Gangadhar Mangual vs State of Orissa and Others

Indrajit Mahanty, J.—This writ application has been filed by the Petitioner-Gangadhar Mangual with the following prayer:

(i) To quash the Order Dated 20.7.2007 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. 1460(C) of 1999 directing the disciplinary authority to continue the proceeding which was started against the present Petitioner after getting representation of the applicant-Petitioner & finalise the same as per law.

(ii) To direct the Opp. Parties to accept the date of birth of the Petitioner (as per the H.S.C., i.e. 12.10.1934).

(iii) To quash the order of punishment under Annexure-3 as well as the departmental proceeding under Annexure-2 & the notice of retrospective superannuation under Annexure- 7.

(iv) To direct the Opp. Parties to pay the outstanding dues of the Petitioner with interest from the date of recovery till the date of payment.

(v) To realize the arrears & current pension/gratuity etc.

Shorn of unnecessary details, the fact leading to the present challenge are that, the Petitioner entered into the government service as a ''helper'' in the Transport Department on 17.12.1952. In course of his appointment, the Petitioner passed HSC examination in the month of March, 1975. At the time of his appointment his date of birth was indicated as 12.10.1929 in the service book. After the Petitioner passed the HSC examination, he submitted his certificate which is certified his date of birth as 12.10.1934 & based on which, the then R.T.O., Puri corrected his date of birth as per the HSC certificate. Thereafter the Petitioner was promoted to Class-II post of Orissa Transport & Engineering services & posted as Additional Regional Transport Officer (Enforcement), Balasore.

It appears that on 1.10.1990, the Petitioner submitted an application for voluntary retirement from service w.e.f. 1.1.1991 & instead of processing his application for voluntary retirement, by Order Dated 9.4.1991 under Annexure-7, the Petitioner was made to retire with retrospective effect i.e. from 11.10.1987 & on the self-same date, i.e. on 9.4.1991, charges were framed against the Petitioner under annexure 2.

The Disciplinary Proceeding was taken up by the Enquiring Officer who came to the following conclusions:

Therefore, I am of the opinion that the charge against Sri Gangadhar Mangual has been clearly proved beyond all reasonable doubt. Therefore, I hold him guilty of the charge.

Thereafter, the Government by office Order Dated 5.10.1995 under Annexure-3 have been pleased to pass the following orders:

Half of the pension is withheld or withdrawn.

Leave salary etc. drawn beyond 31.10.87 will be recovered from his gratuity.

Deduction from the pension will be compensated to other excess drawals by him.

Sri Sahoo, Learned Counsel for the Petitioner submitted that the aforesaid conclusion of the Enquiring Officer was wholly unsustainable in law as well as incorrect since it was based on surmises & conjectures. In this respect reliance was placed on the Judgment of the Hon''ble Supreme Court in the case of Kailash Singh v. State of Bihar and Ors. 2005 (II) OLR (SC) 375 as well as the Judgment of Orissa High Court in the case of Smt. Gelli Dei Vs. Orissa Lift Irrigation Corporation Ltd. and Others, .

Learned Counsel for the Petitioner assailed the order passed by the Orissa Administrative Tribunal (Annexure-6), inter alia, on the ground that the Tribunal, having come to a finding/conclusion that after completion of enquiry a copy of the report of enquiry was not supplied to the applicant to make representation amounts to violation of the principles of natural justice or "Audialterm pattern". Quashing the disciplinary enquiry & the order of punishment, directed remand of the matter to the Disciplinary Authority, to continue with the proceeding as after getting the representation of the applicant & to finalize the same as per law. He further submitted that the Petitioner was issued with an Order Dated 9.4.1991 superannuating him with retrospective effect i.e. from 11.10.1987 & such retrospective superannuation is impermissible in law since the Enquiry Officer had concluded, in clear terms as noted hereinabove, that "the Petitioner was not in any manner responsible for having effecting the change in the service book", no purpose whatsoever would be served in remanding the matter & continuing with the enquiry.

Learned Counsel for the State, on the other hand, submitted that there is no legal infirmity in the order passed by the Orissa Administrative Tribunal, since the Tribunal has quashed the order of punishment & has remanded the matter back to the Disciplinary Authority to consider the representation of the applicant & to proceed, in accordance with law.

Sri Sahoo, Learned Counsel for the Petitioner, in response, stated that the Petitioner has not only retired from service w.e.f. 9.4.1991 & that too retrospective effect from) 1.10.1 987, the salary drawn by him, in the interregnum from 11.10.1 987 to 9.4.1991 has been directed to be recovered from the Petitioner, from the retirement benefits and/or his pension & further, although 1 8 long years have been passed, since the said date, the Petitioner has not yet been granted pension. He further submitted that it would be grave injustice, if the direction to the Petitioner to go back to the stage of disciplinary proceeding, at this advanced age, also in view of the fact that, the Petitioner is suffering from cancer & has grave financial needs in order to take care of his illness.

We have perused various documents appended to the writ application. The certificate issued by the Board of Secondary Education, Orissa clearly indicates that the date of birth of the Petitioner is 12th October, 1934. From the records of the proceeding, it appears that the Petitioner''s date of birth was originally indicated as, 12.10.1929 in service book, at the time of entry into Government service. But it is claimed by the Petitioner that, the change of the date of birth, in the service book was made by the RTO on 10.7.1979. Had this change not been made in the service book, his date of retirement would have been 31.10.1987 since the original date of birth indicated in the service book is 12.10.1929. But the Petitioner continued in service till 9.4.1991 till he applied for voluntary retirement & the impugned order under Annexure-7 was issued. It clearly appears that the entire issue of the Petitioner''s date of birth come up for consideration only since the Petitioner submitted an application for VRS on 1.10.1990. Apart from the above, although the charge framed against the Petitioner under Annexure-2 on the allegation that the Petitioner had colluded in interpolating his own service book, yet, the report of enquiry clearly as noted hereinabove earlier absolves the Petitioner of any such collusion.

