LexMOHD. YUNUS KHAN versus U.P. POWER CORPORATION LTD. AND ORS.
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A [2008] 14 S.C.R. 1114 MOHD. YUNUS KHAN v. j "j U.P. POWER CORPORATION LTD. AND ORS. (Civil Appeal No. 6191 of ·2008) I OCTOBER 22, 2008 \_,~, B [S.B. ~INHA AND CYRIAC JOSEPH, JJ.] Service Law: Date of birth - Wrongly recorded in service book as 27th C February, 1934 instead of 1st July, 1948, the actual date of birth - Representations of Appellant-employee not considered by employer - Date of birth of Appellant treated as 27th Feb- ruary, 1934 and he was made to retire in 1992 prior to his ac- tual due date of retirement - Writ petition by Appellant - Or- o der of retirement stayed by Single Judge of High Court with interim direction for payment of salary - Payment later on stopped by employer - Writ petition ultimately allowed - Or- A der set aside by Division Bench _in intra-Court appeal - On appeal, held: No opportunity was given to Appellant to file proof E to show his correct date of birth - Respondent-employer did not comply with principles of natural justice - Treating the date of birth- as 1st July, 1948,' Appellant is held to have retired in the year 2006 - ·He would not, however, be entitled to the en- tire back wages, as for substantial period he was paid salary F although he did not work and further he approached Supreme Court after a long time - Direction issued that 50% of backx_ wages be paid except for period during which salary was paid to him - However, for calculation of pensionary and other retiral dues, he is treated to have continued in service till date of his G superannuation. The Appellant-employee came to know in 1988 that his date of birth was wrongly recorded in the service book*- ~ as 27-2-1934 instead and in place of his actual date of birth which was 1-7-1948. The said error apparently occurred H 1114 t MOHD. YUNUS KHAN v. U.P. POWER 1115 CORPORATION LTD. & ORS. ~ .~ because the date of birth of another employee with the A same name was 27-2-1934. Appellant filed representations, however the same were not considered and in 1992, Appellant was made to retire by treating his date of birth as 27-2-193_4. B Appellant filed writ petition. The order of retirement was stayed by Single Judge of High Court. with interim -f direction for payment of salary. Payment of salary was later on stopped by Respondent-employer. The writ peti- tion was ultimately allowed. The order was set aside by c Division Bench in intra-Court appeal. Hence the present appeal. Allowing the appeal, the Court HELD: 1. No material has been placed in regard to D existence of a statutory rule fixing a time frame for filing ~- an application for correction of the date of birth in the service record. Even if there was such a provision, the same would not be of much significance as respondents had not shown that the mistake in the matter of recording E of date of birth in the service record was known to appel- lant at any earlier point of time. If appellant's contention is corre,ct that he came to learn about it only in April, 1988 whereafter he filed a representation, it must be held that there was no delay on his part in this behalf. An employee -f may take action as is permissible in law only after· com- F· J( ing to know that a mistake has been committed by the employer. [Para 12] (1120-D, E, F) 2.1. Appellant was to retire, even treating his date of birth as 27th February, 1934, in 1992. In that view of the G, matter the representation filed by appellant in the year .... , --;: 1988 should have received due and expeditious consid- eration at the hands of the authorities. Had such a step been taken, the principles of natural justice of giving an opportunity of hearing to the other employee with same H :,,. 1116 - SUPREME COURT REPORTS [2008] 14 S.C.R. A name could also have been complied with. Even the :.i; • records of both the employees could have been verified : with reference to the other documents as also the names ' ~ of the parents of the parties, if necessary, in presence of 't each other. No such step had been taken by the Board. B Particularly-when respondent No.5, the Executive Engi- neer, indeed found that such a mistake had been com- ·, mitted and recommended for correction thereof, the l Board, which is a 'State' within the meaning of Article 12 ~- ... of the Constitution, was obligated to rectify the same. In c the factual position of the case, Appellant should have been given an opportunity of hearing. He shou
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