Patna High Court
Baijnath Singh vs Bihar State Electricity Board And Ors. on 20 May, 1999
Equivalent citations: 2000(1)BLJR432
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In this writ application the petitioner, has prayed for quashing the order dated 17-1-1997 passed by respondent No. 3, the Electrical Executive Engineer, Electric Supply Division, Dhanbad by which the petitioner has been allowed to retire with effect from 31-8-1997 although, according to the petitioner, his date of birth as entered in the service book is 16-7-1940.
2. The case of the petitioner is that he was employed in Jharia Electric Supply company as a meter reader. After merger of the said company in Bihar State Electricity Board in the year 1971, the service of the petitioner was taken over by the Board along with other employees of the then Jhania Electric Supply Company. It is stated that in the year 1982, service book of the petitioner was opened and his date of birth was recorded as 16-7-1940 on the basis of his date of birth. On the basis of the said, service book, the petitioner is alleged to have availed all the benefits in his service since 1982 till date. In support of his date of birth, the petitioner has filed copy of the school certificate as Annexure-2 to the writ application. Petitioner's further case is that in the year 1993, his salary was abruptly stopped by the Board to which he protested and thereupon he was informed that his salary has been stopped due to non-availability of his service book. However, the petitioner submitted his school leaving certificate revealing his date of birth as 16-7-1940. Thereafter, the petitioner was regularly paid his salary. It is stated that all on a sudden an office order was issued on 17-1-1997 under the signature of respondent No. 3 which the petitioner was informed that he is going to retire with effect from 31-8-1997. It is stated that the action of the respondents is illegal and without jurisdiction. According to him, his date of birth as recorded in his service book is 16-7-1940 and, as such, he was to retire on 31-7-1998. The petitioner has filed representation on 23-4-1997 but no action has been taken by the respondents-authorities.
3. In the counter-affidavit filed by the respondents, it is stated, inter alia, that the Deputy Director, Personnel, Area Electricity Board, Dhanbad vide letter dated 28-3-1997 directed the Executive Engineer of Dhanbad division for confirmation of the date of birth of the petitioner from G.A. High School, Arwal and submit report to this effect. Pursuant to that a report was submitted with regard to the inquiry made. It was reported that the date of birth of the petitioner has been entered as 7-3-1937 in the school register. However, the same has been struck out and by red ink the date of birth has been entered as 16-7-1940. It is stated that on the basis of the report submitted by the Executive Engineer, the petitioner was given show-cause notice with regard the date of birth vide letter dated 22-1-1994. It is further stated that on 21-9-1994 a meeting of the Date of Birth Determination Committee was convened and all the matters of dispute have been considered by the Committee. In the said meeting, it was decided that the date of birth of the petitioner is 7-3-1937 and accordingly the Superintending Engineer, Dhanbad was directed to enter the said date of birth in the service book of the petitioner. Respondents' further case is that the General Manager-cum-Chief Engineer, Area Electricity Board, Dhanbad vide letter dated 2-3-1995 sent the matter with regard to determination of the date of birth of the petitioner to the Secretary, Bihar State Electricity Board, Patna for proper direction and it was decided that the date of birth of the petitioner shall be 7-3-1937.
4. I have heard Mr. A.K. Sinha, learned Sr. Counsel appearing on behalf of the petitioner and Mrs. I. Sen Choudhary appearing for the respondents-Board.
5. From, a perusal of the records, it appears that this writ application was heard on 31-3-1999 and on perusal of the counter-affidavit this Court directed the respondents to file a supplementary counter-affidavit annexing the inquiry report and the documents showing cutting on the date of birth of the petitioner. The matter was, therefore, adjourned for four weeks and again it was listed on 17-5-1999, No supplementary counter-affidavit has been filed by the respondents till date. Neither the inquiry report nor the documents have been produced in Court. On the contrary a reply to the counter-affidavit has been filed by the petitioner annexing a photo copy of the school register in support of his case that there was 110 cutting or over-writing on the date of birth of the petitioner, rather, in the school register also the date of birth of the petitioner was recorded as 16-7-1940. A copy of the said school registered has been annexed as Annexure-8 to the said reply. In the reply, the petitioner has further stated that although the matter with regard to his date of birth was referred to the committee but the committee has not yet taken any decision. In support of that the petitioner has annexed a copy of the letter dated 12-11-1994 as Annexure-9 to the reply. It is further stated in the reply that after issuance of the impugned notice of superannuation the respondents-authorities have issued a letter on 2-7-1998 by which they have asked for several documents from the petitioner in order to verily the date of birth which itself shows that the respondents have not yet finally decided or considered his case with regard to the date of birth of the petitioner. A copy of the said letter has been annexed as Annexure-11 to the rejoinder.
