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Judgment
Anand Mathur, Member (A)
Mr. Bhat Fayaz for applicant and Mr. Waseem Gul for respondents were present.
Learned counsel for the applicant submitted that the applicant was working as Driver in the department of respondents. He was initially appointed as Daily Rated worker and was subsequently regularized. The said aspect is borne out from the service book of the applicant. A complaint came to be filed against the applicant and some other Drivers with regard to their dates of birth. The applicant was directed by the Department to submit the birth certificate in original before the respondents. Accordingly, the applicant, who is Middle pass, submitted his original middle pass certificate before the respondents, which bare his date of birth as 29.2.1964. A Xerox copy of the discharge certificate reflecting his date of birth as 29.02.1964 issued by Head Master, Govt. High School Barazulla Rawalpora Kashmir under No. 539 dated: 20.07.1981 has been placed on record. After receiving the certificate in original from the applicant, the same was forwarded to Zonal Education Officer, Batamaloo, Srinagar by the Executive Engineer vide communication No. 4972 dated: 21.08.2014 for the purpose of verification. The Zonal Education Officer after conducting the verification, submitted the verification report before the Executive Engineer concerned, highlighting the fact that the school building of High School Barazulla Rawalpora was gutted in fire during the year 1994 in which most of the school record was destroyed and FIR No. 200 dated: 23.07.94 had been lodged in that regard. The Zonal Education Officer concerned, admitted that after best efforts to locate the record, a register containing some pages duly signed by the then Head master was traced out and the signatures on both the documents i.e pages of the register and discharge certificate were found similar which clearly indicated that the certificate was genuine and had been issued under the seal and signature of the then Head Master of the school. In light of the same, a detailed report had been submitted by the Zonal Education Officer, Barazulla vide communication No. ZEO/B/2064 dated: 24.04.2015.
2.1. He further submitted that in light of verification report by the Zonal Education Officer, the Executive Engineer submitted it before the Superintending Engineer, Hydraulic Circle Srinagar vide communication No. 1345-46 dated 20-05-2015. After receiving the verification from the Zonal Education Officer, the applicant requested for the return of his original school leaving certificate viz-a-viz Service Book. In between, various communications came to be addressed by different authorities especially respondent no. 2 and 3 directing the respondent no. 4 to submit the school leaving certificate, service book etc. However, the original certificate was not returned by the respondents as they had misplaced the original school leaving certificate for which the applicant had been insisting. Ultimately, respondent no. 4 vide his communication No. 6417 dated: 1.11.2014 addressed to Zonal Education Officer, Batamaloo highlighting the fact that the school leaving certificate of the applicant in original had been misplaced during transit, however, photocopy of the same which was available with the respondents along with other relevant documents by virtue of which details with regard to the date of birth of the applicant were sought.
2.2. Learned counsel for the applicant further submitted that the date of birth recorded in the school leaving certificate and in the Service Book of the applicant, there was no ambiguity. But, the respondents on the basis of a flimsy complaint made all their endeavors to ensure that the date of birth recorded in the service book of the applicant is verified beyond any shadow of a doubt. The applicant was never averse to any process/verification conducted by the respondents. On one hand, the respondents conducted the verification for the last 20 months but at the same time, the salary of the applicant from the last 20 months has not been released which has caused a miserable situation for him. Ultimately, the applicant approached respondent No. 3 requesting for the release of his salary. Respondent no. 3 vide his communication No. SE/Hyd/Sgr/259 dated: 20.07.2014 directed the Executive Engineer to release 50% of the salary in favour of the applicant in view of the Eid festival as well as his domestic condition.
2.3. He further submitted that the applicant has not committed any sin. The complaint filed against him has been taken as gospel truth. Needless to say that the complaint was filed by some colleagues, who were all along hell-bent to see that the applicant is not given any importance. The applicant all along requested the respondents for release of his salary as he was/is facing a miserable situation. Instead of releasing his salary, respondent no. 3 once again addressed a communication to respondent no. 2 seeking further necessary action in light of the documents.
