Imtiaj Ahmad vs Union Of India & Ors.

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-

The brief facts of the case are that applicant was appointed as Khalasi on compassionate ground vide appointment letter dated 6.6.1987. He was found fit in medical category A2 and was allowed for duty on 22.7.1981. His date of birth was entered in the service book as 24.02.1962. Applicant was promoted to the post of Senior Technician Gr. I vide order dated 31.8.2015. All of sudden, applicant was served with letter dated 18.01.2018 to retire him w.e.f. 29.02.2012. Applicant was allowed for duty on 18.01.2018 and after retirement respondents denied for payment of settlement dues and threatened to make recovery of heavy amount. Aggrieved against the premature retirement, applicant made representation dated 20.08.2018, which was not decided as yet. Applicant appeared before the respondents several times but he was not heard and vide order dated 28.06.2019, applicant was informed that he is subjected to excess payment of Rs. 3047195/- and entire amount of pension & DCRG, leave encashment, insurance were adjusted against excess payment and remaining due Rs. 1474340/- was directed to be deposited in the railway revenue.

I have heard Shri Vinod Kumar, learned counsel for the applicant and Shri Bablu Singh, learned counsel for the respondents and perused the pleadings available on record.

Submission of learned counsel for the applicant is that applicant was forcibly retired from service on the basis of date of birth for the year 1952 in fact service record reveals that applicant’s date of birth is 24.02.1962 and on that basis he was to retire in the year 2022. It is further argued that on the basis of date of birth relating to the year 1952, recovery process was also started against the applicant, which is also against the settled principle of natural justice. It is also argued that mere recording of date of birth by the Board of Medical Officer at the time of medical examination as 24.02.1952 will not supersede the date disclosed in the service record. It was next argued that date of birth has been recorded in the service book by the competent authority as per Rules 225 of General Condition of Service. Applicant’s date of birth has also been disclosed as 24.02.1962 in the Pan Card and Aadhar Card which also supports the pleadings of the applicant. It was next argued that no opportunity of hearing has been given to the applicant before retiring him. Applicant was not in a position to place his stand, no inquiry has been conducted, thus entire process adopted by the respondents forcefully retiring the applicant is illegal. It is also argued that applicant is not custodian of service book, if facts of overlapping is taken into consideration, the same would have been made by some other person. Due to this reason, an enquiry should have been made before passing the impugned order. Entire amount has already been deducted from the retiral dues and no pension has been released in favour of the applicant till today, no reasons have been assigned withholding of pension and no disciplinary and criminal case is pending against the applicant. Thus, referring to the entire facts disclosed in the OA as well as rejoinder affidavit, prayer was made to allow the OA. Learned counsel for the applicant has placed on record following case laws:-

Learned counsel for the respondents refuting the argument advanced by learned counsel for the applicant argued that at the time of medical examination, applicant has fairly indicated his date of birth as 24.02.1952 due to this reason medical board has entered the aforesaid date of birth. Learned counsel for the respondents also refers to the page 11 of the OA i.e. service record and argued that it clearly shows that there is some overlapping in the entry made regarding the date of birth of the applicant. Since applicant’s date of birth is 24.2.1952, thus, respondents have retired the applicant on the basis of aforesaid date of birth. Excess payment paid to the applicant was withheld from retiral dues. There was no necessity to give notice or conducting any enquiry in this regard. There is no violation of principle of natural justice. To substantiate this argument, learned for the respondents refers to the facts disclosed in the counter affidavit and argued that OA be dismissed.

I have considered the submissions of the learned counsel for the parties and perused the records.

The issue involved in this O.A. is with regard to overlapping of the date of birth of the applicant. While in the service book of the applicant, his date of birth appears to have been originally recorded as 24.02.1962. In the transfer certificate issued by the Principal, Maheva Junior High School, Maheva, Mughal Sarai, Varanasi, Aadhar Card, and Pan Card, the date of birth has been clearly mentioned as 24.02.1962. As per impugned order dated 18.01.2018, applicant has been informed that his services were terminated due to longevity in service. It has also been informed to the applicant that as per date of birth mentioned in the service book, applicant should have retired on 28.02.2012 but he illegally kept doing in the Railways on 18.01.2018, thus recovery of over payment by the Railways will be imposed on him. As per the aforesaid order, the date of birth of the applicant in the service book found to have been entered as 24.02.1952 with overlapping of the figures 62 over 52. The entry in words was clearly mentioned as चौबीस फरवरȣ सन् उÛनीस सौ बासठ. Based upon the finding of the respondents in the impugned order, the Competent Authority came to the conclusion that the correct date of birth of the applicant is 24.02.1952 and not 24.02.1962.

