Central Administrative Tribunal - Delhi
Mona Srivastava vs M/O Railways on 11 January, 2023
1
OA No.1077/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1077/2021
Order reserved on: 30.11.2022
Order pronounced on: 11.01.2023
Hon'ble Mr. Manish Garg, Member (J)
Mona Srivastava
D/o Late Sh. A.P.Srivastava
W/o Sh. Shailesh
R/o 2A, Tilak Bridge,
Railway Colony,
Supreme Court Metro Station,
New Delhi-110001.
...Applicant
(By Advocate: Mr. Vishwendra Verma)
Versus
1. Railway Board
Through the Secretary,
Ministry of Railway,
Rail Bhavan, New Delhi-01.
2. The General Manager,
Northern Railway,
Baroda House,
Copernicus Marg,
New Delhi-110001.
... Respondents
(By Advocate : Mr. Piyush Gaur)
2
OA No.1077/2021
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
―i) To quash and set aside the Notice No.762E/2203/EIA dated 15.01.2021 in the interest of justice;
ii) to declare that the respondents have no right to arbitrarily change the date of birth of the applicant as entered and recorded in the Service Record as 12.05.1975 to declare that the respondents are bound to work as per the law and their action as per Article 225 of Code.
iii) To declare that the respondents have no right to change the date of birth of the applicant from 12.05.1975 to 12.05.1973.
iv) to pass any other and further orders as may be deemed fit and proper in the interest of justice.‖
2. Brief Facts:
2.1 The applicant is aggrieved by notice dated 15.01.2021 (Annexure P-1) issued by the respondents, whereby her date of birth (DOB) has been changed from 12.05.1975 to 12.05.1973 in violation of principles of natural justice.3 OA No.1077/2021
2.2 It is submitted that applicant was admitted to the Scindia Kanya Vidyalaya, Gwalior, MP (hereinafter referred to as ‗School') in class 8 in 1986-87 and passed Intermediate Examination from the same School in 1991. In the said School her DOB was wrongly written as 10.05.1973 by the School authorities due to clerical mistake. When the father of the Applicant came to know about the said clerical mistake, he submitted a Notarized Affidavit dated 16.11.1987 to the School Authorities (Annexure A.2) stating that the correct DOB of the applicant was 12.05.1975 and requested for making correction in this regard. The School Authorities changed the DOB of the applicant from 10.05.1973 to 12.05.1973 and not as 12.05.1975. Thus, the School committed a mistake on which the applicant or her father did not have any control. The father of the applicant was, however, assured that correction in the DOB of the applicant had been made as per the contents of the Affidavit. The applicant and her father came 4 OA No.1077/2021 to know about the clerical mistake made by the School when they received marksheet and Certificate of passing High School. The father of the applicant had made several representations to the School for correction of the DOB but no heed was paid by the School authorities and thus, the clerical error in the DOB of the applicant continued in the marksheets and certificates of Class X and XII. The applicant under compulsive circumstances had to write her DOB as 12.05.1973 instead of 12.05.1975 for the Engineering examination, M.Tech examination, Union Public Service Commission's examination for Indian Engineering Services for 1998 examination.
Thereafter, she got selected in the said UPSC examination and joined the Indian Railway Services of Engineers (IRSE' 1998) and got appointed in Indian Railways w.e.f. 20.09.1999. 2.3 The applicant, in terms of Article 225 (4 & Railway Ministry's Decision (a) of IREC, got an opportunity to correct her DOB as per the first 5 OA No.1077/2021 document available with her i.e., Municipal Record of DOB wherein it is clarified that as per records available with them the DOB of the applicant is 12.05.1975.
