- (1.) By this writapplication under Article 226 of the Constitution of India, the petitioner ­ a retired employee of the erstwhile Gujarat Electricity Board, now the Gujarat Urja Vikas Nigam Ltd. has prayed for the following reliefs: 14(A) to admit this petition and call for the records and proceedings of the matter; (B) to issue writ of mandamus or an appropriate writ, order or direction in the nature of mandamus or in the nature of an appropriate writ and quash and set aside the order of retiring the petitioner on 26.9.2001 vide order dated 26.9.2001 and quash and set aside the enquiry proceedings initiated under the showcause notice dated 19.9.2001 and quash and set aside the action of the respondents unilaterally considering the date of birth of the petitioner as 1.2.1940 and hold that the date of birth of the petitioner is 23.9.1943 and quash and set aside the communication dated 24.10.2001 issued by the respondent no.1 to respondent no.2 to interalia initiate recoveries and recovery proceedings and other orders passed in the said communication and further quash and set aside all the actions of the respondent pursuant to the orders dated 26.9.2001 and 24.10.2001 and order payment of all retiral benefits to the petitioner at the rate of 100 per cent as if the petitioner has retired on 30.9.2001 and also order payment of salary not only of September 2001 upto 26.9.2001, also balance period of 4 days upto 30.9.2001 and pass all other necessary and consequential orders. (C) Pending admission, hearing, and final disposal of this petition, to restrain the respondents from taking any action of recovery as contemplated in the respondent's letter dated 24.10.2001 and also direct payment of 100 per cent retiral dues as prayed for in the previous clause of this prayer paragraph. (D) to pass orders of the petitioner being paid compensation including special compensation for illegal and baseless harassment to the petitioner and also pass necessary orders of exemplary costs against the respondents. (E) Cost of this petition be granted; (F) to pass such other and further reliefs, as the facts and circumstances of the present case may require.
(2.) The case of the petitioner may be summarized as under: 2.1 The petitioner joined the service with the respondent Board on 14/12/1965 as an Engineer. At the time of joining the service, he had submitted the necessary documents as regards his date of birth. The date of birth shown in the certificates is 23/09/1943. 2.2 In the servicebook also 23/09/1943 was shown as the date of birth. It appears from the materials on record that on 31/05/1962 i.e. much before joining the service an affidavit was filed by the petitioner herein that inadvertently in his school leaving certificate, the date of birth was shown to be 01/02/1940, whereas, the correct date of birth is 23/09/1943. This affidavit was filed on the basis of the birth certificate, which reflected the birth date as 23/09/1943. This issue as regards the discrepancy in the birth date came to be settled way back in the year 1962. In the year 1965, when the Board offered employment to the petitioner as an Engineer, the birth date of 23/09/1943 was accepted. No dispute in this regard was raised at any point of time by the respondents. 2.3 Surprisingly, just few days before he was to attain superannuation sometime in the year 2001, all of a sudden, the Board decided to raise this issue as regards the correctness of the birth date of the petitioner. On 19/09/2001 a notice was issued to the petitioner, which is at Page 40, Annexure 'L' calling upon him to clarify as regards the discrepancy in the birth date. The petitioner gave a detailed reply dated 25/09/2001 explaining how the birth date was corrected from 01/02/1940 to 23/09/1943. Alongwith his explanation, he produced all the relevant documents evidencing that his birth date is 23/09/1943. 2.4 To his utter dismay, he received an Officer Order dated 26/09/2001 which reads as under: No: SEP/EST/I/Rtd/1615 Gujarat Electricity Board, Circle Office, Old P.H., Porbandar. Dt.26092001 OFFICE ORDER: - In pursuance of the approval accorded vide Head Office Letter No.DGM/ (P& IR)/BD/DE/CPP/IW271/PON27/176 dt.17/18/09 2001, DGM/ (P& IR)BD/DE/CPP/W.27/POM/181 dt.26092001 and telephonic instruction given by Sh. H.D. Parmar Dy. General Manager (P&IR) Head Office, Baroda on dt.26.09.2001 considering Birthdate 01.02.40 of Sh. C.P. Pithadia, Dy. Eng. Circle Office, Porbandar is hereby relieved from the service of the Board with immediate effect on receipt of this order as he has completed 58 years of age as on 31.1.98. Sd/ (B.A. Parmar) Superintending Engineer (O&M) Porbandar. 2.5 Thus, according to the office order referred to above, the respondents treated the petitioner to have retired on 31/01/1998 at the age of 58 years treating his birth date as 01/02/1940. 2.6 It is not in dispute that the petitioner served with the respondents till 2001. It appears that the respondents preferred a Civil Suit for recovery of the amount paid towards the salary for the period between 1998 and 2001. The suit was filed on the basis that the petitioner was not entitled to receive the salary as he could be said to have retired in the year 1998. I am told that the said civil suit was unconditionally withdrawn by the respondents. 2.7 On 01/10/2001, the petitioner addressed a letter to the Superintending Engineer as regards his retiral benefits. The letter reads as under: From: C.P. Pithadia (Retd. Dy. Engineer) C4, GEB Colony, Birla Sagar Road, PORBANDAR. 360576. Dt.1st October01. To, The Superintending Engineer (O&M) G.E. Board,Circle Office, PORBANDAR. SUB : Regarding my retired benefits. Respected Sir, As per office order No.SEP/EST/I/Rtd?1615 dt. 26901, I am now retired on dt. 26901 after office hours. As per the Board's norms, please arrange for my payment for C.P.F., Gratuity, Leave Salary and salary for the month of Sept. 2001 upto 26th Sept. 01 at the earliest. My 905 C.P.F. Payment which is already sanctioned vide your office letter No.SEP/Acctts/CPF/54/2464 dt.13901 having Rs.15,18,000/ is not received me till this date. The copy of the same is sent herewith. As these all payment being my retired benefit, you are once again requested to do needful for getting me the same at the earliest. Hoping for the same. Yours faithfully, (C.P. PITHADIA) Encl:one As above. 2.8 According to the respondents, the petitioner was paid his retiral benefits as under: JUDGEMENT_72_LAWS(GJH)7_2016.jpg 2.9 It is not clear whether the amount which has been paid to the petitioner towards his retial dues is on the basis of his birthdate i.e. 23/09/1943 or the same is treating the birth date as 01/02/1940. Neither the learned counsel appearing for the petitioner is able to clarify this nor the learned counsel appearing for the respondents. The learned counsel appearing for the petitioner submits that this petition is being pursued because his client is hurt and feels humiliated on account of the highhanded action on the part of the respondents.
