Pramod Chandra Saikia vs Assam Power Distribution Company ...
2021 Latest Caselaw 1565 Gua

                                                                  Page No.# 1/9

GAHC010256282018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/7982/2018

            PRAMOD CHANDRA SAIKIA
            S/O- LATE SOMESWAR SAIKIA, R/O- NARTAMPANIGAON, NEAR KAPILI
            HOSPITAL, H NO. 21/B, P.O- ITACHALI, NAGAON, PIN- 782003



            VERSUS

            ASSAM POWER DISTRIBUTION COMPANY LTD. AND 2 ORS
            BIJULI BHAWAN, PALTAN BAZAR, GUWAHATI- 01, ASSAM

            2:THE CHIEF GENERAL MANAGER(D)
            APDCL (CAR)
             BIJULEE BHAWAN
             PANBAZAR
             GUWAHATI- 781001

            3:THE STATE OF ASSAM
             REP. BY THE SECRETARY TO THE GOVT OF ASSAM
             DEPTT OF POWER
            ASSAM SACHIVALAYA
             DISPUR
             GUWAHATI- 78100

Advocate for the Petitioner   : MR. A DASGUPTA

Advocate for the Respondent : SC, APDCL




                                   BEFORE
                 HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

                                        JUDGMENT

Page No.# 2/9

Date : 20-05-2021

Heard Mr. A. Dasgupta, learned senior counsel appearing for the petitioner. Also heard Mr. D. Bhattacharjya, learned standing counsel appearing for the respondent Nos.1--3 and Mr. T.C. Chutia, learned standing counsel appearing for the Board of Secondary Education, Assam (SEBA), respondent No.4.

2. The case of the petitioner is that he was appointed as a peon in the Assam State

Electricity Board, in the year 1981, which was subsequently named as Assam Power

Distribution Company Limited (hereinafter referred to as 'the APDCL'), a Govt. Company. He

joined in his service on 16.02.1981, in Transmission and Transformation Station at Lanka and

later on he was posted in Transmission and Transmission Division at Nagaon. At the time of

his appointment, he had not passed the HSLC examination and his date of birth was recorded

on the basis of a certificate, issued by the Head Master of Pitambar Dev Goswami High

School where he persuaded his studies. In terms of that certificate his date of birth was

25.01.1957. Subsequently, the petitioner passed his HSLC examination under the Board of

Secondary Education, Assam (in short 'SEBA') in the year 1984. In the HSLC examination pass

certificate, his date of birth was recorded as 01.08.1959. After passing the HSLC examination

the petitioner submitted his certified issued by the SEBA and in terms of the date of birth as

indicated in the HSLC pass certificate, the petitioner's date of birth was rectified in his service

book. Moreover, considering his newly acquired educational qualification, the petitioner was

allowed to officiate in the post of Assistant Store keeper on 18.01.1988. Petitioner was

subsequently promoted to the post of U.D. Assistant on 26.09.2017.

3. In terms of the date of birth, recorded in the School Leaving Certificate i.e.

01.08.1959, the petitioner's date of superannuation would be on 31.08.2019. His date of birth

was accepted by the authorities of the APDCL and the petitioner was promoted to the post of Page No.# 3/9

UDA on 26.09.2017. Had it been not so, the petitioner would have been released from his

service on 01.02.2017, on the basis of the certificate issued by the Head master of Pitambar

Dev Goswami High School. On 26.09.2018, the Chief General Manager (D) of the APDCL

(Car), Guwahati, issued a letter whereby it was intimated to the petitioner that his date of

birth was modified by the Divisional Engineer, NED-II, without taking any approval from the

competent authority, stating that the petitioner's date of birth, as recorded in the certificate

issued by the SEBA, cannot be accepted. However, his qualification as indicated in the

certificate of the SEBA will be accepted. The authorities of the APDCL was of the view that

the petitioner's actual date of superannuation is on 31.01.2017, as he continued in his service

beyond this date, the authorities were of the view that the petitioner had over stayed in his

service from 01.02.2017. Accordingly by the communication dated 26.09.2018, the petitioner

was informed that the excess pay and allowances, drawn by the petitioner w.e.f. 01.02.2017

will be recovered from his gratuity and other post retirement benefits.

4. The petitioner contended that he submitted a representation on 04.10.2018, in

response to the communication dated 26.09.2018, wherein he reiterated that he joined in his

service on 16.02.1981 and as per the certificate issued by the Head Master of Pitambar Dev

Goswami High School, his date of birth was recorded as on 25.10.1957 but in his HSLC

examination pass certificate, his date of birth was recorded on 01.08.1959 and he requested

the authority to accept his date of birth as per the HSLC examination pass certificate.

