REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7237 OF 2008

(Arising out of SLP No. 23646 of 2007)

State of Bihar & Ors. ……….

Appellants

Versus

Pandey Jagdishwar Prasad ………Respondent  

J U D G M E N T

TARUN CHATTERJEE,J.

1. Leave granted.   

2. This appeal is directed against an order passed

by  a  Division  Bench  of  the  High  Court  of

Judicature at Patna,  by which the respondent

had  questioned  the  legality  and  validity  of  an

order dated 22nd of  August,  2006 passed by a

learned  Judge  of  that  Court,  whereby  the

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learned  Judge  had  rejected  the  Writ  Petition

filed by the respondent.   

3.  The Writ Petition was filed by the respondent

raising  grievances  against  the  order  of  the

appellant dated 4th of December, 2004 directing

recovery of the amount of salary for two years

paid to the respondent on account of a dispute

with regard to his date of birth despite the fact

that  the  respondent  had  worked  during  that

period.  The appellant, by the order dated 4th of

December,  2004,  as  noted  herein  earlier,

directed recovery of the salary on the basis of

that  order,  which  was  affirmed  by  a  learned

Judge  of  the  High Court.   Therefore,  the  only

question  that  was  raised  before  the  Division

Bench  was  whether  the  order  passed  by  the

State Authority dated 4th of December, 2004 and

affirmed by the learned Judge was justified or

not.   The  Division  Bench,  by  the  impugned

order, had allowed the appeal and set aside the

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order  of  the  learned  Judge  and  quashed  the

order of the authority effecting recovery from the

retiral  dues and also directed the appellant to

return and repay the amount recovered till the

date of payment.  It is this order, which is now

under challenge before us by way of a Special

Leave,  which  on  grant  of  leave,  was  heard  in

presence of the learned counsel for the parties.

4.  Before  we  consider  the  questions  raised

before  us  in  support  of  the  appeal,  let  us

narrate the relevant facts leading to the filing of

this appeal.    

5.  The respondent, at the relevant point of time,

was working as a Correspondence Clerk (class

III) in the office of the Executive Engineer, Rural

Engineering  Organisation,  Works  Division,

Sasaram  in  the  State  of  Bihar.   On  14th of

August,  1973,  the  service  book  of  the

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respondent was opened and two dates of birth

of  the  respondent  viz.  11th of  February,  1944,

and  11th of  February,  1946,  were  recorded

simultaneously in his service book.  It  may be

mentioned here that inspite of two dates of birth

having  been  entered  into  service  of  the

respondent, the State Authorities did not correct

or delete any of the dates mentioned above for

the  entire  period  the  respondent  was  in

employment  with  the  State  Authorities.

According to the first mentioned date of birth,

the respondent ought to have retired on 28th of

February,  2002.  But  he  retired  on  29th of

February,  2004  according  to  the  other

mentioned date of birth in his service book. As

noted herein earlier, on 4th of December, 2004, a

reasoned order was passed vide memo no. 340,

in the context of an order dated 11th of October,

2004, passed in C.W.J.C. No. 12886 of 2004, in

which  the  respondent  claimed  for  payment  of

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retirement  benefit  such  as  pension,  gratuity,

leave encashment, etc.  

6.  By this order, the respondent was ordered to

be  retired  on  28th of  February,  2002,  on  the

basis  of  his  date  of  birth  mentioned  in  his

service book i.e. 11th of February, 1944, which

was  based  on  his  matriculation  certificate.  As

noted herein  earlier,  by the  order  dated 4th of

December, 2004, the appellant passed an order

directing recovery of the excess amount drawn

by the respondent.   

7.  Thereafter, on 12th of February, 2005, by the

memo  Nos.  30  and  31  of  the  Executive

Engineer,  Work  Division,  Sasaram  sanctioned

the  amount  of  gratuity  and  also  ordered  for

deduction  of  excess  amount  from  group

insurance  of  the  respondent  in  twenty  equal

installments.  The  Executive  Engineer  R.E.O.

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Works Division, Sasaram through the memo no.

