Abdul Karim vs State of U.P. and Others

A.P. Sahi, J.—The Petitioner is a retired Class-IV employee of Nagar Palika Parishad, Garhmukteshwar, district Ghaziabad.

This writ petition has been filed praying for quashing of the order dated 29th June, 2007 and the order dated 4th July, 2007 whereby the Respondent No. 2-Nagar Palika Parishad, on the basis of objections raised in an audit report has proceeded to recover an amount of Rs. 64,365 from the Petitioner, on the ground that the Petitioner was supposed to retire in the year 2006 in view of his recorded date of birth as 24.9.1946, whereas the Petitioner on the basis of an alleged manipulation in the date of birth recorded as 1.1.1948 continued to serve even after retirement, and hence the amount is recoverable.

Sri Vishnu Sahai, learned Counsel for the Petitioner contends that the entire action taken by the Respondents on the basis of the audit report is without giving any notice or opportunity to the Petitioner and, therefore, the recovery sought to be made is in violation of principles of natural justice. He further submits that the post retiral benefits of the Petitioner have been withheld for no valid reason and as a matter of fact, the date of birth of the Petitioner was corrected by the employer way back in the year 1973. Sri Vishnu Sahai relies on the documents filed alongwith the counter-affidavit to demonstrate that a request was made by the Petitioner for ascertaining his correct age before the Chief Medical officer and the same was duly verified by the Medical Officer that in the year 1973 the Petitioner was about 25 years of age.

On the strength of the said documents, the Petitioner contends that his date of birth is 1st January, 1948. Sri Vishnu Sahai submits that in view of the evidence, which is available on record with the Respondents, there was no occasion for the audit party to have raised any objection without perusing the said report and the authority could not have proceeded to pass the order of recovery without taking the same into account. He, therefore, submits that in the absence of supporting material, the same vitiates the passing of the impugned order.

The Respondent-Nagar Palika Parishad has come up with a plea that the alleged correction as claimed by the Petitioner is not authorized nor has it been carried out by any competent authority and, therefore, the same cannot be relied upon as the correct date of birth.

Learned Counsel for the Nagar Palika Parishad submits that when the error was pointed out by the audit party, the Nagar Palika Parishad immediately took action and, therefore, keeping in view the aforesaid correction in the date of birth without authorization of the competent authority, the impugned order has been passed and the Petitioner has been retired forthwith. He further submits that the recovery is of an amount to which the Petitioner was not entitled and, therefore, the challenge to the recovery is unfounded.

Having heard learned Counsel for the parties and keeping in view the submissions raised, it is evident from a perusal of the impugned orders relating to the retirement of the Petitioner and the recovery, that the same has been passed without giving any notice or opportunity to the Petitioner. In view of this, the impugned order is in violation of principles of natural justice.

So far as the question of interpolation in the date of birth and recording thereof is concerned, suffice it to say that the date of birth as recorded in the service book is final subject to its correction being made in accordance with rules within a reasonable time as prescribed under rules. The correction of date of birth carried beyond a specific period and at the fag end of the carrier of the employee is impermissible.

In the instant case, the defence set up by the Petitioner is that this correction was carried out within six years of his employment in the year 1967. The application for change of date of birth according to the Petitioner was made after the certification of his age by the Medical Officer in the year 1973 itself. However, there is no averment in the writ petition as to how the Petitioner applied for the said rectification and before which authority. There is nothing on record to indicate that the rectification was carried out under the orders of the Nagar Palika Parishad. In the absence of any such order it is difficult to presume that the correction in the date of birth was carried out in accordance with rules.

However, the said matter can be examined by the competent authority as the impugned order is being set aside on the ground of violation of principles of natural justice. Accordingly, the writ petition is allowed and the impugned order is quashed.

The recovery which is sought to be made against the Petitioner shall not be made unless the matter is decided in the light of the observations made hereinabove within a period of three months from the date of presentation of a certified copy of this order before him.

Sri Vishnu Sahai, learned Counsel for the Petitioner then contends that the Petitioner even according to the date of birth as recorded has already retired, but his post retiral benefits have been withheld on account the dispute pending before this Court. He, therefore, prays on the instructions received from his client that the amount of Rs. 64,365 be withheld by the Nagar Palika Parishad but the balance of the amount to which the Petitioner is entitled be released forthwith.

The aforesaid prayer is accepted and the Executive Officer shall proceed to release all the benefits to which the Petitioner is entitled including arrears except the sum of Rs. 64,365 without any further delay, which shall be subject to the orders passed in the terms of the direction as referred to hereinabove.

It is submitted by Sri Vishnu Sahai, learned Counsel for the Petitioner that the recovery of the amount cannot be made as he has already served the Nagar Palika Parishad. The aforesaid issue would be dependant upon the finding to be recorded by the authority as to whether there is no fault or misrepresentation on the part of the Petitioner.

It is by now well-settled by the Apex Court as well as by this Court that recovery on account of an incorrect fixation by the Respondents without there being any fraud or misrepresentation on the part of the employee, cannot be recovered. Reference may be had to the decision in the case of Surya Deo Mishra Vs. The State of U.P. and The Chief Engineer,

The writ petition is allowed subject to the aforesaid directions.