Holding

The Board, as a State authority, was obligated to correct the erroneous date of birth and, having failed to afford a hearing, must treat the employee as having retired in 2006 with entitlement to 50% of back wages (excluding periods of salary already paid) and full pensionary benefits as if he had remained in service until superannuation.

Summary

Mohd. Yunus Khan was appointed as a patrolman in 1968 but his date of birth was mistakenly entered as 27‑02‑1934 instead of the correct 01‑07‑1948. He discovered the error in 1988, filed representations for correction, which were ignored, and was forced to retire in 1992 based on the wrong date. A writ petition stayed the retirement, but the employer later stopped his salary and the High Court set aside the stay. The Supreme Court held that the employer, a State authority, violated natural justice by not giving a hearing and was obligated to rectify the record, treating the employee as having retired in 2006. Consequently, the Court ordered payment of 50% of back wages (excluding periods when salary was already paid) and directed that pension and other retirement benefits be calculated as if the employee had remained in service until his actual superannuation date.

Issues considered

Whether the employer was required to correct the erroneous date of birth in the service record after the employee's representation.
Whether the principles of natural justice were violated by the employer's failure to afford a hearing.
Whether any statutory limitation period exists for filing an application to correct a date of birth in service records.
What relief is appropriate concerning back wages, pension, and retirement benefits.
Whether the employee is entitled to full back wages despite periods of salary paid without work.

Subjects

service lawdate of birth correctionnatural justiceretirementback wagespensionemployee rightsadministrative law

Judgment

[2008] 14 S.C.R. 1114
j
"j

A MOHD. YUNUS KHAN
v.
U.P. POWER CORPORATION LTD. AND ORS.
(Civil Appeal No. 6191 of ·2008) I I

OCTOBER 22, 2008
,
\_,~

B t
[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
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
Division Bench in intra-Court appeal. Hence the present
c
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
of date of birth in the service record was known to appel- E
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 '
~
't
of the parents of the parties, if necessary, in presence of
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 should have
been given an opportunity to file further proof to show
that his date of birth was in fact 1st July, 1948. [Paras 13, f
16] (1120-G, H; 1121-A, 8;1122-F) '
D 2.2. Appellant was medically examined by Chief Medi-
cal Officer on or about 3rd October, 2002, who had opined A-
that his age at that point of time was about 54 years. Even ).

, during the pendency of the writ petition, respondent No.2,
~

the Executive Engineer, Electricity Distribution Division- I
'
E 1·; req-uested the Deputy General Manager, Electricity Dis-
tribution Division, to record appellant's date of birth as
~
1st July, 1948. His salary, however, was directed to be t
stopped on the basis of a legal ac!vice of the counsel for
",
respondents dated 8th October, 2003 with effect from 14th
F October, 2003. Furthermore it does not appear that ap- )':
)-

pellant had been given even the retrial benefits for such a
long period. [Paras 17, 18] (1122-G, H; 1123-A, B)
2.3. Appellant is held to have retired in the year 2006 ~

treating his date of birth as 1st July, 1948. Appellant would )

'
G not, however, be entitled to the entire back wages as he
did not work for a long time. Even he had approached
~- ~-
this Court after a long time. There was a delay of 549 days
(in respect of SLP against the main order) and 128 days
(in respect of the SLP against the order passed in review).
H For a substantial period he had been paid salary, although
.. J .•

MOHD. YUNUS KHAN v. U.P. POWER 1117
CORPORATION LTD. & ORS.
4 ~
he did not work. It is directed that 50% of back wages A
may be paid save and except for the period during which
salary has been paid to the Appellant. However, for the
purpose of calculation of pensionary and other retiral
dues, he shall be treated to have continued in service till
the date of his superannuation and for the said purpose
B
increments, if any earned by him, as also the revision in
pay shall be taken into consideration. [Para 19] (1123-C,
-1 D, E)
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6191
of 2008
c
~ From the final Judgment and Order dated 17 .5.2004 &
8.7.2005 of the High Court of Judicature at Allahabad in Spe-
cial Appeal No. 359 of 2004 & Review Application No. 106236
of 2004 respectively
Pramod Swarup for the Appellant. D
~
S. Barthakur, Aneesh Mittal and Sunil Kumar Jain for the
Respondents.
The Judgment of the Court was delivered by
~
S.B. SINHA, J. 1. Leave granted. E
2. Consequence of a wrong recording of a date of birth in
the service book of appellant by the authorities of the respon-