2.4 Thereafter, she represented as per the Indian Railway Establishment Code, to Respondent No.1 vide her application dated 02.12.1999 stating that her correct DOB is 12.05.1975 and requested the respondent to make necessary corrections in the records regarding her DOB. In support of her claim, she annexed the notarized affidavit submitted by her father to the School authorities. 2.5 It is further submitted that in 2007, the Railways Authorities handed over the Service Card for Gazetted Officers vide letter No. 06/CON/A/c/EG/MS dated 26.03.2007 to the applicant, in which her DOB was correctly shown as 12.05.1975 in all the folios from initial appointment till 26.03.2007. It is clear from the ‗SERVICE CARD' issued by the Respondents to the 6 OA No.1077/2021 applicant that the respondents had accepted the request of the applicant and the DOB of the applicant had been accepted as 12.05.1975. 2.6 It is submitted that the Respondent No. 1 sent communication No. E-107/G/W.Spl/ACRs/09 dated 18.03.2009 to the applicant enclosing therewith the Annual Performance Assessment Report (APAR) of the applicant for the year 2008- 2009, in which the DOB of the applicant was shown as 12.05.1973. Further, in terms of instructions communicated to the applicant vide letter No.E-107/G/W.SPL/ACRs/09 dated 18.03.2009, in case of any discrepancy in any of the columns in Part I (Personal Data) of the APAR, the officer reported upon himself/herself could remove the discrepancy. Therefore, the applicant represented that her DOB be corrected as per her Service Card. The applicant sought a confirmation from the respondents vide her application dated 30.06.2009. The respondents after due verification from their records vide communication No. 726- 7 OA No.1077/2021 E/2203/EiA dated 01.09.2009 confirmed to the applicant that her DOB was 12.05.1975 and not 12.05.1973 and also acknowledged receipt of the said communication vide Secretary to CAO/C communication No. E-141/Misc/Confdl./ W.spl/09 dated 14.09.2009.
2.7 It is submitted that the applicant till 2007 was showing her DOB as 12.05.1973. It is only after the Railway Authorities issued her a copy of the service card showing her DOB as 12.05.1975 and confirmed to her that her DOB as per service card is 12.05.1975 instead of 12.05.1973, the applicant subsequently started indicating her correct DOB as 12.05.1975.
2.8. It is clear from the records of the respondent i.e., service records the DOB of the applicant was recorded and continued to be maintained as 12.05.1975 by the Respondents till 2020-21. 8 OA No.1077/2021 2.9. It is submitted that as per the Municipal Corporation Asansol at Kulti Office and the said Registrar of Births and Deaths issued the birth certificate with the DOB of applicant as 12.05.1975. The Registrar of Births and Deaths is the designated Government agency in terms of the Registration of Births and Deaths Act, 1969 to issue birth certificate. It is the first document which shows and confirms in respect of DOB of a person.
2.10 It is further submitted that the respondents have issued the impugned Notice arbitrarily in violation of all the principles of natural justice. The applicant made a representation to the respondents to recall the impugned Notice but the respondents did not give any reply to the same.
2.11. As per the classified list of the Gazetted Establishment of the Indian Railway corrected upto 9 OA No.1077/2021 January, 2017, the DOB of the applicant is 12.05.1975.
2.12. The respondent, however, issued a major penalty charge sheet to the applicant alleging misconduct on her part in wrongly stating her DOB as 12.05.1975, while it was 12.05.1973 as per her mark sheets and certificates issued by CBSE. The inquiry was conducted and in the inquiry report, the inquiry officer categorically stated that:
―on the basis of the oral, documentary & circumstantial evidences available on record and after going through depositions of CO, PO brief and Defence Brief, the finding is as under:
―there is no evidence which could prove either the Article of Charge -1 OR the Article of charge -2 OR the Article of Charge 3 against Smt. Mona Srivastava, CE/SD/NR. In view thereof, Article of Charge-1, Article of charge -2 and Article of charge -3 do not get substantiated‖ New Delhi (Sd/-) Tuesday, The 11th January, 2022‖ (A.K. Misra) Inquiry Officer & Former Additional Member Railway Board‖ 2.13 Thus, it is submitted that the respondent arbitrarily issued the impugned notice 10 OA No.1077/2021 dated 15.01.2021, which is against the law as the applicant has a right to request for change of her DOB within 5 years of her starting service career, which she did and on the basis of documents the respondents accepted her request to the change in DOB and issued specific letter as per Article 225 of IREC Vol. I.
