The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAS) No.31 of 2018 In the matter of an application under Section-19 of the Administrative Tribunal Act, 1985. ……………… Babulal Bag …. Petitioner -versus- Executive Engineer, Public Health Division, Sambalpur & Others …. Opposite Parties For Petitioner : M/s. Mr. D.K. Panda, Advocate. For Opp. Parties : M/s.Mr. A. Tripathy, AGA
Legal Reasoning
320. This Court in Para- 6 to 9 has held as follows:- “6. As regards tampering with the date of birth in his Service Book is concerned, no material has been produced by the opposite party-Corporation nor is there any averment in its counter affidavit as to how and when such tampering was done and as to whether that was done by the employee concerned. It is well settled that the Service Book is always retained with the employer and no employee has any access to handle the original Service Book. Thus the Corporation being the custodian of the Service Book it cannot blame an employee in case of any alteration of the entries made therein or the same being tampered with. In absence of any cogent material, it cannot conclusively be said that the employee concerned had a hand in it. Even otherwise, the same is a question of fact which cannot be effectually adjudicated under Writ Jurisdiction. 7. On a cumulative assessment of all the materials available on record, this Court feels that as the employee concerned had worked and had discharged duties for the aforesaid period he was entitled to salary for the said period and the order Annexure-7 directing recovery of salary and allowances from him cannot be sustained. 8. So far as post-retirement benefits are concerned, this Court fails to appreciate the submission made on behalf of the opposite party-Corporation. In the scenario of facts discussed in the preceding paragraphs and in view of the admitted case of the parties that the employee concerned had discharged duties, obviously he was entitled to salary and thus there is no reason why he could be denied his retirement benefits. A similar view was taken by the Page 5 of 7 // 6 // Supreme Court in the case of Kailash Singh v. State of Bihar and Ors. reported in 2005 (II) OLR (SC) 375. 9. Relying upon the ratio of the aforesaid decision of the Supreme Court and considering the entire scenario of facts as discussed above, this Court has no hesitation to quash the order Annexure-7 and direct that no recovery of salary received for the alleged excess period of service rendered by the employee concerned shall be made by the Corporation, and orders accordingly. Payment of retirement benefits not being a bounty and rather the same being the statutory duty of the employer, this Court directs the Corporation to calculate the pension and other retirement benefits of the employee concerned as per the rules and pay the same within a period of four months from the date of communication of this judgment”. 8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner entered into service as a Peon in the establishment of Opposite Party No.1, where he joined on 21.04.1971. As found from the GPF slip enclosed vide Annexure-B/1, the date of birth of the Petitioner as recorded as 23.02.1951. If the date of birth of the Petitioner so recorded in the service book will be taken into consideration then by the time he joined his service his age will be around 12 years. 8.1. It is the view of this Court that with the date of birth as 23.02.1959, Petitioner could not have been allowed to join on 21.04.1971 i.e. at the age of 12 years. Therefore, it is the view of this Court that date of birth of the Petitioner recorded as 23.02.1951 in Annexure-B/1 is the correct date of birth of the Petitioner. Page 6 of 7 // 7 // 8.2. Taking the date of birth as 23.02.1951, this Court held the Petitioner to have attained the age of superannuation on 28.02.2011 and by holding the date of superannuation of the Petitioner as 28.02.2011, this Court directs Opposite Party No.1 to take steps for release of pension and other pensionary benefits as due to the Petitioner. Excess payment drawn by the Petitioner for the period from 01.03.2011 to 28.02.2017 cannot be recovered as the Petitioner has discharged the duty for the entire period in view of the decision as cited (supra). This Court directs Opposite Party No.1 to complete all the exercise with regard to release of the retiral benefits as due to the Petitioner within a period of three(3) months from the date of receipt of this order. 9. With the aforesaid observations and directions, the
Arguments
