IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10648 of 2010 ====================================================== 1. Purander Prasad Gupta, S/O Late Jageshwar Ram, R/O Village And P.S. Uda Kishunganj, District- Madhepura. .... .... Petitioner/s Versus 1. The State Of Bihar. 2. Secretary, Department Of Personnel And Administrative Reforms,Govt. Of Bihar, Patna. 3. Additional Secretary, Department Of Personnel And Administrative Reforms,Govt. Of Bihar, Patna. 4. Deputy Secretary, Department Of Personnel And Administrative Reforms,Govt. Of Bihar, Patna. 5. Accountant General,Bihar ,Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Md.Imteyaz Ahmad Mr. Malay Kumar Choudhary Mr. Ravi Ranjan I For the Respondent/s : Mr. (Ga1) Mr. J.P.Karn ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 04-11-2011 Heard learned counsel for the petitioner and the State. The petitioner, a superannuated Deputy Development Commissioner, is aggrieved by the order dated 18.2.2009 passed in exercise of powers under Rule- 139 of the Bihar Pension Rules (hereinafter referred to as the Pension Rules) reducing his pension by 50% on the ground that though he should have superannuated on Patna High Court CWJC No.10648 of 2010 (2) dt.04-11-2011 2 13.12.1996, he continued to work till 15.12.2003. Counter affidavit has been filed on behalf of the respondents. The fact that his date of birth mentioned in the Blue Book was 1.1.1939 is not in dispute or denied by the parties. Likewise, it is not in dispute between the parties that his date of birth recorded in the Civil Book was 1.1.1949 and that it was taken into consideration for certain promotions also. The petitioner is stated to have relinquished his post on 15.12.2003 when the respondents sought an explanation from him on 2.12.2003. The respondents deeming him to have retired on 12.1.2004 issued a memo of chares on 16.7.2004 leading to enquiry report, a second show cause notice, a notice under Rule-139 of the Pension Rules culminating in the final order. It is also not in dispute that the F.I.R. lodged against the petitioner has been quashed by this Court in a proceeding under Section-482 Cr.P.C. Learned counsel for the State contended that the petitioner obtained a wrong benefit of extended service based on a date of birth which was incorrect to his knowledge. It was emphasized that even the writ petition does not raise any controversy with regard to his date of birth being 1.1.1939 and there is no pleading in support of any claimed date of birth as 1.1.1949. Patna High Court CWJC No.10648 of 2010 (2) dt.04-11-2011 3 Learned counsel for the petitioner conversely submits that the fact of the matter is that there were two dates of births of the petitioner available with the respondents in their official documents. If the date of birth as 1.1.1939 was available with the respondents, there is no explanation in the counter affidavit why they themselves permitted him to continue based on any date of birth that may have been mentioned in the Civil Book. Both were official documents, well available with the respondents. The petitioner has not earned his salary after 31.12.1996 till 15.12.2003 without working. He has rendered services. Strong reliance has been placed on a judgment of the Supreme Court in (2009) 3 SCC 117 (State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad). In the case of Prasad (supra) orders had been passed for recovery of the salary for two years on account of a dispute with regard to the date of birth despite the fact that he had worked during that extended period. Shri Prasad held a Class-3 post. There were two dates of birth recorded in the service book. Based on this discrepancy Shri Prasad had worked for the extended period. The contention of the respondents in the present case that the petitioner was a senior government functionary, being the drawing and disbursing officer Patna High Court CWJC No.10648 of 2010 (2) dt.04-11-2011 4 himself, does not appeal to the Court for reason of the discussion contained in paragraph Nos.22 to 24, 28 and 29 which reads as follows- “22. As noted hereinearlier, in the service book of the respondent, two dates of birth have been mentioned, which is not permissible. It cannot be conceived of that the authorities could not examine the possibility of two dates of birth to be entered in the service book of the respondent. They ought to have deleted the initial date of birth based on the matriculation certificate if the appellants were of the view that the affidavit sworn by the respondent was correct and the date of birth appearing in the matriculation certificate must be found to be incorrect, it is needless to say that the affidavit sworn by the respondent must be on the basis of documents produced by the respondent to show that the date of birth entered in the service book initially was incorrect. Instead, the appellant had not issued any notice of retirement of the respondent on 28-2-2002, which was the date for retirement of the respondent on his attaining superannuation i.e. on the basis of the date of birth shown in the matriculation certificate. On the other hand, the appellant allowed the respondent to work and got works from him and paid salary. Only for the first time, the appellant took note of two dates of birth after he had completed two years from the date of his actual date of retirement. 23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said Patna High Court CWJC No.10648 of 2010 (2) dt.04-11-2011 5 amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent.” 28. Before parting with this order, we may refer to a decision of this Court strongly relied on by the learned counsel for the appellant, namely, Radha Kishun v. Union of India. Learned counsel for the appellant relying on this decision sought to argue that even if the respondent had worked after his due date of superannuation without having any objection from the appellant, the appellant was entitled to deduct the amount already received by the respondent from his retiral benefits. This case, in our view, is clearly distinguishable from the present case. In Radha Kishun case, there was no dispute as to the date of retirement of the appellant in that appeal, as there was no controversy in the date of birth of that appellant. There was only one date of birth mentioned, and he had not retired on the basis of his date of birth so entered. Therefore, he had wrongly extended his service beyond the date of his superannuation. But in the present case, there were two dates of birth recorded in the service book of the respondent. Therefore, there was a clear confusion in the mind of the respondent as to whether the appellant had accepted his corrected date of birth as entered in his service book when admittedly the authorities concerned did not serve any notice of retirement on the basis of the initial entry of date of birth in his service book. 29. It should also be kept in mind that the respondent might have expected that the second date of birth shown in the service book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any mala fide intentions to continue his service, beyond his date of retirement, we are of the view that the decision in Radha Kishun v. Union of India would not be applicable in the facts of the present case.” The order dated 18.2.2009 is set aside with like Patna High Court CWJC No.10648 of 2010 (2) dt.04-11-2011 6 directions as contained in paragraph-30 of the judgment in Prasad’s case (supra) which reads as follows:- “30. There is another aspect in this matter. Although we have directed that the excess amount paid for two years to the respondent as salary cannot be recovered from the respondent, but we make it clear that for fixing the retiral benefits, the period of two years in respect of which salary was received by the respondent cannot be taken into consideration and the respondent would be entitled to fixation of retiral benefits as on the date of his superannuation i.e. 28-2- 2002.” When the calculations for purposes of pension has to be made on the basis that the petitioner stood superannuated on 31.12.1996, any monetary advantage that the petitioner may have obtained resulting in an enhanced pension till 2003 has naturally to be recovered and/or adjusted as may be agreed upon between the parties. An order reducing 50% of the pension is undoubtedly very harsh when the reduction of even 5% of the pension has been considered a very serious matter by the Supreme Court in (2005) 3 SCC 501 (Ram Dayal Rai v. Jharkhand SEB )in the relevant extract at paragraph- 17 as follows:- “17. …..If the pensioner's benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” Patna High Court CWJC No.10648 of 2010 (2) dt.04-11-2011 7 In the entirety to the facts of the present case, applying the ratio laid down in the case of Shri Prasad (supra) the writ application is allowed. Krishna Chandra Jha/- (Navin Sinha, J)