Ujjal Bhuyan, J.@mdashBy this application under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 6-6-1992 passed by the Chief Engineer (D), Assam State Electricity Board, whereby it was declared that the service of the petitioner''s husband stood terminated with effect from 1.2.1992 that is with effect from the date of superannuation. The petitioner has also sought for necessary direction upon the respondents for upholding the previous order dated 13.02.1992 issued by the Executive Engineer, T & T Division, Assam State Electricity Board (ASEB), whereby the date of birth of the petitioner''s husband as recorded in his service book was corrected from 1.2.1934 to 1.6.1944. The further prayer made in the writ petition is for a direction to the ''respondent authorities to pay the family pension and other retiral dues of the petitioner''s husband with adequate interest thereon by taking 31-5-2002 as his date of superannuation which is on the basis of his actual date of birth i.e., 1.6.1944. The facts of the case necessary for adjudication may be briefly stated at the very outset:
The petitioner''s husband, Satya Narayan Singh was engaged as a Muster Roll worker under the respondent No. 5 in the year 1970. He was initially posted as helper at Samaguri in the district of Now-gong. Thereafter he was absorbed into the worked charged establishment under the respondent No. 5 on 16-2-1970. In course of time, the petitioner''s husband was promoted as Fitter, Grade-I vide order dated 17-1-1985 and posted in the T & T Division, ASEB, Tinsukia. According to the petitioner, her husband came to know in the early part of the year 1983 that his date of birth was recorded in his service book by the office of the respondent No. 5 as 1-2-1934 instead of 1-6-1944, which according to the petitioner is the actual and correct date of birth of her husband. The petitioner''s husband immediately took up the matter with the higher authority for correction of his date of birth as recorded in the service book" He submitted his school certificate dated 30-9-1958. In the said school certificate, amongst others, the following information were furnished :
(1) Date of Admission - 9-1-1956;
(2) Date of Birth - 1-6-1944 (both in figure and words);
(3) Date of leaving the school -15-1-1957;
(4) Class up to which he read - VII.
On 25.4.1983, the Executive Engineer, Transmission Division, ASEB wrote to the petitioner''s husband stating that the original entry in the service book showed the date 1-2-1934 as his date of birth, which was acknowledged by him by putting his LTI on 15-9-1970 whereas the school certificate produced by him showed his date of birth as 1-6-1944. The petitioner''s husband was directed to explain the difference as indicated above.
In his explanation dated 5-5-1983, the petitioner''s husband stated that he did not know about his date of birth as was recorded in his service book. Referring to the school certificate/he stated that his date of birth was 1-6-1944. As there was no response, the petitioner''s husband again submitted representation before the higher authority on 1-7-1991. In his representation dated 1-7-1991, he stated that at the time of initial engagement he was not required to submit any certificate of age. Stating that the said information was asked for and was given verbally and perhaps because of that, the date of birth could have been recorded inadvertently as 1934 instead of 1944.
