LETTERS PATENT APPEAL No.738 OF 2005 Against judgment and order dated 13.1.2005 passed in CWJC No.9652 of 1999 by Hon’ble Mr. Justice Narayan Roy ******** 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Commercial Taxes, Bihar, Patna 3. The Joint Commissioner, Commercial Taxes, Patna Division, Patna 4. The Deputy Commissioner, Commercial Taxes, South Circle, Patna ……Respondents/Appellants Versus GANGA DAYAL MOCHI, son of Late Sant Lal Mochi, resident of Village –Bocha Chak, PO & PS Phulwarisharif, District Patna …..Petitioner/Respondent ******** For the Appellants: Mr. Lalit Kishore, AAG III Mr. Satyabir Bharti Assistant Counsel to AAG III For the Respondent: M/s Vijay Kumar Singh Jitendra Prasad Singh, Advocates ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S K Katriar, J. The State of Bihar and its functionaries have preferred this appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna, and are aggrieved by the order dated 13.1.2005, passed by a learned single Judge of this Court in CWJC No. 9652 of 1999, whereby the order of the authorities seeking to realize the salary paid to the petitioner beyond his actual date of superannuation, has been set aside. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. The respondent was appointed on a class IV post in the Bihar Government on 12.5.1958. At the relevant point of 2 time, he was posted as a Peon in the office of the Deputy Commissioner, Commercial Taxes, South Circle, Patna. The authorities issued order dated 27.1.96, that he seems to have over- stepped his date of superannuation and was, therefore, prohibited from marking his attendance in the office. Show-cause notice was thereafter issued to him and it was found that his correct date of birth was 5.5.1936. The same was originally so recorded in his service book, and had been converted to 10.10.1938. In other words, he had worked beyond his date of superannuation, leading to the impugned order. The same has been set aside on the ground that it was passed without initiating a departmental proceeding, and without taking recourse to rule 43(b) of the Bihar Pension Rules. 3. We have perused the materials on record and considered the submissions of learned counsel for parties. It appears that the writ petitioner had joined the services of the Bihar Government as a Peon on 12.5.1958. His date of birth as originally recorded in his service book was 5.5.1936, according to which he was to superannuate on 31.5.1994. The same was, however, effaced in his service record and was converted to 10.10.1938, according to which he would have reached his date of superannuation on 31.10.1996. The respondent authorities detected the change in the date of birth in his service record and, therefore, issued order dated 27.1.96, whereby he was prohibited from marking his attendance in the office forthwith. The service record was thereafter forwarded to the Forensic Laboratory, 3 Govt. of Bihar, which submitted its report dated 14.9.1996 (Annexure-A to the counter affidavit) as follows:- “REPORT MISC. 5/96 I. Received one service Book of Sri Ganga Dayal Mochi from Joint Commissioner, Commercial Taxes, Bihar, Patna, vide his letter No.3090, dated 29.6.96 for verification of date of birth. RESULT OF EXAMINATION II. At the first page Sl.5 of the Service Book of Sri Ganga Dayal Mochi, effaced date of birth has been deciphered which reads as 5.5.36.” 4. In view of the report of the Forensic Laboratory, the authorities issued show-cause notice dated 21.11.1996, disclosing therein the finding of the Forensic Laboratory. The writ petitioner had shown cause to the same by his communication dated 27.1.97. On a consideration of the materials on record including the report of the laboratory and the cause shown by the writ petitioner, the authorities passed the order dated 15.12.97, wherein it was held that the petitioner’s correct date of birth is 5.5.1936, and he reached his age of superannuation on completion of 58 years of age on 31.5.1994. He had really worked till 27.1.1996. In other words, he had worked in excess from 1.6.94 to 27.1.96. Therefore, it was ordered that the salary for the excess period shall be recovered from his post- retirement benefits. 5. The petitioner challenged the same by preferring CWJC No. 276 of 1997, which was disposed of by a learned single Judge of this Court by order dated 25.6.98, whereby in substance the said order 4 dated 15.12.97 was set aside, and the authorities were directed to reconsider the petitioner’s case. On a reconsideration of the matter, the Commissioner, Commercial Taxes, Bihar, Patna, rejected the petitioner’s representation by his order dated 4.9.98, and in substance re-affirmed the previous order. 