Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Another vs Aijaz Hussain Sahaf on 7 April, 2018
Bench: Mohammad Yaqoob Mir, M. K. Hanjura
Serial No.01
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No.86/2017
Date of Decision:07.04.2018
State of J&K & anr. Vs. Aijaz Hussain Sahaf
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon'ble Mr. Justice M. K. Hanjura, Judge
Appearance:
For the Appellant(s) : Mr. Sajad Mohi-ud-din, GA.
For the Respondent(s) : Mr. M. A. Chashoo, Adv.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Mohammad Yaqoob Mir 'J':
1. Instant appeal under Clause 12 of the Letters Patent is filed against the judgment dated 05.04.2017 rendered in SWP No.2200/2014. Government Order No.347-PW(Hyd) of 2014 dated 29.08.2014 impugned therein providing for compulsory retirement of the respondent from government service w.e.f 31.10.2013 in terms of Article 226 of the J&K Civil Service Regulations (hereinafter for short referred to as CSR), has been quashed and the respondent has been directed to be reinstated, with a further direction to treat him in service and to grant him all benefits.
LPASW No.86/2017 Page 1 of 132. For appropriate adjudication of the points in issue, it shall be advantageous to notice, precisely, factual background of the case:
(I) As against respondent (Engineer) employee of the appellant department, a complaint was received by the Crime Branch to the effect that his date of birth in service records has been wrongly shown as 28.10.1958 instead of 28.10.1955. Crime Branch, after preliminary enquiry, concluded that apparently respondent has not taken any benefit of the alleged wrong date of birth dated 28.10.1958.
(II) A letter was sent by Senior Superintendent of Police, Crime Branch, Kashmir, to the Chief Engineer, Irrigation & Flood Control Department, Kashmir, Srinagar, under No.CR/R/Clt-8598 dated 19.07.2011, conveying that the preliminary verification is closed as 'not proved', however, he has been directed to forward copy of the complaint to the Chief Engineer for conducting a departmental enquiry into the matter and for further necessary action.
(III) Chief Engineer forwarded the said letter of the Crime Branch to the Commissioner/Secretary to Govt. PHE & FC Department. Thereafter Chief Engineer had been asked to provide requisite information which was accordingly submitted vide letter No.4594 dated 29.07.2011.
(IV) Chief Engineer vide order dated 16.07.2012, on the basis of verification of date of birth of the respondent from Joint Secretary (Verification) KD, J&K State Board of School Education, New LPASW No.86/2017 Page 2 of 13 Campus, Bemina Srinagar, directed the respondent, who at that time was Executive Engineer, I&FC Division Ganderbal, to record actual date of birth i.e. 28.10.1955 on the front page of service book.
(V) The said order dated 16.07.2012 has been challenged by medium of SWP No.1448/2012. In CMP No.2391/2012 filed alongside petition, on 11.10.2013, following order was passed:
"The operation of impugned order dated
16.07.2012 is stayed. However, the
Government/competent authority shall be at liberty to hold a proper enquiry in accordance with the rules in the matter if they so choose. The CMP No.2391/2012 is, accordingly, disposed of."
(VI) In view of the order dated 11.10.2013 (supra), Commissioner/ Secretary to Govt. PHE, I&FC Department, issued memorandum dated 29.05.2014 conveying that Government has proposed to hold an enquiry against the respondent under J&K Civil Services (Classification, Control and Appeal) Rules, 1956. The imputations of omission and commission have been set out in the articles of charge, Annexure-I to the said memorandum. The statement of imputations of misconduct based on the complaint form Annexure- II. The respondent who at that time was I/C Superintending Engineer, JKSPDC, was directed to submit the written statement in his defence and also to state whether he desires to be heard in person. Later on, Deputy Secretary to Government, PHE, I&FC Department LPASW No.86/2017 Page 3 of 13 (HRM Branch) was appointed as enquiry officer to conduct the enquiry.
(VII) During the enquiry held on 23.06.2014, three questions were formulated to which respondent has submitted the reply. In addition thereto, he has also submitted that his statement of defence as filed on 02.06.2014 be also referred to. The documents in support of the statement according to him substantiate his actual date of birth as 28.10.1958.
