CWP No.17755 of 2008.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.17755 of 2008 Date of Decision: 12.10.2010 **** Chottu Ram . . . . Petitioner VS. Punjab State Electricity Board & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Dinesh Kumar, Advocate for the petitioner Mr. Gagandeep Garg, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). The petitioner impugns the order dated 22.05.2008 (Annexure P17) whereby a sum of `3,87,898/- has been deducted from his Pension and Gratuity on his retirement from service w.e.f. 30.04.2006. (2). The petitioner served the Bhakra-Satluj Link Canal Project (BSL) in Himachal Pradesh as Junior Painter from 01.09.1965 to 31.07.1970. He was thereafter appointed as Painter Grade-II w.e.f. 1st August, 1970 and served as such till 27th January, 1978. The petitioner was then discharged from BSL Project and was appointed as Painter on work- CWP No.17755 of 2008.doc - 2 – charged basis in the erstwhile Punjab State Electricity Board on 1st May, 1978 followed by his regular appointment on the said post vide order dated 27th April, 1995. (3). The petitioner when joined as Junior Painter in BSL Project mentioned 04.04.1946 as his date of birth which was duly mentioned in the discharge certificate also. It appears that on his regular appointment as Painter in the respondent-Board, the petitioner was asked to furnish the School Leaving Certificate for which he got issued on 06.01.1994 wherein his date of birth was recorded as 07.04.1948. It further appears that the petitioner was directed to appear before the Chief Medical Officer who after the petitioner’s medical examination conducted on 03.04.1995 opined that he was about 46 years old. (4). There being two conflicting dates of birth on record, the petitioner was vide memo dated 01.06.1995 directed to explain the correct date of his birth. The petitioner responded vide his reply dated 09.06.1995 (Annexure P5), the relevant part whereof reads as follows:- CWP No.17755 of 2008.doc - 3 – “In view of the above facts, I most respectfully submit that my date of birth shown in the school certificate, discharge certificate or CMO certificate whichever appears to be correct according to rules may be accepted. In case you desire, you may inquire from the respected office at your level because that I have not committed any fraud nor have I have intention to do so. I hope that you will consider my request sympathetically and will take an appropriate decision with regard to the entry of my date of birth.” (Emphasis applied) (5). The record suggests that the respondents treated the petitioner to have born on 07.04.1948 and consequently retired him from service w.e.f. 30.04.2006 only on attaining the age of superannuation (Annexure P6). As the petitioner was entitled to retiral dues on his retirement. The Accounts Officer of the respondent-Board while preparing the petitioner’s case for retiral dues raised an objection regarding the correct date of birth of the petitioner which even led to the issuance of charge-sheet to the petitioner after retirement. The petitioner faced the departmental enquiry in which the Enquiry Officer though has exonerated him, nevertheless the disciplinary authority vide its order dated 31.12.2007 CWP No.17755 of 2008.doc - 4 – (Annexure P14) held him guilty of ‘concealing’ the correct date of birth at the time of his initial appointment and imposed the following punishment:- “In view of the above, it is ordered by the PSEB that Shri Chhotu Ram, Painter (Retd.) will not be entitled to count his two years excess service rendered by him from 1.5.2004 to 30.04.2006 for pensionary benefits or any benefit.” Emphasis applied (6). The petitioner did not challenge the punishment order which has attained finality. (7). It further appears that based upon the above-stated punishment order, the respondents unilaterally changed the date of birth of the petitioner in the service record and consequently have ordered the recovery of `3,87,898/- on account of the alleged excess salary paid to him for a period of two years i.e. w.e.f. 01.05.2004 to 31.04.2006. The recoverable amount has in fact been deducted out of the pension and Gratuity to which the petitioner was entitled to on his retirement. (8). Aggrieved the petitioner has approached this Court. CWP No.17755 of 2008.doc - 5 – (9). The respondents in their reply/affidavit have maintained that the petitioner is guilty of concealing the correct date of birth at the time when he had joined in the Project in the year 1965 and as such the recovery has been rightly effected from him. (10). Having heard learned counsel for the parties, I am of the considered view that the action of the respondents in ordering the recovery of salary w.e.f. 01.05.2004 to 31.04.2006 is patently illegal and arbitrary. I say so firstly for the reason that the petitioner was not guilty of concealing his date of birth inasmuch as in his reply (Annexure P5) he had categorically left it to the discretion of the respondent-authorities as to which out of two dates of his birth were acceptable to them. Secondly, the disciplinary authority has merely disentitled the petitioner from counting of his two-years’ ‘excess’ service from 01.05.2004 to 31.04.2006 towards the “pensionary benefits or any benefits”. The consequence and impact of the said punishment order could be that the petitioner, for the purposes of retiral dues was deemed to have retired from service w.e.f. 31.04.2004 instead of his actual date CWP No.17755 of 2008.doc - 6 – of retirement i.e. 31.04.2006. The expression “other benefits” mentioned in the punishment order limits to future benefits only and not the salary already drawn by the petitioner in lieu of actual performance of duties. (11). Suffice it to say that the order dated 31.12.2007 (Annexure P14) nowhere empowers the respondents to recover the salary paid to the petitioner for the work/duties performed by him w.e.f. 01.05.2004 to 31.04.2006. (12). The view taken above stands fortified by the Hon’ble Supreme Court in State of UP and Anr. v. Shiv Narain Upadhyaya, 2005(8) SLR 197 as well as a Division Bench of this Court in Union of India v. Parkash Chand and others, 2007(6) SLR 499. (13). For the reasons afore-stated, the writ petition is allowed; the impugned action of the respondents in deducting the salary paid to the petitioner w.e.f. 01.05.2004 to 31.04.2006 is hereby set aside with a further direction to refund the amount of `3,87,898/- deducted from the retiral dues of the petitioner within a period of three months from the CWP No.17755 of 2008.doc - 7 – date of receipt of a certified copy of this order along with interest @ 7% per annum. (14). However in view the fact that the punishment order dated 31.12.2007 (Annexure P14) has not been challenged by the petitioner, the respondents shall be at liberty to grant the retiral dues to the petitioner by treating him to have retired from service w.e.f. 31.04.2004. (15). Ordered accordingly. Dasti. 12.10.2010 vishal shonkar (SURYA KANT) JUDGE