05 dated 4th of March, 2005, made a refixation

of  the  amount  paid  to  the  respondent  under

Bihar  Government  Employees  Essential  Group

Insurance  Scheme.   Aggrieved  thereafter,  the

respondent filed a Writ Petition before the High

Court  of  Judicature  at  Patna  and  the  High

Court, by an order dated 2nd of August,  2006,

dismissed the writ petition of the respondent, in

which it was observed that he was not entitled

to refund as he had worked beyond the date of

his  superannuation  for  which  he  alone  was

responsible.   

8.  Feeling aggrieved by this order of the learned

Judge of the High Court, the respondent filed an

appeal  before  the  Division  Bench  of  the  High

Court which quashed the recovery order issued

by the  appellant,  as well  as  the orders  of  the

learned Judge.   The  Division Bench,  as noted

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herein  earlier,  directed  refund  of  the  amount

already  recovered  from  the  respondent  with

interest at the rate of 6 percent per annum from

the  date  of  recovery  till  the  date  of  payment.

Being  thus  aggrieved,  the  appellant  has  filed

this appeal before this Court.

9.  We have heard the learned counsel appearing

on  behalf  of  the  parties  and  perused  the

materials  on  record  as  well  as  the  impugned

judgment. It appears that the department raised

a controversy in regard to the date of birth after

about 31 years of service of the respondent. It is

an  admitted  position  now  that  the  amount

directed  to  be  recovered,  has  already  been

recovered  from  the  retiral  dues  of  the

respondent  which  has  been  ordered  by  the

Division Bench to be refunded to the respondent

with interest @6%.   It is true that the date of

birth mentioned in the Matriculation Certificate

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should  be  treated  as  the  date  of  birth  of  the

respondent.   But  it  would  be  open  to  the

employee  to  place  documents  before  the

authorities that the date of birth shown in the

service  book  taken  from  the  matriculation

certificate  was  incorrect.  There  has  been  no

such document placed on record to corroborate

the  same  except  an  affidavit  sworn  by  the

respondent, which is on record.  Therefore, the

respondent  ought  to  have  retired  on  28th of

February,  2002,  on  the  basis  of  his

matriculation certificate which shows his date of

birth as  11th of February, 1944 as recorded in

his  service  book.   The  learned  counsel

appearing on behalf of the appellant argued that

since the service book of the respondent was in

custody in which one of the date was mentioned

as  11th of  February,  1944,  he  ought  to  have

retired on 28th of February, 2002, and therefore,

he  had  fraudulently  continued  to  serve  the

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appellant  till  29th of  February,  2004  thereby

receiving  undue  payment  of  salary  and  other

allowances. We find no merit in this argument.

It is to be noted that there was no question of

fraud committed by the respondent before  the

learned Single Judge or even before the Division

Bench of the High Court.  The Division Bench,

in the impugned judgment, had on this account

subsequently  mentioned  this,  which is  quoted

as under :-

“In the present case,  there was no dispute about the fact that  there  is  no  allegation  of  misrepresentation  or fraud  purported  to  have  been  perpetrated  by  the appellant-original writ petitioner.”

10. Such  being  the  position  and  in  the  absence  of  any

allegation  of  the  misrepresentation  or  fraud  made  by  the

appellant,  the  appellant  cannot  be  permitted  to  raise  the

allegation of misrepresentation or fraud for the first time in

this Court.  Moreover, for the sake of argument, even if we

consider  that  the  respondent  had  fraudulently  entered

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another  date  of  birth  in  his  service  book,  as  had  been

alleged, it should have come to the notice of the authorities

during his course of service, and not after he had attained

the  age  of  superannuation  after  the  expiry  of  the  date

mentioned  in  the  service  book  which  was  based  on  the

affidavit  of  the  respondent.  To  the  contrary,  none  of  the

officials  responsible  had  noticed  this  during  his  service

period, even during his time of promotions when the service

book was required to be inspected by the officials. Therefore,

it clearly points out to the gross negligence and lapses on the

part  of  the  authorities  concerned  and  in  our  view,  the

respondent cannot be held responsible to work beyond his

date  of  birth as  mentioned  in the  matriculation certificate

when  admittedly  in  the  service  book  after  affidavit,  some

other date of birth was also evident.  In view of the aforesaid

circumstances, the appellant ought to have deleted the date

of birth entered in the service book of the respondent on the

basis of his affidavit as the appellant had already accepted

the  date  of  birth  of  the  respondent  on  the  basis  of  his

matriculation  certificate  which  was  also  produced  by  the

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respondent.  The appellant alleged that the respondent had