(VIII)The enquiry officer submitted the report based on which competent authority issued order No.347-PW(Hyd) of 2014 dated 29.08.2014 compulsorily retiring respondent from the Government service w.e.f 31.10.2013, aggrieved whereof writ petition(SWP) No.2200/2014 was filed.
3. The centre of controversy is actual date of birth of the respondent. According to respondent, his date of birth is 28.10.1958 whereas, as per enquiry conducted, his actual date of birth is 28.10.1955.
4. Date of birth in the service book is recorded at the time of appointment in accordance with Article 35-AA(b) of CSR i.e. in case of literate person, on the basis of matriculation or above matriculation or equivalent certificate issued by the J&K Board of School Education or any recognized Board/University wherefrom the employee has passed such examination.
LPASW No.86/2017 Page 4 of 135. In the instant case, the question which crops up for determination is that while recording date of birth in the service book, whether it was recorded as 28.10.1955 or 28.10.1958? The enquiry officer in his detailed enquiry report dated 08.08.2014 has concluded as under:
i) "The Forensic Science laboratory vide their Report No. FSL/102-Doc/Sgr dated 18-7- 2014 has clearly established the manipulation of the first page of the Service book and has confirmed that the signatures of the attesting officer/official on the first page (pasted page) of the Service Book are forged. The Joint Secretary (Verification), J&K State board of School Education vide letter No. F(JS-Veri-
Fak) B/12 A-341 dated 9-7-2012 has stated the qualification certificate in the name of Shri Aijaz Hussain Sahaf under S. No. 1223 bearing Roll No. 4979 of the year 1970 be treated as absolutely fake and fabricated.
ii) On the basis of these two reports it is proved that the date of birth of Shri Aijaz Hussain Sahaf declared by him at the time of appointment and accepted by the appointing authority is 28-10-1955 which has been duly confirmed from the documentary evidence.
He has later manipulated his service record and the first page of his service book has been covered and pasted with existing written page on which date of birth has been written as 28- 10-1958 instead of 28-10-1955 and it has been found that the signatures of the pasted page have been forged.
6. It is on the basis of said enquiry report, under Article 226 of CSR, respondent has been compulsorily retired w.e.f. 31.10.2013.
LPASW No.86/2017 Page 5 of 137. Section IV of CSR deals with Superannuation and Special Pension Explanation. Article 226(1) governs the retirement of employees on attaining the age of superannuation whereas Article 226(2), in effect, deals with premature retirement to be ordered in the public interest i.e. where the Government is of the opinion that the employee has lost his utility, in that eventuality employee can be ordered to retire at any time after he has completed 22 years/44 completed six monthly periods of qualifying service or on attaining 48 years of age. The appropriate authority has to serve a notice in the prescribed format at least three months before the date on which employee is required to retire or three months of pay and allowance in lieu of such notice. Such a government servant shall be granted pensionary benefits admissible under rules on the basis of qualifying service put in by him on the date of such retirement.
8. The order of retirement bearing No.347-PW(Hyd) of 2014 dated 29.08.2014 on the face of it appears to have been passed under Article 226(1) of the CSR because the competent authority concluded that the date of birth in the service record has been tampered when the actual date of birth of the respondent is 28.10.1955 and it is on the basis of that, on reaching the age of superannuation i.e. 58 years as it was then, respondent has been retired w.e.f 31.10.2013.
9. The judgment impugned has proceeded on the basis that the order No.347-PW(Hyd) of 2014 dated 29.08.2014 is under Article 226(2) of CSR. By virtue of said order, competent authority, in effect, has ordered retirement of respondent on the basis of correct date of birth of the LPASW No.86/2017 Page 6 of 13 respondent. The order is neither punitive in its operation nor has trappings of premature retirement under Article 226(2) of the CSR. Ordering retirement on correct date of birth does not amount to premature retirement under Article 226(2) of CSR. It could be taken as retirement under Article 226(2) of CSR in case respondent would have been able to produce any solid proof of unimpeachable character to the effect that his date of birth is 28.10.1958.
