# Jag Pal Singh v. M.D, Kanpur Electricity Supply Co. Kanpur Nagar & Ors

- **Citation:** (2014) 2 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-27
- **Case number:** Civil Misc. Writ Petition No.34915 of 2011
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jag-pal-singh-v-m-d-kanpur-electricity-supply-co-kanpur-nagar-ors-42923
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Correction of
date of birth-class IV employee-service
book date of birth recorded 03.09.49-but in
document
of
company-date
of
birth
reflected as 28.05.55 accordingly continued
in service up to 13.05.2011 instead of
30.09.2009-recovery
of
salary
drawn
between actual date of retirement and
working of fortuous period-petitioner being
illiterate man not instrumental in excess
working than the actual date of retirement
held-no
question
recovery
of
excess
amount -if already recovered be refunded.

Held: Para-16
The respondents took work from the
petitioner and paid his salary for the work,
though
it
was
beyond
the
age
of
retirement, the petitioner is class IV
illiterate employee, there is no fraud or
misrepresentation on his part, thus the
2 All]. Jag Pal Singh Vs. M.D., Kanpur Electricity Supply Co. Kanpur Nagar & Ors.
1011
respondents cannot recover the amount of
salary paid to the petitioner for the period
after retirement till 13.05.2011, that too
without putting the petitioner to notice,
the impugned order was passed without
affording any opportunity and is liable to
be set aside on that ground alone.

Case Law discussed:
(2012) 8 SCC 417; AIR 1993 SC 1367; AIR
1993 SC 2647; AIR 1995 SC 850; AIR 2003 SC
4209; (2005) 6 SCC 49; AIR 2006 SC 2735;
(2005) 11 SCC 465; (2002) 7 SCC 719; AIR
2005 SC 1868; AIR 1937 PC 101; ILR 97 Cal
849; 2000(10) SCC 284; 1997(9) SCC 239;
(2009) 3 SCC 117.

## Text

1010 INDIAN LAW REPORTS ALLAHABAD SERIES
lease is not exceeding 30 years while
clause (ii) is applicable where term of
lease exceeds 30 years. In the present
case, as such the lease document does not
contain any period except that 10%
monthly rent would be increased after five
years. It is a lease without any definite
term as is evident from Explanation (2),
which reads as under:

"(2) A lease from month to month, or
year to year, without any fixed period or
one for a fixed period with a provision
allowing the lessee to hold over thereafter
for an indefinite term, shall be deemed,
for the purposes of this Article, to be a
lease not purporting to be for any definite
term."

6. The mere fact that no term or
period of lease is prescribed, I find it
difficult to accept the view taken by
authorities below that the document in
question would be governed by Article
35(c)(ii).

7. In the case of any discrepancy or
doubt in taxing statute the interpretation
which is in favour of subject must be
adopted. Taking clue therefrom, in my
view, the petitioner would be liable to pay
stamp
duty
under
Article
35(c)(i).
Applying the same the duty has to be
calculated taking into account the amount
or value of premium as payable on the
lease. It is true that in the lease deed, as
such, the amount of premium is not
mentioned but it has come in the orders of
authorities below that premium paid was
Rs. 19,000/-, the stamp duty would be
payable accordingly and not otherwise.

8. In view of above, the writ petition
is partly allowed. Impugned orders dated
19.12.2009 and 14.05.2010 are hereby
quashed and the matter is remanded to
Collector to find out the stamp duty
payable and whether already paid by
petitioner is sufficient or not. The
Collector shall pass consequential order
within a period of three months from
today.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No.34915 of 2011

Jag Pal Singh ...Petitioner
Versus
M.D, Kanpur Electricity Supply Co. Kanpur
Nagar & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava, Sri S.K. Srivastava

Counsel for the Respondents:
Sri Sandeep Kumar Srivastava, Sri Ayank
Mishra, Sri Pranjal Mehrotra, S.C.