As the date of birth of the petitioner''s husband was recorded in the service book as 1-2-1934, his date of superannuation was 31-1-1992. As no decision was taken, he again submitted a representation on 11-12-1991 before the Personnel Officer, ASEB. In the meanwhile, the Executive Engineer, T & T Division, ASEB, Tinsukia forwarded the case of the petitioner''s husband on 21-12-1991 to the District Medical and Health Officer, Tinsukia for his medical examination and to issue a certificate of age. The petitioner''s husband was thereafter examined by the said Medical and Health Officer on 31-12-1991, who issued a certificate stating that the age of the petitioner would be about 47-1/2 years, which corresponds to the date of birth as per the school certificate. Though as per the recorded date of birth the petitioner''s husband stood superannuated on 1-2-1992, the Executive Engineer, T & T Division, ASEB, Tinsukia issued an office order dated 13-2-1992 (Annexure ''?'' to the writ petition) correcting the date of birth of the petitioner''s husband as 1-6-1944 instead of 1-2-1934. The said office order was issued subject to the approval of the Superintending Engineer (respondent No. 4). While the petitioner''s husband continued in service in view of the aforesaid correction of his date of birth, he was served with a telephonic message of the Chief Engineer (D), ASEB dated 5-6-1992 whereby the correction of the date of birth made by the Executive Engineer was declared as void on the ground that he had no authority to make the correction. By the said message, which was issued to the petitioner''s husband in written form by the Executive Engineer, T & T Division, ASEB, Tinsukia on 6-6-1992, it was declared that the service of the petitioner''s husband stood terminated with effect from 1-2-1992 i.e. from the date of superannuation. The petitioner''s husband was instructed to meet the said authority in the event he had any grievance in this regard. The petitioner''s husband met the Chief Engineer (D) on 18-6-1992 and submitted a representation to him. He reiterated his contention made earlier and relying on the school certificate as well as the medical certificate, requested that his date of birth as recorded in the service book be corrected to 1-6-1944 and consequently his date of superannuation to 31-5-2002. Nothing was done in this regard by the authority. It is stated by the petitioner that her husband had preferred a writ petition before this Court challenging the legality and validity of the above telephonic message dated 6-6-1992 but because of the verbal assurance given by the authority, the said writ petition was withdrawn. Unfortunately, the husband of the petitioner expired on 13-8-2002 without resolution of the controversy relating to his date of birth and also without receiving any pension and other retirement dues, even accepting his date of birth as 1-2-1934 and subsequently his superannuation on 1-2-1992. After the death of her husband, the petitioner approached the authority for payment of pension and other dues of her husband. The Superintending Engineer i.e. respondent No. 4 wrote to the Personnel Manager ASEB i.e. respondent No. 3 on 12-12-2002 stating that the petitioner had applied for pension/OCR Gratuity in respect of Late Satya Narayan Singh. The application submitted by the petitioner was forwarded in original. The Superintending Engineer further stated that all the relevant documents along with the service book of Late Satya Narayan Singh was sent to the office of the respondent No. 3 from the office of the Executive Engineer, T & T Division, ASEB Tinsukia vide the forwarding letter dated 5-2-1992 but that the petitioner has not received any of the retiral dues of her late husband. As the petitioner has not been paid any retiral dues such as family pension etc. of her late husband, she has approached this Court by way of the instant writ petition.
2. The respondents have filed their affidavit-in-opposition. In their affidavit, the respondents have contended that the writ petition is not maintainable because of the delay in filing the same. They also contended that the petitioner''s husband had withdrawn the writ petition filed by him and denied that the authority had assured him to consider his grievance. On merit, it has been contended that the date of birth of the petitioner''s husband was correctly recorded in the service book as 1-2-1934 and that the same was acknowledged by him by putting his thumb impression. Contending that the Executive Engineer does not have any authority to make correction of the date of birth, it has been asserted that the higher authority rightly confirmed the date of birth as 1-2-1934. Regarding- non-payment of the terminal benefits in respect of the petitioner''s husband, the respondents have stated that the same could not be paid as the petitioner has not applied for the same and that after filing of the writ petition, the respondents have sent a letter dated 4-8-2010 to the petitioner seeking particulars for drawal of terminal benefits of her deceased husband. The respondents have stated that after receipt of such information, the retiral benefits as found due would be disbursed at the earliest.
3. I have heard Mr. P. B. Mazumdar, learned counsel appearing for the petitioner as well as Mr. H.K. Sharma, learned Standing Counsel, ASEB appearing for all the respondents.
