# Ram Dayal Gupta v. D.I.O.S., Firozabad and another

- **Citation:** (2002) 3 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-18
- **Case number:** Civil Misc. Writ Petition No. 36661 of 1995
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dayal-gupta-v-d-i-o-s-firozabad-and-another-39980
- **Pages:** 3

## Headnote

S.C.

Service Book- Date of Birth entered in
service book is authentic for the purpose
of superannuation. Impugned notice
quashed and direction given to pay
retirement benefit.

Held Para 6

It is settled law that the date of birth
recorded in the service book has to be
taken as authentic for the purpose of
superannuation.
The
petitioner
had
http://www.allahabadhighcourt.nic.in
3 All] Ram Dayal Gupta V. D.I.O.S., Firozabad and another
701
passed the High School Examination
before entry in service. The service book
also shows the date of birth of the
petitioner as 1st October, 1934. Even if
the averments made in the impugned
notice are taken to be gospel truth
recovery
cannot
be
made
as
the
petitioner has actually worked in the
institution for the period from 1st July,
1990 to 30th June 1995.

## Text

http://www.allahabadhighcourt.nic.in
700 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
for the parties, I am of the opinion that the
petitioner has got an alternative remedy
under section 128 of the U.P. Cooperative
Societies Act, 1965 (in short the Act). The
said section 128 of the Act provides as
follows:

"Registrar's power to annual resolution of
a cooperative society or cancel order
passed by an officer of a cooperative
society in certain cases- The Registrar
may-
(i) annual any resolution passed by the
committee of management or the general
body of any cooperative society, or
(ii) cancel any order passed by an officer
of a cooperative society.

if he is of the opinion that the resolution
or the order, as the case may be , is not
covered by the objects of the society , or
is in contravention of the provisions of
this Act, the rules or the bye laws of the
society, whereupon every such resolution
or
order
shall
become
void
and
inoperative and be deleted from the
records of the society."

11. In view of the provisions of
clause (i) of Section 128 of the Act, the
Registrar within the meaning of section 2
(r) read with section 3 of the Act has
power to annual any resolution passed by
the committee of management, or the
general body of the cooperative society.
Under clause (ii) of section 128 of the
Act, the Registrar has power to cancel any
order passed by an officer of the
cooperative society.

12. In view of this, the petitioner
may seek appropriate relief under section
128 of the U.P. Cooperative Societies
Act, 1965 against the said order dated
26.7.2002
and
the resolution
dated
18.7.2002 referred to in the said order
dated 26.7.2002.

13. The writ petition is, therefore,
liable to be dismissed on the ground of
availability of an alternative remedy to the
petitioner. The writ petition is accordingly
dismissed on the ground of alternative
remedy.

14.

In
case,
the
petitioner
approaches the Registrar under section
128 of the U.P. Cooperative Societies
Act, 1965, the Registrar will decide the
matter expeditiously.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.8.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 36661 of 1995

Ram Dayal Gupta

...Petitioner
Versus
District Inspector of Schools, Firozabad
and another

 ...Respondents

Counsel for the Petitioner:
Sri Prakash Gupta

Counsel for the Respondents:
S.C.

Service Book- Date of Birth entered in
service book is authentic for the purpose
of superannuation. Impugned notice
quashed and direction given to pay
retirement benefit.

Held Para 6

It is settled law that the date of birth
recorded in the service book has to be
taken as authentic for the purpose of
superannuation.
The
petitioner
had
http://www.allahabadhighcourt.nic.in
3 All] Ram Dayal Gupta V. D.I.O.S., Firozabad and another
701
passed the High School Examination
before entry in service. The service book
also shows the date of birth of the
petitioner as 1st October, 1934. Even if
the averments made in the impugned
notice are taken to be gospel truth
recovery
cannot
be
made
as
the
petitioner has actually worked in the
institution for the period from 1st July,
1990 to 30th June 1995.

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard counsel for the parties and
perused the record.

1. By means of this writ petition, the
petitioner has prayed for quashing the
impugned
notice
dated
29.9.95
(Annexure-6 to the writ petition) given by
the Manager Sri P.D. Jain Inter College,
Firozabad.

