Union Of India (Uoi) vs Sewak Ram
2002 Latest Caselaw 601 Del

JUDGMENT

Anil Dev Singh, J.

1. This letters patent appeal is directed against the order of the learned Single Judge dated 26th September, 2001. By that order the petition filed by the respondent seeking a direction, inter alia, to the appellant to pay to the latter entire pension and other retiral benefits to him for the entire period of service rendered by him was allowed. The facts giving rise to the appeal are as follows:-

2. On 7th October, 1971, the respondent was enrolled in the Central Industrial Security Force as a tailor. At the time of enrollment the respondent declared his date of birth as 2nd March, 1934, which was recorded in his service book. Subsequently, on the basis of the birth certificate produced by the respondent, entry relating to his date of birth in the service book was amended by recording his date of birth as 2nd January, 1938. IN view of the aforesaid change, the respondent superannuated on 31st January, 1998, when he attained the age of 60 years computed on the basis of his date of birth being 2nd January, 1938. After the respondent was allowed to retire on 31st January, 1998, pension and retrial benefits were not released by the appellant on the ground that the date of birth of the respondent was altered from 2nd March 1934 to 2nd January, 1938 unauthorisedly without the orders of the competent authority. Feeling aggrieved by the action of the appellant, the respondent filed a writ petition in this court.

3. The learned Single Judge, after hearing counsel for the parties and considering the argument advanced before him, by a detailed order directed as follows:-

"...Accordingly, the writ petition is allowed to the aforesaid extent with a direction to the respondents to pay pensionary and other retiral benefits to the petitioner computing his service rendered to the respondents from 7th October 1971 till 31st January 1998. Pending application stands disposed of accordingly. There shall, however, be no order (as) to costs."

4. We do not find any infirmity in the order passed by the learned Single Judge. The date of birth which was originally recorded nt he service book of the respondent was altered from 2nd March, 1934 to 2nd January, 1938 by the appellant. On the basis of the changed date of birth the respondent was allowed to work till the age of 60 years. The appellant cannot now turn around and say that it will not count a period of about four years of service rendered by the respondent for the purposes of computing his retiral benefits even though work was taken from him. That apart it is well settled by a catena of authority that in case an employer wants to effect a change in the recorded date of birth of an employee he is bound to give opportunity to the latter to show cause against the proposed action. This principle has been thrown to winds by the appellant in the case of the respondent. It seems to us that such an opportunity must be given before a person superannuates. It seems to us that such an opportunity must be given before a person superannuates. After a person is allowed or made to work for a specific period of time according to the date of birth recorded in his service book, subsequently that period or any part thereof cannot be ignored for the purposes of calculating his pension on the ground that the date of birth was erroneously recorded or altered unless it is show that the entry was made on account of a fraud practiced by the employee. In the instant case there is no allegation of the respondent having practiced a fraud on the appellant.

5. We also find that the appeal is inordinately delayed and there is no justification to condone the delay.

6. The appeal is devoid of merit and is accordingly dismissed. Since the appeal, has been dismissed by us, the appellants shall pay the retiral benefits to the respondent within a period of four weeks from today failing which interest at the rate of 18% per annum will also have to be paid by the appellant.