Heard learned counsel for the petitioner and Sri Ayank Mishra, learned counsel appearing for Kanpur Electricity Supply Company, Kanpur Nagar.
It transpires from the record that the petitioner was appointed as Class IV employee on the post of Coolie on 01.10.1974. The date of birth of the petitioner i.e. 03.09.1949 was recorded in the service record, however, due to oversight and mistake, in the other documents of the respondent-company, the date of birth was reflected as 28.05.1955, as such, the petitioner was allowed to continue till 13.05.2011 instead of retiring on 30.09.2009.
The petitioner has approached this Court assailing the order dated 13.05.2011 passed by the Executive Engineer, Urban Electricity Supply Division (F & R) Sarvodaya Nagar, KESO, Kanpur, respondent no. 3 treating the date of birth of the petitioner as 03.09.1949 thus retiring the petitioner w.e.f. 30.09.2009, the salary paid is sought to be recovered from the gratuity and other retiral dues for the period, the petitioner worked beyond 30.09.2009 till 13.05.2011.
Submission of learned counsel for the petitioner is that as per 'Parivar Register', petitioner's date of birth is 28.05.1955, hence the petitioner would retire in 2015, further, petitioner is an illiterate Class IV employee, hence, no recovery should be made from the petitioner for the period of service the petitioner rendered beyond September 2009, there is no fraud or misrepresentation on the part of the petitioner.
In rebuttal, Sri Ayank Mishra, learned counsel appearing on behalf of Kanpur Electricity Supply Company, Kanpur Nagar, submits that since the petitioner has worked beyond the actual age of superannuation, the respondents are entitled to recover the salary that was paid by mistake treating the year of birth as 1955, in support of his submission, Sri Mishra has relied upon Chandi Prasad Uniyal Versus State of Uttarakhand,(2012) 8 SCC 417.
It is admitted by learned counsel appearing for the petitioner that the service record mentions the date of birth as 03.09.1949, thus, according to the entry in service record petitioner would superannuate on 30.09.2009, however, due to some mistake and oversight of the authorities, the other records of the respondent-company showed the date of birth as 28.05.1995, thus, the petitioner was permitted to continue to work till 13.05.2011, however, when the authorities realised their mistake, the date of retirement of the petitioner taken as 30.09.2009 as per the date of birth recorded in the service record, hence, it was ordered that the salary paid till 13.05.2011 shall be recovered.
The contention of learned counsel for the respondents is that since the petitioner worked beyond the age of superannuation, excess amount paid towards salary is recoverable, cannot be accepted for the reasons that nothing excess was paid to the petitioner, the respondents on their own mistake permitted the petitioner to continue in service beyond the age of superannuation for which the petitioner received salary and there was no fraud or misrepresentation on the part of the petitioner. The ratio of Chandi Prasad Uniyal (supra) is not applicable on the facts of the case as nothing excess was paid to the petitioner by the respondents, the petitioner was paid his salary for the period he worked, even though it was for the period beyond retirement, an illiterate class IV employee cannot be fastened with recovery for no fault of his own.
It is settled proposition of law that the date of birth entered in the service record cannot be corrected at a belated stage. Where the entry of date of birth in service record remains in existence for a long time, the same is not required to be disturbed on any ground whatsoever. The onus is on the employee-applicant to prove about the wrong recording of his date of birth in his service record by adducing irrefutable evidence. Court has to insist for clear, clinching and unimpeachable evidence in this regard because the relief sought by an employee, if granted, may entail chain reaction hampering promotional prospects of junior officers and may cause an irreparable injury to them.(Vide Union of India Vs. Harnam Singh, AIR 1993 SC 1367; Secretary & Commissioner, Home Deptt. & Ors. Vs. R. Kirubakaran, AIR 1993 SC 2647; Chief Medical Officer Vs. Khadeer Khadri, AIR 1995 SC 850; State of U.P. Vs. Smt. Gulaichi, AIR 2003 SC 4209; State of U.P. & Anr. Vs. Shiv Narain Upadhyaya, (2005) 6 SCC 49; and State of Gujarat Vs. Vali Mohd. Dosabhai Sindhi, AIR 2006 SC 2735.