2.4. He submitted that once again vide communication No. 3764-65 dated: 1.8.2015, respondent No. 2 addressed a communication to respondent no. 3 highlighting the fact that the original school leaving certificate of the applicant has been misplaced which was sent to the Zonal Education Officer for verification. The respondents have verified all the documents but till date, they have not released his salary, which on the face of it, is a gross violation of the rights of the applicant.
2.5. He further submitted that the respondents are duty-bound in law to release the salary of the applicant along with interest as he has never been at fault. But the respondents have adopted the novel approach of verification. If at all had the applicant been found to have committed any offense, in that eventuality, respondents would have initiated legal proceedings against him. But neither has the applicant committed any offense nor has he given any document which would not have met the standards of law, but the respondents on the basis of the complaint, have stopped everything which in fact amounts to pre-trial conviction, which is impermissible under law.
2.6. He further submitted that the respondents had constituted an Enquiry Committee comprising Executive Engineer, Water Works Division Srinagar, Chief Accounts officer, PHE Kashmir, Superintending Engineer, Mechanical Circle North as its members, Superintending Engineer Hydraulic Srinagar as Chairman, who also called the applicant in order to ascertain the facts. However, the inquiry committee came to the conclusion that the applicant had failed to clear the ambiguities, but the committee had not dislodged the applicant’s date of birth as recorded in the service book. They too have relied upon the seniority list which is legally misconceived and misdirected. Though it is a settled proposition of law that once the date of birth has been recorded by the employer and has been accepted by the employee, the same is binding upon both, in terms of the settled provisions of the Constitution and CSR. However, the respondents are relying upon the seniority list which has no applicability to retire an employee as the superannuation is to be ordered strictly on the basis of the date of birth recorded at the time of appointment.
2.7. He further submitted that the order passed by the respondents to effect recovery from the pensionary benefits of the applicant is unwarranted and unconstitutional. The applicant is yet to superannuate as he has enough service at his disposal, therefore, he is entitled to the salary. Moreover, the respondents have neither passed any order to retire the applicant except by passing the consideration order which would not amount to the superannuation of the applicant. Once the date of birth of the applicant has been checked and verified by the concerned Head Master and found to be true and correct, the same cannot be dislodged by the respondents on account of the seniority list and deprive him of his fundamental rights. It is stated that the service book of the applicant lies in the custody of the official respondents and is maintained by the official respondents. Therefore, if there is any irregularity, the same can only be attributable to the authorities and not to the applicant. The applicant cannot be retired on the basis of the date of birth.The respondents have failed to produce any record supporting their contention that the date of birth of the applicant is 29.02.1954 instead of 29.02.1964. The superficial exercise conducted by the respondents is simply to deprive and discriminate against the applicant, which is unjust and unwarranted.
2.8. The applicant had filed a writ before the Hon’ble High court of J& K at Srinagar, bearing S.W.P No. 1987 /2015, which came to be transferred before this Tribunal and has been re-numbered as TA 1672/2021, wherein the applicant has sought the following reliefs:
I. A Writ of Certiorari seeking quashing of order dated: 10.09.2016, 24.09.2016, and communication dated: 27.10.2016 forming annexure-L. M, and N to the writ petition.
II. A Writ of Mandamus commanding upon the respondents to release the entire salary of the applicant w.e.f. December 2013 without any further delay along 18% interest to be compounded annually.
III. A Writ of Mandamus commanding upon the respondents to allow the applicant to discharge his duties and allow him to work till he attains the superannuation on the basis of date of birth i.e 29.02.1964.
IV. A Writ of Prohibition prohibiting the respondents from superannuating the applicant on account of alleged date of birth as 29.02.1954.
V. Any Other writ, order or Direction which the Hon'ble court may deem fit and proper in the given circumstances of this case may also be issued in favour of the applicant and against the respondents; the same would be in consonance with law and justice.
