SARSWATI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Shivendra Kishore, Senior Advocate along with Mr. Bimlendu Shekhar Thakur, learned counsels for the petitioner, Sri Raza Ahmad, leaned AAG-5 with Vishwambhar Prasad, A.C. to AAG-5 for the respondent-State and Mr. Arun Kumar Arun along with Mrs. Subuhi learned counsels for respondent no. 4, Accountant General, Bihar Patna.

(2.) The widow of late Mukund Lal Bhagat who died on 09.10.2014 claims for the following reliefs:-

(3.) The facts of the case is that the late employee Mukund Lal Bhagat was appointed as Overseer in the Public Health Engineering Department, Government of Bihar on 19.07.1958. A dispute with regard to date of birth of the late employee arose in the year 1994. According to the State, the date of birth of the late employee as recorded in the service book was 01.09.1934 but according to the late employee his date of birth was 01.09.1939 as recorded in the matriculation certificate. While posted in Hazaribagh as In-Charge Executive Engineer, Ph.E.D. Hazaribagh, vide memo no. 1293 dated 02.12.1994, he was made to retire with immediate effect taking his date of birth as 01.09.1934 which is Annexure-14 of the rejoinder filed by the writ petitioner. However, the Commissioner-cum-Secretary, P.H.E.D. vide letter dated 31.12.1994 directed that the petitioner would continue in service till the inquiry relating to his date of birth is resolved which is Annexure-15 to the rejoinder filed by the petitioner in the writ application. Thereafter by letter no. 80 dated 10.03.1995, the Memo No. 1293 dated 02.12.1994 was revived by the Special Secretary of the Government P.H.E.D. treating the letter no. 465 dated 31.12.1994 to be withdrawn which is Annexure-16 of the rejoinder filed by the writ petitioner. Hence, the husband of the petitioner was made to retire on 10.03.1995 w.e.f. 31.08.1992 treating his date of birth as 01.09.1934. However, vide memo no. 642 dated 17.09.1996 as contained in Annexure-5 to the writ application 90% of the pension was sanctioned and because of the controversy in the date of birth, while his date of retirement was treated as 01.09.1992 and his unauthorised continuation in service till 10.03.1995 was inquired into hence, 10% of the pension and gratuity was kept pending awaiting the result of the departmental inquiry. It may be mentioned here that the petitioner moved this Court in C.W.J.C. No. 1928 of 1995 which is Annexure-3 to the writ application against the order of the retirement which was dismissed on the ground that the dispute regarding date of birth cannot be raised at the fag end of the service. Against the said order, late employee moved in L.P.A. No. 1097 of 1995 which was also dismissed on 08.01.1997 as contained in Annexure-4 to the writ application. However, the petitioner again moved this Court in C.W.J.C. No. 6017 of 1996 for grant of promotion to the post of Selection Grade Assistant Engineer together with his claim for retirement dues although his arguments were only confined with regard to retiral dues. This Court vide order dated 05.12.1997 found that 90% of the pension has already been sanctioned and a departmental proceeding is pending. Hence a direction was given to the disciplinary authority to pass a final order within a period of three months and accordingly, disposed of the writ application which is Annexure-6 to the writ application. It is relevant to mention that a departmental proceeding was initiated against the late employee vide memo no. 883 dated 04.12.1995 under Rule 55 of the Civil Services (Classification Control and Appeal) Rules, 1930 for suppression of actual date of birth and simultaneously an FIR being Hazaribagh P.S. Case No. 104 of 1995 was also instituted for offences under Sections 419, 420, 467, 120B, 468, 471 and 472 of the Indian Penal Code. The inquiry officer vide letter no. 65 (c) dated 03.10.1996 during the course of departmental proceedings observed that for similar charges criminal proceeding being Hazaribagh P.S. Case No. 104 of 1995 has been lodged on 03.04.1995 hence, the departmental proceedings would be kept in abeyance till the decision of the criminal case. The criminal case pending before the Judicial Magistrate, 1st Class, Hazaribagh being G.R. No. 501 of 1995/Tr. No. 08 of 2008 was disposed of and the late employee was acquitted and given the benefit of doubt vide order dated 19.02.2008 as contained in Annexure-17 of the supplementary affidavit filed by the petitioner. Thereafter the departmental proceedings revived and vide memo no. 74 dated 28.12.2012 the departmental proceedings was converted under 43 (b) of the Bihar Pension Rules as contained in Annexure-7 and an inquiry officer was appointed. During course of inquiry, the inquiry officer found that in the original tabulation register (OTR) of the Bihar School Examination Board the date of birth of the late employee is mentioned as 01.09.1934. After cutting 34 his date of birth has been noted as 01.09.1939 and bears the initial but the cutting was done by which officer is not known which the Deputy Secretary- cum-Public Information Officer of the Bihar School Examination Board had reported by letter no. 957 dated 12.09.2011. It also came to light during course of inquiry that the service book of the petitioner only bears 1st September, 193 and thereafter the year has been erased. It was also opined by the inquiry officer that the service history of the late employee which has been prepared by the Superintending Engineer, Purnea circle who had endorsed his signature on 15.05.1981, which shows the date of birth of the late employee as 01.09.1934. It was also opined that the petitioner had joined the service on 16.08.1958 and ought to have applied for correction within 10 years of service which was not done and hence charges were found to be proved. Thus, the order of punishment was passed against the late employee vide memo no. 812 dated 15.10.2014 as contained in Annexure-1 for recovery of Rs. 95723.70 for his unauthorised service for the period between 01.09.1992 to 10.03.1995 and 10% of the pension was forfeited along with entire gratuity which has been challenged by the writ petitioner in the present writ application. However, before the order of punishment dated 15.10.2014 could be passed, the late employee died on 9th October, 2014, the death certificate is enclosed in Annexure-11 of the writ application.