10. Learned counsel for the respondent was pointedly asked if the respondent has any valid proof regarding his date of birth as 28.10.1958, he tried to insist that he produced matriculation certificate at the time of his appointment and it is on the basis of said certificate, date of birth has been recorded. In short, he does not possess any school certificate to show that his date of birth is 28.10.1958. When the respondent has done his Engineering, the certificates must have been available with him, but he has not produced the same except for one Xerox copy of the certificate which was verified by the Board of School Education to be fake one.
11. It needs to be mentioned that during enquiry, enquiry officer has made it clear that the Board of School Education informed that the admission register pertaining to the respondent was not available, however, they had collected information from the National High School, Srinagar, wherefrom respondent has passed his matriculation examination as a regular candidate and the school authorities have certified that as per school records, his date of birth is 28.10.1955. It is also mentioned in the enquiry report that on the first page of service book wherein date of birth LPASW No.86/2017 Page 7 of 13 was depicted, fresh page has been pasted and on the pasted page date of birth is recorded as 28.10.1958 with forged signatures thereon. When it is a positive finding that the page of the service book has been overlapped by pasting fresh page, same would warrant disciplinary action. Even though Crime Branch while closing preliminary verification had said that there is no apparent change but while specifically referring to the said report, the enquiry officer has made it clear that Crime Branch has not properly verified the records, that is why they had recommended departmental enquiry.
12. From the records it is clear that even though imputation of charges and articles of charge were served upon respondent, he had filed his response and written statement but finally disciplinary authority has not chosen to inflict any punishment under Rule 30 of CCA Rules nor has concluded that the respondent has lost utility so as to be retired prematurely in terms of Article 226(2) of CSR.
13. True it is that once date of birth is recorded in the service book, same cannot be changed except in accordance with Article 35-AA of CSR but the instant case has its own peculiar features i.e. position of first page of the service book, as concluded by the enquiry officer, is suspicious i.e. on the original page another page has been pasted. The enquiry officer has also collected report from the FSL regarding position of the service book and regarding duplicate certificate produced by the respondent which report suggest manipulations, fake certificate and forged signatures on the pasted first page of the service book.
LPASW No.86/2017 Page 8 of 1314. Learned counsel for the respondent has placed reliance on various judgments which are not applicable as the respondent has neither been prematurely retired under Article 226(2) of CSR nor any punishment has been inflicted under Rule 30 of CCA Rules. The judgments relied upon by the learned counsel govern the cases where on the basis of punishment an employee has been retired under Rule 30 of CCA Rules or has been prematurely retired under Article 226(2) of CSR.
15. In State of Orissa v. Dr. (Miss) Binapani Dei and others (AIR 1967 SC 1269), the order of compulsory retirement based on disputed date of birth, for non-furnishing of copy of the report of enquiry officer to the delinquent was held to be violative of principles of natural justice. The facts of the reported judgment are totally different. In the reported judgment, date of birth recorded was altered without enquiry based on which premature retirement was ordered. In the case in hand, date of birth as was entered into service book on appointment of respondent was tempered by pasting a page over the first page of the service book. That apart, respondent could not produce any valid certificate to show that his date of birth is 28.10.1958.
16. In Ghulam Mohammad Shah Vs. State of J&K (1997 S.L.J 395), the appellant (employee therein) had been held guilty in regard to the embezzlement. Same was set aside for non-observance of the relevant rules as also of Article 311 of the Constitution.
17. While placing reliance on the judgment reported in AIR 1994 SC 1074, learned counsel for the respondent would submit that it is the LPASW No.86/2017 Page 9 of 13 enquiry officer himself who had formulated imputation of charges which he could not. In the same background, in the reported judgment, the delinquent officer therein who was held guilty was held to have been deprived of protections available under Article 311 of the Constitution whereas in the case in hand respondent has not been retired by way of punishment.