2. By the impugned notice the
petitioner has been informed that when
the office was preparing his papers after
his retirement on 30 June, 1995 pertaining
to the retiral benefits it has come to the
knowledge that his actual date of birth
was 1.10.29. It is alleged that the
petitioner had concealed his date of birth
and had for ulterior motive gave a wrong
date of birth as 1st October, 1934 in the
service book and by the aforesaid act he
has taken benefit of five years. He has
thus illegally withdrawn wages for the
period from 1 July, 1990 to 30 June, 1995
amounting
to
Rs.2,80,706.00.
The
petitioner was directed to submit his
explanation with 3 days failing which
legal action was to be taken.

3. He was appointed on 13.7.59 on
probation for one year in L.T. grade in Sri
P.D. Jain Inter College, Firozabad for
teaching biology subject. The petitioner
was confirmed and has retired from the
college.

4. The petitioner states that his date
of birth is 1.10.34. He further states that
he
had
passed
the
High
School
examination in the year 1949 from Narain
Intermediate College, Sikohabad. He has
also annexed Photostat copy of the High
School Certificate (Annexure-2 to the writ
petition) in which his date of birth is
mentioned as 1.10.34. He has also
annexed Photostat copy of the service
book in which his date of birth was
recorded as 1.10.34 according to the
petitioner has completed the age of 60
years on 1.10.94 but as this date fell in the
midth of the session he continued till the
end of session and was retired on 30.6.95.

5. The petitioner further states that
he has been given no dues certificate by
the Principal of the College, therefore, he
is entitled to the post retiral benefits
consisting of P.F. etc. on the basis of
actual date of retirement on 30.6.95. He
further submits that he had submitted the
papers for the payment of post retiral
benefits but the same has not been paid
and instead the petitioner has been served
with the impugned notice dated 29.9.95.

6. It is settled law that the date of
birth recorded in the service book has to
be taken as authentic for the purpose of
superannation. The petitioner had passed
the High School examination before entry
in service. The service book also shows
the date of birth of the petitioner as 1
October, 1934. Even if the averments
made in the impugned notice are taken to
be gospel truth recovery cannot be made
as the petitioner has actually worked in
the institution for the period from 1st July,
1990 to 30 June, 1995.
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702 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
7. The petitioner has relied upon a
decision of the Division Bench of this
Court
in
Adhishasi
Abhiyanta
Electricity Rihand and Hydel Civil
Division UP State Electricity Board
Allahabad and another vs. Shitla
Prasad and another, 1194 AWC-468 in
which it has been held that finality
attaches to the date of birth as recorded in
the service book and the same cannot be
disturbed on a subsequent plea by the
employee that it has been wrongly
recorded. The date of birth recorded in the
service book of an employee is final and
shall be taken to be his correct date of
birth. I am of the firm opinion that the
date of birth of an employee recorded in
the High School Certificate before his
entry in service is to be taken as authentic
date of birth.

8. In view of the aforesaid facts I
hold that the date of birth of the petitioner
is 1 October, 1934 and he is entitled to the
post retirement benefits which can not be
withheld by the respondents on the basis
of the ground taken in the impugned
notice.

9. In view of the above, the writ
petition succeeds and is allowed. The
respondents are directed to pay all the
retirement benefits to the petitioner on the
basis of his date of birth recorded as
1.10.34 along with 12% interest within a
period of three months from the date of
production of a certified copy of this
order.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD SEP. 18, 2002

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE Y.R. TRIPATHI, J.

Crl. Misc. Writ Petition No. 3249 of 2002

Mohd. Ashraf

...Petitioner
Versus
Sushri Mayawati, Chief Minister, U.P.,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri Khan Saulat Hanif
Sri S.M.A. Kazmi
Sri Ravinder Sharma

Counsel for the Respondents:
A.G.A.

Constitution of India- Article 226- The
normal rule is not to interfere with the
investigation and criminal proceedings,
except when the complaint or the F.I.R.
broadly read, does not disclose any
offence and can be termed as abuse of
process of law- there are clear allegation
of two shots having been fired by the
petitioner on him- The F.I.R. relates the
incident in requisite details with the
names of the witnesses being also given
there. The matter requires probing by
investigation and the incident cannot be
taken to be unbelievable and imaginary
at this stage simply because it is a case
of 'no injury'. (Held in para 17).

The
FIR
is
question
discloses
the
commission of cognizable offences and
that at this stage no mala fides can be
held to be involved in the lodging of the
said FIR, the petitioner is not entitled for
any relief. We do not locate any merit in
this
writ
petition
for
the
detailed
discussion
made
in
the
proceeding
paragraphs.
Case Law Referred:
1992 SCC (Cri) 426