IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP(T) No.14705 of 2008 Date of Decision : May 24, 2010 Ramesh Kapoor …Petitioner. Versus: H.P. Tourism Development Corpn & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. H. K. Paul, Advocate For respondent No.1 : Ms. Ranjana Parmar, Advocate, For respondent No.2 Mr. R. K. Sharma, Sr. Addl. A.G. with Mr. R. M. Bisht, Dy. A.G. and Mr. P.M. Negi, Dy. A.G. Sanjay Karol, J. (Oral). Petitioner was appointed as a Guide-cum-Clerk with the Himachal Pradesh Tourism Development Corporation Ltd./ respondent No.1, a company incorporated under the Companies Act. As per the service book maintained by the said respondent, petitioner’s date of birth was recorded to be 22.2.1946. Petitioner’s letter dated 10.10.1973 enclosing the matriculation certificate discloses his date of birth. On the basis of the said certificate, service benefits were also conferred upon him. Petitioner satisfactorily served the Corporation and retired on 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 28.2.2006 as is evident from letter dated 30.11.2005 (Annexure A-2). 2. After his retirement respondent-State instituted an inquiry with respect to the petitioner’s correct age. As per the inquiry report, petitioner failed to sufficiently prove his date of birth and his “probable” date of birth was found to be 22.2.1946 and not 22.2.1948. Based on the said inquiry conducted by the State, the respondent-Corporation issued the impugned order dated 16.11.2006 (Annexure A-5) whereby a sum of Rs.8,70,830/- disbursed as salary and allowances paid to the petitioner for a period of 2 years are sought to be recovered. Petitioner has also assailed order dated 23.12.2006 (Annexure A-7) reiterating the demand for recovery of the amount. 3. Respondent No.1-Corporation is a company registered under the Companies Act. Inquiry was conducted not by the Corporation but by the State. Nothing has been shown on record as to how the State could have conducted an inquiry into the affairs of the respondent-Corporation. The exercise of power is neither derived from any statute nor authorised by any resolution. Hence inquiry instituted by the respondent-State is illegal. 4. Be that as it may be, in the return the respondent- Corporation has taken a stand that the date of birth entered into the service record was 22.2.1948. In this view of the 3 matter it cannot be said that there has been any tampering of the service record. That apart, even the Inquiry Officer has found the petitioner’s date of birth to be “probable” to the year 1946. There is no definite findings based on clear, cogent and reliable material evidencing the petitioner’s date of birth to be 22.2.1946 and not 22.2.1948. It is not the case of the employer that petitioner had ever mis-represented his date of birth. The certificate issued by the Medical Officer was taken into account while entering the date of birth in the service record. It stands clarified that during the petitioner’s entire service period no complaint or representation was ever received on this issue. In fact petitioner had placed on record his driving licence, income tax PAN Card reflecting his date of birth to be 22.2.1948. In this view of the matter, action of the respondents is unsustainable in law and is accordingly quashed. 5. The matter needs to be examined from yet another angle. Undoubtedly, petitioner had served the Corporation for a period of two years. This was without any objection and also to the satisfaction of the employer. While dealing with almost similar situation, the Apex Court in Kailash Singh vs. State of Bihar & Ors. (2005)13 SCC 576 has held as under:- “6. So far as post-retiral benefits are concerned it is submitted that they may not be admissible to him. We fail to appreciate the submission made on behalf of the respondents in the background of the facts indicated in the earlier paragraph. The respondents took work from the appellant without any dispute. He would obviously 4 be entitled to his salary and there is no reason as to why he should be denied the post-retiral benefits. His total service comes to 32 years. We have already adverted to the fact that the medical report has not been placed on the record, nor as to what is meant by the term "average age", has been explained to us. In the totality of the facts and the circumstances of this case, we find no good reason to deny those benefits to the appellant.” 6. Thus, it cannot be held that the respondents are entitled to recover the salary and allowances paid to the petitioner for the services already rendered by him. 7. For the aforesaid reasons, the present petition is allowed and disposed of. ( Sanjay Karol ), Judge. May 24, 2010 (rana)