IN THE MATTER OF AN APPLICATION UNDR ARTICLE 226 OF THE CONSTITUTION OF INDIA. CWJC No.11604 of 1998 SURYA NARAIN CHOUDHARY S/O MANOG CHOUDHARY R/O VILL- + PO-PATAILY PS-UJIARPUR,DISTT-SAMASTIPUR ---------------------------PETTIIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECY.-CUM-COMMISSIONER BUILDING CONSTRUCTION & HOUSING DEPARTMENT, SECRETARIAT, PATNA 2. SUPERINTENDING ENGINEER, BUILDING CONSTRUCTION & HOUSING DEPTT. CONSTRUCTION CIRCLE,DARBHANGA 3. EXECUTIVE ENGINEER, BUILDING CONSTRUCTION & HOUSING DEPTT.CONSTRUCTION DIVISION SAMASTIPUR 4. SURENDRA PD. ESTABLISHMENT CLERK IN THE OFFICE OF EXECUTIVE ENGINEER, BUILDING CONSTRUCTION & HOUSING DEPTT. CONSTRUCTION DIVISION SAMASTIPUR 5. ACCOUNTANT GENERAL,BIHAR,PATNA 6. DISTRICT PROVIDENT FUND OFFICER, SAMASTIPUR---------- -----------------------------------RESPONDENTS With MJC No.558 of 2005 SURYA NARAYAN CHOUDHARAY (ADDRESS & PARENTAGE IS THE SAME AS IN CWJC) Versus 1. THE STATE OF BIHAR THROUGH THE SECY. CUM-COMMISSIONER BUILDING CONSTRUCTION DEPTT. SECRETARIAT, BIHAR,PATNA 2. AJAY KUMAR, SECY-CUM-COMMISSIONER, BUILDING CONSTRUCTION DEPTT. SECRETARIAT, BIHAR, PATNA 3. SUNIL KUMAR, SUPERINTENDING ENGINEER, BUILDING CONSTRUCTION DEPT. CONSTRUCTION CIRCLE DARBHANGA 4. BASUDEO PD. MANDAL EXECUTIVE ENGINEER, BUILDING CONSTRUCTION DEPT. CONSTUCTION DIVISION, SAMASTIPUR 5. SURESHWARI PD. ESTAB.CLERK IN THE OFFICE OF THE EXECUTIVE ENGINEER, BUILDING CONSTRUCTION DEPT. CONSTRUCTION DIVISION SAMASTIPUR 6. R.K.VERMA A.G.,BIHAR, PATNA 7. RAVI RANJAN KUMAR, DISTRICT PROVIDENT FUND OFFICER, SAMASTIPUR---------------------OPP. PARTIES. ----------- For the Petitioner: Mr.Purshottam Jha,Advocate For the State: Mr. A.N.Pandey, AC to GP-2 (in CWJC No.11605/98) For the Petitioner: Mr.A.P.Sahay,Advocate For Opp.Parties: Mr. A.S.Jha, SC-IX (in MJC No.558/05) M.Kumari AC to SC-IX. ----------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ***** A.K.Tripathi,J. Heard learned counsel for the parties. The date of birth of the petitioner recorded in the - 2 - service book and supported by various other communications and documents is 29.8.1935. Petitioner was appointed as a peon under the Executive Engineer, Building Construction & Housing Department, Samastipur as it then existed. The appointment of the petitioner was made on 13.11.1964. As per the date of birth recorded, petitioner ought to have superannuated on 31.8.1993 but he continued in service till 31.8.1997 though it is his stand that the respondents stopped taking work from him since May 1997 itself. When certain controversy arose about his date of birth, the respondents not only acted against the petitioner by stopping him from work since May, 1997 but also decided to recover the money paid to him as salary from September, 1993 to May 1997. Submission of learned counsel for the petitioner is that since the petitioner had worked and work was taken from him, the recovery ought not to be made provided it is held that his date of birth was 1935. He seriously contends that his actual date of birth is 1939 and not 1935 and interpolation was made in the service book by the dealing assistant because he failed to oblige him. Petitioner also produced a School Leaving Certificate showing his date of birth to be 29.8.1939 and not 1935 but all these have been brushed aside by the respondents and illegal coercive action has been taken against him. Learned counsel for the State has filed the counter affidavit where not only statement has been made that the petitioner had played fraud with the organization by making - 3 - interpolation in the service book but had also produced School Leaving Certificate whose authenticity is highly doubtful since it is supposed to be dated sometime in the year 1997. Petitioner has categorically certified his date of birth in the service book by putting his signature to be 29.8.1935. Petitioner had declared his date of birth even before the Provident Fund authority as above. Seniority list notified by the respondents from time to time indicated his date of birth to be 29.8.1935 and some other documents have been brought on record to show that right through his service the date of birth in various other documents existing in the record of the respondents is 29.8.1935. At what time the so called manipulation was made by the petitioner is not known but when the fact came to the notice of the respondents the petitioner was asked to go home and even recovery for the period he had worked beyond the date of actual retirement i.e. 31.8.1993 has been made. The allegation made by the petitioner that the manipulation was done by the dealing assistant because he failed to oblige him can not be accepted on the face value. If certain interpolation has been made in the office record the petitioner could have legal remedy against the said person but there is nothing to show that the petitioner ever raised a finger against the so called dealing assistant before filing of the present writ application making allegation in a wreckless manner. It is too much of a co-incidence that there is no other document except - 4 - service book and a belated School Leaving Certificate obtained by the petitioner showing his date of birth to be 1939 and not 1935. A stand is taken by the petitioner that he should be actually paid for the period he had worked and the recovery made by the respondents for the extended period of his retirement ought not to be allowed. But this stand would have merited consideration provided the petitioner continued on the post due to some omission on the part of the respondents and was allowed to work on the post after the date of his actual retirement. But it is case of fraud having been played by the petitioner for which he cannot be rewarded or awarded by stoppage of recovery of the amount for the period he continued in service beyond the actual date of superannuation which is 31.8.93. It is well established principle that the fraudulent act goes to the root of the matter and equity cannot flow in favour of the petitioner. This Court is not inclined to interfere with the action taken against the petitioner in this regard. The petitioner would be treated to have retired on 31. 8.93 for the purpose of his retiral benefits etc. and the same will accrue only from that period. This writ application is dismissed. In view of the reasons assigned above in CWJC No. 11604 of 1998 the contempt application is dismissed as being devoid of any merit. Patna High Court, Patna Dated the 26th August, 2010 NAFR/RPS/Sr.Secy. (Ajay Kumar Tripathi, J.)