SUNIL AMBWANI, J. - (1.) HEARD learned Counsel for the parties.
(2.) PETITIONER was appointed as Clerk in Shahjahanpur Cane Society some time in the year 1959 -60. In the year 1973, he was suspended while working as clerk at Roza Cane Society at Shahjahanpur. In the year 1982, he was again issued a fresh appointment letter provided that he will not have any claim to his past services. It is asserted that on 31 -12 -2001, he was served with a letter by the District Cane Officer, Shahjahanpur to submit original documents of his educational qualification as well as the date of birth. On 2 -1 -2002, he was served with an order passed by the Secretary, Roza Shakari Ganna Samiti Ltd., Shahjahanpur retiring him from service w.e.f. 2 -1 -2002. In the same order, it was stated that according to the letter received from the District Can Officer, Shahjahanpur, the petitioner's date of birth is 1 -5 -1939 and that he should have retired on 30 -4 -1997 and further that the petitioner has been continuing in service by playing fraud upon the employer. The petitioner represented to the Secretary, Roza Sahkari Ganna Vikas Samiti Ltd., Roza, Shahjahanpur. In reply, the petitioner was informed by the impugned order dated 29 -1 -2002 stating, that he was given fresh appointment letter dated 3 -2 -1982; that from the service record, it was found that the petitioner had not submitted any of the original documents or copies thereof and whereas his death of birth is 1 -5 -1939, he made a false entry in the information register regarding his date of birth to be 1 -5 -1945. Thus he continued in employment by playing fraud and a sum of Rs. 1,27,611.90P has been demanded towards the wages which the petitioner has drawn w.e.f. 1 -5 -1997, upto 2 -1 -2002 to which he was not entitled. The petitioner has not disclosed his correct date of birth nor has disputed the fact that according to his service record, his date of birth is 1 -5 -1939 and he should have been retired w.e.f. 30 -4 -1997, according to the U.P. Cane Co -operative Service Regulation, 1975. The Court put repeated questions to the learned Counsel for the petitioner whether he disputes the date of birth recorded in the service record of the petitioner as 1 -5 -1939. The Counsel for the petitioner has not denied it, and has stated that the petitioner is not in a position to provide his correct date of birth.
(3.) IT is contended that it was the duty of employer to retire petitioner on the date of retirement, to be computed from his service book and that in case the petitioner has been allowed to continue in employment and has actually worked, the salary drawn by him, cannot be recovered from him. Petitioner has relied upon the following decisions of the Court to support his submissions : (1) B.N. Singh v. State of U.P. and another, 1979 All L.J. 1184. (2) Sita Ram Yadav v. District Inspector of Schools, Jaunpur and another, 1990 LAB I.C. 1025. (3) Niranjan Rai v. District Inspector of Schools, Ghazipur and others, (1991) 2 UPLBEC 1416. (4) C.N. Thapliyal v. Director of Higher Education, U.P. Allahabad and others, (2000) 2 UPLBEC 1831. (5) Bhavani v. Bhanu, AIR 1960 Kerala 133. (6) State of Bihar v. Narasimha Sundram, AIR 1994 Supreme Court 599. (7) Ramswaroop Masawan v. Municipal Council and another, (1998) 6 Supreme Court Cases 338. ;