Constitution of India, Art.-226-Correction of
date of birth-class IV employee-service
book date of birth recorded 03.09.49-but in
document
of
company-date
of
birth
reflected as 28.05.55 accordingly continued
in service up to 13.05.2011 instead of
30.09.2009-recovery
of
salary
drawn
between actual date of retirement and
working of fortuous period-petitioner being
illiterate man not instrumental in excess
working than the actual date of retirement
held-no
question
recovery
of
excess
amount -if already recovered be refunded.

Held: Para-16
The respondents took work from the
petitioner and paid his salary for the work,
though
it
was
beyond
the
age
of
retirement, the petitioner is class IV
illiterate employee, there is no fraud or
misrepresentation on his part, thus the
2 All]. Jag Pal Singh Vs. M.D., Kanpur Electricity Supply Co. Kanpur Nagar & Ors.
1011
respondents cannot recover the amount of
salary paid to the petitioner for the period
after retirement till 13.05.2011, that too
without putting the petitioner to notice,
the impugned order was passed without
affording any opportunity and is liable to
be set aside on that ground alone.

Case Law discussed:
(2012) 8 SCC 417; AIR 1993 SC 1367; AIR
1993 SC 2647; AIR 1995 SC 850; AIR 2003 SC
4209; (2005) 6 SCC 49; AIR 2006 SC 2735;
(2005) 11 SCC 465; (2002) 7 SCC 719; AIR
2005 SC 1868; AIR 1937 PC 101; ILR 97 Cal
849; 2000(10) SCC 284; 1997(9) SCC 239;
(2009) 3 SCC 117.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsel for the
petitioner and Sri Ayank Mishra, learned
counsel appearing for Kanpur Electricity
Supply Company, Kanpur Nagar.

2. It transpires from the record that
the petitioner was appointed as Class IV
employee on the post of Coolie on
01.10.1974. The date of birth of the
petitioner i.e. 03.09.1949 was recorded in
the service record, however, due to
oversight and mistake, in the other
documents of the respondent-company,
the date of birth was reflected as
28.05.1955, as such, the petitioner was
allowed to continue till 13.05.2011
instead of retiring on 30.09.2009.

3. The petitioner has approached this
Court
assailing
the
order
dated
13.05.2011 passed by the Executive
Engineer,
Urban
Electricity
Supply
Division (F & R) Sarvodaya Nagar,
KESO, Kanpur, respondent no. 3 treating
the date of birth of the petitioner as
03.09.1949 thus retiring the petitioner
w.e.f. 30.09.2009, the salary paid is
sought to be recovered from the gratuity
and other retiral dues for the period, the
petitioner worked beyond 30.09.2009 till
13.05.2011.

4. Submission of learned counsel for
the petitioner is that as per 'Parivar
Register', petitioner's date of birth is
28.05.1955, hence the petitioner would
retire in 2015, further, petitioner is an
illiterate Class IV employee, hence, no
recovery should be made from the
petitioner for the period of service the
petitioner rendered beyond September
2009,
there
is
no
fraud
or
misrepresentation on the part of the
petitioner.

5. In rebuttal, Sri Ayank Mishra,
learned counsel appearing on behalf of
Kanpur Electricity Supply Company,
Kanpur Nagar, submits that since the
petitioner has worked beyond the actual
age of superannuation, the respondents
are entitled to recover the salary that was
paid by mistake treating the year of birth
as 1955, in support of his submission, Sri
Mishra has relied upon Chandi Prasad
Uniyal
Versus
State
of
Uttarakhand,(2012) 8 SCC 417.

6. It is admitted by learned counsel
appearing for the petitioner that the
service record mentions the date of birth
as 03.09.1949, thus, according to the entry
in
service
record
petitioner
would
superannuate on 30.09.2009, however,
due to some mistake and oversight of the
authorities, the other records of the
respondent-company showed the date of
birth as 28.05.1995, thus, the petitioner
was permitted to continue to work till
13.05.2011,
however,
when
the
authorities realised their mistake, the date
of retirement of the petitioner taken as
30.09.2009 as per the date of birth
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded in the service record, hence, it
was ordered that the salary paid till
13.05.2011 shall be recovered.