4. Referring to the various averments made in the writ petition and the documents annexed thereto, Mr. Mazumdar, learned counsel submitted that it is a genuine case and extreme hardship has been caused to the petitioner and her children because of the inaction of the respondents. He submitted that the petitioner''s husband had moved the authority for correction of his date of birth about 10(ten) years before his retirement immediately on coming to know that his date of birth was wrongly recorded in the service book as 1-2-1934 instead of 1-6-1944. He further submitted that the concerned Executive Engineer had rightly corrected the date of birth of the petitioner''s husband based on the school certificate and the medical certificate. In any case, he contended, the said correction was made subject to the approval of the Superintending Engineer. Without taking a decision either approving or disapproving such correction, the Chief Engineer arbitrarily sent the telephonic message on 5-6-1992, which was sent to the petitioner''s husband in written form on 6-6-1992, without hearing the petitioner''s husband. On this aspect of the matter, Mr. Mazumdar, learned counsel, relies on the following judgments :
(1) 1980 (Supp) SCC 678 (Jiwan Kishore v. Delhi Transport Corporation and Another);
(2) 1997 (2) GLT 140 (Col P.M. Xavier, PRO, Silchar v. The Union of India & Ors.);
(3)
(4)
Mr. Mazumdar further submits that the petitioner has not been paid any retirement dues of her late husband. Nothing has been paid as retirement dues to the petitioner even on the basis of the date of superannuation of her husband accepted by the respondents themselves i.e. 1.2.1992-Contending that the respondents are bound to pay the petitioner the retirement dues of her husband, he submitted that because of the long delay in the payment of the same, the petitioner would also be entitled to interest on the retirement dues. In this connection, he refers to and relies on the following judgments :
(1)
(2) (1991) 2 GLR 103 (Dhirendra Nath Rajkhowa v. State of Assam & Ors.);
(3)
(4)
5. Mr. H.K. Sharma, learned Standing Counsel, ASEB appearing for the respondents submits that there is long delay in filing the writ petition and that the earlier writ petition filed by the petitioner''s husband was withdrawn. He, therefore, submits that the writ petition is not maintainable and should be dismissed as such. On merits, he submits that the school certificate is not a matriculation certificate and that no reliance can be placed on the same as well as on the medical certificate. He refers to the office memorandum dated 11-8-1986 of the ASEB (marked as Annexure ''O'' to the writ petition) and submits that as per Clause 4(e) thereof, school certificate, horoscope, other certificate and statements may not be accepted without corroboration of age by the medical officer to whom the concerned employee is sent for examination. He further submits that the Executive Engineer was not competent to make the correction. Regarding the retiral dues, he submitted that as soon as the details are furnished, the entire dues would be paid.
6. In reply, Mr. Mazumdar referred to paragraph-19 of the writ petition as well as the document dated 12-12-2002 (marked as Annexure ''T'' to the writ petition) stating that all the relevant documents and particulars of Late Satya Narayan Singh were forwarded to the office of the respondent No. 3 i.e. the Personnel Manager by the Executive Engineer on 5-3-1992. Mr. Mazumdar submits that the above facts have not been denied by the respondents in the counter affidavit.
7. The rival submissions on behalf of both the parties have received the due and anxious consideration of the Court. The controversy raised in the writ petition revolves around 2(two) issues, namely, (1) correction of the date of birth of the petitioner''s husband from 1-2-1934 to 1-6-1944 and consequently the date o" superannuation from 1-2-1992 to 31-5-2002 and (2) the non-payment of the retirement dues of Late Satya Narayan Singh including payment of family pension to the petitioner. The decision pertaining to the first issue would have a considerable bearing on the second issue and, therefore, it would be expedient to take up the issue relating to the correction of date of birth first.
8. Let us first consider the preliminary objection raised by the respondents regarding the maintainability of the writ petition. The said objection has been raised mainly on the ground of delay and the filing of the previous writ petition by the husband of the petitioner. From the facts narrated above, it is seen that though as per the initial date of birth recorded in the service book, the petitioner''s husband was to retire on 1-2-1992, by order dated 13-2-1992, the date of birth of the petitioner''s husband was provisionally corrected to 1-6-1944 whereafter he continued in service. By the impugned order dated 6-6-1992, the said order dated 13-2-1992 was declared to be void and the service of the petitioner''s husband was terminated with effect from 1-2-1992 i.e. from the date of superannuation. This was challenged by the petitioner''s husband before this Court by way of a writ petition. However, the particulars of the said writ petition are not available on record as neither the petitioner nor the respondents have been able to furnish any particulars of the said writ petition. Subsequently, the said writ petition was withdrawn. Satya Narayan Singh thereafter died on 13-8-2002. On his death, the petitioner applied for pension and other benefits of Late Satya Narayan Singh as his legal heir. The petitioner is a widow and is not a literate lady. She has stated in the writ petition that after the death of her husband she had moved the respondent authorities for payment of retirement and other dues of her late husband but there was no response. Mr. Mazumdar submitted that the petitioner was under the impression that the writ petition filed by her husband was pending and, therefore, the delay.
