State of Bihar &
Ors. Vs. Pandey Jagdishwar Prasad [2008] INSC 2138 (11 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7237 OF 2008 (Arising out
of SLP No. 23646 of 2007) State of Bihar & Ors. ..........
Appellants Versus
Pandey Jagdishwar Prasad .........Respondent
TARUN CHATTERJEE,J.
1.
Leave
granted.
2.
This
appeal is directed against an order passed by a Division Bench of the High
Court of Judicature at Patna, by which the respondent had questioned the
legality and validity of an order dated 22nd of August, 2006 passed by a
learned Judge of that Court, whereby the 1 learned Judge had rejected the Writ
Petition filed by the respondent.
3.
The
Writ Petition was filed by the respondent raising grievances against the order
of the appellant dated 4th of December, 2004 directing recovery of the amount
of salary for two years paid to the respondent on account of a dispute with
regard to his date of birth despite the fact that the respondent had worked during
that period. The appellant, by the order dated 4th of December, 2004, as noted
herein earlier, directed recovery of the salary on the basis of that order,
which was affirmed by a learned Judge of the High Court. Therefore, the only
question that was raised before the Division Bench was whether the order passed
by the State Authority dated 4th of December, 2004 and affirmed by the learned
Judge was justified or not. The Division Bench, by the impugned order, had
allowed the appeal and set aside the 2 order of the learned Judge and quashed
the order of the authority effecting recovery from the retiral dues and also
directed the appellant to return and repay the amount recovered till the date
of payment. It is this order, which is now under challenge before us by way of
a Special Leave, which on grant of leave, was heard in presence of the learned
counsel for the parties.
4.
Before
we consider the questions raised before us in support of the appeal, let us
narrate the relevant facts leading to the filing of this appeal.
5.
The
respondent, at the relevant point of time, was working as a Correspondence
Clerk (class III) in the office of the Executive Engineer, Rural Engineering
Organisation, Works Division, Sasaram in the State of Bihar. On 14th of August,
1973, the service book of the respondent was opened and two dates of birth of
the respondent viz. 11th of February, 1944, and 11th of February, 1946, were
recorded simultaneously in his service book. It may be mentioned here that
inspite of two dates of birth having been entered into service of the
respondent, the State Authorities did not correct or delete any of the dates
mentioned above for the entire period the respondent was in employment with the
State Authorities.
According to the
first mentioned date of birth, the respondent ought to have retired on 28th of
February, 2002. But he retired on 29th of February, 2004 according to the other
mentioned date of birth in his service book. As noted herein earlier, on 4th of
December, 2004, a reasoned order was passed vide memo no. 340, in the context
of an order dated 11th of October, 2004, passed in C.W.J.C. No. 12886 of 2004,
in which the respondent claimed for payment of 4 retirement benefit such as
pension, gratuity, leave encashment, etc.
6.
By
this order, the respondent was ordered to be retired on 28th of February, 2002,
on the basis of his date of birth mentioned in his service book i.e. 11th of
February, 1944, which was based on his matriculation certificate. As noted
herein earlier, by the order dated 4th of December, 2004, the appellant passed
an order directing recovery of the excess amount drawn by the respondent.
7.
Thereafter,
on 12th of February, 2005, by the memo Nos. 30 and 31 of the Executive
Engineer, Work Division, Sasaram sanctioned the amount of gratuity and also
ordered for deduction of excess amount from group insurance of the respondent
in twenty equal installments. The Executive Engineer R.E.O. Works Division,
Sasaram through the memo no. 05 dated 4th of March, 2005, made a refixation of
the amount paid to the respondent under Bihar Government Employees Essential
Group Insurance Scheme. Aggrieved thereafter, the respondent filed a Writ
Petition before the High Court of Judicature at Patna and the High Court, by an
order dated 2nd of August, 2006, dismissed the writ petition of the respondent,
in which it was observed that he was not entitled to refund as he had worked
beyond the date of his superannuation for which he alone was responsible.
8.
Feeling
aggrieved by this order of the learned Judge of the High Court, the respondent
filed an appeal before the Division Bench of the High Court which quashed the
recovery order issued by the appellant, as well as the orders of the learned
Judge. The Division Bench, as noted 6 herein earlier, directed refund of the
amount already recovered from the respondent with interest at the rate of 6
percent per annum from the date of recovery till the date of payment.
Being thus aggrieved,
the appellant has filed this appeal before this Court.
9.
