REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6191   OF 2008 (Arising out of SLP (CIVIL) No. 5232 of 2006)

Mohd. Yunus Khan …. Appellant

Versus

U.P. Power Corporation Ltd. and others …. Respondents

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Consequence of a wrong recording of a date of birth in the service

book  of  appellant  by  the  authorities  of  the  respondents  is  the  question

involved in this appeal which arises out of a judgment and order dated 17th

May, 2004 passed by the High Court of Judicature at Allahabad in Special

Appeal No. 359 of 2004 and judgment and order dated 8th July, 2005 passed

in Review Application No.106236/04 in Special Appeal No. 359/2004.   

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3. The basic fact of the matter is not in dispute.

Appellant was appointed on or about 1st July, 1968 as Patrolman by

respondent No.5.  His date of birth in the service book was recorded as 27th

February, 1934.  However, in the school leaving certificate of appellant, his

date of birth was recorded as 1st July, 1948.   

In April, 1988 when appellant approached the office of respondents at

Basti  to know  the quantum of leave balance in his  account,  he came to

know that  his  date of birth  had been wrongly recorded as 27th February,

1934  in  stead  and  place  of  1st July,  1948.   He  immediately  filed  a

representation.   

Respondents,  however,  did  not  take  any  action  thereupon  till

September, 1989.  Appellant filed another representation on 2nd September,

1989.  The said representation was forwarded to the office of respondent

No.5, the Executive Engineer, EDD, U.P. State Electricity Board, Govind

Nagar, Kanpur for correction of the date of birth in appellant’s service book

alongwith his school leaving certificate.  

4. Indisputably in the employment of respondent-Corporation,  another

employee by the name Mohd. Yunus Khan had been working.  For all intent

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and purport it now stands admitted that the date of birth of the said Mohd.

Yunus  Khan  (not  the  appellant  herein)  was  27th February,  1934 and  the

same has been wrongly recorded in the service book of appellant.  By an

order dated 7th April, 1992, payment of salary to appellant was stopped on

the  premise  that  he  should  have  retired  with  effect  from  29th February,

1992.  He received a letter from respondent No.4, Sub-Divisional Officer

(SDO),  Basti,  dated  7th April,  1992  asking  him  to  explain  the  correct

position.  He did so.  He allegedly also appeared before the authority.

5. Appellant again filed a school leaving certificate of 5th class with a

view to show that his date of birth was 1st July, 1948.  Unfortunately the

medical certificate of Mohd. Yunus Khan S/o Amjad Khan was attached to

the service  book of  the  appellant  as  a  result  whereof  the  said confusion

arose.  He, however, was made to retire from 29th February, 1992.

6. Aggrieved by and dissatisfied therewith appellant filed a writ petition

before  the  High  Court  which  was  marked  as  Civil  Misc.  Writ  Petition

No.18688 of 1992.  By reason of a judgment and order dated 23rd March,

2004 the said writ petition was allowed by a learned Single Judge of the

High Court opining :-

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“From the record of the case, I find that it is an admitted case of the respondents that due to inadvertence at their level the medical certificate of Mohd. Yunus Khan S/o. Amjad Khan wherein the date of his birth mentioned as 27.2.1934  was  wrongly  placed  in  the  record  of  the petitioner  instead  of  the  school  leaving  certificate wherein the date of birth of the petitioner was mentioned as  1.7.1948.   This  finding  is  based  on  the  personal enquiry made and submitted by the concerned Executive Engineer, the appointing authority of the petitioner.  The petitioner is being wrongly retired from his service prior to the due date of his retirement treating his date of birth as  27.2.1934  instead  of  1.7.1948  and  he  has  still  got many more years in service.  The payment of the salary of the petitioner as per the interim order passed by this court has been stopped by the respondents on the basis of the opinion of the counsel  for the respondent which is unwarranted.”  