9. Delay cannot be said to be an absolute bar in all cases. It will always depend on facts to facts. This Court in the case of M/s. Appolo Machinery Mart & Another v. State of Assam & Another reported in 1997 (1) GLJ 530 had held that so far as the question of delay is concerned, there is no statutory time limit prescribed for filing of a writ petition although ordinarily the provisions of the Limitation Act provide guidance, but no hard and fast rule can be laid down in this behalf. This Court held that delay and laches is a matter of procedure and it does not provide with a weapon in the hand of the adversary or the opposite party to seek dismissal of a petition on this ground. If at all it is put, it must be raised at the earliest stage of motion or admission. Earlier, in the case of Dr. Khagendra Nath Baishya v. State of Assam & Others reported in 1994 (2) GLJ 318, a Division Bench of this Court permitted the appellant to make submissions on the merits of the case though the writ petition of the appellant was dismissed on the ground of delay. In the present case, this aspect had already been taken note of by the Court when the case was admitted. In the order dated 31-5-2010, this Court had observed that ordinarily and in the normal course, the Court would not have been inclined to entertain the writ petition on account of delay but having regard to the peculiar facts of the case, this Court took the view that the grievance raised in the writ petition should be examined on merit. In any case, non-payment of pension etc. is itself a continuing cause. Therefore, the objection raised as to the maintainability of the writ petition on account of delay is not accepted. In view of the aforesaid, the second objection regarding the maintainability of the writ petition on account of filing of the previous writ petition by the petitioner''s husband is also not accepted.
10. Coming to the merit of the case, it is seen that the petitioner''s husband had worked almost entirely as a field worker, starting as a Muster Roll Worker. From the explanation given by the petitioner''s husband in his various representations, it is seen that he was verbally asked by the authority about his date of birth and are also furnished the information verbally. No school certificate or such other documents were required at that time. Perhaps that could be the reason for the wrong entry in the service book. Though his thumb impression was taken, it must be borne in mind that he had left school way back in the year 1957 when he was studying in Class VII. The language used in the service book is English and Assamese. The petitioner''s husband did not wait till the last moment. It is not a case where the petitioner''s husband waited till the eleventh hour for correction of his date of birth. As soon as the mistake was brought to his notice, he moved the higher authority and submitted his school certificate. The school certificate is not a recent document. It is dated 30-9-1958. The date of birth of Satya Narayan Singh was recorded in the school register as 1-6-1944, which was both in words and figure. He left the school on 15-1-1957 when he was reading only in Class-VII. He was engaged as Muster Roll Worker in 1970. Taking his date of birth as 1-6-1944 would have been 26 years of age in 1970, which is quite plausible. The petitioner''s husband was directed by the authority on 25-4-1983 to explain the difference in the two dates of birth i.e. 1-2-1934 recorded in the service book on 15-9-1970 and the date of birth as recorded in the school certificate as 1-6-1944. Though the petitioner''s husband explained the same by submitting representations enclosing therewith the school certificate no decision was taken thereon. The first such explanation was dated 5-5-1983. Because of the persistent prayer of the petitioner''s husband, he was sent for medical examination and as per the medical certificate dated 31-12-1991, the age of the petitioner''s husband was certified to the about 47 1/2 years, which corresponds to the date of birth given in the school certificate. On the basis of the school certificate and the medical certificate, the Executive Engineer had provisionally corrected the date of birth from 1-2-1934 to 1-6-1944 subject to approval by the Superintending Engineer, but neither it was approved nor disapproved. Clause 4(e) of the office memorandum dated 11-8-1986 provides for two situations, (1) school certificate, horoscope and other certificate and statements should not be accepted without corroboration of age by the medical certificate, (2) if the gap in age between the above documents and the medical certificate is not more than 1 (one) year, the above document should be accepted but in other cases the document should be forwarded to the Deputy Personnel Manager (GEF), ASEB for further deliberation. In the present case, the date of birth given in the school certificate is corroborated by the age given in the medical certificate therefore, there is no question of forwarding the matter to the Deputy Personnel Manager. Even in the death certificate of Satya Narayan Singh (he died on 13-8-2002), his age has been indicated as 58 years.