We
have heard the learned counsel appearing on behalf of the parties and perused
the materials on record as well as the impugned judgment. It appears that the
department raised a controversy in regard to the date of birth after about 31
years of service of the respondent. It is an admitted position now that the
amount directed to be recovered, has already been recovered from the retiral
dues of the respondent which has been ordered by the Division Bench to be
refunded to the respondent with interest @6%. It is true that the date of birth
mentioned in the Matriculation Certificate should be treated as the date of
birth of the respondent. But it would be open to the employee to place
documents before the authorities that the date of birth shown in the service
book taken from the matriculation certificate was incorrect. There has been no
such document placed on record to corroborate the same except an affidavit
sworn by the respondent, which is on record. Therefore, the respondent ought to
have retired on 28th of February, 2002, on the basis of his matriculation
certificate which shows his date of birth as 11th of February, 1944 as recorded
in his service book. The learned counsel appearing on behalf of the appellant
argued that since the service book of the respondent was in custody in which
one of the date was mentioned as 11th of February, 1944, he ought to have
retired on 28th of February, 2002, and therefore, he had fraudulently continued
to serve the 8 appellant till 29th of February, 2004 thereby receiving undue
payment of salary and other allowances. We find no merit in this argument.
It is to be noted
that there was no question of fraud committed by the respondent before the
learned Single Judge or even before the Division Bench of the High Court. The
Division Bench, in the impugned judgment, had on this account subsequently
mentioned this, which is quoted as under :- "In the present case, there
was no dispute about the fact that there is no allegation of misrepresentation
or fraud purported to have been perpetrated by the appellant-original writ
petitioner."
10.
Such
being the position and in the absence of any allegation of the
misrepresentation or fraud made by the appellant, the appellant cannot be
permitted to raise the allegation of misrepresentation or fraud for the first time
in this Court. Moreover, for the sake of argument, even if we consider that the
respondent had fraudulently entered another date of birth in his service book,
as had been alleged, it should have come to the notice of the authorities
during his course of service, and not after he had attained the age of
superannuation after the expiry of the date mentioned in the service book which
was based on the affidavit of the respondent. To the contrary, none of the
officials responsible had noticed this during his service period, even during
his time of promotions when the service book was required to be inspected by
the officials. Therefore, it clearly points out to the gross negligence and
lapses on the part of the authorities concerned and in our view, the respondent
cannot be held responsible to work beyond his date of birth as mentioned in the
matriculation certificate when admittedly in the service book after affidavit,
some other date of birth was also evident. In view of the aforesaid
circumstances, the appellant ought to have deleted the date of birth entered in
the service book of the respondent on the basis of his affidavit as the
appellant had already accepted the date of birth of the respondent on the basis
of his matriculation certificate which was also produced by the respondent. The
appellant alleged that the respondent had entered a second date of birth in his
service book at a later period of time. The respondent vehemently negated this
contention stating that two dates of birth were entered simultaneously in his
service book by the department officials. It is not needed for this Court to
verify the veracity of the statements made by the parties. If at all the
respondent entered the second date of birth at a subsequent period of time, the
authorities concerned should have detected it and there should have been a
detailed enquiry to determine whether the respondent was responsible for the
same. It has been held in a catena of judicial pronouncements that even if by
mistake, higher pay scale was given to the employee, without there being
misrepresentation or fraud, no recovery can be effected from the retiral dues
in the monetary benefit available to the employee. This Court in the case of
Kailash Singh vs.
The State of Bihar
and Ors., [2004 (1) PLJR 289 (SC)], held that recovery sought to be made from
the salary of the employees on the ground of alleged over stay in service on
the basis of age assessed or considered, despite the fact that the employee has
worked during the period of alleged over stay could not be made. In Sahib Ram
vs. State of Haryana & Ors., [1995 Supp. (1) SCC 18], this Court has held
that even if by mistake, higher pay scale was given to the employee, without
there being misrepresentation or fraud, no recovery can be effected from the
retiral dues in the monetary benefit available to the employee.
11.
As
noted hereinearlier, in the service book of the respondent, two dates of birth
have been mentioned, which is not permissible. It cannot be conceived of that
the authorities could not examine the possibility of two dates of birth to be
entered in the service book of the respondent. They ought to have deleted the
initial date of birth based on the matriculation certificate if the appellants
were of the view that the affidavit sworn by the respondent was correct and the
date of birth appearing in the matriculation certificate must be found to be
incorrect, it is needless to say that the affidavit sworn by the respondent
must be on the basis of documents produced by the respondent to show that the
date of birth entered in the service book initially was incorrect. Instead, the
appellant had not issued any notice of retirement of the respondent on 28th of
February, 2002, which was the date for retirement of the respondent on his
attaining superannuation, i.e. on the basis of the date of birth shown in the
matriculation certificate. On the other hand, the appellant allowed the
respondent to work and got works from him and paid salary. Only for the first
time, the appellant took note of two dates of birth after he had completed two
years from the date of his actual date of retirement. Without going into the
question whether the appellant was justified after completion of two years from
the actual date of retirement to deduct two years' salary and other emoluments
paid to the respondent, we may say that since the respondent had worked during
that period without raising any objection from the side of the appellant and
the appellant had got works done by the respondent, we do not think that it was
proper at this stage to allow deduction from his retiral benefits, the amount
received by him as salary, after his actual date of retirement. Considering the
fact that there was no allegation of misrepresentation or fraud, which could be
attributed to the respondent and considering the fact that the appellant had
allowed the respondent to work and got works done by him and paid salary, it
would be unfair at this stage to deduct the said amount of salary paid to him.
