Dismissed

U.P. State Road Transport Corporation and Another v. Prayag Narain Dubey(P. N. Dubey)

Allahabad HC23 Aug 2018SPLAD/405/2018

Case brief

AI extract

What is this about?

The High Court dismissed this special appeal affirming a Single Judge's order that treated the respondent's date of birth as 1958. Holding that the Respondent was illegally retired due to the Corporation's fault, the Court ruled he was entitled to back wages and retirement benefits despite not working after his erroneous retirement.

What did the court decide?

Appellants directed to treat respondent as in continuous service till 28.2.2018, pay arrears from 28.2.2010 to 28.2.2018 including retiral benefits treating his date of birth as 25.2.1958.

U.P. State Road Transport Corporation and… — Pension and Retirement Benefits | Allahabad HC (2018)

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AFR Reserved on 16.07.2018 Delivered on 23.08.2018

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Case :- SPECIAL APPEAL DEFECTIVE No. - 405 of 2018

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Appellant :- U.P. State Road Transport Corporation And Another Respondent :- Prayag Narain Dubey (P. N. Dubey) Counsel for Appellant :- Mritunjay Mohan Sahai Counsel for Respondent :- Siddharth Khare

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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[Per: Hon'ble Chandra Dhari Singh, J.]

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1. The Present special appeal arises out of a judgment/order dated 29.03.2018 of learned single Judge, whereby the learned single Judge has allowed the Writ-A No. 40927 of 2004 by holding that petitioner respondent is treated to be in continuous service and entitled for entire arrears including the retiral benefits treating his date of birth as 25.02.1958.

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2. The respondent, a conductor in U.P. State Road Transport Corporation, has filed the writ petition no. 40927 of 2004 under Article 226 of the Constitution of India, challenging therein order dated 29.10.2002, passed by the Assistant Regional Manager, U.P. State Road Transport Corporation, Auraiya. By which, it was recorded that respondent's date of birth, in the service record, was wrongly mentioned as 25.02.1958 instead of 25.02.1952.

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3. Brief facts giving rise to the instant appeal are that the respondent was initially appointed as Labourer in U.P. Government Roadways in the year 1974 and, thereafter, he was promoted as a Conductor in the department in question on 29.7.1983. Petitioner respondent had passed Junior High School examination from U.P. Board in the year 1971 from Abhaideopur School. The said examination of junior high school was conducted by District Inspector of Schools, Jalaun. The respondent had also passed high

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Special Appeal [D] No. - 405 of 2018

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school and intermediate examination in the year 1980 and 1982 respectively from the Intermediate Education Board. The date of birth of the respondent was mentioned in junior high school and high school certificates as 25.2.1958. At the time of initial appointment of respondent, he had submitted his certificate of junior high school before the appointing authority, in which the date of birth of respondent was mentioned as 25.2.1958. After appointment of respondent, the appointing authority took a medical certificate from the doctor for approving the date of birth of the respondent. The respondent was not at all aware about the said report of doctor as sought by the department regarding his date of birth. A seniority list was published on 02.02.2002, by the Regional Manager, Etawah Region, Etawah and therein also date of birth of respondent was clearly mentioned as 25.02.1958.

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4. The Assistant Regional Manager, U.P.S.R.T.C., Auriya vide 29.10.2002, however, directed that the date of birth of the respondent will be treated as 25.2.1952 instead of 25.2.1958, on the basis of medical certificate said to have been submitted by the respondent to the department concerned, at the time of his initial appointment. Aggrieved from the order dated 29.10.2002, the respondent has moved a representation before the authority concerned stating therein entire facts of the case and, thereafter, he approached several times to the authority concerned about the disposal of his representation but nothing has been done, then he filed writ petition bearing number 40927 of 2004 before this Court and same was dismissed by the learned single Judge vide judgment/order dated 23.7.2014. The judgment/order dated 23.7.2014 passed in Writ-A No. 40927 of 2004 is reads as follows;

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"The petitioner virtually seeks rectification of his date of birth at the fag end of his career. It is settled law that it cannot be done at that later stage. Firstly the record of the case has been summoned and after due verification it has been found that the date of birth recorded by the petitioner in his service book was the year 1952 and interpolation had been made in the record by writing 58. This finding has been recorded by

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Special Appeal [D] No. - 405 of 2018

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the Court in its order sheet dated 10.04.2012 but no amendment has been sought even otherwise the reason stated above the prayer sought by the petitioner cannot be granted.

