IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11761 of 2010 Istakhar S/O Jahir Khan R/O Mohalla- Bhadodih, Ward No. 4, P.S.- Jhumari Tilaia, Distt.- Kodarma. …Petitioner Versus 1. The State Of Bihar 2. The Secretary, Road Construction Department, Govt. Of Bihar, Patna 3. The Chief Engineer, National Highway (Mechanical), Visheshwaraiya Bhawan, Bailey Road, Patna 4. The Superintending Engineer (Mechanical), National Highway Mechanical Circle, Patna 5. The Executive Engineer, National Highway Mechanical Division, Nawadah. … Respondents For the Petitioner : M/s. Satish Chandra Jha-3 and Dhirendra Kumar Singh, Advocates. For the Respondent Nos. 1 to 5 : Mr. Saroj Kumar Sharma, A.C to A.A.G-V ---------------------------------- 2 01.12.2011 Heard learned counsel for the petitioner and the State. The petitioner stated to be a Mechanic, Grade-II is aggrieved by the orders dated 09.10.2007 and 29.03.2008. They determine his date of superannuation as 31.08.2003 and directs recovery of salary from him for the period spent in service thereafter till issuance of the impugned order. It is submitted that the petitioner had furnished his date of birth as 12.08.1955 and his scheduled superannuation is in the year 2015. It is denied that there is any interpolation in the service book of his date of birth correcting it from 12.08.1945. There has been no proper inquiry with regard to the alleged interpolation in the service book. The petitioner had to be given an opportunity to defend himself and there can 2 be no presumptions against him. His date of birth as 12.08.1955 is also mentioned in his Income Tax PAN Card, as also the School Leaving Certificate (read transfer). No objections were raised even after 31.08.2003 and the petitioner was allowed to work and has earned remuneration for duties discharged by him. The petitioner denies having given any letter in writing on 29.07.2009 acknowledging that his date of superannuation should correctly be 31.08.2003 and requesting recovery of the excess emoluments paid to him from his superannuation benefits. Learned counsel for the State contended that the petitioner was the direct beneficiary of the interpolation done in this service book. Reliance is placed on the extract of the service book appended to the counter affidavit clearly suggesting corrections in the same. There has been a fraudulent conduct on part of the petitioner to obtain a benefit not legitimately due to him. Reliance has been placed on a Full Bench decision in 2007 (3) PLJR 398 ( Ram Binod Singh Vrs. Bihar State Electricity Board). The Court is afraid that the principles laid down by the Full Bench have no application in the facts of the present case. The question for consideration before the Full Bench was different in nature with regard to promotions and other service benefits granted on account of wrong fixation of pay contrary to government guidelines and procedures. 3 There can be no two opinions that if a person has obtained a benefit of extended service contrary to the law, he is answerable with all its consequences. But there has to be finding first. Undoubtedly, the service book appears to bear corrections. When were the corrections made is a question of fact. The correction could have been made immediately after the original entry itself. It could have been made subsequently later in time. The two would have different connotations. Who made the corrections, when and under what circumstances? An allegation of interpolation is not proof. It had to be proved in accordance with law that the corrections had been made by a procedure contrary to the law. The petitioner had to be given an opportunity by a show cause notice, his defence considered and then a finding given for the manner in which the corrections in the service book came to be made. That procedure has not been followed. The reliance of the petitioner on School Transfer Certificate is of no help. The question of date of birth is always a disputed question of fact. If the petitioner was required to raise issues for correction of date of birth within a period of 10 years under the Bihar Finance Rules, surely the respondents were also expected to take corrective action, if necessary, within a reasonable time. The respondents were the custodian of the service book. There is no explanation when they became aware of the corrections in the service book and 4 why they proceeded in a unilateral manner for determination of issues. If they were in possession of the service book, they ought to have raised the issue before the due date. There are no explanations forthcoming. The question of the actual date of birth of the petitioner cannot be examined in this writ petition and shall have to be the subject matter of an appropriate proceeding where oral and documentary evidence can all be led. Counsel for the State has urged from the letter dated 29.07.2009 of the petitioner acknowledging superannuation on 31.08.2003. It is contended that the controversy has been set at rest by the petitioner himself. Nothing survives for adjudication and recovery has to be made of the excess salary paid thereafter which the petitioner has also agreed to. Counsel for the petitioner has disputed that it is not a letter written by the petitioner. Alternatively, it has been submitted that it does not prevent the petitioner from