3. Per contra, learned counsel for the respondents vehemently opposed the contention of the applicant raised in the OA.
3.1 It is contended that as per Rule 225 of the Indian Railway Establishment Code Vol.I., in the case of Group A&B railway servant, the President may cause alteration in DOB wherein, railway servant submit representation for the same with full justification alongwith documentary evidence before the completion of probation period or three years of service whichever is earlier. But in the present case the applicant mentioned her DOB as 12.05.1973 in her UPSC application, personal Bio-data filled by her at the time of appointment, form filled by 11 OA No.1077/2021 applicant at the time of her joining as AEN/DLI etc., even the documents submitted by her i.e. 10th Class Certificate shown her DOB as 12.05.1973. 3.2 The respondents have annexed details of 11 documents wherein the applicant quoted her DOB as 12.05.1973. The details of the documents are mentioned below :-
S.No. Description 1 Declaration dated 30.06.2009 submitted by Smt. Mona Srivastava for change of her date of birth 2 Secondary School Examination, 1989 certificate of Smt. Mona Srivastava 3 UPSC application form filled by Smt. Mona Srivastava 4 Personal Bio-data filled by Smt. Mona Srivastava at the time of her appointment 5 Form filled by CO at the time of her joining as AEN/DLI.
6 Inter-se seniority position issued vide letter no E(O)I/2002/SR-6/04 dated 21.10.2005. 7 Associate Professor/Track-II, IRICEN letter no 181/IRSE/CT/1998 dated 07.06.2019. 8 Remarks given by SO-11/E(GR), Railway Board on Dy Secy./Confdl. to GM/NR letter no E-106/6584 dated 10.10.2018.
9 Assistant Secretary, CBSE/Ajmer letter no KMSB/Ajmer/Satyapan/2019/case- 44234 dated 29.07.2019 through which it has been verified that the date of birth of Smt. Mona Srivastava is 12.05.1973.
10 Copy of the letter dated 02.12.1999 provided by Smt. Mona Srivastava and purportedly written by her to Director Training, Railway Board with copy to Director Training/IRICEN.
11 Associate professor/Track -II/IRICEN's letter no 181/IRSE/CT/1998 dated 19.09.2019 intimating that the letter dated 02.12.1999 purportedly written by Smt. Mona Srivastava is not available in file in file.12 OA No.1077/2021
3.3 The Applicant approached different Government offices for the purpose of issuance of Passport, Aadhar Card, Pan Card and able to get those documents showing her DOB as 12.05.1975.
Even her Birth Certificate was issued by Registrar/Birth & Death/Kulti only on 16.10.2020 in which the DOB of the applicant is mentioned as 12.05.1975.
3.4 It is also relevant to submit that in reply to Article of Charge-II of the Inquiry Report, the applicant herself affirmed change of her DOB. Relevant part of Inquiry Officer's report is reproduced below:
―CO has stated in her Defence Brief that the DOB in the Pan card was got changed in 2010 to suffice the bank requirements as her pay slip (EXH.D-29) showed her DOB as 12.05.75 and bank records had to be in consistent with the service record and pay slip. CO has further stated that the same is the case with Aadhaar for which she applied in 2013.‖ 3.5 It is clear from the averments made by the applicant that all documents showing her DOB as 13 OA No.1077/2021 12.05.1975 were issued/changed on the basis of the wrong DOB mentioned in the Pay Slip/Service Card issued by the respondents. Hence, the applicant cannot rely upon those documents for change in her DOB after 23 years of service with respondents.
3.6 It is also relevant to submit that the respondents in their counter reply specifically stated that:
―.....The applicant on the basis of her DOB inadvertently mentioned as 12.05.1975 in Service card has approached different Government Offices for the purpose of issuance of Passport, Aadhaar card, Pan card and able to get those documents showing her DOB as 12.05.1975. On that basis she also wanted to get her DOB altered from 12.05.1973 to 12.05.1975 by Railway administration without following the due procedure as laid down in para 225 of IREC Vol. I. In other word, she wants to cover her wrong declaration made by her in the different office of the Government of India. When the DAR proceedings against her is undergoing, she has annexed A-17(Birth Certificate) issued by Registrar/Birth & Deaths/Kulti on 16.10.2020.‖ 3.7 Therefore, the applicant cannot rely on the Birth Certificate issued on 16.10.2020 for change in her DOB after 23 years of service with respondents.14 OA No.1077/2021
3.8 It is also relevant to submit that the original records submitted by the applicant for IES Exam, i.e., i. UPSC application form filled by Smt. Mona Srivastava ii. 10th pass education certificate issued by CBSE, iii. IRSE Seniority List show her DOB as 12.05.1973. Even her bio-data, in her own handwriting, show her DOB as 12.05.1973. On joining Northern Railways, she had herself mentioned her DOB as 12.05.1973.
After 23 years of service, the Applicant cannot change her own stand.