7. The contention of learned counsel
for the respondents is that since the
petitioner worked beyond the age of
superannuation,
excess
amount
paid
towards salary is recoverable, cannot be
accepted for the reasons that nothing
excess was paid to the petitioner, the
respondents
on
their
own
mistake
permitted the petitioner to continue in
service beyond the age of superannuation
for which the petitioner received salary
and
there
was
no
fraud
or
misrepresentation on the part of the
petitioner. The ratio of Chandi Prasad
Uniyal (supra) is not applicable on the
facts of the case as nothing excess was
paid to the petitioner by the respondents,
the petitioner was paid his salary for the
period he worked, even though it was for
the period beyond retirement, an illiterate
class IV employee cannot be fastened
with recovery for no fault of his own.

8. It is settled proposition of law that
the date of birth entered in the service
record cannot be corrected at a belated
stage. Where the entry of date of birth in
service record remains in existence for a
long time, the same is not required to be
disturbed on any ground whatsoever. The
onus is on the employee-applicant to
prove about the wrong recording of his
date of birth in his service record by
adducing irrefutable evidence. Court has
to
insist
for
clear,
clinching
and
unimpeachable evidence in this regard
because the relief sought by an employee,
if granted, may entail chain reaction
hampering
promotional
prospects
of
junior officers and may cause an
irreparable injury to them.(Vide Union of
India Vs. Harnam Singh, AIR 1993 SC
1367; Secretary & Commissioner, Home
Deptt. & Ors. Vs. R. Kirubakaran, AIR
1993 SC 2647; Chief Medical Officer Vs.
Khadeer Khadri, AIR 1995 SC 850; State
of U.P. Vs. Smt. Gulaichi, AIR 2003 SC
4209; State of U.P. & Anr. Vs. Shiv
Narain Upadhyaya, (2005) 6 SCC 49; and
State of Gujarat Vs. Vali Mohd. Dosabhai
Sindhi, AIR 2006 SC 2735.

9. In U.P. Madhyamik Shiksha
Parishad Vs. Raj Kumar Agnihotri,
(2005) 11 SCC 465, the Apex Court held
that an application for correction of date
is to be dealt with giving strict adherence
to the Rules, if any, framed in this regard
and particularly in respect of limitation
etc.

10. In State of Madhya Pradesh &
Ors. Vs. Mohan Lal Sharma, (2002) 7
SCC 719, the Supreme Court held that
while examining the issue of correction of
date of birth, the Court must be very slow
in accepting the case of applicant if issue
has been agitated at a much belated stage
and it must examine the pros and cons
involved in the case even if not raised by
the parties. In the said case the Tribunal
had allowed application for correcting the
date of birth placing reliance on the
Horoscope and a certificate issued by the
retired Head Master of the School
showing a different date of birth. The
Apex Court revised the said judgment
observing that if it was allowed the
applicant would have joined the service
when he was less than 18 years of age,
and
therefore,
accepting
such
an
application would amount to sanctifying
his illegal entrance in service. The Court
further observed that no reliance could be
placed upon the said certificate and
Horoscope at all.
2 All]. Jag Pal Singh Vs. M.D., Kanpur Electricity Supply Co. Kanpur Nagar & Ors.
1013

11. In State of Punjab Vs. Mohinder
Singh, AIR 2005 SC 1868, the Supreme
Court held that horoscope is a very weak
piece of material to prove age of a person.
A very heavy onus lies on the person,
who wants to press it into service, to
prove its authenticity. It requires to be
proved in terms of Section 32(5) of the
Evidence Act by examining the person
having special means of knowledge as
regards authenticity of date, time etc.
mentioned therein, and in that context,
horoscopes
have
been
held
to
be
inadmissible for proof of age. For that
purpose, reliance has been placed by the
Supreme Court on the judgments in Mt.
Biro Vs. Atma Ram & Ors., AIR 1937 PC
101 and also on the judgment of the
Calcutta High Court in Satish Chandra,
Mukhopadhyaya
Vs.
Mohindra
Lal
Pathak, ILR 97 Cal 849.