18. In Union of India and others Vs. Mohammad Ramzan Khan (AIR SC 471), the question for determination was as to whether the employee who was held guilty can be deprived of copy of enquiry report. It was held that the delinquent could not be deprived of the material. The facts of the reported judgment are altogether different, therefore, not applicable.
19. In Ram Ekbal Sharma Vs. State of Bihar and another (AIR 1990 SC 1368), the delinquent employee was compulsorily retired in the public interest when in the case in hand, respondent has not been retired in public interest so judgment is not applicable.
20. In Pt. Gopi Nath Wali Vs. State of Jammu and Kashmir (AIR 1958 J&K 11(V. 45 C 3) Full Bench, the premature retirement was held to amounting to punishment under Rule 30 of CCA Rules whereas in the instant case, respondent has been retired on reaching superannuation, therefore, the law laid down in the reported judgment is not applicable.
21. In Shrimati Pushpa Devi Vs. State of J&K & ors (S.L.J. 1986 423), it has been held that the date of birth entered in the service book can be altered by the government after holding an enquiry and after being LPASW No.86/2017 Page 10 of 13 satisfied that the age recorded in the service book was incorrect and had been incorrectly recorded but same could not be altered without granting an opportunity of being heard to the concerned employee. The facts of the reported judgment are altogether different because in the case in hand, as already concluded, front page of the service book in which actual date of birth was recorded had been tampered and a fresh page had been pasted on the front page, so there is no question of alteration of date of birth. The manner in which first page of the service book had been overlapped by pasting fresh page coupled with the fact that a Xerox copy of the matriculation certificate depicting date of birth of the respondent as 28.10.1958, on verification from the Board authorities, was found to be fake, so it is not a case of alteration of date of birth.
22. In the judgment rendered in the case of Peerzada Ghulam Nabi Vs. State & ors. reported in 1992 S. L. J 121, it had been held that the delinquent employee be paid salary for the period he had actually worked.
This judgment is applicable because the respondent had continued in service beyond 31.10.2013 till 21.07.2014 when he, of his own, vide his communication dated 18th July, 2014, conveyed to the Managing Director, JKSPDC that he is demitting office on 21st July, 2014 (AN) in view of outcome of enquiry which was instituted by the department to establish his date of birth. So for the period beyond 31.10.2013 till 21.07.2014, salary received by the respondent cannot be allowed to be recovered, therefore, Government order No.347-PW(Hyd) of 2014 dated 29.08.2014 to the extent it provides as under:
LPASW No.86/2017 Page 11 of 13"The excess salary/payments received by the officer for the period he overstayed in service unauthorizedly by tampering his date of birth shall be recovered from him in full."
shall stand quashed.
23. After enquiry, the appellants have simply ordered retirement of the respondent on his reaching age of superannuation on the basis of verified date of birth i.e. 28.10.1955, which is in tune with Article 226(1) of the CSR.
24. While bestowing our thoughtful consideration to the judgment impugned and the findings recorded therein, we are of the firm view that the judgment has proceeded on the basis of premature retirement of the respondent under Article 226(2) of CSR. As concluded hereinabove, retirement of the respondent on reaching superannuation is in accordance with Article 226(1) of CSR which has to be compulsory because an employee has to retire on reaching the age of superannuation which the respondent had reached on 31.10.2013, on the basis of his actual verified unrepelled date of birth i.e. 28.10.1955.
25. In the upshot, judgment impugned dated 05.04.2017, being erroneous, is set aside. Government order No. 347-PW(Hyd) of 2014 dated 29.08.2014, as was under challenge in the writ petition, only to the extent it provides for recovery of excess salary received by the respondent for the period he overstayed in service beyond the age of his LPASW No.86/2017 Page 12 of 13 superannuation, is quashed. Since the respondent on reaching superannuation has retired w.e.f 31.10.2013, therefore, his retiral benefits including pension shall be settled expeditiously in accordance with rules.
26. Appeal succeeds and is disposed of as above. No order as to costs.
(M. K. Hanjura) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar,
07.04.2018
"Bhat Altaf PS"
LPASW No.86/2017 Page 13 of 13