Accordingly, we are
in agreement with the Division Bench decision that since the respondent was
allowed to work and was paid 14 salary for his work during the period of two
years after his actual date of retirement without raising any objection
whatsoever, no deduction could be made for that period from the retiral dues of
the respondent.
12.
In
Kailash Singh vs. State of Bihar & Ors. [2005 (13) SCC 576], this Court
observed that the employer-State would not be entitled to recover the salary
paid in excess after the due date of superannuation. In our view, this decision
was practically based on the concession made by the State before this Court.
Again in Hari Singh vs. State of Bihar & Ors. [2000 (10) SCC 284], this
Court held that since the Government had never put the employee on notice to
indicate that the date of birth as entered in the service book was incorrect
though it could have done so and since no notice had been given to the employee
concerned for accepting a date of birth other 15 than the one entered in the
service book, the order of retirement could not be sustained.
From the aforesaid
decision, it is evident that it was the duty of the State to put the employee
on notice about his date of retirement and not having done so, the appellant
was not entitled to recover the excess amount paid to the respondent.
13.
A
further argument was advanced by the learned counsel for the parties before the
High Court as well as before us on the applicability of Rule 96 of the Bihar
Finance Rules for settlement of dispute regarding the date of birth. In view of
our discussions made herein above and in view of the fact that we have accepted
the observations of the Division Bench of the High Court that since the
appellant had allowed the respondent to work beyond his due date of
superannuation without raising any objection and in the absence of
misrepresentation and fraud to be attributed to the respondent, it is not
necessary for us in the peculiar facts and circumstances of the case to go into
the question of interpretation of Rule 96 of the Bihar Finance Rules which is
kept open for decision in an appropriate case.
14.
14.Before
parting with this order, we may refer to a decision of this Court strongly
relied on by the learned counsel for the appellant, namely, Radha Kishun vs.
Union of India and Ors., [(1997) 9 SCC 239]. Learned counsel for the appellant
relying on this decision sought to argue that even if the respondent had worked
after his due date of superannuation without having any objection from the
appellant, the appellant was entitled to deduct the amount already received by
the respondent from his retiral benefits. This case, in our view, is clearly
distinguishable from the present case. In the above-mentioned case, there was
no dispute as to the date of retirement of the appellant in that appeal, as
there was no controversy in the date of birth of that appellant. There was only
one date of birth mentioned, and he had not retired on the basis of his date of
birth so entered.
Therefore, he had
wrongly extended his service beyond the date of his superannuation. But in the
present case, there were two dates of birth recorded in the service book of the
respondent.
Therefore, there was
a clear confusion in the mind of the respondent as to whether the appellant had
accepted his corrected date of birth as entered in his service book when
admittedly authorities concerned did not serve any notice of retirement on the
basis of the initial entry of date of birth in his service book.
It should also be
kept in mind that the respondent might have expected that second date of birth
shown in the service book was accepted by the authorities for that reason he
was allowed to continue in his service and was paid salary. In the absence of
any proof that the respondent had manipulated his date of 18 birth by entering
a second date at a later stage, and that he had any malafide intentions to
continue his service, beyond his date of his retirement, we are of the view
that the decision in the case of Radha Kishun vs. Union of India and Ors.
(Supra), would not be applicable in the facts of the present case.
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15.
There
is another aspect in this matter. Although we have directed that the excess
amount paid for two years to the respondent as salary cannot be recovered from
the respondent, but we make it clear that for fixing the retiral benefits, the
period of two years in respect of which salary was received by the respondent
cannot be taken into consideration and the respondent would be entitled to
fixation of retiral benefits as on the date of his superannuation i.e. 28th of
February, 2002.
16.
Accordingly,
we do not find it necessary to interfere with the order of the Division Bench
of the High Court in the peculiar facts and circumstances of the case in the
exercise of our power under Article 136 of the Constitution accepting the
directions made in paragraph 15 of this judgment.
17.
For
the reasons aforesaid, the appeal is dismissed subject to above directions.
There will be no order as to costs.
..............................J.[TARUN
CHATTERJEE]
...............................J.
NEW
DELHI
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