(3.) An affidavitinreply has been filed on behalf of the respondents interalia stating as under: 4. I say that petitioner has not submitted his school leaving certificate or SSCE certificate though demanded from time and again and though show caused notice was given and opportunity to produce evidence was given the respondent made efforts and his date of birth was obtained from Kamribai High Court (Jetpur) Kathi, where he studied. In school register his date of Birth was recorded as 1.2.1940. The said certificate is annexed herewith at Annexure:2 to the reply. 5. I say that thereafter as the petitioner did not produce School Leaving Certificate or SSCE certificate his services came to be terminated on 26.9.2001. 6. I say that on presenting the petition, the Honourable High Court directed petitioner to submit representation to the Board. The petitioner vide his letter dated 26.8.2002 represented his case but that to without any supporting documents. Respondent Board written various letters to petitioner and on 3.7.2003 and 10.12.2003, petitioner supplied documents wherein also school leaving certificate or SSCE certificate was not annexed. 7. Petitioner presented pedhinama in a simple paper, without any authenticity of any authority. In pedhinama birth date of petitioner was shown as 23.9.193. The respondent vide letter dated 12.11.2003 informed to produce pedhinama in prescribed performa duly attested by competent authority. The petitioner again presented pedhinama without any authority. The petitioner also had submitted the record of Jetpur Municipality showing the birth date as 23.9.1943. Petitioner has also submitted the affidavit made by petitioner on 31.5.1962 wherein, it is stated that through oversight petitioner's birth date 1.2.1940 has been mentioned in SLC but the birth date is 23.9.1943. The said affidavit does not declare any reasons for which the said affidavit was made vide letter dated 13.10.2001 addressed to the Secretary, G.E. Board has informed in point No.2 that the change of the birth date was done in the year 1962 for getting admission in the Engineering College, i.e. before joining the services. I say that the RespondentBoard also had deputed its responsible officer to verify the record of the school namely Kamribai High School Jetpur. The said school has given a letter to the Respondent's Board office wherein also the birth date mentioned is 1.2.1940 in SLC is found correct. The further details given at column no.2, of the said letter states the date on which petitioner had joined the said school. In this column of the date of entry in the school is shown as 8.3.1952 in 5th Standard. Now if we consider the recorded birth date in school, which is 1.2.1940 with the year of entry in the 5th standard it emerges that petitioner got admission in 5th Standard when petitioners was of 12 years of age, this is found practical. But if respondent considered the birth date 23.9.1943 as claimed by petitioner as correct birth date and consider the date of entry 8.3.1952 in the 5th standard, it emerges that petitioner got admission in 5th standard at the age of 8 years and 6 months which is not practical. If respondent consider the date of entry even at the age of 5 years, in first standard, the age could be 10 years but cannot be 8 years, and 6 months when petitioners were admitted in 5th standard in any case and therefore, it is not convincing point regard the birth date claimed by petitioner that the correct birth date is 23.9.1943. I say that thus, from the above mentioned facts it clearly emerges that the birth date 1.2.1940 is declared in the school, but later, changed it to 23.9.1943, which in the school of course is prior to joining the respondent Board. It is also a fact that petitioners were asked to submit SLC repeatedly by the concerned office but petitioner did not care to submit the SLC. I say that, now, the rules regarding the birth date in respect of the employees working in the Gujarat Electricity Board is applicable in the case also. The circular dated 22.5.1989 clearly states that the employee who has passed the SSC or equivalent examination, the correct proof of birth date is to be considered as SSC/SLC and thereby the birth date mentioned therein is to be considered as the correct date of birth recorded in SLC and therefore, in the petitioner case also, petitioner being a qualified employee, as per the above stated circular the birth date 1.2.1940 required to be considered as correct birth date. I say that as such the petitioner has overstayed and considering his correct birth as 1.2.1940 he would have retired on 1.2.1998, instead of that he has continued in service upto 26.9.2001 and as such he has served for the entire span as if his birth date was 23.9.1943. I say that the petitioner has been paid full salary for the period for which he has worked and all retiral dues have been paid to him. I say that affidavit in reply filed by me dated 31.7.2012 is on record which shows that entire retiral dues including gratuity has been given to petitioner and there are no dues pending. I say that there is no question of recovery from the petitioner as alleged in the petition when the Board has given entire retiral dues to petitioner in 2002. I say that till today the petitioner has neither produced school leaving certificate nor SSCC certificate before the respondent authority as required as per circular. ;