entered a second date of birth in his service book at a later

period  of  time.  The  respondent  vehemently  negated  this

contention  stating  that  two  dates  of  birth  were  entered

simultaneously  in  his  service  book  by  the  department

officials. It is not needed for this Court to verify the veracity

of  the  statements  made  by  the  parties.  If  at  all  the

respondent entered the second date of birth at a subsequent

period  of  time,  the  authorities  concerned  should  have

detected it and there should have been a detailed enquiry to

determine whether the respondent  was responsible  for the

same.   It  has  been  held  in  a  catena  of  judicial

pronouncements that even if  by  mistake,  higher  pay scale

was  given  to  the  employee,  without  there  being

misrepresentation or fraud, no recovery can be effected

from the retiral dues in the monetary benefit available to

the employee. This Court in the case of Kailash Singh vs.

The State of Bihar and Ors., [2004 (1) PLJR 289 (SC)],

held that recovery sought to be made from the salary of the

employees on the ground of alleged over stay in service on

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the basis of age assessed or considered, despite the fact that

the employee has worked during the period of alleged over

stay  could  not  be  made.  In  Sahib  Ram  vs.  State  of

Haryana & Ors.,  [1995 Supp. (1) SCC 18], this Court has

held that even if by mistake, higher pay scale was given to

the  employee,  without  there  being  misrepresentation  or

fraud, no recovery can be effected from the retiral dues in the

monetary benefit available to the employee.

11.As noted  hereinearlier,  in  the  service  book  of

the  respondent,  two dates  of  birth have  been

mentioned, which is not permissible.  It cannot

be conceived of that the authorities could not

examine the possibility of two dates of birth to

be  entered  in  the  service  book  of  the

respondent.   They  ought  to  have  deleted  the

initial date of birth based on the matriculation

certificate if the appellants were of the view that

the  affidavit  sworn  by  the  respondent  was

correct and the date of birth appearing in the

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matriculation  certificate  must  be  found  to  be

incorrect, it is needless to say that the affidavit

sworn by the respondent must be on the basis

of  documents  produced  by  the  respondent  to

show  that  the  date  of  birth  entered  in  the

service  book initially  was incorrect.    Instead,

the  appellant  had  not  issued  any  notice  of

retirement  of  the  respondent  on  28th of

February,  2002,  which  was  the  date  for

retirement  of  the  respondent  on  his  attaining

superannuation, i.e. on the basis of the date of

birth shown in the matriculation certificate. On

the  other  hand,  the  appellant  allowed  the

respondent  to  work  and  got  works  from  him

and  paid  salary.   Only  for  the  first  time,  the

appellant took note of two dates of birth after he

had completed two years from the date of his

actual  date  of  retirement.   Without  going into

the question whether the appellant was justified

after  completion  of  two years  from the  actual

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date of  retirement  to deduct  two years’  salary

and other emoluments paid to the respondent,

we  may  say  that  since  the  respondent  had

worked during that period without raising any

objection from the side of the appellant and the

appellant  had  got  works  done  by  the

respondent, we do not think that it was proper

at this stage to allow deduction from his retiral

benefits, the amount received by him  as salary,

after his actual date of retirement. Considering

the  fact  that  there  was  no  allegation  of

misrepresentation  or  fraud,  which  could  be

attributed  to  the  respondent  and  considering

the  fact  that  the  appellant  had  allowed  the

respondent to work and got works done by him

and paid salary, it would be unfair at this stage

to deduct the said amount of salary paid to him.

Accordingly,  we  are  in  agreement  with  the

Division  Bench  decision  that  since  the

respondent was allowed to work and was paid

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salary  for  his  work  during  the  period  of  two

years after his actual date of retirement without

raising any objection whatsoever, no deduction

could be made for that period from the retiral

dues of the respondent.    

12.In  Kailash Singh vs. State of Bihar & Ors.

[2005 (13) SCC 576], this Court observed that

the  employer-State  would  not  be  entitled  to

recover the salary paid in excess after the due

date  of  superannuation.  In  our  view,  this

decision  was  practically  based  on  the

concession made by the State before this Court.

Again in Hari Singh vs. State of Bihar & Ors.

