LPA No.1405 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1405 of 2010 Date of Decision: 7.12.2010 Haryana Power Generation Corporation Limited and others ..Appellants Versus Shyam Narain ..Respondent CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Birender Singh Rana, Advocate for the appellants. 1. To be referred to the Reports or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. 1. The instant appeal is directed against order dated 13.5.2010 passed by the Learned Single Judge holding that the imposition of 2% cut in pension of the writ petitioner-respondent is not warranted nor any recovery is permissible for the period from 1.9.2001 to 31.8.2005. 2. The writ petitioner-respondent has initially given his date of birth as 7.8.1943, when he was appointed on ad hoc/work charged basis. Thereafter he gave other certificate showing his date of birth to be 7.8.1947. He continued working and superannuated on 31.8.2005 on the basis of the latter certificate showing his date of birth as 7.8.1947. This led to the issuance of charge sheet on 23.2.2006 and in a regular departmental inquiry, the Inquiry Officer, after appreciating LPA No.1405 of 2010 2 the evidence, recorded the following findings in its report dated 26.9.2006, which reads as under: “1. Regarding submission of second school leaving certificate submitted by Sh. Shyam Narain at the time of regularization of service, it seems that the parents/Brother of the retiree had managed the same by one way or the other to support his brother and it can not be accepted as authentic proof. 2. There is also no evidence of over-writing/cutting on the date of birth in the Service Book by the retiree as the entire record remains in the custody of the office and the retiree can not be held responsible for the same. 3. Due to his illiteracy and ignorance Sh. Shyam Narain was not aware of the documents what he had submitted at the time of Work Charge Service. After going through the entire case, it is established that the date of birth viz 7.8.43 as per the letter dated 19.1.2006 issued by Head Master, Junior Basin School, Sheetlaganj, which has been obtained by the Department by deputing Sh. B.N.Mishra, Dy.Supdt. HPGCL, seems to be correct. This date of birth also matches with the original date of birth which was verified by A.E./Civil in the Service Book of the official in Work Charge capacity.” 3. In purported exercise of power, the Chief Engineer issued a show cause notice and concluded that the writ petitioner- respondent has been found responsible for various acts of omissions and commissions. The omissions and commissions alleged by the appellant are discernible from paras 1 and 2 of the LPA No.1405 of 2010 3 Show Cause Notice dated 20.12.2006 (P-5), which read as under:- “1 The School leaving certificate submitted by you from Sh. Gayatri Higher Secondary School, Rustampur (Raibarely U.P.) at the time of regularization is false in which your date of birth has been mentioned as 7.8.47. 2. As per letter dated 19.1.2006 issued by the Head Master Junior Basic School Sheetlaganj your actual date of birth is 7.8.43 instead of 7.8.47. 3. You have given the false affidavit dated 20.1.86 by mentioning your date of birth as 7.8.47. Due to the above omissions and commissions you continued in service for four years more i.e. 62 years and put the Corporation in loss. For the above lapses on your part it has tentatively been decided to proceed under Regulations 7 of P&A Regulations dated 1990......” 4. A perusal of the aforesaid paras would show that the Disciplinary Authority has jumped to a conclusion that School Leaving Certificate given by the writ petitioner-respondent at the time of regularization was false, whereas there is no such finding recorded by the Inquiry Officer. Another accusation levelled against the writ- petitioner-respondent is that he had submitted a false affidavit dated 20.1.1986 mentioning his date of birth as 7.8.1947. There was no allegation against him that he had caused any loss or he had committed any lapses. 5. It may be true that in the inquiry, the date of birth of the writ petitioner-respondent was found to be 7.8.1943, but no act of fabrication or lapse has been imputed to him. On the contrary, the LPA No.1405 of 2010 4 findings of the Inquiry Officer are that on account of illiteracy and ignorance he was not aware of the documents he had submitted at the time of entry as work charged. He, in fact, has been found to be innocent. Therefore, it was wholly unwarranted on the part of the Punishing Authority to interpolate in the show cause notice such finding which was never recorded by the Inquiry Officer. If the Disciplinary Authority was recording a dissenting note, then it was obligatory on its part to discuss the evidence available on record in reaching a conclusion contrary to the one recorded by the Inquiry Officer. Therefore, we find that the learned Single Judge has rightly concluded that no recovery of the salary for the period commencing from 1.9.2001 to 31.8.2005 could be effected from the petitioner nor any cut in his pension could be imposed. 6. Having heard learned counsel, we are of the view that opinion expressed by the learned Single does not suffer from any legal infirmity warranting interference of this court. Appeal is without any merit and the same is dismissed. ( M.M.KUMAR ) JUDGE 7.12.2010 ( RITU BAHRI ) VK JUDGE