5. On 29.10.2018, the Chief General Manager, APDCL vide order No.CGM(D)/

APDCL(CAR)Estt-130/2018/8, informed that his date of superannuation should have been

31.01.2017 and the pay and allowances drawn by the petitioner during his overstay in

service, would be recovered from his post retirement benefit. It is contended by the petitioner Page No.# 4/9

that the order dated 29.10.2018 is illegal and if the same is allowed to stand, it will illegally

deprive the petitioner from his means of livelihood. Accordingly the petitioner begs for setting

aside and quashing of the impugned order dated 29.10.2018.

6. In response to his prayer, the respondents submitted their stand by filing separate

affidavits.

7. In their joint affidavit, the respondent Nos.1--3 pleaded that, as per his service record,

the date of birth of the petitioner was 25.01.1957, (recorded in his Service Book) (Pt-I) under

the seal and signature of the then Controlling Officer of the petitioner, at the time of opening

the service book. His date of birth was recorded as per the certificate issued by the Head

Master of the Pitambar Dev Goswami High School, Nagaon. The petitioner joined in his

service on 16.02.1981, when he did not pass the HSLC examination and he passed the HSLC

examination in the year 1984. In this circumstance, the date of birth recorded in the HSLC

examination pass certificate, issued by the SEBA cannot be accepted, as there can be no two

date of birth of the petitioner. However the petitioner was promoted to the higher post as

per the HSLC examination pass certificate. The plea of the petitioner that his date of birth

was subsequently rectified in his service book as per the HSLC examination pass certificate,

issued by the SEBA by the Controlling Officer, was denied by the respondents stating that the

rectification of date of birth in the service book was made, without approval of the competent

authority and as the matter did not come to the notice of the respondent authorities in time,

the petitioner got promoted to a higher post, instead of retirement.

8. It is further stated by the respondent Nos.1--3 that as the petitioner passed the HSLC

examination during the course of his service, his newly acquired qualification was considered Page No.# 5/9

for promotion. But his date of birth as per the HSLC examination pass certificate is not

acceptable on the following grounds: (1) there can be no two dates of birth of the petitioner,

(2) the petitioner passed the HSLC examination in the year 1984 i.e. after his joining in

service in the ASEB, as a peon on 16.02.1981 and (3) the date of birth of the petitioner was

clearly recorded in the Service Book as 25.01.1957, on the basis of the school certificate. The

petitioner himself admitted in paragraph 3 of the writ petition that his date of birth as

25.01.1957 was recorded in his Service Book, on the basis of the certificate issued by the

Headmaster of Pitambar Dev Goswami High School. This date of birth was recorded at the

time of opening of the Service Book under the seal and signature of the then Controlling

Officer of the petitioner.

9. As regards the release of the petitioner from service on 01.02.2017, it is stated by the

respondent Nos.1--3 that the matter did not come to the notice of the respondent authorities

in time and when the matter was placed before the appropriate authority i.e. the Chief

General Manager (D) of the APDCL (Car), Guwahati on 06.06.2018, by the concerned

controlling authority i.e. the Assistant General Manager, Nagaon Electrical Division-II, APDCL

(Car), Nagaon, vide letter No.AGM/NED-II/APDCL/CAR/E-12/2018/563, the petitioner had

already overstayed in his service and the Chief General Manager (D) of the APDCL (Car),

Guwahati, vide letter dated 29.10.2018, confirmed that the date of retirement of the

petitioner was 31.01.2017 and the Assistant General Manager, Nagaon Electrical Division-II,

APDCL (Car), Nagaon was directed to release the petitioner from the service immediately,

considering his retirement of 60 years on 31.01.2017.

10. The respondent No.4/the Board of Secondary Education, Assam also filed their affidavit

wherein it stated that after proper verification of record, the petitioner appeared in the HSLC Page No.# 6/9

Examination, held in 1984 vide Roll R-22, No.947 and as per the record available with them,

his date of birth is 01.08.1959.

11. Heard the submission of learned counsel appearing for the respective parties and

perused the record.

12. The small question raised in this petition as to the date of retirement of the petitioner,

as to whether same is to be counted from the date of entry into the service book as per the

school certificate or as per the HSLC Pass Certificate? To answer the issue, a little bit

appreciation of the matter is required as per the pleadings of the parties. According to the

petitioner himself, his date of birth is 25.01.1957, as per the school certificate, issued by the

Headmaster of the Pitambar Dev Goswami High School, where he pursued his studies and the

same entered into the service book, but as per the HSLC certificate, his date of birth is

recorded as 01.08.1959. So, he has prayed to count his date of birth as per the HSLC

certificate.