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The writ petition is accordingly dismissed"

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5. In the aforesaid judgment/order a reference has been made to the order dated 10.04.2012. The said order pertains to production of original record before the Court and its observation as follows;

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"Learned Counsel for the petitioner prays for and is granted one week's time to amend his petition.

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List thereafter.

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Sri M.M.Sahai has produced the record before this Court, which has been shown to the counsel for the petitioner also. From a plain perusal of the record it appears that the date of birth has been changed from 1952 to 1958. Learned Counsel for the petitioner now wants to amend his petition. He prays for and is granted one week's time to do so."

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6. The order passed by learned single Judge dated 23.07.2014 was challenged by the respondent by filing of special appeal no. 778 of 2014, which was finally allowed vide order dated 28.8.2014 and the order passed by learned single Judge dated 23.07.2014 had been quashed and set-aside. The matter was remanded back for afresh decision by the appropriate court. The relevant extract of the judgment dated 28.8.2014 is as follows;

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“It is clear from the aforesaid order of the corporation dated 2.2.2002 containing the seniority list that till 2002, the date of birth of the appellant in the record of the corporation was shown as 25.2.1958 and it has been changed after making interpolation thereafter. Considering the facts that the service record of the petitioner was with the corporation and he had no opportunity to look into the same, it can be safely said that the change in date of birth of the appellant, if any, was made at the corporation level itself.

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In view of above facts and circumstances, appeal is allowed. Impugned order dated 23.7.2014 is quashed and the matter is remanded back for a fresh decision by the appropriate court within a period of three months from the date of production of a certified copy of the present order.”

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7. In the judgment dated 28.8.2014 passed in special appeal specific mention has been made that the date of birth of the respondent in the record of the corporation was shown as

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25.2.1958 till 2002 and it was changed after making interpolation thereafter. It is further recorded that change in date of birth of respondent, if any, was made at the corporation level itself, though initially, it was recorded as 25.2.1958.

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8. The learned single Judge while deciding the entire dispute in writ petition no. 40927 of 2004 vide order dated 29.03.2018, considered the decision of Hon'ble Apex Court in the case of P.V.K. Distillery Limited Vs. Mahendra Ram, 2009 (5) SCC 705 and also considered the ratio laid down in the case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigm Ltd. And others, 2016 (16) SCC 683 , the aforesaid writ petition was allowed. The impugned order dated 29.10.2002 was quashed and set-aside and the respondents were directed to treat the respondent in continuous service till 28.02.2018 and pay the entire arrears from 28.2.2010 to 28.2.2018 including the retiral benefits treating his date of birth as 25.2.1958.

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9. The U.P. State Road Transport Corporation being aggrieved by the order of learned single Judge filed the instant special appeal challenging the validity and correctness of the judgment dated 29.3.2018 passed in Writ-A No. 40927 of 2004. The operative portion of the said impugned order reads as follows;

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“I have considered the rival submissions advanced by learned counsel for the parties and , in my view, since the order impugned is apparently illegal as per the findings recorded by the Division Bench in the judgment rendered in the aforesaid Special Appeal and the date of birth of the petitioner is to be taken as 25.2.1958, therefore, he would be entitled to all consequential benefits till the age of his retirement i.e. 28.2.2018, for the reason that fault lies with the respondents in not having utilised services of the petitioner from 28.2.2010 to 28.2.2018. Had the petitioner been allowed to continue in service till 28.2.2018, he would have readily discharged his duties and therefore, there being no fault on the part of the petitioner, the principle of "no work no pay " would not be attracted and the ratio as laid down in the case of Shobha Ram Raturi (Supra), applies with full force to the facts and circumstances of the present case. In so far as the decision relied upon by learned counsel for

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the respondent in the case of P.V.K. Distillery Limited (supra) is concerned, suffice it to say that this decision relates to termination of service and reinstatement and not retirement , hence it has no application to the present case.