Mr. S.K. Patra, Adv. for O.P.3 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:13.02.2025 and Date of Judgment:13.02.2025 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. // 2 // 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “(a) issue order / direction to the Respondent No.1 to sanction all the retirement benefits of the applicant w.e.f. 01.03.2017 (F.N.) including GIS, GPF of the applicant within a stipulated period. (b) issue order / direction to set aside the order of relieve / retirement issued by Respondent No.1 at Annexure-1”. 4. However, vide order dtd.18.07.2024, Writ Petition was confined so far as prayer No.7(b) is concerned. 5. Learned counsel for the Petitioner contended that Petitioner entered into service on 21.04.1971 as a Peon in the establishment of Executive Engineer, Public Health Division, Sambalpur. Since in the service book of the Petitioner, his date of birth is reflected as 20.02.1959, Petitioner should have been allowed to continue till he attain the age of superannuation which falls due on 28.02.2019. But vide the impugned office order dtd.28.02.2017, he was made to retire w.e.f. 28.02.2017. 5.1. It is contended that since in the service book of the Petitioner his date of birth is reflected as 20.02.1959, without giving due opportunity of hearing, the same should not have been changed and thereby making the Petitioner to retire w.e.f. 28.02.2017 vide the impugned order under Annexure-1. It is accordingly contended that such action of the Opposite Party No.1 is not sustainable in the eye of law. Page 2 of 7 // 3 // 5.2. It is further contended that after such retirement of the Petitioner w.e.f. 28.02.2017, Petitioner is only getting the provisional pension and all his pensionary benefits has also been kept withheld. 5.3. It is accordingly contended that action of Opposite Party No.1 in making the Petitioner to retire on 28.02.2017 is not sustainable in the eye of law. 6. Mr. A. Tripathy, learned Addl. Government Advocate for the State on the other hand placing reliance on the counter affidavit filed by Opposite Parties contended that even though in the service book of the Petitioner his date of birth is reflected as 20.02.1959 but since it was found that there is manipulation in the said recording and in the GPF Form, the date of birth of the Petitioner is reflected as 23.02.1951, Opposite Party No.1 on coming across the same, made the Petitioner retire w.e.f. 28.02.2017 vide the impugned order under Annexure-1. 6.1. It is also contended that had the date of birth of the Petitioner been taken as 20.02.1959, he could not have joined in his services on 21.04.1971 i.e. at the age of 12 years. 6.2. It is accordingly contended that there is manipulation in the recording of the date of birth of the Petitioner and on coming across the same Petitioner was Page 3 of 7 // 4 // superannuated w.e.f. 28.02.2017, even though he was due to retire on 28.02.2011. 6.3. It is further contended that taking into account the date of birth of the Petitioner as 23.02.1951, he would have attained the age of superannuation on 28.02.2011. But he continued for around six years in excess, prior to his superannuation w.e.f. 28.02.2017 vide order under Annexure-1. 6.4. It is accordingly contended that date of birth of the Petitioner being 23.02.1951, his date of retirement is required to be taken as 28.02.2011 and Petitioner is liable to pay the excess amount drawn by him, towards salary and other financial benefits, for the period from 01.03.2011 to 28.02.2017. 6.5. It is also contended that Petitioner vide Annexure-D/1, has also accepted the date of birth as 23.02.1951 and has prayed for release of his retiral dues. 7. To the submission made, learned Addl. Government Advocate, learned counsel for the Petitioner contended that by taking the date of birth of the Petitioner as 23.02.1951, and the date of retirement as 28.02.2011, necessary direction be issued to sanction pension and other pensionary benefits as due to the Petitioner. With regard to the salary drawn by the Petitioner for the period from 01.03.2011 to 28.02.2017, learned counsel for the Page 4 of 7 // 5 // Petitioner contended that since for the said period, Petitioner has discharged his duty, he is not liable to refund the amount. 7.1. In support of the aforesaid submission, learned counsel for the Petitioner relied on the decision of this Court in the case of Smt. Gelli Dei vs. Orissa Lift Corportation Ltd. & Others, reported in 2007 (II) OLR-
Decision
Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 13th February, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Feb-2025 15:15:02 Page 7 of 7