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1988 DIGILAW 262 (CAL)

Narayan Chandra Dey v. State of West Bengal

1988-07-06

MAHITOSH MAJUMDAR

body1988
ORDER This writ application is directed against the order as contained in Annexure F at page 37 which is quoted below:– "This is to write that as per review of the Service Book it is seen that date of birth certificate submitted by you has subsequently been changed by an affidavit which seem irregular. As per original date of birth shown in the certificate your superannuation should be on 31-10-1983. The matter has been referred to Dy. Director of Health Service (Admn.), West Bengal for his verification and final decision. So this office is painfully let you know that unless and until the final decision from Health Directorate is received the undersigned cannot allow you to continue your service henceforth. So, you are requested not to join office henceforth till final decision. It is further to be noticed that Govt. will hold the right to recover your excess payment drawn by you after your superannuation taking into account the original date of birth certificate." 2. Mr. Bose, the learned Advocate duly assisted by Mr. Kalyan Kumar Bandopadhyay, the learned Advocate appearing for the petitioner while assailing the order as contained in Annexure F as indicated above claimed and contended that pursuant to the impugned orders, the respondent namely, the Director of Health Service, sought to regularize the order by passing an order dated September 8th/9th, 1987. The said order is quoted below:–– "After careful consideration the undersigned is directed to inform you that the date of birth of Sri Dey cannot be changed as 20.2.38 instead of 9.10.25 as prayed for. Sri Dey may kindly be enforced accordingly. This may please be treated as extremely urgent" 3. Again on September 18, 1987 the Surgeon Superintendent passed an order which reads thus:–– "As per direction of Director of Health Service, Govt. of W.B. vide his Order No. HPT/60N 105 84.A 25090 dated 8.9.87 (copy enclosed) your date of birth to be taken as 9.10.25 and accordingly, your superannuation is to be taken from 1.11.83 forenoon. You are, therefore, released from your service on and from 1.11.83 forenoon. This is in supersession of this office letter No. 957/87 dated 16.5.87 which may please be noted." 4. In the background of the facts and circumstances as aforesaid, Mr. You are, therefore, released from your service on and from 1.11.83 forenoon. This is in supersession of this office letter No. 957/87 dated 16.5.87 which may please be noted." 4. In the background of the facts and circumstances as aforesaid, Mr. Bose claimed and contended that the action of the respondent unilaterally changing the date of birth which are duly recorded by the concerned authority as would appear form Annexure B and C is ex-facie, illegal, unauthorized and violative of Articles 14 and 21. 5. Mrs. Gupta, the learned Advocate appearing for the respondent claimed and contended that the relevant column as regards the date of birth was rectified to the following effect:–– "20th February, 1939 as per Affidavit dated March 20, 1971" Mrs. Gupta sought to justify the action of the respondents by contending, inter alia that some unseen hand is responsible for such rectification Government being the custodian of the records should not be allowed to take such plea before the Court of law." 6. A query was put to Mrs. Gupta that the order as regards the date of birth of the petitioner as on February 20, 1938 was issued by Mr. S. N. Mukherjee, Superintendent, Jail Hospital, Nadia and the said Memo was duly forwarded to the Director of Health Service, Writers' Buildings, Calcutta could be altered without any opportunity of hearing being accorded to the petitioner. 7. That being the position, the rectification of the date of birth as would be evident from Annexure B is not the foundation of the claim of the petitioner for the sole reason the date of birth was duly recorded by the Superintendent with copies thereof to the Director of Health Service. After lapse of almost 14 years, the action of the respondent in reviewing the date of birth of the petitioner was unauthorized and the petitioner was not accorded any opportunity of hearing. The entire decision was taken by the respondent behind the back of the petitioner. 8. Mrs. Gupta despite the direction passed by this Court on March 9, 1988 did not produce the records of the case. This matter was adjourned on June 20, 1988 on the ground of the absence of the learned Counsel for the State. The Court cannot treat the State as a privileged litigant and should not also allow the State to by-pass the order or direction passed by this Court. This matter was adjourned on June 20, 1988 on the ground of the absence of the learned Counsel for the State. The Court cannot treat the State as a privileged litigant and should not also allow the State to by-pass the order or direction passed by this Court. Records were not produced without any reasons. The contention of Mrs. Gupta is that the orders were justified, valid and legal and are now required to be tested on with reference to the relevant Rules. In this connection, sub-rule (4) and sub-rule (5) of Rule 9 of the West Bengal Service Rules are required to be looked into. Sub-rules (4) and (5) of Rule 9 of the West Bengal Service Rules Part I are quoted below:–– "(4) Where the appointing authority is not the Government and the year or month or date of birth proposed to be fixed under sub-rule (3) is different from the year or date of birth of the applicant recorded in his Matriculation or School Final or Higher Secondary Examination Certificate or recorded in the register of births maintained by any local authority, or accepted by the Public Service Commission, the appointing authority shall submit the case with his recommendation to the Government and thereupon final orders shall be passed by the Government in this behalf. (5) The appointing authority or, where the final order fixing the year, month and date of birth of a Government servant has been passed by the Government, the Government, may at any time for sufficient reasons review the order fixing the year, month and date of birth and modify the same, provided that the year, month and date of birth shall not be modified to the disadvantage of the Government servant unless he has been given an opportunity of making any representation which he may wish to make against the proposed action." 9. Mrs. Gupta was asked that whether the respondent would act contrary to the provisions of law and pass an order and merely on the ipse dixit of the authority. Mrs. Gupta filed to justify the action of the respondent as regards the non-compliance of sub-rules (4) and (5) of Rule 9. 10. Mr. Mrs. Gupta was asked that whether the respondent would act contrary to the provisions of law and pass an order and merely on the ipse dixit of the authority. Mrs. Gupta filed to justify the action of the respondent as regards the non-compliance of sub-rules (4) and (5) of Rule 9. 