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