6. Mr. A.K. Sinha, learned Sr. Counsel appearing for the petitioner made three-fold submissions. Learned Counsel firstly submitted that an employee has to retire as per date of birth recorded in the service book if the same has not been altered. Secondly, learned Counsel submitted that by an administrative order the date of birth recorded in the service book cannot be changed or altered without affording opportunity of hearing. Thirdly, learned Counsel submitted that at the verge of retirement the date of birth cannot be changed or altered. According to the learned Counsel, admittedly there is no alteration in the date of birth either recorded in the, school register or in the service book of the petitioner. In that view of the matter the impugned letter issued by the concerned respondent, superannuating the petitioner with effect from 31-8-1997 is absolutely illegal and without jurisdiction,
7. The admitted case of the parties is that the petitioner was originally employed in Jharia Electric Supply Company and, thereafter, the petitioner become the employee of the respondent-Board. It is also not disputed that in the service book of the petitioner date of birth was recorded as 16-7-1940 on the basis of his date of birth. Petitioner's case is that all on a sudden, an office order was issued on 17-1-1997 informing him that he is going to retire with effect from 31-8-1997.
8. On the other hand, respondents' case is that pursuant to letter dated 28-3-1997 issued by the Director, Personnel, Area Electricity Board an inquiry was conducted by the Executive Engineer for confirmation of the date of birth of the petitioner from G.A. High School, Arwal. In the report submitted by the Executive Engineer it was reported that there is alteration in the school register and, in fact, the date of birth entered in the school register is 7-3-1937 which was struck out by red ink and date of birth was entered as 16-7-1940.
9. As noticed above, on the basis of the statements made in the counter-affidavit this Court, by order dated 31-3-1999, directed the respondent-Board to produce the inquiry report and the documents to substantiate its case but no supplementary counter-affidavit has been filed nor the report or document has been produced in Court, From perusal of Annexure-8 to the supplementary affidavit which is the copy of the school register, it appears that the date of birth of the petitioner is recorded as 16-7-1940, It does not appear from the said document that originally the date of birth of the petitioner was recorded as 7-3-1937 and there is a cut. mark nor there is anything to show that the date of birth in the. school register was struck out and by red ink the date of birth has been entered as 16-7-1940, The stand of the respondents in the counter-affidavit is, therefore, without any basis. It does not appear from where the respondents have taken the date of birth of the petitioner as 7-3-1937. The respondents have further stated in the counter-affidavit that on the basis of the report submitted by the Executive Engineer the petitioner was given show cause notice with regard to the date of birth in terms of letter dated 22-1-1994. It is further stated that on 21-9-94, the Birth Determination Committee in its meeting decided that the date of birth of the petitioner is 7-3-1937. At this stage 1 must again observe that the respondents have not disclosed any basis or reasons for deciding the date of birth of the petitioner as 7-3-1937.
10. On the contrary, it appears from Annexure-9, a letter dated 12-11-1994 issued by the Electrical Superintending Engineer who is also a member of the Committee that the committee has not taken decision with regard to the date of birth of the petitioner. It further appears that still the matter with regard to actual date of birth of the petitioner is under consideration before the respondents-authorities which is evident from Annexure-11 which is of letter dated. 2-7-1998 issued by the Electrical Executive Engineer by which the petitioner has been called upon to file necessary documents in order to verify the date of birth of the petitioner. From perusal of the aforesaid letter, it appears that the respondents-authorities have not yet finally decided the date of birth of the petitioner on the basis of the inquiry made. It is really surprising as to how and on what basis the impugned letter dated 17-1-1997 was issued intimating the petitioner that he will superannuate with effect from 31-8-1997. It is not disputed that the petitioner joined service in Jharia Electric Supply Company which merged with the Bihar State Electricity Board in the year, 1971 and the service of the petitioner was taken over by the Board along with other employees. It is also not disputed that service book of all the employees was opened and in the service book of the petitioner the date of birth was recorded as 16-7-1940. Admittedly, there is no alteration or interpolation in the service book and also it is evident that there is no correction or interpolation in the admission register. In such circumstances, issuance of the impugned letter by the respondents-authorities is illegal and without any (...sic) and the same is liable to be quashed.
11. In the result, this writ application is allowed and the order contained in letter dated 17-1-1997 (Annexure-3) is hereby quashed. It is held that the petitioner will superannuate on the basis of the date of birth recorded in the service book.