7. An intra court appeal was preferred by respondents which, by  reason

of the impugned judgment, has been allowed.  A review petition filed by

appellant thereagainst stands dismissed.   

8. Mr. Pramod Swarup, learned counsel for appellant urged that in view

of the fact that the mistake on the part of the authorities of the respondents

stood conceded, the Division Bench of the High Court must be held to have

applied the wrong principles in allowing the intra court appeal preferred by

respondents.

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9. Mr. Sunil Kumar Jain, learned counsel appearing for the respondents,

on  the  other  hand,  would  submit  that  confusion  arose  because  of  two

different offices had taken two different stands.    

10. The Division Bench of the High Court, although, may be correct in

holding  that  representation  for  correction  of  the  date  of  birth  should  be

made as expeditiously as possible so as to enable the employer to pass an

appropriate order thereupon, but the said principle, in our opinion, has no

application  in  a  case  of  this  nature,  where  a  mistake  on  the  part  of  the

authorities stands admitted.  

11. There  were  two  Mohd.  Yunus  Khans.   Their  fathers’  names  were

different.  The other Mohd. Yunus Khan was son of Amjad Khan, whereas

appellant is son of Mujibullah Khan.  

According  to  appellant,  the  medical  certificate  in  respect  of  other

Mohd Yunus Khan was attached to his service book and the school leaving

certificate showing his date of birth was attached to the service records of

other Mohd Yunus Khan.   

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12. No material  has  been placed before  us  in  regard  to  existence  of  a

statutory rule fixing a time frame for filing an application for correction of

the date of birth in the service record.  Even if there was such a provision,

the same, in our opinion, would not be of much significance as respondents

had not shown that the mistake in the matter of recording of date of birth in

the service record was known to appellant at any earlier point of time.  If

appellant’s contention is correct that he came to learn about it only in April,

1988 whereafter he filed a representation, it must be held that there was no

delay  on  his  part  in  this  behalf.   An  employee  may  take  action  as  is

permissible  in  law  only  after  coming  to  know  that  a  mistake  has  been

committed by the employer.   

13. Appellant  was  to  retire,  even  treating  his  date  of  birth  as  27th

February, 1934, in 1992.  In that view of the matter a representation filed by

him  in  the  year  1988  should  have  received  due  and  expeditious

consideration at the hands of the authorities of the Board.  Had such a step

been  taken,  the  principles  of  natural  justice  of  giving  an  opportunity  of

hearing to the other Mohd Yunus Khan could also have been complied with.

Even  the  records  of  both  the  employees  could  have  been  verified  with

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reference to the other  documents as also the names of the parents of the

parties, if necessary, in presence of each other.   No such step admittedly

had  been  taken  by  the  Board.   Particularly  when  respondent  No.5,  the

Executive Engineer, indeed found that such a mistake had been committed

and  recommended  for  correction  thereof,   the  Board,  which  is  a  ‘State’

within the meaning of Article 12 of the Constitution of India, was obligated

to  rectify  the  same.  Such  a  mistake  being  totally  in  the  hands  of  the

authorities of the Board, stricto sensu  even the principle of natural justice

was not required to be complied with so far as appellant  was concerned.

Principle  of  justice  was  required  to  be complied  with only in  respect  of

other  Mohd  Yunus  Khan  for  affording  him  an  opportunity  of  hearing.

However,  it  appears  from the  record  that  other  Mohd  Yunus  Khan  had

expired in 1980.   

14. The Division Bench of the High Court, in our opinion, committed a

serious error in not considering this aspect of the matter.  The Writ Petition

was  filed  by  the  appellant  before  the  High  Court  in  the  year  1992  i.e.

immediately after he was made to superannuate.   