10. Mr. Bose contended in his reply that when the statute requires something to be done in a certain manner, it must be done in the manner alone and the other mode or period is strictly forbidden and is violative of the rules of natural justice. Mr. Bose made a reference to the judgment in case of Taylor v. Taylo0r, 1 Chan Division at page 432, King Emperor v. Nazir Ahmed, 63 I A page 318, Hukumchand v. Union of India, AIR 1976 SC at page 789. The action of the respondent, in my view, stands infected by reason of the fact that they failed to act in accordance with the provisions of sub-rules (4) and (5) of Rule 9. 11. In view of above, I am unable to persuade myself to agree with the contention of Mr. Gupta. I am also required to consider the contention of Mr. Bose that the action of the respondent is per se illegal and violative of Articles 14 and 21 of the Constitution of India. There is no doubt that the Hon'ble Supreme Court has expanded the horizon of Article 14 and 21 during the 1970 and 1980s. 12. Reference may be made to the judgment of the case of E. P. Royappa v. State of Tamil Nadu; reported in AIR 1974 SC 555 . Mr. P. N. Bhawati with Mr. Y. V. Chandrachud while speaking for the Court observed that "Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducting from the ante-chamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible consideration, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Where the operative reason for State action, as distinguished from motive inducting from the ante-chamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible consideration, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16. 13. Again, Mr. Justice Bhagawati while speaking for the Court in case of Maneka Gandhi v. Union of India, AIR 1978 SC page 597 observed that "Now the question immediately arises as to what is the requirement of Article 14 : What is the content and reach of the great equalizing principles enunciated in this article? There can be no doubt that it is founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348 ; ( AIR 1974 SC 555 ) namely, that "from a positivistic point of view, equality in antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an ac is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades. Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades. Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be non-procedure at all and the requirement of Article 21 would not be satisfied. How far natural justice is an essential element of procedure established by law." 14. It is also to be considered whether arbitrary action of the respondent unilaterally changing the date of birth without any opportunity of hearing amounts to breach of Article 21 of the Constitution. Article 21 has found higher plain or in other words, has become bed-rock of the Constitution. The action of the respondent, in my view, has and had an effect of depriving the livelihood of the petitioner and thereby, it is in breach of Articles 14 and 21 of the Constitution. Further the submission of Mr. Bose is that the orders impugned in the writ application are incurably infected by the breach of the rules of natural justice and complete absence of procedural fairness. Mr. Bose referred to the judgment of the Supreme Court which is a land mark in the domain of administrative law. In the case of State of Orissa v. Binapani Dei reported in AIR 1967 SC 1271 Mr. Shah J while speaking for the Court observed that "The first respondent held office in the Medical Department of the Orissa Government. She, as holder of that office, had a right to continue in service according to the rules framed under Article 309 and she could not be removed from office before superannuation except "for good and sufficient reasons". The State was undoubtedly not precluded merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an enquiry if there existed sufficient grounds for holding such enquiry and for re-fixing her date of birth. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decided an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the persons against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed : it need not be shown to be per-added. If there is power to decided and determine to the prejudice of a person, duty to act judicially is implicity in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case". 15. After giving my thoughtful consideration of the totality of the entire facts and circumstances of this case, I am constrained to hold the orders dated 8th/9th September, 1987 and 18th September, 1987 and the order contained in Annexure 'F' cannot be sustained and they are wholly null and void. 15. After giving my thoughtful consideration of the totality of the entire facts and circumstances of this case, I am constrained to hold the orders dated 8th/9th September, 1987 and 18th September, 1987 and the order contained in Annexure 'F' cannot be sustained and they are wholly null and void. Accordingly, they are set aside but in all fairness I deem it fit and proper to direct the respondents that the authority namely, Directors of Health Service, shall appoint the Apex Medical Board consisting of three medical experts to determine the age of the petitioner after culling combination of data and considering the medical legal aspects of the case. The Apex Medical Board shall submit the report along with X-ray and other foundational documents forming the basis of the report in a sealed cover before the Director of Health Service. The Director of Health Service shall afford an opportunity of hearing to the petitioner and the petitioner shall be at liberty to raise all his subjections as are taken in the writ application before the Director. The petitioner shall be given access to the report and the documents connected therewith before the hearing. 16. On careful consideration of the entire matter, the Director of Health Service shall pass a reasoned order. The Medical Board shall be constituted within a period of six weeks from date and the report shall be submitted before the Director within three weeks from date of constitution of the Medical Board. The Director of Health Service within six weeks from the date of receipt of the report shall act in terms of the directions as are indicated above. Since the petitioner succeeds in the application, the petitioner shall be paid all service benefits for the period as he was prevented from discharging his functions and the respondents are directed to pay the salary to the petitioner till one week from the date of communication of the order. The petitioner shall be allowed to join his duties forthwith. Accordingly, the application is allowed with costs assessed as Rs. 5 GMs to be pad to the petitioners. Impugned order set aside with directions; respondent to pass a reasoned order on the basis of report of medical board to be constituted; petitioner entitled to all service benefits.