Kerala High Court
Union Of India vs M.Ambrose on 22 December, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY,THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938
WP(C).No. 16680 of 2010 (S)
----------------------------
O.A.NO.317/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER(S):
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1. UNION OF INDIA, REPRESENTED BY
THE GENERAL MANAGER, SOUTHERN RAILWAY,
HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3
2. THE SENIOR DIVISIONAL PERSONAL OFFICER,
SOUTHERN RAILWAY, PALGHAT DIVISION,PALGHAT.
3. THE SENIOR DIVISIONAL FINANCE MANAGER,
SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.
4. THE ASSISTANT DIVISIONAL ENGINEER,
SOUTHERN RAILWAY, PODANUR RAILWAY STATION, COIMBATORE.
5. THE SECTION ENGINEER/PERMANENT WAY,
SOUTHERN RAILWAY, COONOOR RAILWAY STATION,
COONOOR VIA. METTUPALAYAM.
BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS
RESPONDENT(S):
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M.AMBROSE, S/O.C.G.MATHEWS,
(RTD.TRACKMATE/SOUTHERN RAILWAY, COONOOR),
RESIDING AT DOOR NO. 48/22,MOUNT PLEASANT,
BELOW SOCIAL CLUB, COONOOR-2.
BY ADVS. SRI.T.C.GOVINDA SWAMY
SRI.G.SHYAM RAJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 16680 of 2010 (S)
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APPENDIX
PETITIONERS' EXHIBITS
EXT.P1 TRUE COPY OF TRANSFER CERTIFICATE ISSUED BY HEAD MASTER,
ST.ANTONY'S HIGH SCHOOL, COONOOR, NILGIRIS, TAMIL NADU
EXT.P2 TRUE COPY OF 2ND PAGE OF SERVICE REGISTER OF RESPONDENT
EXT.P3 TRUE COPY OF LETTER DATED 22.12.2007 OF HEAD MASTER
ST.ANTONY'S HIGHER SECONDARY SCHOOL, COONOOR, NILGIRIS,
TAMIL NADU
EXT.P4 TRUE COPY OF O.A.NO.317/2009 ALONG WITH ANNEXURES OF
CAT/ERNAKULAM
EXT.P5 TRUE COPY OF REPLY STATEMENT IN O.A.NO.317/2009 OF
CAT/ERNAKULAM
EXT.P6 TRUE COPY OF REJOINDER IN O.A.NO.317/2009 OF CAT/ERNAKULAM
EXT.P7 TRUE COPY OF ORDER DATED 18.2.2010 OF CAT/ERNAKULAM IN
O.A.NO.317/2009
RESPONDENT'S EXHIBITS
NIL
//True Copy//
P.A. To Judge
Bb
P.R.RAMACHANDRA MENON
&
P.SOMARAJAN, JJ.
.......................................................................
W.P.(C)No.16680 of 2010
.........................................................................
Dated this the 21st day of November, 2016
J U D G M E N T
P.R.Ramachandra Menon, J.
The dispute is mainly with regard to the actual date of birth of the respondent and in turn, the date of retirement to be reckoned for granting the pensionary benefits.
2. The respondent herein commenced service under the Railways initially as a casual labourer in the year 1965 and was later appointed as a Substitute Gangman on 21.09.1972; followed by the regularisation ordered on 30.12.1978. He was to retire from the service on attaining the age of superannuation based on the date of birth given as '08.02.1947', as disclosed from Ext.P1 Transfer Certificate issued from St.Antony's High School, Coonoor, Tamil Nadu, submitted by the applicant. The date of birth W.P.(C)No.16680 of 2010 : 2 : as '08.02.1947', was entered in the service record, as borne by Ext.P2. Somehow or the other, a mistake occurred in relieving the petitioner on attaining the age of superannuation and he continued in service beyond the relevant date, as some officials of the Department had made an entry of the date of birth wrongly as 08.12.1947, instead of '08.02.1947'.