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15. The  Executive  Engineer  himself  by a  letter  dated  18th April,  1992

directed  the  Sub-Divisional  Officer,  Electricity  Distribution  Division-II,

Basti as under :-

“In the  Service Book of the aforesaid employee, date  of  birth  (27.2.34)  is  recorded/mentioned. This has been written on the basis of the certificate dated  27.02.74  given  by  the  Chief  Medical Officer,  Kanpur  and  on  inspection  it  was  found that  this  Certificate  is  in  respect  of  the  other employee  Sri  Mohd  Yunus  son  of  Sri  Amjad Khan.  The correctness of the same has been done by the  undersigned.   Therefore  you  are  advised that for recording the correct date of birth of Sri Mohd  Yunus  Khan  son  of  Mujibullah  Khan working in your Division, you at your level kindly get the age certificate from Chief Medical Officer and  thereafter  accordingly  proceed  and  inform about the said proceeding to the undersigned.”   

16. The said order has not been complied with.  No explanation has been

offered  by  the  Board  as  to  why  administrative  discipline  was  not

maintained.   It  is  not  the  contention  of  the  Board  that  the  Executive

Engineer in doing so acted mala fide or otherwise biased. IN any view of the

matter his opinion was based on the materials on record.   

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In fact in paragraph 11 of the counter affidavit before the High Court

it was stated :-

“11. That in reply to the contents of paragraph 6 of the writ petition it is stated that as the date of birth of the petitioner was recorded in the Service Book  by  Executive  Engineer,  Electricity Distribution Division, Kanpur the same was to be corrected by said Distribution Division and hence the Service Book of the petitioner was sent to the respondent No.5 for necessary action.  

Despite the same, it was averred in paragraph 13 :-

“13.   That the contents of paragraph 9 of the writ petition are not admitted as written.  The date of birth  written  in  Service  Book  was  27.02.1934. There was no solid material before the answering respondent on the basis of which he could proceed to make the correction in the date of birth.  Further the date of birth written in the Service Book was final and it could not be altered.”

If that was the factual position, appellant should have been given an

opportunity of hearing.  He should have been given an opportunity to file

further proof to show that his date of birth was in fact 1st July, 1948.   

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17. It, however,  appears that  the operation of the order making him to

retire was stayed by the Court.  It furthermore appears that appellant was

medically  examined  by  Chief  Medical  Officer,  Basti  on  or  about  3rd

October, 2002, who had opined that his age at that point of time was about

54 years.  Even during the pendency of the writ petition, respondent No.2,

the Executive Engineer, Electricity Distribution Division-1, Basti, requested

the  Deputy  General  Manager,  Electricity  Distribution  Division,  Basti,  to

record appellant’s date of birth as 1st July, 1948.  His salary, however, was

directed  to  be stopped  on the  basis  of  a  legal  advice  of  the  counsel  for

respondents dated 8th October, 2003 with effect from 14th October, 2003.   

18. Furthermore it does not appear that appellant had been given even the

retrial benefits for such a long period.  

19. For the reasons aforementioned, the impugned judgments cannot be

sustained  and they  are  set  aside  accordingly.   Appellant  is  held  to  have

retired in the year 2006 treating his date of birth as 1st July, 1948. Appellant

would not, however, be entitled to the entire back wages as he did not work

for a long time.  Even he had approached this Court after a long time.  There

was a delay of 549 days (in respect of SLP against the main order) and 128

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days  (in  respect  of  the  SLP against  the  order  passed  in  review).   For  a

substantial period he had been paid salary, although he did not work.  We

direct that 50% of back wages may be paid save and except for the period

during which salary has  been paid to him.  However, for the purpose of

calculation of pensionary and other retiral dues, he shall be treated to have

continued  in  service  till  the  date  of  his  superannuation  and  for  the  said

purpose increments, if any earned by him, as also the revision in pay shall

be taken into consideration.  The appeal  is  allowed to the aforementioned

extent with costs.  Counsel’s fee assessed at Rs.25,000/-.  

……………………….J.   ( S.B. SINHA )

……………………….J.   ( CYRIAC JOSEPH )

New Delhi October 22, 2008

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