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For the reasons recorded hereinabove, the writ petition succeeds and is allowed. The impugned order dated 29.10.2002 is hereby quashed. The respondents are directed to treat the petitioner in continuous service till 28.2.2018 and pay the entire arrears from 28.2.2010 to 28.2.2018 accordingly including the retiral benefits treating his date of birth as 25.2.1958.

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No order as to costs.”

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10. The learned counsel appearing on behalf of appellant has submitted that respondent was initially appointed in the year 1974 as Labourer at that point of time, U.P. Government Roadways Service Rules were applicable to the State Government employee. It is also submitted that petitioner respondent produced a certificate issued by Civil Surgeon Etawah at the time of his initial appointment which indicates that the respondent was 23 years of age at the time of entering into the service. It is also submitted that if the contention of the respondent is accepted and his date of birth is treated to be 1958, then the respondent was only just 16 years old when he was appointed and, as such, his initial appointment itself becomes void-ab-initio.

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11. The learned counsel for the appellant further submitted that the certificate of high-school and intermediate indicates that the respondent after obtaining the appointment appeared in the aforementioned examination and for this purpose he never took any permission from the corporation. He further submitted that respondent never submitted his junior high-school certificate with the corporation as a matter of fact he produced the certificate regarding his date of birth issued by Civil Surgeon Etawah. It is submitted that respondent while submitted the second certificate by making manipulation made in his date of birth as 1958 and for this purpose interpolation and after making cutting and over writing the date of birth has been shown to be 1958, which cannot

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be accepted.

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12. It is crystal clear from the order dated 29.10.2002 passed by the Assistant Regional Manager that there was some manipulation in the date of birth in the service record of the employee, as such, the said officer has corrected the date of birth in the record on the basis of medical fitness certificate issued after the medical examination of the respondent, wherein the respondent was found fit for service. Learned counsel for the Corporation again and again submitted that even if the date of birth of the respondent is accepted to be 25.02.1958, then in that event, he would have come into service on attaining the age of 16 years at the time of his appointment, which is not permissible in law.

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13. Per-contra learned counsel appearing for the respondent has argued that the respondent has submitted his junior high-school examination certificate at the time of appointment in year 1974, which was issued in year 1971. According to the said certificate, the date of birth of the respondent was recorded as 25.02.1958 and he submitted that employment of an even adolescent in the factories is permissible in law.

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14. We have heard learned counsel for the parties and perused the order impugned as well as materials on record.

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15. The issue of employment of a person below 18 years of age has already settled by a coordinate Division Bench of this Court vide order dated 28.8.2014 in Special Appeal No. 778 of 2014 and in the said judgment a clear cut finding has also been recorded that the date of birth of respondent was recorded as 25.03.1958 and date of appointment in the Corporation as 29.07.1983, therefore, respondent was adult at that time. It has also been mentioned therein that it is clear from the aforesaid order of the corporation dated 02.02.2002, containing the seniority list till 2002, the date of birth of the respondent in the record of the corporation was shown as 25.2.1958 and it has been changed after making interpolation

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thereafter. It is further recorded that change in his date of birth, if any, was made by the Corporation itself though initially it was recorded as 25.02.1958. It is also worth to mention here that the order dated 28.08.2014 passed by a coordinate Division Bench of this Court in Special Appeal No. 778 of 2014 has not been challenged by the appellant, therefore, same has attained finality.

