Bombay High Court
Sayyed Shabbir Sayyed Karim vs Executive Engineer Mseb & Ors on 29 November, 2017
Bench: R.V. Ghuge
(1) Writ Petition No. 1410/2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1410 OF 2004
Sayyed Shabbir s/o Sayyed Karim
Age : 60 yrs, occu.: retired
R/o 291, Gajanan Nagar at
Kopargaon,District Ahmednagar. Petitioner.
Versus
1. Executive Engineer,
M.S.E.B. At Sangamner.
2. The Superintending Engineer
M.S.E.B., Station Road,
Ahmednagar.
3. The State of Maharashtra
Formal Party
(Copy to be served on Govt.
Pleader, High Court Bombay,
Bench at Aurangabad). Respondents.
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Smt. R.S. Kulkarni, Advocate holding for
Mr. S.D. Kulkarni, Advocate for the petitioner.
Mr. A.S. Shelke, Advocate for respondent No.1.
Mr. Y.G. Gujrathi, A.G.P. for respondent No.3.
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CORAM : RAVINDRA V.GHUGE &
SUNIL K.KOTWAL,JJ.
Reserved on : 14.11.2017.
Pronounced on : 29.11.2017.
(2) Writ Petition No. 1410/2004
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. This Writ Petition is filed under Article
226 of the Constitution of India for quashment of
the letters dated 15.11.2003 and 30.06.2003 and
for issuance of directions to respondent Nos.1 to
3 to pay one-third gratuity, 10% amount of
Provident Fund i.e. Rs. 2,33,000/-, medical
reimbursement, one year's earned leave and other
miscellaneous dues i.e. permanent interest which
comes to Rs.2,00,000/- to the petitioner.
2. Respondent No.1 is the Executive
Engineer, M.S.E.B. Sangamner, respondent No.2 is
the Superintending Engineer, M.S.E.B. Ahmednagar
and respondent No.3 State of Maharashtra is a
formal party.
3. Undisputed facts between the parties are
that the petitioner was appointed as a Sub
Engineer on 13.11.1969 and his date of birth was
mentioned as "12.03.1943" in the documents
submitted by him at the time of his interview.
The petitioner continued his service till
(3) Writ Petition No. 1410/2004
31.03.2003 when he was superannuated. Few days
before his retirement, on an application submitted
by the petitioner to respondent No.1 Office, he
was informed that his date of retirement would be
31.03.2003 after office hours. Even on 25.03.2003
respondent No.1 issued a letter to the petitioner
and informed him to remain present in the office
alongwith his wife for the farewell programme of
his retirement arranged by the Department. On
28.03.2003 respondent No.1 informed the petitioner
that the petitioner was retiring on 31.03.2003 and
he was directed to submit necessary documents
through his superior officer for getting Provident
Fund. On 06.06.2003 i.e. after retirement of the
petitioner, respondent No.1 had issued a letter
directing the petitioner to submit School Leaving
Certificate in which his date of birth is
mentioned, for the purpose of sanctioning his
final gratuity and other claims.
4. Contention of the petitioner is that
respondent Nos.1 and 2 have prepared his service
record on the basis of his correct date of birth
(4) Writ Petition No. 1410/2004
which is 12.03.1943. However, respondent Nos.1
and 2 have committed a mistake while making the
entry about the date of birth of the petitioner in
his service record and they have allowed the
petitioner to continue his service till the date
of his retirement i.e. 31.03.2003. On 15.11.2003
respondent Nos.1 and 2 served notice upon the
petitioner alleging that the petitioner tried to
tamper with his date of birth in his service
record and thereby worked for additional two years
in the service of M.S.E.B., got additional service
benefits during these additional two years and
received an amount of Rs. 4,98,924/-, contrary to
the rules. Respondent Nos.1 and 2 directed the
petitioner to refund the amount of Rs. 4,98,924/-
to the M.S.E.B.
5. Contention of the petitioner is that as
per Maharashtra Electricity Board Employees
Service Regulations, procedure for correction in
the date of birth of an employee can be done only
within one year from the date of appointment and
not thereafter. Accordingly, reply was given
(5) Writ Petition No. 1410/2004
through an advocate by the petitioner on
14.01.2004. According to the petitioner, the
demand notice dated 15.11.2003 and subsequent
orders passed by respondent Nos.1 and 2 are
arbitrary and illegal, and therefore, the
petitioner was constrained to file this Writ
Petition for the above said reliefs.