6. On a consideration of the entire materials we are clearly of the view that the writ petitioner had played a fraud on the administration by effacing his original date of birth recorded in his service record, and was substituted by a date advantageous to him as a result of which he had worked beyond the actual date of his superannuation. The authorities took reasonable steps to determine the position by referring his service book to the Forensic Laboratory for a close scrutiny. The contents of the same were conveyed to the petitioner in a proper show-cause notice and he was afforded full opportunity to represent his case. We are thus convinced that the authorities did not act in haste and took adequate care and precaution to determine the correct position. 7. We are in this connection reminded of the judgment of the Court of Appeal of England in the case of Lazarus Estates Ltd. Vs. Beasley [(1956) 1 All E.R. 341]. Speaking for the Court, Lord Denning observed that no person can retain the benefits obtained by fraud. The following portion of the judgment is illuminating and supports the impugned order of the authorities:- 5 “…..If this argument is correct, the landlords would profit greatly from their fraud. The increase in rent would pay the fine many times over. I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever; see, as to deeds, Collins v. Blantern (2) (1767) (2 Wils. K.B. 342), as to judgments, Duchess of Kingston’s Case (3) (1776) (1 Leach 146), and, as to contracts, Master v. Miller (4) (1971) (4 Term Rep. 320). So here I am of opinion that, if this declaration is proved to have been false and fraudulent, it is a nullity and void and the landlords cannot recover any increase of rent by virtue of it.” (Emphasis added) These observations of Lord Denning have been quoted with approval by the Supreme Court times without number and has naturally been followed by the High Courts. 8. Law is well settled that misplaced sympathy should not be allowed to deflect the decision of the Court. One of us (S K Katriar, J.) sitting singly had the occasion to discuss the law on the basis of the judgments of the Supreme Court and the English Court, in the case of Ram Dhani Singh v. State of Bihar [2007 (4) PLJR 332]. After noticing a large number of the judgments of the Supreme Court and the English Court, this Court came to the conclusion that there is no room for misplaced sympathy in judicial proceedings, and cannot be permitted to deflect the course of justice. Paragraph 19 of the judgment is reproduced hereinbelow for the facility of quick reference:- 6 “19. Reference may be made to the judgment of the Court of Appeal in England in the case of Latham vs. Hohnson & Nephew, reported in 1911-13 All.E.R. 117. The defendants were the owners of a piece of unfenced waste ground, on which to their knowledge and with their permission children had been in the habit of playing. Early one morning a heap of stones was deposited on the land by the defendants’ servants, and soon after, while on the land alone, the plaintiff, a child under three years of age, was injured by one of the stones falling on her hand. In an action brought on behalf of the plaintiff for damages for his injury, it was held that the defendants were not liable. It was further held that “….we must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o’ the wisp to take as a guide in the search for legal principles…” 9. Learned counsel for the appellant has rightly relied on the judgment of Supreme Court in Radha Kishun v. Union of India [(1997) 9 SCC 239]. The facts of the case before the Supreme Court were similar. The appellant before the Supreme Court had worked beyond the age of his superannuation and had approached the Court for payment of salary. The Supreme Court dismissed the appeal with the observations that “ ….we are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the above said date when admittedly he was to retire on 31.5.1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the establishment in the section concerned for not taking any action to have the petitioner retired from service on his attaining superannuation.” 10. In the result, we respectfully disagree with the order of the learned single Judge. The order contained in memo no.3531, dated 7 4.9.1998, passed by the Commissioner, Commercial Taxes, Bihar, Patna, is hereby restored. The appeal is allowed and the writ petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. ( S K Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna The 26th of August 2010 AFR/mrl