IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2792 of 2003
Bhubneshwar Mandal ........................ Petitioner.
Versus
Bihar State Electricity Board & Ors ............... Respondents
......
Coram: Hon'ble Mr. Justice Amareshwar Sahay
......
For the petitioner : Mr. Indrajit Sinha, Advocate
For the J.S.E.B. : Mr. A.K.Pandey, Advocate
For the B.S.E.B. : Mr. Manoj Tondon, Advocate
......
6/23.07.2009
Heard the learned counsel for the Parties.
The prayer of the petitioner, in this writ petition, is to
quash the order dated 12/05/2001, (Annexure-10), passed by the
Secretary, Bihar State Electricity Board alongwith that part of the
resolution/order dated 16/07/2001 (Annexure-11), whereby the excess
amount of pay and other allowances drawn by the petitioner beyond
31/01/1991, has been ordered to be adjusted from the amount dues as
post retiral benefits.
According to the petitioner, at the time of entry in service
as Assistant Executive Engineer, he had submitted his matriculation
certificate showing his date of birth as 01/02/1941 but his date of
birth was wrongly recorded in his service book as 01/01/1958 in place
of 01/02/1941. This fact he came to know only when the gradation list
was prepared in the year 1994 and, thereafter, he, by his letter dated
16/12/1998, informed the Bihar State Electricity Board about the said
mistake and requested to correct the entry in his service book. When he
did not receive any response, then he sent another letter on
07/01/1999, reiterating the said mistake. He even served a letter dated
23/03/1999 personally, which was duly received by them on
24/03/1999. According to the petitioner, instead of correcting the
wrong entry in the service book regarding his date of birth, the
respondents Board sent him a letter dated 07/04/2000 asking him to
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send a photo copy of his matriculation certificate for verification of his
date of birth. The petitioner sent a photo copy of the matriculation
certificate under registered cover on 20/05/2000 to the Office of the
Bihar State Electricity Board, Patna. Thereafter, the petitioner was
directed to meet the Secretary of the Board on 23/05/2000 with all his
original certificates, which the petitioner complied and explained to him
everything. Thereafter, the petitioner received a letter dated
27/05/2000 directing him not to work and, accordingly, the petitioner
seized to work w.e.f. 27/05/2000. On 16/07/2000, the petitioner was
served with a notice to show cause as to why departmental proceeding
be not initiated against him on the ground that he concealed his correct
date of birth. He should have superannuated on 31/01/1999 but he
continued to work even since thereafter, which shows his ill motive and
malafide intention. The petitioner submitted his show cause. When no
final order was being passed by the authority concerned and the
petitioner was not being paid his retiral dues, he filed a writ petition
being W.P. (S) No. 3866/2000 (R) for quashing of the show cause notice
dated 28/06/2000. The said writ petition was disposed of by order as
contained in Annexure-7 to this writ petition directing the respondents
to decide the matter by speaking order within a period of two months
and also to pay the admitted retiral dues to the petitioner. The
petitioner, thereafter, sent a representation praying therein to drop the
departmental proceeding, which was initiated after his retirement and
to pay his retiral benefits.
The respondents Board by an office order dated
12/05/2001, contained in Annexure-10 to this writ petition, finally
disposed of the representation of the petitioner rejecting his prayer to
drop the departmental proceeding. However, subsequently, the said
order was modified by resolution dated 16/07/2001, contained in
Annexure-11 to this writ petition, wherein it was mentioned that the
Board has decided to take a lenient view of the matter by closing the
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matter and decided to recover the excess amount of pay and other
allowances drawn by the petitioner beyond 31/01/1999, i.e. due date
of his retirement, which has been challenged by the petitioner in this
writ petition.
The main contention of the respondents Bihar State
Electricity Board is that since the petitioner was knowing his actual
date of birth and, therefore, under Rule 78 (ii) (a) of the Bihar State
Electricity Board Service Regulation, it was his duty and responsibility
to demit the office on the basis of his date of birth but he continued
even beyond 31/01/1999, the date on which he was due to retire.
Except simply denying about the statement made by the
petitioner in the writ petitioner particularly in paragraphs 9 and 10,
wherein he stated that the letters were sent to the Board by the
petitioner requesting to rectify the wrong entry in his service book, no
specific reply has been given by the Board. It is also not disputed that
the respondents Board took work from the petitioner beyond
31/01/1999 till the date 27/05/2000, the date on which he was
directed to stop work. It is not the case of the respondents that the
wrong entry regarding date of birth in the service book of the petitioner
was recorded because of any misrepresentation or fraud committed by
the petitioner. Whatever mistake was committed in making wrong entry
in the service book was by or at the instance of the concerned person,
who was responsible to make entry in the service book. The blame of
wrong entry in the service book cannot be put on the head of the
petitioner. Therefore, for the mistake committed by the concerned
official of the Board making wrong entry in the service book, the
petitioner cannot be penalized.
In this view of the matter, the resolution of the Board to
recover the amount of pay and other allowance drawn by the petitioner
beyond 31/01/1999 cannot be sustained. Accordingly, this writ
petition is allowed and that part of the order dated 16/07/2001,
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contained in Annexure-11 to this writ petition by which the order has
been passed to recover the excess amount of pay and other allowance
from the amount due as post retiral benefits of the petitioner beyond
31/01/1999, is hereby quashed. The respondents Jharkhand State
Electricity Board is directed to pay the retiral dues to the petitioner as
per the resolution dated 16/07/2001 within a period of eight weeks
from the date of this order.
(Amareshwar Sahay, J)
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