Calcutta High Court
Suvra Kumar Dey vs State Of West Bengal & Ors on 7 August, 2019
Equivalent citations: AIRONLINE 2019 CAL 818
Author: Amrita Sinha
Bench: Amrita Sinha
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WP 346 of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SUVRA KUMAR DEY
Versus
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble JUSTICE AMRITA SINHA
Date : 7th August, 2019.
Appearance:
Mr. Debdutta Basu, Adv.
...for the petitioner.
Mr. Soumya Majumdar, Adv.
Mr. Niladri Bhattacharjee, Adv.
Ms. Deblina Chattaraj, Adv.
...for the respondent.
The petitioner is an employee of The Calcutta Tramways Company (1978) Limited, hereinafter referred to as 'the Company'. The said Company introduced a pension scheme for its employees. By a communication dated 1st March, 2002 the Chief Accounts Officer-cum-Secretary of the Company informed all the head of the departments regarding introduction of the death cum retirement Scheme for the employees of the Company. The Employees' Pension Regulation 2001 was made effective from 1st April, 1997. According to the said Scheme, pension was admissible to the employees, who were on the pay roll of the Company on 1st April, 1997 and are on the pay roll of the Company and remained on the pay roll of the Company till the date of notification of the same, in lieu of the benefits of 2 the Contributory Provident Fund provided in CTC (1978) Limited-"B" Provident Fund Regulations, but including the benefit of gratuity under Gratuity Rules of the State Government.
The said pension Regulation was optional to the employees. The last date of submission of the "option" was 24th June, 2002 at the respective department. The department was to forward the options to the Accounts Department at the Head Office. The estates of deceased employees had to contact the Head Office (Accounts Department) for family pension.
The petitioner alleges that he submitted his option form for joining the pension scheme on 20th June, 2002 i.e. within the specified date for submission of the said form.
The petitioner in the year 2013 got information that the option that was submitted by him has been misplaced from his service file. To verify the authenticity of the information the petitioner made application under the Right to Information Act, 2005 for obtaining the attested photocopies of the pages of the peon book dated 18th June, 2002 to 30th June, 2002. In reply to his query the petitioner was informed that the peon book was not available and that peon books are not kept in safe custody.
The petitioner thereafter made a representation before the Managing Director of the Company on 24th June, 2013, followed by a reminder on 16th August, 2013, to verify the receipt copy of the option form and to record his name 3 as a pension optee. There was no response to the representations of the petitioner.
The petitioner submits that as he submitted the option form within the date specified by the Company, accordingly he is liable to be treated as a pension optee. It has been submitted that the petitioner was in no way responsible for the misplacement of his option form and he ought not to suffer on account of the same. The Company ought to take into consideration the original receipted copy of the said option form and take necessary steps pursuant thereto.
The petitioner relies upon the decision delivered by the Hon'ble Supreme Court in the matter of Hardip Singh -vs- State of Punjab reported in (2008)8 SCC 557 paragraph 14 wherein the Court held that a document can always be created falsely by obtaining signature of few persons but the said document when produced in evidence must be able to stand the taste of genuineness.
The petitioner submits that he is willing to be tested about the genuineness of the receipted copy of the option form submitted by him. According to him, the receipted copy is a genuine one and the Company ought to reconstruct his service records in accordance with the same.
The petitioner further relies upon the decision delivered by the Supreme Court in the matter of Murugan @ Settu -vs- State of Tamilnadu reported in (2011)6 SCC 111 paragraph 24 wherein the Court held that the documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. The doctrine relied upon in the said 4 case is that if something that was done before a legal dispute arose, then it was done at a time when the declarant had no motive to lie.
The petitioner submits that the document that he is relying upon is the original receipted copy showing submission of his option form on 20th June, 2002 and he is ready to be tested about its genuineness.
The petitioner also relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Gian Chand & Bros. & Anr. -vs- Rattan Lal @ Rattan Singh reported in (2013)2 SCC 606 paragraphs 18-22 and 28 wherein the Court held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it. If the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. The Supreme Court relied upon the observation that when fraud, misrepresentation or undue influence is alleged by a party in a suit, the burden is on him to prove such fraud. The Supreme Court relied upon the principle that, accounts regularly maintained in the course of business are to be taken as correct, unless there are strong and sufficient reasons to indicate that they are unreliable.