The case of the applicant is that he had passed 6^th class. At the time of his entry into service as Khalasi in 1981 and as per transfer certificate issued by the School, his date of birth was mentioned in the service book as 24.02.1962 by the respondents themselves.

9 The counsel for the respondents also strongly contested the averment of the counsel for the applicant that at the time of medical examination, applicant has fairly indicated his date of birth as 24.02.1952 due to this reason medical board has entered the aforesaid date of birth.

Furthermore subsequent documents issued to the applicant in the form of transfer certificate, Aadhar Card and Pan Card, the date of birth of the applicant has been mentioned as 24.02.1962 which only go to show the date of birth of the applicant as 24.02.1962.

It is relevant to mention here that by the impugned order dated 28.06.2019, applicant has been informed that as per rules he was to retire from the Railway service on 28.02.2012 but remained unauthorizedly in railway service till 18.01.2018 as a result of which Rs. 30,47,195/- has been paid in excess in his favour, thus, the aforesaid amount has been adjusted by his terminal benefits and thereafter excess amount of 4,74,340/- will also be required to be deposited in the railways by him. It is evident that the aforesaid order was passed without affording opportunity of hearing to the applicant and thereby violating principle of natural justice. The Hon’ble Supreme Court in the case of Sudhir Kumar Singh and others (supra) specifically held that as per under:-

Before analyzing the submission raised across the bar, it would also be appropriate to quote the relevant provision regarding making entry in the service record at the time of induction of the employees in service:-

Certainly applicant has got his education up to 5^th class. He has signed over the service record in clear term but the date of birth entered in the service record appears to have been recorded by some other persons as the signature made by the applicant on the service record and mode of writing of date of birth differ with each other. Respondents on the basis of entry made in the medical examination retired the applicant. Respondents have not made any proper enquiry, no opportunity of hearing have been given to the applicant to explain the fact. No notice was served upon him. The law is settled on this point that if State action ensues civil consequences, principle of natural justice requires that opportunity of hearing must be given to the aggrieved party. It is pertinent to mention here that custodian of the service record were the respondents, there is specific denial on part of the applicant that he has not recorded his date of birth in the service record himself but it was recorded by the controlling authority. It is also pleaded on part of the applicant that if fact of manipulation/overlapping as pleaded by the respondents is taken into consideration then also. It could be identified only on the basis of proper enquiry. Simply on this ground that applicant will be benefited with the date of birth recorded in the service book, it shall not be presumed that applicant himself would have been made overlapping. The observation recorded by the respondents while retiring the applicant forcibly on the basis of date of birth i.e 1952 is based on conjectures and surmises. If the date of birth pleaded by the applicant is taken into consideration then also he was eligible for appointment on the date when he was appointed. Thus on this score, respondents’ action is violative of principle of natural justice before retiring him, respondents ought to have given proper opportunity as required under law to the applicant to explain the facts and respondents ought to have made proper enquiry because with the action of the respondents ensues civil consequences, which ruin the future of the applicant, thus, orders passed by the respondents are not sustainable. It is also evident from the facts and circumstances as mentioned above that the specific knowledge about the erroneous entry of his date of birth in his service book came to the knowledge of the applicant only in 2018 when he was informed about the discrepancy regarding his date of birth entered in the service book. Thereafter the applicant appears to have been consistently following up his case disclosing his date of birth based upon the entry in the transfer certificate, Pan Card and Aadhar Card.

In view of aforesaid judgment of Hon’ble Supreme Court, without serving a show cause notice, Railway Authority should not have passed order violating principle of natural justice, thus, impugned order is liable to be quashed on the ground that it has been passed violating the principle of natural justice. Furthermore in view of judgment of Hon’ble Supreme Court in the case of Rafiq Masih (supra), no recovery should be made from the retired Group ‘D’ and ‘C’ employee. Since applicant is Group ‘C’ employee, hence recovery order is also liable to be quashed.

In view of the discussions made hereinabove, the OA is liable to be allowed. Accordingly, OA is allowed. The impugned orders dated 18.01.2018 and 28.06.2019 are hereby quashed. The respondents are directed to release the entire retiral dues to the applicant and also issue pension with simple interest of 06% per annum. This exercise shall be completed within a period of 02 months from the date of receipt of a certified copy of the order. It is also hereby directed that proper enquiry be made in accordance with law regarding date of birth of the applicant. No order as to costs. All associated MAs are also disposed of.