- j
dents is the question involved in this appeal which arises out of
a judgment and order dated 17th May, 2004 passed by the High
Court of Judicature at Allahabad in Special Appeal No. 359 of F
2004 and judgment and order dated 8th July, 2005 passed in
Review Application No.106236/04 in Special Appeal No. 359/
2004.
3. The basic fact of the matter is not in dispute.
G
Appellant was appointed on or about 1st July, 1968 as
' ;. --t Patrolman by respondent No.5. His date of birth in the service
book was recorded as 27th February, 1934. However, in the
school leaving certificate of appellant, his date of birth was re-
t
corded as 1st July, 1948.
H
1118 SUPREME COURT REPORTS [2008] 14 S.C.R.

A In April, 1988 when appellant approached the office of re- --i \

spondents at Basti to know the quantum of leave balance in his
account, he came to know that his date of birth had been wrongly
recorded as 27th February, 1934 in stead and place of 1st July,
1948. He immediately filed a representation. r
B
Respondents, however, did not take any action thereupon
till September, 1989. Appellant ' filed another representation on
2nd September, 1989. The said representation was forwarded +-
to the office of respondent No.5, the Executive Engineer, EDD, "l
c U.P. State Electricity Board, Govind Nagar, Kanpur for correc-
tion of the date of birth in appellant's service book alongwith his ~
school leaving certificate.

4. Indisputably in the employment of respondent-Corpe-
ration, another employee by the name Mohd. Yunus Khan had
D been working. For all intent and purport it now stands admitted
~
that the date of birth of the said Mohd. Yun us Khan (not the ap-
pellant herein) was 27th February, 1934 and the same has been
wrongly recorded in the service book of appellant. By an order
dated ?th April, 1992, payment of salary to appellant was stopped
E ............
on the premise that he should have retired with effect from 29th /
February, 1992. He received a letter from respondent No.4, Sub-
Divisional Officer (SDO), Basti, dated 7th April, 1992 asking

F
him to explain the correct position. He did so. He allegedly also
appeared before the authority. -
r
5. Appellant again filed a school leaving certificate of 5th
class with a view to show that his date of birth was 1st July, 1948.
Unfortunately the medical certificate of Mohd. Yun us Khan S/o
Amjad Khan was attached to the service book of the appellant
G as a result whereof the said confusion arose. He, however, was
made to retire from 29th February, 1992.
~"'
(

6. Aggrieved by and dissatisfied therewith appellant filed
a writ petition before the High Court which was marked as Civil
...
H Misc. Writ Petition No.18688 of 1-992. By reason of a judgment
MOHD. YUNUS KHAN v. U.P. POWER 1119
CORPORATION LTD. & ORS. [S.B. SINHA, J.]
' { " and order dated 23rct March, 2004 the said writ petition was A
allowed by a learned Single Judge of the High Court opining :-
"From the record of the case, I find that it is an admitted
case of the respondents that due to inadvertence at their
level the medical certificate of Mohd. Yunus Khan S/o.
Amjad Khan wherein the date of his birth mentioned. as B
_.,
27 .2.1934 was wrongly placed in the record of the
petitioner instead of the school leaving certificate wherein
the date of birth of the petitioner was mentioned as
t 1. 7 .1948. This finding is based on the personal enquiry
c
~ made and submitted by the concerned Executive Engineer,
the appointing authority of the petitioner. The petitioner is
being wrongly retired from his service prior to the due
date o; 1is retirementtreating his date of birth as 27 .2.1934
instead of 1. 7 .1948 and he has still got many more years
in service. The payment of the salary of the petitioner as D
per the interim order passed by this court has been
stopped by the respondents on the basis of the opinion of
the counsel for the respondent which is unwarranted."