3.9 In terms of Rules 225 of the Indian Railway Establishment Code Vol.I, every person, on entering railway service, shall declare his/her DOB which shall not differ from any declaration expressed or implied for any public purpose before entering railway service and shall enter his date of birth in the record of service in his/her own 15 OA No.1077/2021 handwriting. The date of birth as recorded in accordance with these rules shall be held binding and no alteration of such date shall ordinarily be permitted subsequently. However, in the case of Group A&B railway servant, the President may cause alteration in date of birth wherein railway servant submit representation for the same with full justification alongwith documentary evidence before the completion of probation period or three years of service whichever is earlier. Therefore, the applicant cannot pray for change in her date of birth, after 23 years of service with respondents. 3.10 It is also relevant to mention here that final decision on Inquiry report dated 11.01.2022, is still pending with the Competent Authority.
4. Heard learned counsel for the parties and perused the material on record and written submissions filed by the parties.
16OA No.1077/2021
5. Analysis:
5.1 Learned counsel for applicant has relied on the judgment of Hon'ble Supreme Court in the case titled Bharat Coking Coal Limited and Others Vs. Shyam Kishore Singh in Civil Appeal No.1009 of 2020 decided on 05.02.2020 wherein it is held as under:
―That the prayer of change of date of birth in the service record can be made at the early stage but at the fag end of the career the said changes are impermissible". It is submitted that the applicant at very initial stage in 1999 applied for change of date of birth in the service record hence, it is clear that the said changes are permissible in accordance with said statutory provisions of Clause 225 of IREC (Vol.I).‖ 5.2 It is not disputed by the respondents that applicant joined the service on 20.09.1999. As per the counter affidavit, the impugned order is based on a ―gmail‖ message, addressed to GM /NR dated 13.2.2019 from one Sh. Jatin Randhawa about the ambiguity in DOB of Ms. Mona Srivastava. A letter was sent to Railway Board on 25.02.2019 for ascertaining actual/correct DOB of the applicant.
Railway Board vide its letter dated 17.05.2019, has 17 OA No.1077/2021 asked to provide the complete case/records/file(s) leading to change in the DOB of the applicant. The complete case/records as received from IRICEN was sent to respondent No.1 vide letter dated 17.06.2019. The respondent No.1 vide letter dated 04.10.2019 has intimated that ―as per records maintained in Board's office, the DOB of the applicant, presently working as CE/SD/HQ is 12.05.1973 and that the Competent Authority has decided that her DOB may be rectified as 12.05.1973 in each and every official record wherever it is recorded otherwise‖ and the same has been circulated vide respondents Office Notice dated 15.01.2021.
5.3 The impugned letter dated 04.10.2019 is reproduced as under:-
―GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY DOARD) No.2019/E (O)II/3/3 New Delhi, dated 04.10.2019 Shri T.P.Singh, General Manager, Northern Railway, New Delhi.18 OA No.1077/2021
Sub: Complaint against Ms. Mona Srivastava, IRSE (1998)/NR regarding fraudulent change in her DOB.
Ref: Northern Railway's letters No.752/2203/EiA dated 25.02.2019, 05.04.2019 & 30.08.2019.
As per records maintained in the Board's Office, the date of birth (DoB) of Ms Mona Srivastava, IRSE(1998) is 12.05.1973. The Competent Authority has accordingly decided that her DoB may be rectified as 12.05.1973 in each and every official record wherever it is recorded otherwise.
It is observed that the anomaly in her DoB has been persisting from the time of her joining at IRICEN Pune when she filled the DoB in her own handwriting. It is also seen that the Officer had also requested N.Railway, vide her letter dated 30.06.2009 to correct her date of birth to 12.05.1975 in her service records. In case of Group 'A" officers, the President is the Competent Authority to cause alteration in date of birth. Northern Railway instead of referring the matter to the Board's office, appears to have decided on its own to change her DoB to 12.05.1975 in the Railway's official records, which is highly irregular.
There have been serious lapses on the part of Northern Railway as also IRICEN Pune in preparing and maintaining the officers service records. Board has decided that Northern Railway may carry out a thorough enquiry into this matter by a Senior officer and also fix responsibility for the lapses. A copy of the enquiry report along with action taken may be sent to this office for apprising the Board.