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16. In view of above findings recorded by a coordinate Bench of this Court while allowing the aforesaid special appeal, the issue of date of birth of respondent is already settled as his date of birth is 25.2.1958 and not 25.2.1952. Now, the only issue has left to consider is payment of salary of the respondent as he has already been retired from service on 28.02.2010 by the Corporation treating his date of birth as 25.2.1952 though he was entitled to serve with the Corporation till attaining the age of 60 years i.e. 28.02.2018, considering his date of birth as 25.2.1958.

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17. It is argued that since the respondent has not worked with the Corporation after his retirement on 28.02.2010, as such, he is not entitled for any salary/wages for the period thereafter on the principle of 'no work no pay', even though the order impugned is held to be absolutely illegal.

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18. It is settled law that when an employee is not allowed to work due to fault of employer/authorities, such person is entitled for salary for the period he has not been allowed to work. The principle of "no work no pay" will not apply to such a case. The employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer.

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19. In the case of Raj Kumar Vs. Director of Education and others, 2016 (6) SCC 541 Hon'ble Supreme Court held as follows;

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“57. For the reasons stated supra, we are of the view that the impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly

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Special Appeal [D] No. - 405 of 2018

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set aside, by allowing this appeal. The retrenchment of the appellant from his service is bad in law. The respondentManaging Committee is directed to reinstate the appellant at his post. Consequently, the relief of back wages till the date of this order is awarded to the appellant, along with all consequential benefits from the date of termination of his services. The back wages shall be computed on the basis of periodical revision of wages/salary. We further make it clear that the entire amount due to the appellant must be spread over the period between the period of retrenchment and the date of this decision, which amounts to 13 years, for the reason that the appellant is entitled to the benefit under Section 89 of the Income Tax Act. The same must be complied with within six weeks from the date of receipt of the copy of this judgment.”

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20. In the instant case the respondent employee has been made to suffer by a total arbitrary and unjust action of keeping him out of employment on the basis of totally illegal order by which he was illegally superannuated from the service by the appellants.

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21. In the case of Shobha Ram Raturi (supra) , Hon'ble Supreme Court has held as follows;

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“2. The denial of back wages to the appellant by the High Court vide its order dated 14.09.2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the Letters Patent Appeal on 26.5.2011. The orders dated 14.09.2010 and 26.5.2011 passed by the High Court limited to the issue of payment of back wages, are subject matter of challenge before this Court.

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Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”.

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For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extend of denying wages to the appellant, for the period from 1.1.2003 to 31.12.2005 deserves to be set aside. The same is accordingly hereby set aside.

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The appellant shall be paid wages for the above period

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within three months from today. His retiral benefits, if necessary, shall be re- calculated on the basis thereof, and shall be released to him within a further period of three months.”

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22. In the present case respondent has arbitrarily retired from service by the Corporation treating his date of birth as 25.02.1952 even though he would have attained the age of superannuation on 28.02.2018 on the basis of his actual date of birth i.e. 25.02.1958 and there being no fault on the part of the respondent, he is entitled for entire service benefits including the arrears of salary w.e.f. 28.02.2010 to 28.02.2018 and consequential retiral benefits thereon.

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23. We do not find any good reason to interfere in the order dated 29.03.2018 passed by the learned single Judge in Writ-A No. 40927 of 2004. The instant appeal is devoid of merit. Therefore, the order dated 29.03.2018 passed by the learned single Judge is hereby affirmed. Accordingly, the instant special appeal is dismissed . Appellants are directed to treat the respondent in continuous service till 28.2.2018 and pay the entire arrears to him from 28.2.2010 to 28.2.2018 including all retiral benefits, treating his date of birth as 25.2.1958, within three months from the date of production of certified copy of this order.

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Order Date :- 23.08.2018

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Shekhar

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[Chandra Dhari Singh, J.] [Govind Mathur, J.]

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Special Appeal [D] No. - 405 of 2018

U.P. State Road Transport Corporation and Another v. Prayag Narain Dubey(P. N. Dubey)

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U.P. State Road Transport Corporation and Another v. Prayag Narain Dubey(P. N. Dubey)

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