Mahavir Prasad Soni vs Hindustan Copper Limited and Others

Mohammad Rafiq, J.—This writ petition has been filed by Petitioner against action of Respondent Hindustan Copper Limited in deducting his salary for a period of 13 months and 15 days.

Admittedly in this case, Petitioner joined service of Respondents on 11.04.1967; he applied for voluntary retirement under a particular scheme offered by government and in pursuant thereto Petitioner stood retired on 03.01.2003. When retiral dues of Petitioner were being finalized, Respondents deducted his salary for aforesaid period contending that as per date of birth disclosed by Petitioner i.e. 25.08.1950 at the time of his initial appointment, he was found to be less than 18 years of age by 13 months and 15 days, therefore for that period payment of salary was erroneously made to him because he could not have been appointed before attaining age of 18 years.

Learned Counsel for Respondent has cited judgment of coordinate bench of this Court in Civil Writ Petition No. 7412/2006 - Mumtaz Ali v. Hindustan Copper Limited and Anr., decided on 03.07.2008, and argued that in similar controversy this Court declined to entertain writ petition.

A perusal of aforesaid judgment would go to show that in that case originally date of birth of Petitioner therein at the time of entry in service was 15.12.1949 but subsequently he produced school leaving certificate wherein his date of birth was mentioned as 03.10.1953. In those facts, the high court held that if 03.10.1953 is taken to be his date of birth as alleged, he was 14 years of age at the time of his entry into service on 25.12.1967; date of birth 15.12.1949 initially recorded in Form-B at the time of initial entry into service and disclosed as 03.10.1953 by Petitioner later on from his school leaving certificate, is disputed question of fact and therefore interference was declined.

Position in present case is entirely different. Respondents do not dispute that they themselves recorded in service record of Petitioner the date of birth on the basis of entry originally made by Petitioner in Form-B. When they themselves allowed him to join service on strength of that date of birth, they cannot now be allowed to contend that his initially recorded date of birth was not correct. Petitioner rendered service for that period physically and actually, his salary for the period he worked, cannot be deducted as taking work without payment of salary would tantamount to ''begar''.

In result, this writ petition is allowed. Action of Respondent deducting salary of Petitioner is declared to be illegal. Respondents are directed to refund salary of Petitioner for period of 13 month and 15 days together with interest at the rate of 6% per annum.

Compliance of judgment be made within a period of three months from date a copy of this order is produced before them.