6. Heard Smt. R.S. Kulkarni, learned Counsel
for the petitioner, Shri A.S. Shelke, learned
Counsel for respondent No.1 and learned A.G.P. for
the State.
7. Learned Counsel for the petitioner fairly
submitted that the correct date of birth of the
petitioner is "12.03.1943" and in pursuant to this
date of birth, on attaining the age of 58 years,
the correct date of retirement would be
"31.03.2001". However, respondent Nos.1 and 2
wrongly recorded date of birth of the petitioner
as "12.03.1945" in his service record and allowed
him to retire on 31.03.2003. According to learned
Counsel for the petitioner, though the petitioner
(6) Writ Petition No. 1410/2004
continued in service for the excess period of two
years than his entitlement, it was not as a result
of practicing fraud at the end of the petitioner,
and therefore, the respondents cannot recover the
wages paid to the petitioner for the additional
service period of two years and the pensionary
benefits thereon. She has drawn our attention
towards the certificate issued by respondent No.1
informing the date of retirement to the petitioner
as on 31.03.2003, as well as the request letter
issued by respondent No.1 to the petitioner to
attend the farewell programme on 31.03.2003.
8. Learned Counsel for the petitioner
submitted that as per Maharashtra Electricity
Board Employees Service Regulations, no
application for alteration of entry regarding date
of birth as recorded in the service book of an
employee can be entertained after a period of one
year from the date of his entry in the Board's
service. She placed reliance on the judgments in
the cases of "Gaurabai Vs. State of Maharashtra
and others" reported in [2015 (3) Mh.L.J. 552],
(7) Writ Petition No. 1410/2004
"Vishnu Manerikar Vs. State of Goa and others"
reported in [2012 (4) Mh.L.J. 443) and "Balwant
Mohan Badve Vs. Ahmednagar Municipal Corporation"
reported in [2016 (4) Mh.L.J. 954].
submitted that the correct date of birth of the
petitioner i.e. 12.03.1943 was recorded in his
service book, which is also mentioned in the
Seniority List of Junior Engineers published on
31.03.1995. However, subsequently the petitioner
managed to manipulate the date of birth and
changed it as "12.03.1945".
10. Learned Counsel for respondent No.1
submits that the petitioner was aware about his
his correct date of birth and the manipulation
done by him in his own service record with the
help of other staff members, and therefore, few
days prior to his retirement, he requested the
Department to inform him about date of his
retirement, only to create evidence. Learned
Counsel for respondent No.1 submits that in the
(8) Writ Petition No. 1410/2004
ordinary course of nature an educated person would
not inquire about his correct date of retirement.
In brief, the contention of the learned Counsel
for respondent No.1 is that the petitioner cannot
take benefit of his own wrong. He placed reliance
on the judgments in the cases of "G.M. Bharat
Coking Coal Limited, West Bengal Vs. Shib Kumar
Dushad" reported in [2000 (1) ALL.M.R. 264] and
"Burn Standard Company Ltd. Vs. Dinabandhu
Majumdar" reported in [1995 AIR (SC) 1499].
11. In the wake of the submissions of the
rival parties, the admitted facts before us are
that the correct date of birth of the petitioner
is 12.03.1943, and therefore, his correct date of
superannuation after attaining the age of 58 years
would be "31.03.2001". However, in the service
book of the petitioner, his date of birth is
mentioned as "12.03.1945" instead of "12.03.1943".
Manipulation of the number '5' in place of '3' in
1943 is apparently seen.
12. Contention of the petitioner is that
(9) Writ Petition No. 1410/2004
mentioning the incorrect date of birth as
"12.03.1945" in his service book is the mistake of
the office of respondent Nos.1 and 2 and for such
mistake the petitioner cannot be blamed. On the
other hand, according to respondent Nos.1 and 2,
initially even in the service book the correct
date of birth of the petitioner was mentioned as
"12.03.1943", but with the help of some staff
members the petitioner managed to manipulate it
and changed it as "12.03.1945" by altering '3' in
1943. In fact, there is no dispute between both
the parties regarding the correct date of birth of
the petitioner as 12.03.1943.
13. The question for determination is,
whether the date of birth mentioned in the service
book as "12.03.1945" is as a result of a
manipulation or is it a slip of the pen. For that
purpose, we have perused the original service book
of the petitioner. By naked eyes, it reveals that
initially the date of birth of the petitioner was
written in handwriting as "12.03.1943", but
subsequently somebody manipulated and changed it
(10) Writ Petition No. 1410/2004
as "12.03.1945" by converting the digit "3" into
digit "5". Thus, obviously in the service book of
the petitioner, as a result of the manipulation,
the correct date of birth "12.03.1943" is changed
as "12.03.1945".