3. The mistake came to light only much later, upon which, Annexure A5 memo was issued referring to the overstay and terminating his service in March 2007. Subsequently, Annexure A6 charge memo was issued, as to the 'misconduct' with reference to the overstay on duty, but, it has been submitted across the bar that the disciplinary proceedings have been subsequently dropped. It is also stated that some vigilance enquiry was initiated, but, no crime was registered and no further steps were pursued in this regard as well.
W.P.(C)No.16680 of 2010 : 3 :
4. Annexure A5 came to be modified as per Annexure A9, which came to be varied again, as per Annexure A14 dated 07.03.2008. The reason for variation as per Annexure A14 was with reference to the actual date of birth certified by the School authorities, based on the Admission Register, stating that the date of birth of the applicant was on '08.04.1946' and not 08.02.1947. Ext.P3 is a certificate issued by the authorities of the School, in response to query made by the Deputy Chief Vigilance Officer, Southern Railways. Based on the said document, the actual date of attaining the age of superannuation was recorded and Annexure A14 memorandum dated 07.03.2008 came to be issued, showing the date of termination of service as 30.04.2006. This made the respondent/applicant to approach the Tribunal, by filing O.A., with the following prayers:
"(i) Call for the records leading to the issue of Annexure A5, A6, A9, A14 and A15 and quash the W.P.(C)No.16680 of 2010 : 4 : same.
(ii) Call for the records leading to the issue of Annexure A10 and quash the same to the extent it treats the applicant's pension as provisional and direct the respondents to grant the applicant regular pension with effect from the date from which the applicant's pension falls due:
(iii) Direct the respondents to release the applicant's retirement gratuity, leave salary commuted value of pension and other terminal benefits forthwith with 18% interest calculated with effect from the due dates or from such date as this Hon'ble Tribunal may find just and proper
(iv) Award costs of and incidental to this application:
(v) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
5. The claim of the applicant was resisted by the Department by filing a detailed reply statement. After hearing both the sides, the Tribunal observed that, all in the relevant service records, entry of the date of birth was made as '08.12.1947'. Since the matter was carried W.P.(C)No.16680 of 2010 : 5 : forward all through these years, the O.A. was allowed, directing to treat the date of birth of the applicant as '08.12.1947' and to grant all consequential benefits. The operative portion of the order as contained in paragraph 10 reads as follows:
"10. In the above circumstances as the department accepted the entire records relating to the date of birth of the applicant as that of 8.12.1947 it is only reasonable to hold that the entry made in the service record has to be accepted by the department as correct date of birth of the applicant. Hence, we are of the view that date of birth of the applicant should be treated as 8.12.1947. Consequently we are of the further view that the applicant is entitled for the retirement benefits counting his date of birth as aforesaid. Ordered accordingly. The department has to allow all the service and retirement benefits to the applicant within a reasonable date at any rate within sixty days of the receipt of copy of this order."
6. What is the actual date of birth of the applicant - is the crucial question. The learned counsel for the W.P.(C)No.16680 of 2010 : 6 : respondent/applicant submits that there was no fault on the part of the applicant in any manner and that the actual date of birth furnished to the Department was '08.02.1947' and not 08.12.1947. It is only due to the mistake committed by some officials of the Department, that the date of birth came to be wrongly noted in the service records as '08.12.1947' in place of 08.02.1947. The Department had extracted work from the respondent till he was sent out and since the entry made in the service records was as 08.12.1947, the verdict passed by the Tribunal as per Ext.P7 does not require any interference.
7. Shri James Kurian, the learned Standing Counsel appearing for the petitioners/Railways submits that, there is absolutely no plea of mala fides and the course of action pursued by the Railways was with reference to the actual facts and figures. It is the duty of every employee to furnish actual particulars, especially, in the case of date of W.P.(C)No.16680 of 2010 : 7 : birth, which having a 'say' in the entire service and in fixing the date of retirement, for working out the pension and pensionary benefits. It was on the basis of Ext.P1 submitted by the respondent/applicant, that the entry was made as '08.02.1947', but, in the course of further proceedings including the vigilance enquiry, it became necessary to ascertain the authenticity of Ext.P1. It was accordingly that the school authorities were addressed as per letter dated 20.12.2007, which was duly responded and replied by the authorities of the school, after verification of the admission register, vide Ext.P3 dated 22.12.2007, which categorically asserted that, as per the entries in the admission register, date of birth of the applicant was 08.04.1946 and not '08.02.1947'. It was accordingly, that Annexure A14 was issued. This being the position, there was absolutely no rhyme or reason for the Tribunal to have intercepted the proceedings of the Railways extending W.P.(C)No.16680 of 2010 : 8 : misplaced sympathy.