In the case of Smt. Gelli Dei (supra) this Court had came to hold that as follows:

The question that needs determination of this Court is whether the employee was entitled to salary for the aforesaid period & whether salary already received by him needs to be recovered from him. Admittedly the employee concerned had discharged his duties to the fullest satisfaction of the authorities concerned till he was made to retire. Thus he was entitled to salary for the work done by him.

As regards tampering with the date of birth in his Service Book is concerned, no material-has been produced by the Opp. Party-Corporation nor is there any averment in its counter affidavit as to how & when such tampering was done & as to whether that was done by the employee concerned. It is well settled that the Service Book is always retained with the employer & no employee has any access to handle the original Service Book. Thus the Corporation being the custodian of the Service Book it cannot blame an employee in case of any alteration of the entries made therein or the same being tampered with. In absence of any cogent material, it cannot conclusively be said that the employee concerned had a hand in it. Even otherwise, the same is. a question of fact which cannot be effectually adjudicated under Writ Jurisdiction.

Relying upon the ratio of the aforesaid decision of the Supreme Court & considering the entire scenario of facts as discussed above, this Court has no hesitation to quash the order Annexure-7 & direct that no recovery of salary received for the alleged excess period of service rendered by the employee concerned shall be made by the Corporation, & orders accordingly. Payment of retirement benefits not being a bounty & rather the same being the statutory duty of the employer, this Court directs the Corporation to calculate the pension & other retirement benefits of the employee concerned as per the rules & pay the same within a period of four months from the date of communication of this Judgment. The Writ Petition is accordingly allowed.

In the case of Kailash Singh (supra) the Hon''ble Supreme Court came to hold that since the Petitioner therein had actually worked for the said period when there was no dispute his age there is no justification whatsoever in denying him post retrial benefit as well as the salary for the period that he has worked. Paragraph Nos. 5 & 6 are quoted herein below:

The service book of the Appellant was opened in 1993. The Medical Board seems to have constituted & on the basis of the report of the Medical Board he was immediately retired. In these circumstances, the Learned Counsel for the Respondents has very fairly submitted that there would be no recovery of the salary already paid to the Appellant for the period from 1.4.1995 to 24.4.2000. The Appellant has actually worked during this period without there being any dispute about age.

So far as post-retrial benefits are concerned it is submitted that they may not be admissible to him. We fail to appreciate the submissions made on behalf of the Respondents in the background of the facts indicted in the earlier paragraph. The Respondents took work from the Appellant without any dispute. He would obviously be entitled to his salary & there is no reason as to why he should be denied the post-retiral benefits. His total service comes to 32 years. We have already adverted to the fact that the medical report has not been placed on the record, nor as to what is meant by the term "average age", has been explained to us. In the totality of the facts & the circumstances of this case, we find no good reason to deny those benefits to the Appellant.

In view of the facts as noted hereinabove & the Judgments cited hereinabove, we are of the considered view that the Petitioner''s date of birth i.e. 12.10.1929 had been duly corrected as 12.10.1934 & that too, as early as on 10.7.1979 by the R.T.O., Puri & since the said date was accepted by the employer as his date of birth, right till 9.4.1991. It is only after 1.10.1990 when the Petitioner made an application for VRS, dispute in relating to his date of birth arose. Therefore, in view of the Judgments referred hereinabove, there is no justification whatsoever in not accepting the Petitioner''s date of birth as 12.10.1934 for all purposes. Even, the finding of the Enquiring Officer, clearly establishes that the Petitioner was not the author of the said act & the further conclusion that "it was not impossible on the part of the changed officer to get hold of the service book & commission of the crime," is directly opposed to the law laid down by the Apex Court, in the case of Smt. Gelli Dei (supra).

We are therefore, of the considered view that, the order of the Tribunal impugned herein under Annexure- 7, directing remand of the matter, at such a belated stage & that too after having come to a conclusion, that the order of punishment had been passed by violating the principles of natural justice, the Tribunal ought to have quashed the proceeding, instead of remanding the same to the Disciplinary Authority. Therefore, we have no hesitation in directing quashing of Annexure-6 (order of the Tribunal) as well as Annexures 2 & 3 i.e., Departmental Proceeding & order of punishment respectively, as well as the order under Annexure-7 directing retrospective superannuation.

In view of the aforesaid findings, we direct that the Petitioner''s date of birth as indicated in the HSC certificate appended as Annexure-1 is to be. accepted as 12.10.1934 & consequently, the Petitioner is entitled to all service benefits. On such computation if any deduction has been made from the salary or entitlement of the Petitioner''s the same shall be refunded to the Petitioner & all such dues are directed to be released, within a period of three months from the date of communication of this Judgment. All retirement benefits also to be recomputed & the same are also directed to be released in favour of the Petitioner within a further period of three months thereafter. We make it clear that, in the event the directions as noted hereinabove are not complied with within the period as directed, the Petitioner shall also be entitled to the interest, at the. rate of 8% per annum.

The writ application is allowed in terms of the directions made hereinabove.

L. Mohapatra, J.

I agree.