Central Administrative Tribunal - Hyderabad
P Krishnamachary vs M/O Railways on 16 November, 2021
OA/425/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/021/425/2017
HYDERABAD, this the 16th day of November, 2021
Hon'ble Mr. B.V. Sudhakar, Admn. Member
P. Krishnamachary, Aged 56 years,
S/o Yadagiri, Occ: Ex-Khalasi Helper,
S.C. Railway, H.No.2/47/C Bhavani Colony,
Mahabubabad District, Telangana State.
....Applicant.
(By Advocate: Mr. G Pavana Murthy)
Vs.
1. The General Manager,
South Central Railway,
Secunderabad.
2. The Chief Personnel Officer,
4th Floor, Rail Nilayam, S.C. Railway,
Secunderabad.
3. The Divisional Railway Manager,
Sanchalan Bhavan, Secunderabad Division,
Secunderabad.
4. The SR. Divisional Engineer, Coordination,
Sanchalan Bhavan, Secunderabad Division,
Secunderabad.
5. Asst. Divisional Engineer/south,
Kazipet, S.C. Railway, Secunderabad Division,
Secunderabad.
....Respondents.
(By Advocate : Mr. S M Patnaik, SC for Railways).
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OA/425/2017
ORAL ORDER
(As per Hon'ble Mr. B.V. Sudhakar, Admn. Member) Through Video Conferencing:
2. The OA has been filed challenging the decision of the respondents for taking into consideration the date of birth of the applicant as 10.07.1954.
3. The brief facts of the case are that the applicant joined the respondents organization as a Casual Labour on 07.02.1981 and his date of birth was declared as 10.07.1960 based on the School Record Sheet issued by Bishop Azaraiah Primary School, Vedanayakapuram. There has been some overwriting in the service register of the applicant in regard to date of birth. The respondents without any valid documents and material proof, have come to the conclusion that the date of birth of the applicant is 10.07.1954 instead of 10.07.1960. Based on the said conclusion, the respondents have issued a show-cause notice to the applicant to terminate his services and recover the wages drawn from 01.08.2014 to 14.04.2016.
Aggrieved, the OA is filed.
4. The contentions of the applicant are that his services were terminated w.e.f 02.05.2016 without conducting any inquiry and, therefore, is violation of Article 14, 16, 21 & 311(2) of the Constitution of India. On appeal, the respondents have considered the date of birth of the applicant as 10.07.1954 in letter dt. 27.02.2017. Treating the applicant as retired w.e.f. 31.07.2014 and ordering the recovery of wages from the period 01.08.2014 is illegal and arbitrary. Further, applicant has submitted the transfer certificate dt. 23.04.1973 issued by Bishop Azaraiah Primary School, Page 2 of 9 OA/425/2017 Vedanayakapuram, wherein the date of birth was indicated as 10.07.1960. The respondents have sent the applicant for medical examination and the Railway medical authorities have found the age of the applicant as 20 years as on 07.02.1981. Therefore, based on the observations of the medical authorities too, the date of birth of the applicant has to be 10.07.1960. The service register is in the custody of the respondents and, therefore, any entries made in the service register is their responsibility. The Railway Board letters dt. 07.07.1999 & 12.10.1998 are not applicable to the case of the applicant. As per rules, the date of birth is determined by the Matriculation Certificate/Municipal Birth Certificate and in case, these documents are not available, Medical certificate can be relied upon to record the date of birth. Rule 225 of Indian Railway Establishment Code supports the above contention. The applicant studied up to Vth class and passed VIIIth class as a private student in 2007. The marks memo of VIII th class does indicate the date of birth as 10.07.1960. The applicant has also submitted PAN Card, Election Identity Card, Railway Identity cum Medical card and Aadhar Card to establish his date of birth as 10.07.1960. The respondents have failed to examine the above documents to decide his date of birth. The principles of natural justice have been violated by unilaterally deciding a different date of birth of the applicant. As per Hon'ble Supreme Court judgment in the case of State of Punjab & Others vs Rafiq Masih in C.A. No.11527/2014, no recovery shall be made from the retired employees.
5. The respondents, in their reply statement, state that the Senior Divisional Personnel Officer is the custodian of all service records and the Page 3 of 9 OA/425/2017 said officer has not been impleaded in the OA. Therefore, the OA has to be dismissed for non-joinder of necessary party. The applicant joined the respondents organization as Casual Labour and was granted temporary status w.e.f. 01.01.1984. His services were regularized w.e.f. 31.05.1995. The applicant did not submit any certificate in support of his date of birth and, therefore, his date of birth was recorded as 10.07.1954 as declared by him in service register. Every employee who joins the respondents organization shall declare his date of birth with supporting documents and in case of illiterate staff, the declared date of birth shall be recorded by a senior railway servant and witnessed by another railway servant. The applicant's date of birth was recorded as 10.07.1954 as declared by the applicant (R-I). The applicant opted for voluntary retirement under LARSGESS Scheme and while processing the request, it was found that the date of birth of the applicant was altered in the service register from 10.07.1954 to that of 10.07.1960, without any authorization by the competent authority. As per Rule 225(4) of IREC, the date of birth as recorded in accordance with rules shall be held to be binding and no alteration of date of birth shall ordinarily be permitted (R-II). Nevertheless, General Managers of the Zones are empowered to alter the date of birth of the employee under certain conditions. On having noticed that the date of birth of the applicant has been altered from 10.07.1954 to 10.07.1960 without any proper authority, a show-cause notice was issued on 07.09.2015 to the applicant for over staying in service beyond 01.08.2014. In response to the show-cause notice, the applicant submitted a school certificate issued by Bishop Azariah Primary School, wherein the date of birth of the applicant was shown as 10.07.1960. When the certificate was Page 4 of 9 OA/425/2017 got verified from the school authorities by the Welfare Officer, it was found that there were no school records maintained to corroborate the date of birth. As per rules, if the applicant has to alter his date of birth, he should do so within three years from the date of appointment. As he has not done so, his services were terminated on 02.05.2016.