11. A Division Bench of this Court in the case of Col P.M. Xavier, Pro (supra) held as follows:
9......An employer whether in the Armed Forces or civil servant has a right for fair consideration of his or her case for correction of the date of birth which is of prime importance in the service career. If there exists irrefutable evidence in support of the change of the date of birth and unless the said correction was sought for with oblique motive, there cannot be any valid reason for not considering the same. That does not mean that the said corrections and rectifications can be made at any time. Steps for correction of the age ought to be made within a reasonable time and reasonable time will vary from facts and circumstances of each case. The power of rectification is given to advance the cause of justice and justice will be always the guiding factor in the process of correction of age. The administrative authority is clothed with the discretion but that discretion is not an unfettered discretion. A discretion is given to promote the cause of justice. Discretion means that something is to be done according to the Rules of reason and justice. It cannot be unjust, arbitrary, vague and fanciful.*****
12. Therefore, considering the matter in its entirety, I find that there is no valid reason either to disbelieve or not to accepted certificate of Satya Narayan Singh. Regarding the objection that the school certificate is not a matriculation certificate, the fact is that when the petitioner''s husband was not a matriculate, having studied only upto Class-VII, therefore, the question of having a matriculation certificate does not arise. The respondents did not take any decision on the grievance raised by Satya Narayan Singh for correcting his date of birth from 1-2-1934 to 1-6-1944. In the instant case, although the respondents have stated that the Executive Engineer did not have the authority to make the correction, no decision was taken by them. The aggrieved party must know as to what decision has been passed in his case and the reasons for such decision.
13. I am, therefore, of the view that the date of birth of the petitioner''s husband should be treated as 1-6-1944 and consequently his date of superannuation should be taken as 31-5-2002. The period from 1-2-1992 to 31-5-2002 should be treated to be in service and taken into account for the purpose of computation of the pension and other retirement dues of Satya Narayan Singh. However, in the peculiar facts of the case, I refrain from passing any order regarding payment of salary for that period.
14. In view of the finding given in respect of the Issue No. 1, the controversy regarding the second issue considerably boils down to a narrow compass. It is settled law that pension and gratuity are not bounties to be distributed by the Government and its instrumentalities to their employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement of the same must be visited with the penalty of payment of interest. The Apex Court in the case of
15. In the present case, as per the own showing of the respondents, the retiral dues of the petitioner''s husband has not been paid till date. Even if we take into consideration, the date of superannuation accepted by the respondents i.e. 1-2-1992, in that case also there is a delay of almost 20(twenty) years, which is totally inexcusable. In the Annexure-T letter dated 12-12-2002, which is not denied, the Super-intending Engineer had informed the Personnel Manager, ASEB that all the relevant documents along with the service book of Satya Narayan Singh was already sent to the office of the Personnel Manager by the concerned Executive Engineer on 5-3-1992 but even than the petitioner has not received any benefit against the retirement of her husband. Even on the basis of the date of superannuation accepted by the respondents i.e. 1-2-1992, had the respondents taken prompt steps, the question of seeking details of his dependants after his death would not have arisen. Even those details were sought for the first time only on 4-8-2010 (Annexure-2 to the counter affidavit), that too after filing of the writ petition by the petitioner. The attitude of the respondents is clearly apathetic and they failed to take any step, not to speak of prompt steps, for payment of the retiral dues of Satya Narayan Singh.
16. In view of the aforesaid discussion, the respondents are directed to pay all the retiral dues of Satya Narayan Singh including family pension to the petitioner by taking the date of superannuation of Satya Narayan Singh as on 31-5-2002. The retiral dues of Satya Narayan Singh would carry an interest of 9% per annum starting from 2(two) months after the date of superannuation, i.e. with effect from 1-8-2002 till payment of the same. The arrear amount should be paid within 4(four) months from the date of receipt of the certified copy of this order and thereafter the petitioner would be paid family pension and such other dues as may be admissible under the law on regular basis. The writ petition stands allowed, but there shall be no order as to cost.
