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2004 DIGILAW 981 (MP)

H. C. Anand v. State of M. P.

2004-12-06

S.K.SETH

body2004
JUDGMENT S.K. Seth, J. 1. Present write petition is directed against the order dated 22.11.2003 (Annexure P-2) and the office order dated 22.1.2004 issued by the Engineer-in-Chief and Executive Engineer respectively. By the orders, impugned 1.3.1944 was accepted as the date of birth of the petitioner and accordingly he has been retired from Government service on 28.2.2004. Necessary facts that are relevant for the disposal of the present case are as under. Petitioner entered Government service in the year 1971 as work-charged Sub-Engineer. He was promoted as Sub-Overseer by order dated 6.3.1973. He was appointed as regular Sub-Engineer by order dated 19.6.1974 and he resumed duties on 1.7.1974. In the service book, his dale of birth was recorded only in figure and not in words. These facts are undisputed. 2. According to petitioner for the first time by letter dated 5.3.2003 he became aware that there is some confusion regarding his date of birth as it was not written in words. Further case of the petitioner is that without holding any enquiry, Engineer-in-Chief issued the order dated 22.11.2003 mentioning that the date of birth of the petitioner is 1.3.1994 and on that basis, he would retire from Government service on 28.2.2004. It is also contended that at the time of entry into Government service petitioner without retaining a copy had submitted the original certificate of Higher Secondary Examination and on the strength thereof 1.3.1949 was accepted as the petitioner's date of birth and same was after due verification was recorded in the service book. It is further contended that under Rule 84 of the Financial Code, date of birth declared by an employee and once accepted by the employer is final, and thereafter no change is permissible without affording opportunity of hearing to the concerned employee. In support of his claim, petitioner submitted that attested copy of the school leaving certificate dated 21.3.2003 (Annexure P-5) before the authorities. Petitioner further relies upon birth certificate (Annexure P-6) and the entry made in GPP Accounts maintained by the A.G.M.P. Gwalior (Annexure P-7). According to petitioner there is no interpolation in recorded date of birth therefore it was not necessary to refer the matter to Departmental Committee. Thus, reference to Departmental Committee without affording opportunity of hearing is bad in law. Petitioner further relies upon birth certificate (Annexure P-6) and the entry made in GPP Accounts maintained by the A.G.M.P. Gwalior (Annexure P-7). According to petitioner there is no interpolation in recorded date of birth therefore it was not necessary to refer the matter to Departmental Committee. Thus, reference to Departmental Committee without affording opportunity of hearing is bad in law. During the course of arguments learned Counsel for petitioner also contended that no opportunity of hearing was afforded to petitioner by the Departmental Committee before arriving at the conclusion that his date of birth is 1.3.1944. There was no material to arrive at such conclusion. Thus, entire action on the part of respondents is bad in law, orders impugned are therefore liable to set aside, and petitioner is entitled to continue in service until he attains the age of superannuation based on his date of birth as 1.3.1949. 3. After notice, respondents filed return and pointed out that date of birth was recorded only in numerical figures and it was interpolated from 1944 to 1949. First explanation from petitioner was sought vide letter dated 23.11.1993 (Annexure R-l) followed by letter dated 22.11.1994 (Annexure R-2) whereby petitioner was directed to produce the Higher Secondary Examination Mark Sheet. Since petitioner failed to comply with the letters again he was asked to adduce evidence in support of his claim that his date of birth is 1.3.1949. Various correspondences exchanged between the petitioner and departmental authorities have been filed alongwith the return as Annexure R-3 to Annexure R-8. A show cause notice was issued to petitioner on. 5.6.2003 (Annexure R-9) but petitioner failed to produce the Higher Secondary Mark Sheet. Ultimately matter was referred to the Departmental Committee comprising of Chief Engineer, Ujjain, Superintending Engineer (Aden.), Executive Engineers. Dewas and Ujjain Division. The Committee alter examination of records came to conclusion that there was an overwriting and the dale of birth recorded in the service book was changed from 1.3.1944 to 1.3.1949. Accordingly, Chief Engineer, Ujjain Zone conveyed the decision that 1.3.1944 was accepted as the correct date of birth (Annexure R-10). Based upon decision the Executive Engineer, Dewas Division issued the Office Order dated 22.1.2004 intimating the petitioner that he would be completing the age of superannuation (60 years) on 28.2.2004 therefore he will retire from service in the afternoon of 28.2.2004. Based upon decision the Executive Engineer, Dewas Division issued the Office Order dated 22.1.2004 intimating the petitioner that he would be completing the age of superannuation (60 years) on 28.2.2004 therefore he will retire from service in the afternoon of 28.2.2004. As regards the School Leaving Certificate (Annexure P-5), Birth Certificate (Annexure P-6) respondents submitted that in the former there is an interpolation whereas later was obtained only on the affidavit of brother of the petitioner. Respondents have also filed correspondences exchanged with Board of Secondary Education to show that efforts made by them to obtain the duplicate Higher Secondary Mark Sheet were all in vain. Thus, according to respondents, despite repeated opportunity petitioner failed to adduce documentary proof in support of his claim that his actual date of birth is 1.3.1949 and not 1.3.1944. The Members of the Committee issued various correspondence and show cause notice therefore, no further and separate notice was required from the Committee. It was also denied that there was any breach of principles of natural justice. 