Bombay High Court
Rajkumar Narayan Sathurwar vs Union Of India Thru Secretary, Dept. Of ... on 2 February, 2024
2024:BHC-AS:5498-DB
3013.19-wp.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3013 OF 2019
Rajkumar Narayan Sathurwar
Mailman (Retired) from R.M.S.,
B Division, Pune, Railway Mail Service,
Pune, r/at 1804, 25, Bhimpura Lane,
Near Babajan Chowk, Pune - 400 001 ..... Petitioner
Versus
1 Union of India,
Through the Secretary, Dept of Posts
Ministry of Communication,
Dak Bhawan, New Delhi - 110 001
2 The Director of Postal Services
Office of the Post Master General,
Pune Region, Pune - 3
3 The Director of Accounts (Postal)
Maharashtra Circul, Nagpur - 440 001
4 The Head Record Officer,
R.M.S. B Division, Pune ..... Respondents
Mr. A. S. Rao for the Petitioner
Mr. Ashok D. Shetty a/w. Ms. Anamika Malhotra for the
Respondents - Union of India.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : FEBRUARY 2, 2024
ORAL JUDGMENT (PER : CHIEF JUSTICE)
1. Heard learned counsel representing the respective parties
and perused the record available before us on this petition.
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2. This petition challenges the judgment and order passed by
the Mumbai Bench of the Central Administrative Tribunal
(hereinafter referred to as the "Tribunal") passed in Original
Application No.424 of 2016 whereby though the Original
Application was allowed in respect of certain prayers made by
the Petitioner, however, the claim of wages to the Petitioner for
the period from 1st May 2010 to 25th September 2014 has been
denied and in lieu whereof it has been directed by the Tribunal
that for the said period the Petitioner shall be paid wages as a
freshly recruited employee.
3. The Petitioner was initially appointed on the post of Extra
Departmental Mailman with the Railway Mail Service at Pune.
His services were regularized on the post of Mailman on 19 th
February 1997. At the time of entering in employment of the
Respondents, his date of birth was recorded as 14 th June 1968,
which in fact, is not his date of birth but the date of leaving
school as per his school leaving certificate. His actual date of
birth is 8th April 1950 and based on his date of birth, the
Petitioner would have retired on 30 th April 2010 on his attaining
the age of superannuation of 60 years. Instead of being retired
on superannuation on 30th April 2010, the Petitioner was allowed
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to work on his post till 25 th September 2014 when his
employment was terminated.
4. A show cause notice was issued to the Petitioner on 27 th
July 2015 stating therein that he had disclosed false date of birth
in the service records which enabled him to continue beyond the
age of superannuation and accordingly, an explanation was
called for from him to show cause as to why his pension, pay
and allowances and other financial benefits such as medical
reimbursement from 1st May 2010 till 25th September 2014 may
not be recovered from his pension and pensionary benefits.
5. The Petitioner submitted his reply to the show cause notice
on 3rd August 2015 with a supplementary reply on 7th August
2015 whereby the Petitioner categorically denied that he was in
any manner responsible for the incorrect entry in the Service
Book. He also stated that the responsibility for entry of wrong
date of birth cannot be attributed to him and that the
responsibility, in fact, lied on the departmental authorities for
wrongly recording his date of birth. In substance, the Petitioner
submitted that since the discrepancy of recording incorrect date
of birth as 14th June 1968 in the service record in place of 8 th
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April 1950 cannot be attributed to the Petitioner and that the
Petitioner had submitted his school leaving certificate at the time
of entering in service which disclosed the date of birth to be 8 th
April 1950 and not 14th June 1968, as such he may not be held
responsible for his alleged illegal continuance in service even
after 30th April 2010.
6. The Department, however, was not convinced with the
reply / explanation submitted by the Petitioner to the show
cause notice and accordingly, passed an order on 25 th September
2014 whereby his services were terminated. On the basis of his
date of retirement as 30th April 2010, provisional pension was
sanctioned to the Petitioner in addition to leave admissible to
him for the period 1st March 2010 to 30th October 2010. An
amount of Rs.60,000/- was also sanctioned towards (Death Cum
Retirement Gratuity) DCRG, however, this amount was not
disbursed, hence, the Petitioner instituted the Original
Application before the Tribunal.
7. The Tribunal, by passing the impugned judgment and order
returned a finding that so far as the claim of the medical
reimbursement is concerned the Department has already
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reimbursed the amount and further that the Petitioner had made
monthly contribution to Central Government Health Scheme
(CGHS) which would have constituted deduction on monthly
basis even after his actual date of retirement till his services
were terminated. The Tribunal further observed in the impugned
judgment and order that the amount paid would also have been
regulated as per the CGHS Rules and thus, in the circumstances,
the recovery of amount of medical reimbursement could not be
made.
8. As far as the claim of the Petitioner for pension and
gratuity etc., the Tribunal in its judgment and order has observed
that the Petitioner shall be entitled to pension, gratuity, leave
encashment etc. upto the date of his actual retirement till 30 th
April 2010 and further that any leave earned or encashed after
30th April 2010 cannot be the responsibility of the Respondents
and as such the amount will have to be recovered. The Tribunal
has concluded that the amount of pension, gratuity and leave
encashment will have to be calculated based on the correct date
of retirement i.e. 30th April 2010.
9. For the wages earned by the Petitioner for the period from
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30th April 2010 till 25th September 2014 it has been observed by
the Tribunal that for such period, the wages will have to be paid
to the Petitioner treating him to be a new recruit. It is against
this part of the directions issued by the Tribunal that the
Petitioner is aggrieved and has instituted the instant Writ
Petition.