In U.P. Madhyamik Shiksha Parishad Vs. Raj Kumar Agnihotri, (2005) 11 SCC 465, the Apex Court held that an application for correction of date is to be dealt with giving strict adherence to the Rules, if any, framed in this regard and particularly in respect of limitation etc. In State of Madhya Pradesh & Ors. Vs. Mohan Lal Sharma, (2002) 7 SCC 719, the Supreme Court held that while examining the issue of correction of date of birth, the Court must be very slow in accepting the case of applicant if issue has been agitated at a much belated stage and it must examine the pros and cons involved in the case even if not raised by the parties. In the said case the Tribunal had allowed application for correcting the date of birth placing reliance on the Horoscope and a certificate issued by the retired Head Master of the School showing a different date of birth. The Apex Court revised the said judgment observing that if it was allowed the applicant would have joined the service when he was less than 18 years of age, and therefore, accepting such an application would amount to sanctifying his illegal entrance in service. The Court further observed that no reliance could be placed upon the said certificate and Horoscope at all.
In State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868, the Supreme Court held that horoscope is a very weak piece of material to prove age of a person. A very heavy onus lies on the person, who wants to press it into service, to prove its authenticity. It requires to be proved in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge as regards authenticity of date, time etc. mentioned therein, and in that context, horoscopes have been held to be inadmissible for proof of age. For that purpose, reliance has been placed by the Supreme Court on the judgments in Mt. Biro Vs. Atma Ram & Ors., AIR 1937 PC 101 and also on the judgment of the Calcutta High Court in Satish Chandra, Mukhopadhyaya Vs. Mohindra Lal Pathak, ILR 97 Cal 849.
Thus the plea of the learned counsel for the petitioner that the date of birth of the petitioner be treated as 28.05.1955 instead of 03.09.1949 cannot be accepted, further the petitioner has admitted that at the time of entry in service, the date of birth recorded in the service record is 03.09.1949 which has continued, as such, through out his career, the plea that entry made in the service book be corrected as per the date of birth recorded in other documents of the respondent-company cannot be accepted at this belated stage, further the petitioner was not high school at the time of appointment, hence, as per rules the date of birth recorded in the service record shall be treated as final.
In Hari Singh v. State of Bihar, 2000(10) SCC 284, the Supreme 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 than the one entered in the servive book, the order of retirement could not be sustained. 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.
In Radha Kishun v. Union of India, 1997 (9) SCC 239, the order was passed to recover the salary from the respondent as he worked after his due date of superannuation, facts of the case is clearly distinguishable as there was no dispute as to the age of retirement of the appellant in that appeal, as there was no controversy in the date of birth of that appeal, 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 records of the respondents. Therefore, there was a confusion in the mind of the respondent as a result of which the petitioner was continued in service.
The Supreme Court in State of Bihar Versus Pandey Jagdishwar Prasad, (2009) 3 SCC 117, considered as to whether salary paid to an employee after retirement can be recovered by the employer, the court in para 23 observed as follows:-
"23. Without going into the question whether the appellant was justified after completion of two years from the actual 13 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."
In Chandi Prasad Uniyal (supra), order to recover excess amount paid for the reason of wrong fixation of pay was upheld as it amounted to unjust enrichment, to which the appellant was not entitled, but if recovery would ensue hardship, then the Court can prohibit the respondents from making recovery. The present case is not a case of payment of any amount on wrong fixation of pay or payment over and above that was due. The respondents took work from the petitioner and paid his salary for the work, though it was beyond the age of retirement, the petitioner is class IV illiterate employee, there is no fraud or misrepresentation on his part, thus the respondents cannot recover the amount of salary paid to the petitioner for the period after retirement till 13.05.2011, that too without putting the petitioner to notice, the impugned order was passed without affording any opportunity and is liable to be set aside on that ground alone.
For the facts and reasons stated herein above, the impugned order dated 13.05.2011 passed by the respondent no. 3 is set aside to the extent it provides for recovery. It is provided that the date of birth of the petitioner shall be 03.09.1949, accordingly, the age of superannuation would be 30.09.2009. The post retiral and terminal benefits shall be calculated as due on 30.09.2009, however, the salary paid to the petitioner w.e.f. 01.10.2009 to 13.05.2011 shall not be recovered from the petitioner, and in case, the recovery has been made from the terminal benefits/retiral dues, the same shall be refunded to the petitioner within a period of two months from the date of filing of certified copy of this order before the respondent no. 3, Executive Engineer, Urban Electricity Supply Division (F & R) Sarvodaya Nagar, KESO, Kanpur.
Subject to the above, the writ petition is allowed.
Order Date :- 27.8.2014/kkm