4. After having heard learned Counsel for parties and going through the material placed on record, in the considered opinion of this Court there is no merit and substance in the present writ petition and it deserves to be dismissed. A bare perusal of the date of birth recorded in the service book reveals that there is interpolation and 4' was converted into 9' by a different ink. At running page 48 of service book, there is an entry of the order passed by the Chief Engineer on 20.7.1991 granting exemption from passing departmental exam as petitioner had crossed the age of 45 years. If date of birth as clamed by the petitioner is accepted then obviously petitioner was less than 45 years of age in the year 1991. That apart, in the School Leaving Certificate (Annexure P-5) there is interpolation and the date of entry in the school has been changed from 1955 to 1956 as would be evident from perusal of Annexure R-16 filed alongwith the reply. Alongwith Annexure R-16, respondents have also filed relevant extract of Scholar's Register of the School. In the said document date of admission is given as 20.7.1955 and the age at the time of admission is mentioned as 11 years 4 months. Alongwith Annexure R-16, respondents have also filed relevant extract of Scholar's Register of the School. In the said document date of admission is given as 20.7.1955 and the age at the time of admission is mentioned as 11 years 4 months. Principal of the School has also clearly mentioned that in the scholar register there is an interpolation in the date of birth. If petitioner was born in the year 1949 then it would be next to impossible to get admission in 5th Standard in the year 1955 just after completing age of 6 years. Similarly, reliance placed on Annexure P-6 is of no avail to the petitioner because it was obtained on mere affidavit of his elder brother without any supporting documents. Respondents alongwith their additional reply have also filed relevant extract of Scholar Register of the Ujjain Polytechnic wherein, 1.3.1944 is recorded as the petitioner's date of birth. Petitioner had almost a decade to obtain arid submit the Matriculation Certificate before the departmental authorities in support of his claim but he failed to do so. Even on 2.9.2004 learned Counsel appearing for petitioner sought a week's adjournment as the petitioner was expecting to get the Matriculation Certificate very shortly. Prayer was accepted and the hearing of the case was adjourned by 10 days. During the adjournment petitioner if he wanted could have obtained the Certificate but lie failed to do so. This only goes to show that all along petitioner was interested only in suppressing the material document and wanted to take advantage of unauthorised interpolation in the service book, as he is the sole beneficiary of the said interpolation. It was for the petitioner to produce the Matriculation Certificate, which is the accepted mode to prove date of birth. Reliance placed on other documents like entry in the GIT account or certificate issued by the Executive Engineer has to be seen in whole context of the case and not in isolation to come to a conclusion that date of birth is 13.1949. The upshot of the discussion is that in view of interpolation, which established beyond doubt, respondents are right in contending that the date of birth of the petitioner is 1.3.1944. 5. Now the next question that arises for consideration is whether there has been breach of principles of natural justice. In this connection, learned Counsel for petitioner relied upon a DB. 5. Now the next question that arises for consideration is whether there has been breach of principles of natural justice. In this connection, learned Counsel for petitioner relied upon a DB. decision of this Court in Bhan Singh Bhadaurta v. State of M.P. 2002 (95) FLR 331 (M.P.). A careful reading of thus said decision reveals that a show cause notice was issued almost at the fag end of service career and no objections were raised unit the Government servant leached the age of superannuation. It is in this factual background it was held that the enquiry initiated by the State was bad. However, the facts of the present case are distinguishable. In the present case, first notice (Annexure R-1) was given to the petitioner in the 1993 to produce the Matriculation Certificate and despite repeated reminders spreading over to 10 years, petitioner failed to obtain the duplicate certificate from the Higher Secondary Board before he was retired from service on 28-2.2004. It was not a case of initiation of enquiry at the fag end of service career of the petitioner. In the considered opinion of this Court, law laid down in the D.B. decision (supra) has no application to the facts of the present case, ft is incorrect on She facts of petitioner to contend that he became aware of proposed change only in the year 2003 when he was served with the letter dated 5.3.2003. This plea is nothing but an afterthought subterfuge in order to draw support from the D.B. decision (supra) and to overreach the finding recorded by the Committee. Learned Counsel for petitioner is also not right in canvassing that Committee reached the finding without giving opportunity of hearing to petitioner. Practically every Member of the Committee had issued letters/memos to petitioner to furnish proof in support of his claim that his date of birth is 13.1949. For the reasons best known to petitioner he choose to ignore those Sellers and Memos. Learned Counsel for petitioner was unable to point out what, prejudice has been caused to petitioner when no formal notice was issued to the petitioner on behalf of Committee. The essence of natural justice consist in requiring that petitioner should have an opportunity of submitting to the Members of the Committee by whose decision he is to be bound, such considerations as in their judgment ought to be brought before them. The essence of natural justice consist in requiring that petitioner should have an opportunity of submitting to the Members of the Committee by whose decision he is to be bound, such considerations as in their judgment ought to be brought before them. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not codified canons. Rules of justice are not rules embodied always expressly in a statute OT in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of each case. As has been noticed here-in-above petitioner was given ample opportunity to produce the Matriculation Certificate not only by the members of the Committee but also by this Court but petitioner did not avail such opportunity. Thus, in the considered opinion of this Court want of formal notice on behalf of the Committee would not improve the situation and was useless formality in view of the fact that several opportunities were afforded to petitioner to produce the Matriculation Certificate but he failed to avail any such opportunity. In facts and circumstances of the case, matriculation certificate is clinching document and why it was not produced by the petitioner before either the Committee or this Court at the time of final Hearing. Based upon the conduct an adverse inference in this regard can be drawn against petitioner that matriculation certificate does not support the contention of petitioner. 6. In view of the aforesaid discussion, in the considered opinion of this Court, no infirmity can be attributed to the decision of the committee holding that petitioner's date of birth is 1.3.1944, Similarly, Rule 84 of the Financial Code cannot be held to be so rigid and inflexible to deny the respondents to correct the date of birth when apparent interpolation in date of birth recorded in figures and not in words is seen in the service book. No hard and fast rules can be laid down in this regard. It will depend on facts of each case. 7. In view of the foregoing discussions, writ petition is hereby dismissed. However, no order as to costs.