Per contra, learned counsel for the respondents vehemently denied the claim of the applicant and submitted that the applicant was supposed to retire from the Government service on 29.02.2012, after attaining the age of superannuation i.e. 58 years. He further submitted that the applicant has overstayed in service and got extra salary from March 2012 to December 2013 for 22 months, which worked out at Rs.7,01,224 which had to be recovered from his pensionary benefits. He further submitted that vide Communication No. 4248-58 dated 27.10.2016, a Departmental Committee was constituted by the Engineer PHE, Kashmir Srinagar on 13.10.2016. The applicant was called to present himself before the Committee on 22.10.2016 to ascertain/verify his date of birth, the Service Book and his first appointment as daily wager/ on permanent basis. He further submitted that the applicant preferred to remain silent and did not clarify the query raised by the members of the Committee, particularly with regard to his date of birth in the service record available with the department. He further submitted that the Committee concluded after inquiry that the applicant had himself failed to prove his recorded date of birth in his service book and thereafter the inquiry Committee recommended for action to be taken as per rules.
3.1. Ld. Counsel for the respondents further submitted that a complaint was received by the office of respondents challenging the authenticity of the date of birth of the applicant and was forwarded to the respondents for inquiry. After ascertaining the factual position of the case, the inquiry report was submitted to Hon. High Court in SWP No. 1987 of 2015. Hon’ble High Court directed the respondents as under:
“Disposed of with an observation that the respondents shall accord consideration of the release of due salary in favor of the petitioner as shall be permissible under law.”
Ld. Counsel for the respondents further submitted that detailed order dated 10.09.2016 had been passed by respondent No. 2 in which the claim of the applicant had already been rejected by the Superintendent Engineer and direction was given by the Competent Authority to recover the excess salary received by the applicant to the tune of Rs.8.5 lakhs from his pensionary benefits. He further submitted that the applicant has shown that he was regularly attending the school till June 1981 and in contradiction, he submitted that he was a daily wager in the year 1976 which clearly depicts that the applicant has misled and misrepresented before the court.
Heard both the learned counsels at length. During the course of arguments, we noticed that the respondents are showing the date of birth of the applicant as 29.02.1954 whereas the applicant is claiming his date of birth to be 29.02.1964. We observed that 29th February 1964 was not possible in the year 1954 as this date falls only in leap years whereas 1954 was not a leap year. Hence, the Tribunal raised a query to the respondents as to how they can assert the date of birth to be 29.02.1954 when such a date did not exist. Learned counsel for the respondents was unable to give any clarification. Therefore, this Court directed the respondents to produce the original service book of the applicant.
Ld. Counsel for the respondents produced the original service book of the applicant where the date of birth of the applicant was found recorded as 29.02.1964, exactly the same as the applicant is claiming in this petition. In this regard, Ld. Counsel for the respondents submitted that the original service book of the applicant had got destroyed and the department had reconstructed the same. He further argued that one single person has signed the service book of the applicant with effect from 06.02.1986 to 01.02.1999 for almost 13 years which sounds highly improbable. He further submitted that an inquiry is being conducted to ascertain the facts. Moreover, in the seniority list issued vide No. PHE/SGR/5037/5989-6012 dated 28.07.1997, the date of birth of the applicant was correctly recorded as 29.02.1954.
As per the above submissions made by the Ld. Counsel for both the parties, we find that there is a major contradiction between their stands. Whereas the applicant claims his date of birth as 29.02.1964, the respondents hold 29.02.1954 to be his correct date of birth. As has been mentioned above, the stand taken by the respondents is not tenable solely because the date 29.02.1954 never existed in history. On the other hand, there is no substantiated proof of his date of birth being 29.02.1964 either. This difference of 10 years is beyond comprehension.
In view of the inconclusive finding about the date of birth of the applicant, we are unable to pinpoint the actual date of birth of the applicant. There seems to be no other option to authenticate the date of birth of the applicant except by referring it to a medical board. We hereby direct the respondents to constitute a medical board of specialists to ascertain the applicant’s age.
Based on the report submitted by the medical board, the respondents will take further necessary action in the matter. The aforementioned exercise should be completed within a period of 8 weeks.
TA No. 1672/ 2021 is disposed of with the above directions.
No order as to cost.