Sd/-
(S.N.Jha) Under Secretary-II/E(O)II Railway Board 19 OA No.1077/2021 Copy to:-
The Director, IRICEN, Pune for taking necessary action.‖ 5.4 Respondents now contended that representation dated 02.12.1999 (page 252) is not traceable. If the said representation dated 02.12.1999 is perused, the applicant cannot be faulted for the same. The change has been recorded by the concerned authorities at the initial stage itself on the basis of said representation dated 02.12.1999 (which was made within three months of joining).
5.5 The impugned Office Order dated 15.01.2021, which is based on Communication dated 04.10.2019 is bad in law as the same is passed without following the principles of natural justice and based on some complaint against the applicant, which apparently has not been communicated to her nor any opportunity of hearing has been afforded to the applicant to come to a conclusion with a pre judging mind that the applicant is at fault, which by 20 OA No.1077/2021 itself is contrary to service jurisprudence. It is also important to note that nothing has been brought on record to show that any action, as contemplated in communication dated 04.10.2019 has been taken against erring officer(s).
5.6. On the other hand, alternatively, it has been argued by the respondents' that there has been violation of Rule 225 of Indian Railway Establishment Code Vol.1 as the President assent had not been obtained while rectifying the records to Change of Birth, the same cannot be found fault with. The onus was upon higher authorities under whom the applicant was working during the relevant period. Converse is also correct that before passing the impugned order the respondents have also not taken consent from the President under Rule 225.
Hence, the reliance on Rule 225, as aforesaid, is misconceived and irrational. It is also noticeable fact that even the Article of Charges against incorrect birth has been found favour to the applicant. Astonishing to note that all three charges 21 OA No.1077/2021 in Memorandum of Charges dated 05.10.2020 are based on wrong declaration of DOB by applicant. 5.7 The respondent sought to prove the charges even without bringing on record gmail dated 13.02.2019 by Sh. Jatin Randhawa. More importantly, said Sh. Jatin Randhawa is not even cited as witness. Even the officials from IRCEN, Pune to whom directions were issued in Communication dated 04.10.2019, wherein the correction in DOB is sought to be made have not been summoned with documents / records or being cited as witnesses on behalf of prosecution side. 5.8 This Tribunal, in no manner, is adjudicating upon the merits or status of inquiry report and departmental action thereto but is only highlighting the facts as narrated and borne out of the records of present case in so far as challenge to impugned order dated 15.01.2021 is concerned, any finding at this stage shall be prejudicial to the case of either side.
22OA No.1077/2021 5.9 Taking note of Rule 225 of Indian Railway Establishment Code Vol.1 in consonance with Office Memorandum - ―Subject : Alteration of date of birth of a Government Servant -- reiteration of the instructions dated : 16th December, 2014, ―The date of birth so declared by the Government servant and accepted by the Appropriate Authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if --
(a) a request in this regard is made within five years of his entry into Government service;
(b) it is clearly established that a genuine bona fide mistake has occurred; and 23 OA No.1077/2021
(c) the date of birth so altered would not make him ineligible to appear in any School or University of Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service.‖ 5.10 The present case falls within the aforesaid parameters.
5.11 In a recent judgment, the Hon'ble Apex Court in Civil Appeal No.2858 of 2022 (Arising out of Special Leave to Appeal (Civil) No. 16886 of 2019)
- Shankar Lal vs. Hindustan Copper Ltd. & Ors. decided on 20.04.2022 observed as under :-
"12. ............. We, however, find that the authorities proceeded in this matter in a rather mechanical manner and embarked on a unilateral exercise of correcting the age entry in the service book on their perception that an error was being corrected. This exercise was conducted without giving any opportunity of hearing to the appellant and at the fag end of his service tenure. Otherwise, various documents including the L.I.C. policy consistently reflect 21st September 1949 to be the appellant's birth date.
xxx xxx xxx
16. This is not a case where a workman is seeking to change his date of birth to his benefit at the end of his career. This is a case where the employer is altering the records at the end of the career of the workman to his detriment on taking unilateral 24 OA No.1077/2021 decision that the date of birth specified in the appellant's service book was erroneous, relying on a date disclosed in a statutory form. Turning to Clause 5 of the Standing Order, we have already expressed our view on the evidentiary value of the entries in Form "B" as regards date of birth of a workman. In the committee report, the DPE's guidelines dated 9th February, 2001 has been referred to, which deals with alteration of the date of birth of an employee. The report records: "1. As per the DPE's guidelines dated 9.2.2001, an alteration of date of birth of an employee may be considered with the sanction of the Board of Directors, if
(a) request in this regard is made within 5 years of his entry into the service of the Public Sector Undertaking
(b) It is clear established that a genuine bonafide mistake had occurred.