12. Thus the plea of the learned
counsel for the petitioner that the date of
birth of the petitioner be treated as
28.05.1955 instead of 03.09.1949 cannot
be accepted, further the petitioner has
admitted that at the time of entry in
service, the date of birth recorded in the
service record is 03.09.1949 which has
continued, as such, through out his career,
the plea that entry made in the service
book be corrected as per the date of birth
recorded in other documents of the
respondent-company cannot be accepted
at this belated stage, further the petitioner
was not high school at the time of
appointment, hence, as per rules the date
of birth recorded in the service record
shall be treated as final.

13. In Hari Singh v. State of Bihar,
2000(10) SCC 284, the Supreme 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 than the
one entered in the servive book, the order
of retirement could not be sustained. 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.

14. In Radha Kishun v. Union of
India, 1997 (9) SCC 239, the order was
passed to recover the salary from the
respondent as he worked after his due
date of superannuation, facts of the case is
clearly distinguishable as there was no
dispute as to the age of retirement of the
appellant in that appeal, as there was no
controversy in the date of birth of that
appeal, there was only one 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 records of the respondents. Therefore,
there was a confusion in the mind of the
respondent as a result of which the
petitioner was continued in service.

15. The Supreme Court in State of
Bihar Versus Pandey Jagdishwar Prasad,
(2009) 3 SCC 117, considered as to
whether salary paid to an employee after
retirement can be recovered by the
employer, the court in para 23 observed as
follows:-

"23. Without going into the question
whether the appellant was justified after
completion of two years from the actual
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
13 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."

16. In Chandi Prasad Uniyal (supra),
order to recover excess amount paid for the
reason of wrong fixation of pay was upheld
as it amounted to unjust enrichment, to
which the appellant was not entitled, but if
recovery would ensue hardship, then the
Court can prohibit the respondents from
making recovery. The present case is not a
case of payment of any amount on wrong
fixation of pay or payment over and above
that was due. The respondents took work
from the petitioner and paid his salary for
the work, though it was beyond the age of
retirement, the petitioner is class IV
illiterate employee, there is no fraud or
misrepresentation on his part, thus the
respondents cannot recover the amount of
salary paid to the petitioner for the period
after retirement till 13.05.2011, that too
without putting the petitioner to notice, the
impugned order was passed without
affording any opportunity and is liable to be
set aside on that ground alone.

17. For the facts and reasons stated
herein above, the impugned order dated
13.05.2011 passed by the respondent no.
3 is set aside to the extent it provides for
recovery. It is provided that the date of
birth of the petitioner shall be 03.09.1949,
accordingly, the age of superannuation
would be 30.09.2009. The post retiral and
terminal benefits shall be calculated as
due on 30.09.2009, however, the salary
paid to the petitioner w.e.f. 01.10.2009 to
13.05.2011 shall not be recovered from
the petitioner, and in case, the recovery
has been made from the terminal
benefits/retiral dues, the same shall be
refunded to the petitioner within a period
of two months from the date of filing of
certified copy of this order before the
respondent no. 3, Executive Engineer,
Urban Electricity Supply Division (F &
R) Sarvodaya Nagar, KESO, Kanpur.

18. Subject to the above, the writ
petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition (CERTIORARI) No.
37833 of 2013

Ankita Tiwari & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Kumar Pathak

Counsel for the Respondents:
C.S.C., Sri Ashutosh Vaish, Sri Ayank
Mishra, Sri P.K. Singh

Uttar Pradesh Recruitment of dependents
of Government Servant Dying in Harness
Rules
1974-Rule-5(3)
read
with
U.P.
Government Servant (Discipline & Appeal)
Rules 1999-Duty and responsibility of
compassionate
appointee-towards
maintenance of dependents of deceased
employee-if such appointee neglect to
maintain other family members-shall be
subject to face disciplinary proceedingsdirection to deduct 5000/-per month from
salary of such employee and pay to these