It has been submitted that the fact of submission of the option form on 20th June, 2002 and forwarding the same by the department to the Accounts Section will be evident from the noting in the peon book of even date. The petitioner is ready and willing to face any inquiry to test the genuineness of the documents in question. He submits that the seal of the Company is appearing in the receipted 5 copy and the signature of the concerned officer is also legible. It has been submitted that the officer who received the said document is available in the office and the fact can be corroborated from him.
The petitioner prays for a direction upon the Company to treat him as a pension optee, if necessary, by reconstruction of the records and in particular the option form. The petitioner has made a further prayer for directing the Managing Director of the Company to conduct an inquiry against the concerned officer from whose custody the option form has been misplaced and to take steps against him in accordance with law.
The respondents have filed affidavit in opposition to deny the statements made by the petitioner. The respondents have denied that the petitioner collected the option form from the department and submitted the same before the concerned authority within the specified time. It has been categorically stated that the petitioner never submitted the option form in the concerned department. The petitioner with conspiracy of the respondent no. 8 being the Foreman has manipulated the said document. It has further been stated that the entry in the peon book has been made by the petitioner himself. No receiving signature of any officer was made on the said peon book and the same is not authenticated. There is no proof of receiving such option form in the records of the office. The documents in question are fraudulent and the same have been manipulated for the purpose of filing of the instant writ petition.
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It has further been stated that the fact, that the petitioner is not a pension optee, will be evident from his Provident Fund statements. The yearly statements issued in favour of the petitioner clearly show that he was under the provident fund scheme and not under the pension scheme. It has been stated that the writ petition has been filed with a mala fide intent relying upon fraudulent documents. The prayer of the petitioner, if granted, will open flood gates as the persons who had not submitted their option form within the due date may approach the Company for extending similar relief. The same is not permissible as it will be contrary to the terms and conditions of the scheme.
The respondents pray for dismissal of the writ petition with costs. I have heard the submissions made on behalf of both the parties. It appears that the sheet anchor of the petitioner is the receipted copy of his option form allegedly showing that the same was submitted on 20th June, 2002. The petitioner also places reliance upon the entry made in the peon book allegedly on 20th June, 2002, for forwarding the said form to the accounts department. The respondents have categorically denied the existence of the said option form. The Company has also denied the entry in the peon book. Allegation of fraud has been made by the Company.
It is settled law that fraud vitiates everything. The moment an allegation of fraud has been made against the petitioner the genuinity of the document in question is required to be verified. The same cannot be tested or verified by the Writ Court under Article 226 of the Constitution of India. Disputed questions of 7 fact are not gone into and decided by a Writ Court. The same has to be done by the fact finding authority.
The Company in reply to the application made by the petitioner under the Right to Information Act has informed that the peon book is not kept under safe custody. The said fact implies that the said peon book is easily accessible and it is not unnatural that the same may be fudged or manipulated by anybody for personal gain. When a doubt has been raised with regard to the entry made in the peon book, reliance cannot be placed upon the same without testing its veracity.
In view of the above, the Managing Director of the Company, being the respondent no. 4 herein is directed to cause an inquiry to test the veracity of the option form allegedly submitted by the petitioner on 20th June, 2002 and the entry made in the peon book of even date. The said respondent shall take all necessary steps to test the genuineness of the said documents.
In the event, the documents are proved to be genuine, the said respondent shall take steps for reconstruction of the service book of the petitioner by incorporating the option form therein and to act in accordance with the said option. If the documents are proved to be fabricated the said respondent shall take necessary steps to identify the person(s) involved in the said illegal act and take appropriate steps against him/them strictly in accordance with law. 8
The respondent shall try to conclude the investigation process as indicated hereinabove preferably within a period of eight weeks but not later than a period of twelve weeks from the date of communication of a copy of this order.
W.P. No. 346 of 2014 is disposed of.
There will, however, be no order as to costs.
Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.
(Amrita Sinha, J.)