(c) and date of birth so altered should not make him ineligible to appear in any school/University in which he had appeared or for entry in Public Sector Service on the date on which he first appeared at such examination or on the date on which he entered the Public Sector Services." (quoted verbatim from the paperbook)
17. Though in the Form "B", the appellant's age in 1971 was given as 26 years (the date of birth shown as 21 st September 1945), in the subsequent documents the date appearing in service book had been reflected and it was the date reflected in the service book which formed the basis of the pay slips as also the estimate statement of the appellant's voluntary retirement benefits. In such circumstances, the appellant's failure to seek correction in the Form "B" register could be condoned.
18. The employer has taken a stand that the date of birth recorded of the appellant in the service book was an act by mistake. This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellant's employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has 25 OA No.1077/2021 been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted "mistake" as the cause for different entries in different documents.
19. The other point on which argument has been advanced on behalf of the employer is on the aspect of delay on the appellant's part in questioning the mistake in the Form "B". It has been urged by the respondents' counsel that they had extended the sum as per the VRS package computed on the basis of 21st September 1945 as his date of birth and complaint on that count was raised by the appellant after receiving such benefits. It is their case that the anomaly was discovered sometime in JulyAugust 2002 and the appellant was asked to appear before a higher authority, which he did on 16th October 2002. The note sheet of the appellant's meeting with the Assistant General Manager on 16 th October 2002 has been annexed to the respondent's counter-
affidavit marked as "R1". The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject dispute is concerned. Fact remains that this notesheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form "B" entry for computing his age.
20. The said document came into existence after the appellant was released from his service on 3 rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26 th October 2002. Thus, the process of fixing of the appellant's date of birth 26 OA No.1077/2021 had continued beyond the date on which he was released from his service.
21. We do not think the appellant's complaint over the dispute was belated so as to nonsuit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employee's application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise agecorrection plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant 27 OA No.1077/2021 reflected in his service book during the latter's service tenure and they ought not to be permitted to fall back on the Form "B" which would curtail the VRS benefit of the appellant.
22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form "B" is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.
23. In these circumstances, we are of the opinion that the Division Bench as also the Single Judge of the High Court did not appreciate the materials available in their proper perspective. We do not think that the view taken by the Division Bench was a possible view. Sustaining such view would result in depriving the appellant of his legitimate benefits under the applicable Voluntary Retirement Scheme. The materials relied upon by the appellant were ignored altogether. We thus set aside the judgment of the Division Bench. As a consequence, the judgment of the Single Judge also would stand set aside. The rejection order dated 13 th October 2008 of the competent authority shall stand quashed. The respondent no.1 proceeded in the case of the appellant in an erroneous manner in treating the appellant's date of birth to be 21st September 1945. We accordingly direct the respondents to extend the benefits of VRS to the appellant treating his date of birth as 21 st September 1949. Such benefits shall be extended to him within a period of four months, upon deducting therefrom the sum already paid to him. The differential amount shall carry simple interest at the rate of seven percent (7%) per annum to be computed from 3rd October 2002, being the date on which he was released from service, till the date of actual payment to him in terms of this judgment."
28OA No.1077/2021
6. Conclusion :
In view of the above dictum of law laid down by the Hon'ble Apex Court, in the light of the narrarted facts of the present case, it can be aptly observed that in present case also without affording opportunity of hearing to the applicant taking a unilateral decision in mechanical manner solely on the basis of gmail of one person without even examining the veracity of the same, impugned action by virtue of Notice dated 15.01.2021, which in fact is not just notice but an order itself in changing the DOB of applicant to 12.05.1975 instead of 12.05.1973 is quashed and set aside. The DOB of applicant be treated as 12.05.1975, which may be restored within a period of two months from date of receipt of a certified copy of this judgment. All consequential actions pursuant to impugned order dated 15.01.2021 are set aside except the pending decision to the inquiry report dated 11.01.2022, which shall be dealt in accordance with the ambit of 29 OA No.1077/2021 Rules. Needless to say, the applicant shall be entitled to all consequential benefits in accordance with law. The present OA is allowed. No order as to costs.
(Manish Garg) Member (J) /sd/