[2000 (10) SCC 284], this Court held that since

the Government had never put the employee on

notice  to  indicate  that  the  date  of  birth  as

entered  in  the  service  book  was  incorrect

though  it  could  have  done  so  and  since  no

notice  had  been  given  to  the  employee

concerned  for  accepting  a  date  of  birth  other

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than the one entered in the service  book,  the

order  of  retirement  could  not  be  sustained.

From the aforesaid decision, it is evident that it

was the duty of the State to put the employee

on notice about his date of retirement and not

having done so, the appellant was not entitled

to  recover  the  excess  amount  paid  to  the

respondent.

13. A  further  argument  was  advanced  by  the  learned

counsel  for  the  parties  before  the  High  Court  as  well  as

before us on the applicability of Rule 96 of the Bihar Finance

Rules for settlement of dispute regarding the date of birth. In

view of our discussions made herein above and in view of the

fact that we have accepted the observations of the Division

Bench of the High Court that since the appellant had allowed

the  respondent  to  work  beyond  his  due  date  of

superannuation  without  raising  any  objection  and  in  the

absence of misrepresentation and fraud to be attributed to

the  respondent,  it  is  not  necessary  for  us  in  the  peculiar

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facts and circumstances of the case to go into the question of

interpretation of Rule 96 of the Bihar Finance Rules which is

kept open for decision in an appropriate case.    

14.Before parting with this order, we may refer to a

decision of this Court strongly relied on by the

learned  counsel  for  the  appellant,  namely,

Radha Kishun vs. Union of India and Ors.,

[(1997)  9 SCC 239].  Learned  counsel  for  the

appellant  relying  on  this  decision  sought  to

argue that even if the respondent had worked

after  his  due  date  of  superannuation  without

having  any  objection  from  the  appellant,  the

appellant  was  entitled  to  deduct  the  amount

already  received  by  the  respondent  from  his

retiral benefits. This case, in our view, is clearly

distinguishable  from the  present  case.  In  the

above-mentioned case, there was no dispute as

to the date of retirement of the appellant in that

appeal, as there was no controversy in the date

of birth of that appellant.  There was only one

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date of birth mentioned, and he had not retired

on  the  basis  of  his  date  of  birth  so  entered.

Therefore, he had wrongly extended his service

beyond the date of his superannuation. But in

the present case, there were two dates of birth

recorded in the service book of the respondent.

Therefore,  there  was  a  clear  confusion  in  the

mind  of  the  respondent  as  to  whether  the

appellant  had  accepted  his  corrected  date  of

birth  as  entered  in  his  service  book  when

admittedly authorities concerned did not serve

any  notice  of  retirement  on  the  basis  of  the

initial entry of date of birth in his service book.

It  should  also  be  kept  in  mind  that  the

respondent  might  have  expected  that  second

date  of  birth  shown  in  the  service  book  was

accepted by the authorities for that reason he

was allowed to continue in his service and was

paid salary.  In the absence of any proof that

the  respondent  had  manipulated  his  date  of

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birth by entering a second date at a later stage,

and  that  he  had  any  malafide  intentions  to

continue  his  service,  beyond  his  date  of  his

retirement, we are of the view that the decision

in  the  case  of  Radha  Kishun  vs.  Union  of

India  and  Ors.  (Supra),  would  not  be

applicable in the facts of the present case.

15.There is another aspect in this matter. Although

we have directed that the excess amount paid

for two years to the respondent as salary cannot

be recovered from the respondent, but we make

it  clear  that for  fixing the retiral  benefits,  the

period of two years in respect  of which salary

was received by the respondent cannot be taken

into consideration and the respondent would be

entitled to fixation of retiral benefits as on the

date of his superannuation i.e. 28th of February,

2002.

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16.Accordingly,  we  do  not  find  it  necessary  to

interfere with the order of the Division Bench of

the  High  Court  in  the  peculiar  facts  and

circumstances of the case in the exercise of our

power  under  Article  136  of  the  Constitution

accepting the directions made in paragraph 15

of this judgment.   

17.For  the  reasons  aforesaid,  the  appeal  is

dismissed  subject  to  above  directions.   There

will be no order as to costs.

                       …………………………J.                           [TARUN CHATTERJEE]

NEW DELHI                            .…………………… ……J. DECEMBER 11, 2008                                     [AFTAB ALAM]

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