CWP No. 20169 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 20169 of 2008 Date of decision May 13, 2010 Shyam Narain ....... Petitioner Versus Haryana Power Generation Corporation Limited through its Managing Director, Shakti Bhawan, Sector-6, Panchkula and others. ........ Respondents 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Rajesh Arora, Advocate for the petitioner. Mr. Parveen Gupta, Advocate for the respondents. **** K. Kannan, J (oral). 1. The order which is challenged by the petitioner is a direction for recovery of salary and DCRG and that is referable to the period w.e.f. 1.9.2001 to 31.8.2005. Admittedly the petitioner has retired from service on 31.8.2005. His date of birth was mentioned as 7.8.1947 when as per the initial entry in the service records the date of birth had been entered as 7.8.1943. The second entry of date of birth of the petitioner as in the year 1947 appears to have been made after a discrepancy was noticed with reference to the first entry relating to date of birth as 7.8.1943 and the evidence which he had given referring to date of CWP No. 20169 of 2008 2 birth as 7.8.1947. The petitioner claimed that he was illiterate and has not passed beyond Ist standard. He had not known the actual details of date of birth at the time he joined service and after a departmental enquiry had been constituted where the charge against him was that he had deliberately given a false evidence relating to date of birth in the year 1986 that gave place to a wrong entry of his date of birth as 7.8.1947. The enquiry officer gave the following findings:- “The defendant and the prosecutor were given the full opportunity and they have put up their arguments well to clear the case related to the charges leveled in the charge sheet. In the light of the charge sheet, documents and questionnaire submitted by the prosecutor and reply to the charge sheet, personal statement and reply to the questions as submitted by the defendant, Sh. Shyam Naraijn, the following is recommended:- 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 cannot 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 cannot 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 Deptt. By deputing Sh. B. B. Mishra, Dy. Supdt. HPGCL, seems to be correct. This date of birth also CWP No. 20169 of 2008 3 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. 2. On the basis of the enquiry report a show cause notice was subsequently issued and after securing explanation from the petitioner, impugned order was passed. As per the said order, the petitioner had been treated as having retired on 31.8.2001 instead of 31.8.2005 and had imposed a cut of 2% pension. There was a further direction for recovery of pay and allowance from his DCRG for the salaries paid between 1.9.2001 to 31.8.2005. The contention of the learned counsel for the petitioner is that he is an illiterate person and that he had not committed any fraud. He would also urge that even in the official records, the respondents had themselves committed a mistake in taking wrong date in spite of the initial declaration that he had made. According to him, the mistake was a bona fide mistake and he had not committed any deliberate fraud on the respondents. He would also urge that he had actually worked from the year 2001 to 2005 and the respondents had the benefit of his service and hence they cannot deduct the wages paid during the said period. 3. Learned counsel for the respondent would state that the petitioner was guilty of fraud and he had produced a certificate to have been issued by a School that he was born in the year 1947 but upon verification it was found that the School had not issued such a certificate at all. The respondent would therefore contend that the petitioner was guilty of fabrication of records and the deduction made was therefore proper. 4. It could be noticed that the petitioner was not making an issue with reference to his date of birth and when he ought to be treated as superannuated. He has stated in the reply given to the show cause notice that he was willing to be treated as retired on 1.9.2001 and CWP No. 20169 of 2008 4 that period of employment w.e.f. 1.9.2001 to 31.8.2005 must be taken as re-employment. However, his plea that he was an illiterate person and that the punishment proposed for 2% cut in pension and for recovery of salary paid during the said period were too harsh. 5. In my view, the finding of the enquiry officer itself ought not to show that there was any deliberate fraud and mis representation on the part of the petitioner. On the other hand, the enquiry officer has stated that the mistake has come about by illiteracy and ignorance. The enquiry officer has also stated that the records were only with the respondents and the petitioner could not have altered any details found therein. He has also stated that his parents must have been interested in securing some documents for his benefit. At any rate there is nothing in the enquiry report to suggest that the petitioner was guilty of any deliberate fraud. If the petitioner was prepared to reconcile himself to the fact that he must be treated as retired in the year 2001, there ought not to be a severe punishment. It will be grossly unjust for the respondent to deduct the salary paid to him from the terminal benefits. The petitioner was a more daily rated worker in an establishment drawing the lowest scale of pay. It would be against all canons of justice to demand and recover the amount paid during the period 1.9.2001 to 31.8.2005. The pension may be reworked not on an arbitrary rate cut of 2% but instead by counting the exact number of years of service from the date of entry into service up to this date when he ought to have been superannuated if his date of birth was on 7.8.1943 and pay to him such amount as he would be entitled to on such a length of service. The impugned order deducting the salary paid during the period 2001 shall forthwith be released and the amount shall be paid within a period of six weeks from the date of receipt of copy of the order. If the amount is not paid within the said period it will bear interest at 9% per annum till the date of payment. CWP No. 20169 of 2008 5 6. The writ petition is allowed on the above terms with such modification in the impugned order as directed above. (K. KANNAN) JUDGE May 13, 2010 archana