Gorakh Nath Upadhayay vs Jharkhand State Electricity Board and Others

M.Y. Eqbal, J.—Heard learned counsel for the petitioner, Mr. Ajit Kumar, learned counsel for the Bihar State Electricity Board and Mrs. I. Sen Choudhury, learned counsel for the Jharkhand State Electricity Board.

Petitioner has prayed for quashing the office order dated 10.5.2001 as contained in Annexure 5 to the writ application, whereby he has been directed to be superannuated with effect from 30.9.1998 taking his age as 26 years on the date of his appointment.

Petitioner was appointed on the post of Tractor Operators in the year 1964. According to the petitioner, at the time of his appointment he disclosed his age as 45 years, which was entered in different records of the respondents. According to the petitioner, in 1964, when he entered in service he was aged about 19 years. In 1965 petitioner also submitted an affidavit stating his date of birth as 6.9.1945. In 1971, service book of the petitioner was opened by the respondents, wherein the age of the petitioner was recorded as 26 years. According to the petitioner, therefore, in 1964 he was 19 years of age and in 1971, when service book was opened he was 26 years of age and in the service book, it was rightly mentioned that in 1971 his age was 26 years. Inspite of all these facts, the impugned letter of superannuation was issued by the respondents treating the age of the petitioner as 26 years on the date of his appointment, which took place in 1964.

A counter affidavit has been filed by the Jharkhand State Electricity Board, wherein it is stated that on receipt of the information from the reliable sources that the date of birth appearing in the service-book of the workers of the Electricity Board are being tempered/manipulated/overwritten and even recorded without satisfactory proof of age, the Bihar State Electricity Board constituted committee for examining the service book in general. The Committee submitted his report and in the report it was mentioned that the date of appointment of the petitioner is 5.9.64 and the date of opening of service book is 20.3.1971 and the date of birth column of the introducing page of the service reads as 26 years, based on the statement of the petitioner, without any certificate. The appropriate authority of the Board, on the basis of the report, issued impugned order of superannuation of the petitioner with effect from 30.9.1998 taking his age as 26 years on 5.9.1964. For better appreciation paragraphs 10 and 11 of the counter affidavit filed by respondent Nos. 1, 2, 4 and 5 are reproduced herein below :--

"Para 10.--That the Committee in its report in respect of the petitioner submitted that the date of appointment of the petitioner is 5.9.1964 and the date of opening of service book is 20.3.1971 and the date of birth column of the introducing page of the service book reads as 26 years, based on the statement of the petitioner, without any certificate.

Para 11.--That the appropriate authority under Board''s Standing order No. 783 dated 25.7.1997 issued his decision vide letter No. 764 dated 16.6.2000 that the petitioner might have retired from the service of the Board with effect from 30.9.1998 taking his age 26 years on 5.9.1964, according to which his date of birth will be 5.9.1938. The General Manager, Patratu Thermal Power Station has also been asked to send a confirmation report to this effect."

From the affidavit portion of the counter affidavit, it appears that the affidavit has been sworn by the Legal Supervisor Grade I and these statements are true to his knowledge derived from the record. Curiously enough, copy of the service book or any chit of paper has not been annexed with the counter affidavit in support of the averments made therein.

A separate affidavit has been filed by the respondents Bihar State Electricity Board, affidavit of which has been sworn by one Dil Mohan Jha, an employee of the Bihar State Electricity Board without disclosing his designation and his competency to swear affidavit. Same thing has been reiterated by the Board in paragraph 5 of the counter affidavit, but copy of the service book has not been annexed to substantiate the stand of the respondents.

From the affidavits filed by the parties the admitted facts emerged are that petitioner was appointed in 1964 and his service book was opened in 1971 wherein his age was disclosed as 26 years. It is not the case of the respondents that in the service record the age of the petitioner was recorded as 26 years as on 5.9.64 i.e. date of appointment. On the contrary, respondents'' case is that the age of the petitioner was recorded as 26 years in the service book, which was opened in 1971.

I am fully conscious of the settled law that a disputed question of fact relating to actual date of birth of an employee cannot be adjudicated by a writ Court. But in cases where the arbitrary and whimsical action of the employer is under challenge inasmuch as on the one hand employer withhold service book from the Court and on the other hand on the basis of exparte enquiry issued order of superannuation without giving any show cause notice to the employee, then certainly the Court can stop such arbitrary action of the employer. In the Instant case, as noticed above from different records it is established that petitioner was 26 years of age in 1971 when his date of birth was 1945 but the respondent-employer treating the date of birth of the petitioner is 26 years in 1964 and ignoring service record issued impugned order of superannuating, that too without giving any show cause notice to the petitioner to satisfy and to show cause why his date of birth be not treated as 26 years on the date of appointment. The action of respondent is therefore wholly illegal and violative of principle of natural justice and this is the reason why this Court interfered with the impugned order issued by the respondents on the assumption and presumption without there being any material on record that the petitioner was aged 26 years on the date of appointment. Such action of the respondent-Board must be deprecated.

For the aforesaid reasons, this writ application is allowed and the Impugned order of superannuation is quashed. It is declared that petitioner shall be deemed to be in service and shall be entitled to the salary and wages till he has been validly superannuated after giving opportunity of hearing by the respondent-Board.