10. So far as the payment of medical reimbursement etc. is
concerned, the Tribunal has already provided in the impugned
judgment and order that the recovery of the said amount cannot
be made from the Petitioner and since the judgment rendered by
the Tribunal is not challenged by the Respondents, this Court
need not adjudicate on the said issue and accordingly, we hold
that no recovery of the amount of medical reimbursement shall
be made from the Petitioner.
11. As regards the payment of amount of pension, gratuity and
leave encashment, we may only observe that the Tribunal has
rightly found that such amount shall be payable to the Petitioner
till the date of his actual retirement i.e. 30 th April 2010. We do
not find any reason to interfere with such findings recorded and
the directions given by the Tribunal in respect of the amount of
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pension, gratuity and leave encashment for the reason that even
the Petitioner does not dispute that his actual date of birth is 8 th
April 1950 and not 14th September 1968 and hence he would
have actually retired on 30th April 2010.
12. In these circumstances, the question of payment of
pension, gratuity and leave encashment to the Petitioner for the
period from 30th April 2010 till 25th September 2014 does not
arise and we accordingly, affirm the said finding recorded and
the directions given by the Tribunal in the impugned judgment
and order.
13. The only question which remains to be considered is
regarding the claim of the Petitioner for payment of wages for
the period from 30th April 2010 till 25th September 2014. As to
whether the Petitioner shall be paid his wages treating him to be
a new recruit for this period or he is otherwise entitled to the
wages treating him to be a regular employee who continued to
work till 25th September 2014, shall depend on the issue as to
whether the Petitioner can be held responsible for wrong entry of
date of birth in his service records or such responsibility lies on
the Respondents.
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14. At the time of entering in service with the Respondents, the
Petitioner relied upon the school leaving certificate which
depicted the date of school leaving as 14 th June 1968. The said
school leaving certificate also recorded the actual date of birth of
the Petitioner i.e. 8th April 1950. In this school leaving
certificate, on the basis of which the Petitioner sought entries in
his Service Book, the date of birth mentioned is 8 th April 1950
and not 14th June 1968. Thus, it cannot be said that the
Petitioner was guilty of any misrepresentation or submission of
any false or fabricated document i.e. the school leaving
certificate. Once the Petitioner submitted the said school leaving
certificate, it was the responsibility of the departmental officers
to have correctly recorded his date of birth based on the school
leaving certificate which depicted the date of birth to be 8 th April
1950 and not 14th June 1968.
15. It is also on record that in the Attestation Form tendered by
the Petitioner he has recorded his actual date of birth i.e. 8 th
April 1950 and not 14th June 1968.
16. The provisions relating to maintenance of Service Books
pertaining to Government servants are governed by
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Supplementary Rule 202 (S.R. 202) according to which it is the
duty of every Head of Office to show the Service Books to the
Government servants under his administrative control every year
and to obtain their signature in token of their having inspected
the Service Books. S.R. 202 is extracted hereinbelow:
"S.R. 202. It shall be the duty of every Head of Office
to initiate action to show the Service Books to the
Government servants under his administrative control
every year and to obtain their signature therein in token of
their having inspected the Service Books. A certificate to
the effect that he has done so in respect to the preceding
financial year should be submitted by him to his next
superior officer by the end of every September. The
Government servants shall inter alia ensure before affixing
their signature that their services have been duly verified
and certified as such. In the case of a Government servant
on foreign service, his signature shall be obtained in his
Service Book after the Audit Officer has made therein
necessary entries connected with his foreign service."
17. The afore-quoted S.R. 202 not only casts a duty on the
Head of Office to show the Service Book to the Government
servant concerned who is under his administrative control every
year and to obtain his signature but it is also that a certificate to
the effect that he has done so, should be submitted by him to
his next superior officer. Such provision in S.R. 202 has been
made so as to check the discrepancies creeping in service
records however, in the instant case, there is nothing on record
to show that Head of Office, under whom the Petitioner had been
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discharging his duties on his post ever showed the Service Book
to the Petitioner to obtain his signature as a token of his having
inspected the Service Book. It is, thus, the responsibility of the
Head of Office to ensure that Service Book contains correct
entries and since such duty was not discharged by the Head of
Office in respect of the Service Book of the Petitioner, wrong
entry in the Service Book cannot be attributed to the Petitioner.
As already observed above, the Petitioner did not misrepresent
his date of birth. He claimed that in the school leaving certificate
tendered by him the date of birth of the Petitioner recorded is 8 th
April 1950 and not 14th June 1968. There is nothing on record to
establish that the wrong date of birth of the Petitioner had crept
in the Service Book on account of any malicious act on the part
of the Petitioner and, thus, holding him responsible for his
continuance in employment even after 30th April 2010 cannot be
said to be tenable.
18. For the aforesaid reasons, we do not find ourselves in
agreement with the judgment and order passed by the Tribunal
which is under challenge before us to the extent the judgment
directs that the Petitioner shall be paid his wages from 1 st May
2010 till 25th September 2014 treating him to be a new recruit.
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19. Accordingly, the Writ Petition is allowed, in part.
20. It is also directed that no recovery of the amount of
medical reimbursement shall be made from the Petitioner,
however, he shall be entitled to the amount of pension, gratuity
and leave encashment etc. treating 30th April 2010 as his date of
retirement and in case any excess amount has been paid against
the claim of the pension, gratuity, leave encashment etc., the
Petitioner shall be liable to repay the same.
21. As far as the payment of wages to the Petitioner from 1 st
January 2005 to 25th September 2014, we direct that he shall be
paid wages treating him to have continued on regular post
during this period as well and not treating him as a new recruit.
22. The compliance of this order shall be made by the
Respondents within three months from the date a certified copy
of this order is produced before the competent authority.
23. There will be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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