\.
7. An intra court appeal was preferred by respondents
which, by reason of the impugned judgment, has been allowed. E
A review petition filed by appellant thereagainst stands dis-
missed.

----- -1
8. Mr. Pramod Swarup, learned counsel for app~llant urged
that in view of the fact that the mistake on the part of.the authori- F
ties of the respondents stood conceded, the Division Bench of
the High Court must be held to have applied the wrong prin-
Ciples in allowing the intra court appeal preferred by respon-
dents.
9. Mr. Sunil Kumar Jain, learned counsel appearing for G
I,>.
... .the respondents, on the other hand, would submit that confu-
.. sion arose because of two different offices had taken two dif-
ferent stands .
.
10. The Division Bench of the High Court, although, may
H
1120 SUPREME COURT REPORTS [2008] 14 S.C.R.

I
A be correct in holding that representation for correction of the f
' J
date of birth should be made as expeditiously as possible so
as to enable the employer to pass an appropriate order there-
upon, but the said principle, in our opinion, has no application
in a case of this nature, where a mistake on the part of the au-
B thorities stands admitted.

11. There were two Mohd. Yunus Khans. Their fathers' ,
names were different. The other Mohd. Yunus Khan was son of -+-

c
Amjad Khan, whereas appellant is son of Mujibullah Khan.

According to appellant, the medical certificate in respect
.- •f

of other Mohd Yunus Khan was attached to his service book ~
and the school leaving certificate showing his date of birth was
attached to the service records of other Mohd Yunus Khan.
12. No material has been placed before us in regard to
D existence of a statutory rule fixing a time frame for filing an ap-
plication for correction of the date of birth in the service record.
Even if there was such a provision, the same, in our opinion,
would not be of much significance as respondents had not
shown that the mistake in the matter of recording. of date of
E birth in the service record was knO)Nn to appellant at any earlier F-
/
point of time. If appellant's contention is correct that he came to
learn about it only in April, 1988 whereafter he filed a represen-
tation, it must be held that there was no delay on his part in this

F
behalf. An employee may take action as is permissible in law
only after coming to know that a mistake has been committed
by the employer.
r-
-
13. Appellant was to retire, even treating his date of birth
as 27th February, 1934, in 1~92. In that view of the matter a
representation filed by him in the year 1988 should have re-
G ceived due and expeditious consideration at the hands of the
authorities of the Board. Had such a step been taken, the prin- :+- A {

ciples of natural justice of giving an opportunity of hearing to the .,
qther Mohd Yunus Khan could also have been complied with.
,
·Even the records of both the employees could have been veri-
H tied with reference to the other documents as also the names
MOHD. YUNUS KHAN v. U.P. POWER 1121
CORPORATIO~ LTD.· & ORS. [S.B. SINHA, J.]

of the parents of the parties, if necessary, in presence of each A
other. No such step admittedly had been taken by the Board.
Particularly when respondent No.5, the Executive Engineer, in·
deed found that such a mistake had been committed and rec.:.
ommended for correction thereof, the Board, which is a 'State'
within the meaning of Article 12 of the Constitution of India, was B
obligated to rectify the same. Such a mistake being totally in
the hands of the authorities of the Board, stricto sensu even the I
principle of natural justice was not required to be complied with
so far as appellant was concerned. Principle of justice was re-
quired to be complied with only in respect of other Mohd Yunus C
Khan for affording him an opportunity of hearing. However, it'
appears from the record that other Mohd Yunus Khan had ex-,
pired in 1980.
•
14. The Division Bench of the High Court,· in our opinion,
committed a serious error in not considering this aspect of the D
matter. The Writ Petition was filed by the appellant before the
High Court in the year 1992 i.e. immediately after he was made
to superannuate.
15. The Executive Engineer himself by a letter dated 18th ·
April, 1992 directed the Sub-Divisional Officer, Electricity Dis- E
tribution Division-II, Basti as under:- -,
"In the Service Book of the aforesaid employee, date of
birth (27.2.34) is recorded/mentioned. This has been
written on the basis of the certificate dated 27.02.74 given F
1