13.The respondent authority, although entered his date of birth in the service book as per the

initial school certificate, but subsequently, on production of the HSLC Pass Certificate, his date

of birth was corrected. The petitioner was also duly promoted to the next promotional post on

the basis of his school certificate. But at the time of his retirement, the respondent authority

found that the earlier correction of the service book was not made after obtaining due

approval from the higher authority, so, it cannot prevail. More particularly, one person cannot

have two birth dates and accordingly, the respondent authority has decided to accept the

date of birth as given by the initial school certificate and has issued the impugned order to

the petitioner, intimating the petitioner all about the matter that, actual date of Page No.# 7/9

superannuation of the petitioner would be 31.01.2017, as per the date of birth as on

25.01.1957.

13. The crucial fact to be noted in the present case is that the petitioner nowhere denied

the earlier date of birth as recorded in the school certificate, that was furnished to the

respondent authority and equally, he has claimed that his date of birth should be recorded as

per the HSLC certificate issued by SEBA. Such a contention raised by the petitioner cannot be

allowed to prevail simply because, there cannot be two dates of birth of a person. In either

case, we can draw inference that one of date is incorrect. It is not difficult to accept that it

was the petitioner or his guardian, who has changed the date of birth at the time of

submitting particulars before the Board of Secondary Education (SEBA) and the same has

been recorded by the SEBA. That being so, act of the petitioner appears to be not bonafide

and a wrong doer cannot claim the privilege of his own wrongful conduct and it will be wholly

unjustified one. Only because the respondent authority recorded his date of birth as shown in

the HSLC certificate, cannot be a ground to justify the claim of the petitioner. One who seeks

equity has to come with clean hands, which is not the case of the petitioner.

14. The impugned order dated 29.10.2018 of the Chief General Manager (D), APDCL, has

stated all about the fact that his date of birth was recorded initially as 25.01.1957, as per the

school certificate and later on, date of birth was modified as on 01.08.1959, by the Divisional

Engineer, on the basis of HSLC certificate, but the Divisional Engineer is not authorized to

correct the Service Book and as the same has come into the notice of the authority, with an

opportunity given to the petitioner to submit the representation, respondent authority has

confirmed the date of birth as 25.01.1957 and date of superannuation on 31.01.2017, at the

age of 60 years with further direction that excess amount for the overstayed period w.e.f.

Page No.# 8/9

01.02.2017, be recovered from his pensionary benefit.

15. The aforesaid order does not suffer from any sort of irregularity, as regards the date of

birth and superannuation, but, however, matter of recovery is to be considered. The learned

counsel for the petitioner submits that the petitioner being a Grade-III employee, recovery of

excess pay for overstay in service is impermissible, in view of the judgment of the Hon'ble

Supreme Court in State of Punjab & Ors. -Vs- Rafiq Mashih (White Washer); reported in

(2015) 4 SCC 334.

16. In the case of Rafiq Mashih (supra), the Hon'ble Apex Court has summarized few

situations, wherein recoveries by the employers would be impermissible in law.

i) Recovery from the employees belonging to Grade-III and Grade-IV

Service (or Group-C and Group-D Service).

ii) Recovery from the retired employees or employees who are due to

retire within one year of the order of recovery.

iii) Recovery from the employees, where the excess payment has been

made for a period in excess of 5 years before the order of recovery is issued.

iv) Recovery in cases, where an employee has wrongfully been required

to discharge duties of a higher post and has been paid accordingly, even though

he should have rightfully been required to work against an inferior post.

v) In other case, where the Court arrives at a conclusion that the

recovery it made from the employee would be iniquitous or harsh or arbitrary to

such extent as would far outweigh the equitable balance of the employers' right

to recover.

Page No.# 9/9

17. This Court has been informed by the learned Standing Counsel for the APDCL that in

the light of the above decisions, the respondent authority (Chief General Manager (HRA),

APDCL), has already issued an order dated 25.04.2018 (copy produced before the Court) that

the authority has already directed not to recover excess amount due from wrong fixation of

pay as per the above guidelines. Accordingly, the authority is not going to recovery any

excess amount for the overstayed period by the petitioner.

18. Having regard to all the matters, this Court is not inclined to interfere into the

impugned order passed by the respondent authority dated 29.10.2018. The date of

superannuation of the petitioner will be 31.01.2017, as per the Service Book, where date of

birth was initially recorded as 25.01.1957.

19. As assured by the respondents' side, there will be no recovery for the overstayed

period, it is accordingly directed that the respondents will release the pensionary benefit to

the petitioner, as indicated above, within a period of 2 (two) months from the date of order.

20. In terms of above, petition stands disposed of.

JUDGE

Comparing Assistant