challenging the same as may be permissible in law. If the letter stated to have been written by the petitioner was not in dispute at all, there may have been no difficulty. The petitioner denies the letter. Whether the letter was written by him or not itself becomes a disputed question of fact. The Court shall, therefore, evade that course of action. Even if the petitioner has written the letter, if the law aids him he cannot be denied the right to raise a defence in the law 5 notwithstanding the same. In, (2011) 11 SCC 1 ( Revanasiddappa v. Mallikarjun) it was hled :- 22….. Even it they had, they could not be denied the right to appeal to this Court on any principle of estoppel unless the respondent could show that the appellants had thereby gained an advantage which was otherwise not available to them;… Otherwise merely giving an undertaking does not foreclose a tenant from availing of any statutory remedies available to him by way of appeal or revision or under the Constitution. The signature of the petitioner on the disputed letter reflects that he is not a literate person. It is more a scribble than the initials of an educated person. If the entire letter had been written in his hand by scribble the matter would have been entirely different. The letter is neatly typed on a computer. The crucial date of superannuation could easily have been typed simultaneously if it was being prepared in presence of the petitioner. There was no justification to leave the crucial date of 31.08.2003 as a „fill in the blank‟. The petitioner has furnished an explanation with regard to the letter of the circumstances under which he was made to sign it. The Court does not consider it necessary to go into the same as it is satisfied from the tenor of the letter itself as discussed that it 6 was not written voluntarily. The date of his superannuation as 31.08.2003 is beyond controversy in so far the writ Court is concerned, having been observed it to be a disputed question of fact. The only question remains with regard to the return of the monetary benefits that he may have obtained by working thereafter. It has been observed that the service book was in possession of the respondents. No explanation is forthcoming why matters were not raised by them in due time and the petitioner allowed to work. The entire action of the respondents is unilateral. If the petitioner has to explain, the situation is no better for the respondents. Whatever has been paid to the petitioner, was remuneration earned for the work done by him. He was not given any payments gratis. The respondents have availed and utilized his service even after the date of superannuation. The petitioner is, therefore, held entitled to the same and no recovery can be ordered. However, for all other purposes of pension etc. his date of superannuation shall be 31.08.2003. Considering a similar matter it was held in (2009) 3 SCC 117 ( State of Bihar v. Pandey Jagdishwar Prasad) :- “19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the 7 authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. 22. As noted hereinearlier, in the service book of the respondent, two dates of birth have been mentioned, which is not permissible. It cannot be conceived of that the authorities could not examine the possibility of two dates of birth to be entered in the service book of the respondent. They ought to have deleted the initial date of birth based on the matriculation certificate if the appellants were of the view that the affidavit sworn by the respondent was correct and the date of birth appearing in the matriculation certificate must be found to be incorrect, it is needless to say that the affidavit sworn by the respondent must be on the basis of documents produced by the respondent to show that the date of birth entered in the service book initially was incorrect. Instead, the appellant had not issued 8 any notice of retirement of the respondent on 28.02.2002, which was the date for retirement of the respondent on his attaining superannuation i.e. on the basis of the date of birth shown in the matriculation certificate. On the other hand, the appellant allowed the respondent to work and got works from him and paid salary. Only for the first time, the appellant took note of two dates of birth after he had completed two years from the date of his actual date of retirement. 23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years‟ salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and 9 considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent. 30. There is another aspect in this matter. Although we have directed that the excess amount paid for two years to the respondent as salary cannot be recovered from the respondent, but we make it clear that for fixing the retiral benefits, the period of two years in respect of which salary was received by the respondent cannot be taken into consideration and the respondent would be entitled to fixation of retiral benefits as on the date of his superannuation i.e. 28.02.2002.” On a representation to be filed by the petitioner, let his post retirement benefits be now determined in accordance with the present discussion. The impugned orders are set aside to the extent that 10 they direct recovery only. The writ application is allowed to the extent indicated above. Md. Ibrarul (Navin Sinha, J.)