by the Chief. Medical Officer, Kanpur and on inspection it
was found that this Certificate is in respect of the other
employee Sri Mohd Yunus son of Sri Amjad Khan. The
correctness of the same has been done by the
undersigned. Therefore you are advised that for recording 'G
the correct date of birth of Sri Mohd Yunus Khan son of
Mujibullah Khan working in your Division, you at your level
kindly get the age certificate from Chief Medical Officer
and thereafter accordingly proceed and inform about the
said proceeding to the undersigned."
H
1122 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 16. The said order has not been complied with. No expla-
nation has been offered by the Board as to why administrative
discipline was not maintained. It is not the contention of the Board
that the Executive Engineer in doing so acted mala fide or oth-
erwise biased. IN any view of the matter his opinion was based
B on· the materials on record.
In fact in paragraph 11 of the counter affidavit before the
High Court it was stated:-
"11. That in reply to the contents of paragraph 6 of the writ
c petition it is stated that as the date of birth of the petitioner
was recorded in the Service Book by Executive Engineer,
Electricity Distribution Division, Kanpur the same was to
be corrected by said Distribution Division· and hence the
Service Book of the petitioner was sent to the respondent
No.5 for necessary a'ction.
D
Despite the same, it was averred in paragraph 13 :-
"13. That the contents of paragraph 9 of the writ petition
are not admitted as written. The date of birth written in.
··Service Book was 27.02.1934. There was no solid
E material before the answering respondent on the basis of
which he could proceed to make the correction in the date
of birth. ~Fµrther the date of birth written in the Service
Book was final and it could not be altered."

F If that was the factual position, appellant should have been
given an opportunity of hearing. He should have been given an
opportunity to file further proof to show that his date of birth was
in fact 1st July, 1948.
17. It, however, appears that the operation of the order
G .making him to retire was stayed by the Court. It furthermore
· appears that appellant was l'Jledically examined by Chief Medi-
cal. Officer, Basti on or about 3rd October, 2002, who had opined
that his.age at that point of time was about 54 years. Even dur-
ing the pendency of the writ petition, respondent No.2, the Ex-
-H ecutive Engineer, Electricity Distribution Division-1, Basti, re-
MOHD. YUNUS KHAN v. U.P. POWER 1123
CORPORATION LTD. & ORS. [S.S. SINHA, J.]

quested the Deputy General Manager, Electricity Distribution A
Division, Basti, to record appellant's date of birth as 1st July,
1948. His salary, however, was directed to be stopped on the
basis of a legal advice of the counsel for respondents dated 8th
October, 2003 with effect from 14th October, 2003.
18. Furthermore it does not appear that appellant had been B
given even the retrial benefits for such a long period.
19. For the reasons aforementioned, the impugned judg-
ments cannot be sustained and they are set aside accordingly.
Appellant is held to have retired in the year 2006 treating his C
date of birth as 1st July, 1948. Appellant would not, however, be
entitled to the entire back wages as he did not work for a long
time. Even he had approached this Court after a long time. There
was a delay of 549 days (in respect of SLP against the main .
order) and 128 days (in respect of the SLP against the order
passed in review). For a substantial period he had been paid D
salary, although he did not work. We direct that 50% of back
wages may be paid ~ave and except for the period during which
salary has been paid to him. However, for the purpose of calcu-
lation of pensionary and other retiral dues, he shall be treated
to have continued in service till the date of his superannuation E
and for the said purpose increments, if any earned by him, as
also the revision in pay shall be taken into consideration. The
appeal is allowed to the aforementioned extent with costs.
Counsel's fee assessed at Rs.25,000/-
F
B.B.B. Appeal allowed.