14. Though the learned Counsel for the
petitioner tried to evade the responsibility on
the ground that the petitioner was not the
custodian of the service book, it cannot be
ignored that the petitioner was the only
beneficiary due to this manipulation of the date
of birth in his service book. Even in the
Seniority List dated 31.03.1995, the date of birth
of the petitioner is shown as "12.03.1943". Thus,
the petitioner cannot claim that he was not aware
of his correct date of birth or date of
retirement. Therefore, the pointer of the
responsibility for manipulation in the service
book tilt only towards the petitioner.
15. On the scale of the "preponderance of
probability" only one inference can be drawn that
(11) Writ Petition No. 1410/2004
the petitioner is the person who managed to get
the date of birth manipulated in his own service
book. It cannot be ignored that the petitioner
being a Sub Engineer was well educated person and
certainly he was expected to be aware of his date
of birth as "12.03.1943". He was also expected to
be aware that his retirement was on 31.03.2001, on
attaining the age of 58 years.
16. Even in paragraph No.4 of the petition
the petitioner has averred that "few years prior
to the date of retirement, the petitioner felt
that there appears to be some mistake in the
record maintained by the respondent Nos.1 and 2".
Accordingly, the petitioner requested respondent
No.1 by submitting an application dated 18.01.2001
and obtained a certificate to the effect that his
date of retirement would be on 31.03.2003.
Knowingly obtaining such incorrect certificate by
the petitioner supports the inference that the
petitioner is the man behind the manipulation of
the date of birth in his own service book.
(12) Writ Petition No. 1410/2004
17. Thus, it can be concluded that the
petitioner was aware that he was due for
retirement on 31.03.2001 and he malafidely
continued in service till 31.03.2003 by taking
disadvantage of the manipulation in his own
service record.
18. In the recent judgment delivered by the
Hon'ble Supreme Court in the matters of Syed Abdul
Quadir Vs. State of Bihar and others [(2009) 3 SCC
475] and State of Punjab and others Vs. Rafiq
Masih (White Washer) [(2015) 4 SCC 334], it has
been held that though recovery is not prohibited
in each and every case, it should be assessed as
to whether the excess payment received by the
employee is a result of his handiwork. He should
have played a fraud or should have caused
misrepresentation with the intention to cause a
wrong pay fixation and thereby earn excess amount
to which he is not legally entitled to.
19. In the light of the above discussed trite
law, respondent Nos.1 and 2 are certainly
(13) Writ Petition No. 1410/2004
empowered to recover the excess payment received
by the petitioner by rendering unauthorised
service for the period of two years i.e. upto
31.03.2003 by taking disadvantage of the
manipulation of the date of birth in the service
book.
20. The judgments in the cases of Gaurabai Vs
State of Maharashtra (supra), Vishnu Vs State of
Goa (supra) and Balwant Vs Ahmednagar Municipal
Corporation (supra) are distinguishable on facts
as well as on distinct ratio decidendi. In all
these cases excess payment was not made as a
result of fraud or misrepresentation. Therefore,
the ratio of these cases is not applicable in the
present case.
21. Even the cases of G.M. Bharat Coking Coal
Vs. Shib Kumar Dushad (supra) and Burn Standard
Company Ltd. Vs. Dinabandhu Majumdar (supra) are
distinguishable, because in those cases the
Hon'ble Apex Court was considering the powers of
the High Court under Article 226 of the
(14) Writ Petition No. 1410/2004
Constitution of India in the matters of correction
of disputed date of birth. Therefore, the ratio
of those Authorities is also not applicable to the
case at hand.
22. However, as observed above, the
petitioner has received excess payment for the
period of two years even after his correct date of
retirement on 31.03.2001 by manipulating his date
of birth in his own service record. Therefore,
the action initiated by respondent Nos.1 and 2 for
recovery of such excess payment from the
petitioner cannot be termed as perverse or an
arbitrary action which calls for interference by
this Court by exercising its extraordinary
jurisdiction under Article 226 of the Constitution
of India.
23. We, therefore, hold that none of the
reliefs claimed by the petitioner can be granted.
24. In the result, this Petition being devoid
of merit, deserves to be dismissed.
(15) Writ Petition No. 1410/2004
25. Accordingly, we pass the following order.
ORDER
a) Writ Petition No 1410 of 2004 is
dismissed.
b) Rule is discharged.
c) No order as to costs.
(SUNIL K. KOTWAL) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
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