6. Heard both the counsels and perused the pleadings on record.
7. I. The dispute is about the date of birth of the applicant. The applicant claims that his date of birth is 10.07.1960 and not 10.07.1954. as per transfer certificate issued by Bishop Azariah Primary (R-6). The applicant contends that since the date of birth in school record was recorded as 10.07.1960, it was illegal to prematurely retire him.
II. In response, respondents contend that the date of birth of the applicant was recorded as 10.07.1954 as per applicant's declaration while joining the respondents organization. As per relevant rules, the age of an illiterate employee as declared by him is recorded by a senior railway servant and the same is witnessed by another railway servant. Accordingly, the respondents claim that the date of birth was recorded as 10.07.1954 as declared by the applicant. However, when the applicant submitted an application to seek benefits under LARSGESS, his service book was verified and it was found that the date of birth was altered from 10.07.1954 to 10.07.1960 without any authorization by the competent authority. The applicant, when questioned, produced the transfer certificate issued by Bishop Azariah Primary School. Generally, the date of birth once recorded in the service book cannot be altered, unless it is ordered by the Competent Authority and in respect of the applicant, it is the General Page 5 of 9 OA/425/2017 Manager. The respondents claim that there have been no orders issued to alter the date of birth of the applicant. The applicant did not produce any document to confirm that the General Manager has ordered for the change.
III. The applicant, in response, states that the service book is the custody of the respondents and, therefore, the applicant is nowhere responsible for alteration of date of birth. This contention of the applicant does not persuade the Tribunal because the date of birth was recorded as 10.07.1954 as declared by him in presence of a senior railway employee and witnessed by another railway employee. The applicant has shown his date of birth as 10.07.1960 while applying for benefits under LARSGESS Scheme in 2015. The applicant opted for LARSGESS Scheme in 2015 and during the verification process, it was observed by the respondents that the date of birth of the applicant was altered in the service register from 10.07.1954 to 10.07.1960. Only when the respondents found the change, the applicant has submitted the school certificate. It is not explained as to why the applicant has not submitted the same certificate while being appointed in the respondents organization as Casual Labour/while granting temporary status. Therefore, the applicant ought to have obtained the transfer certificate and submitted the same at the time of appointment with the actual date of birth. This would have helped the applicant in clearing the controversies about his date of birth.
IV. The respondents, after noticing the change in date of birth without orders of the Competent Authority, have issued show-cause notice to the applicant to explain as to why his services should not be terminated as per his original date of birth recorded in the service book. After Page 6 of 9 OA/425/2017 considering the explanation, the respondents have terminated the services of the applicant vide letter dt. 02.05.2016. Thus there is no violation of Principles of Justice as claimed by the applicant.
V. The rules in regard to change in date of birth are that the applicant should ask for change within three years from the date of entering service. The applicant has not done so. Further, he has submitted the school transfer certificate only after the respondents have noticed the change in date of birth. It is not explained as to why the applicant waited till the respondents noticed the change in date of birth. The applicant should have taken the initiative to submit the transfer certificate within three years, as per rules. He did not do so and, therefore, seeking relief at this juncture of time after his services have been terminated would not persuade the Tribunal to grant relief sought by him. The averments submitted by the applicant in regard to submission of Pan Card/Aadhar Card etc. substantiating his claimed date of birth will not come to his assistance, since the rules provide for seeking change in date of birth within three years of joining the service. Having not done so, seeking relief at a later date is not persuasive enough for the Tribunal to intervene.
However, the respondents recovering the wages of the applicant for the period from 01.08.2014 to 14.04.2016 for which he has worked is not lawful. The Hon'ble Supreme Court in the case of Rafiq Masih(supra) has observed as under:
"i) Recovery from the employees belonging to Class III and Class IV service (or Group. C and Group.D service).
ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. Page 7 of 9
OA/425/2017
iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent as would far outweigh the equitable balance of the employer's right to recover." VI. The case of the applicant in regard to recovery is fully covered by the Hon'ble Supreme Court judgment cited above. Hence, any recovery made is illegal. Therefore, the respondents are directed to refund the amount recovered from the applicant within a period of three months from the date of receipt of certified copy of this order. In regard to the change of date of birth, the applicant has not approached the respondents within three years from entry of service as per rules, and, hence the relief sought to fix his date of birth as 10.07.1960 is not agreed to by the Tribunal. In fact, Hon'ble Supreme Court has observed in a catena of cases that even if the original date of birth has to be corrected, the same cannot be done at the fag end of service of an employee. Thus, keeping the settled law in view, the OA is partly allowed to the extent indicated supra.
At this stage, learned counsel for the applicant submitted that the terminal benefits of the applicant have not been settled so far. In view of the said submission, the respondents are directed to settle the retirement benefits due to the applicant, within a period of three months from the date of receipt of this order. Pending MAs shall stand disposed of. There shall be no order as to costs.
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OA/425/2017 (B.V. SUDHAKAR) ADMINISTRATIVE MEMBER /Ram/ Page 9 of 9