8. After hearing both the sides and on going through the materials on record, we find that there is some alteration/correction in Ext.P1, especially, in the digits showing the relevant 'month' and also the 'year'. Similarly, in respect of the year written in words (the word 'six' appears to be corrected as 'seven'). Who did the correction is not the concern of this Court, at this instance of time. We are only considering whether the date given in Ext.P1 could be reckoned to fix the date of birth of the applicant as '08.02.1947' and to sustain the benefits. As rightly pointed out by the learned Standing Counsel for the Railways, even the applicant did not have a case that the date of birth ought to have been reckoned as '08.12.1947' for granting the retirement benefits, as discernible from Annexure A7; the relevant portion of which is extracted below:
"With reference to the above, I hereby putforth the following information for your kind consideration please. W.P.(C)No.16680 of 2010 : 9 :
1. During my appointment, I have submitted the original certificates and there was no manipulation even after.
2. Though I have maintained to mention my Date of Birth as 02-1947, it was an official error that somewhere it has been changed as 12-1947.
3. Now on seeing the memo terminating me from service with effect from 02-2007, I felt shocked very much.
4. After seeing my Date of Birth as 12-1947 in many Official Communication I did not expect such a horrifying letter.
On the above grounds, I accept my Superannuation w.e.f.28-02-2007 by virtue of my age and also I request your goodself that the process of my retiring from service may be smoothly completed with no punishments inflicting on me, for a fault not committed by me, Sir.
I remain in anticipation."
9. From the above, it is quite clear that the applicant had admitted that his contention right from the beginning was only to have the date of birth reckoned as '08.02.1947' and he had requested the Department not to proceed with W.P.(C)No.16680 of 2010 : 10 : any further steps 'by penal action', as there was no fault on the part of the applicant. This being the position, we find that the Tribunal extended the reliefs over and above the extent claimed by the applicant, ordering to reckon the date of birth as '08.12.1947', which does not and cannot stand the test of law and hence requires to be intercepted. In so far as there is no case for the respondent/applicant as to the authenticity of Ext.P3 or as to the Admission Register maintained by the School and since no step has been taken by the respondent/applicant to summon the Original Register from the school or by producing any other material including the Birth Register or such other records to show that, the actual date of birth was never 08.04.1946 as stated in Ext.P3, we find that the said entry, based on the Admission Register of the school has to be taken as the basic document, to mould the relief.
10. Accordingly, we uphold the relevant orders, W.P.(C)No.16680 of 2010 : 11 : particularly, Annexure A14 ordering termination of service of the applicant w.e.f. 30.04.2006, based on the date of birth reckoned as 08.04.1946. Since the mistaken entry in the service records as '08.12.1947' was not based on any contribution from the part of the respondent/applicant and further since no proper enquiry or cross checking was made by the Department at the time of giving the appointment based on Ext.P1, we are of the view that no further steps need be pursued against the respondent/applicant with regard to the possible misconduct, if at all any. Ext.P7 order passed by the Tribunal is set aside. The retirement benefits payable to the respondent/applicant shall be worked out, treating the date of birth as '08.04.1946' and in turn the date of retirement as 30.04.2006 and it shall be disbursed to him at the earliest, at any rate, within 3 months from the date of receipt of a copy of this judgment. It is also made clear that, no recovery shall be made from the amount in W.P.(C)No.16680 of 2010 : 12 : respect of the period of overstay beyond 30.04.2006 as the payment of salary was effected during the said period on the basis of work extracted from him. But, it is made clear that the said period shall not count for the purpose of calculating the pensionary benefits.
The Writ Petition is allowed. No cost.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
P.SOMARAJAN, JUDGE Bb/23/11/2016 [True copy] P.A to Judge