Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 376 (GAU)

Bhabakanta Neog v. Assam State Electricity Board

2005-05-13

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. The controversy raised in this writ petition is in respect of fixation of date of birth of the Petitioner on the basis of his representation, which according to the Petitioner has been so fixed arbitrarily and contrary to the relevant records. 2. The facts leading to filing of this writ petition have not been disputed by the Respondents by filing any counter affidavit. As per the age recorded in the HSLC certificate as of 1.3.71, the date of birth of the Petitioner is 1.8.50. However, the Respondents, upon representation made by the Petitioner have fixed the date of birth as 2.1.47, making a grievance against which the instant writ petition has been filed. Later on, the Petitioner bringing certain facts on record, also filed an additional affidavit. 3. The Petitioner initially entered the services of the Respondents, the Assam State Electricity Board (in short ASEB) as a work charged "Jugali" on 3.3.68. His service was regularized with effect from 21.9.71 by an order dated 20.9.71, after the Petitioner could clear the HSLC examination in 1971. The certificate was issued on 11.7.71 i.e. prior to regularization of his services. 4. After the regularization of services of the Petitioner, he was appointed as Typist by an order dated 28.2.72. In 1978, he was promoted as Lower Division Assistant (LDA) and again as Upper Division Assistant (UDA) in 1981. According to the Petitioner, while inspecting the service book, he could come to know the wrong recording of date of birth in his service book as 1.2.43 instead of 1.8.50. He made representations for correction of his date of birth asserting that the initial date of birth recorded in the service book as 1.2.43 was without any basis, which fact has been admitted by the Respondents. 5. The Petitioner in continuation of his earlier representation, made a further representation on 9.9.97 indicating therein the ASEB's circular No. ASEB(Pt.)/151/82/30 dated 11.8.86 in terms of which the employees who have passed HSLC or above examinations, their date of birth should be entered only with the reference to the HSLC certificate. The Additional Chief Engineer (Civil), ASEB by his letter dated 18.9.97 intimated the Personal Manager, ASEB that the service book of the Petitioner was sent for correction of the date of birth but no reply had been received. A request was made to send the service book of the Petitioner. 6. The Additional Chief Engineer (Civil), ASEB by his letter dated 18.9.97 intimated the Personal Manager, ASEB that the service book of the Petitioner was sent for correction of the date of birth but no reply had been received. A request was made to send the service book of the Petitioner. 6. After the aforesaid developments, the Additional Chief Engineer (C) ASEB by his letter dated 28.10.99 forwarded the service book of the Petitioner along with the photocopies of HSLC certificate and the school certificates to the Chief Engineer (Distribution), ASEB for necessary clarification. The Petitioner having not received any intimation regarding correction of his date of birth, made a further representation on 6.12.2000 to the Chief Engineer (Distribution). In the representation, the Petitioner also highlighted as to how he had been making representation for the last 10 years. 7. Eventually, the Chairman, State Standing Medical Board and Additional Director of Health services, Assam by his communication dated 21.12.2000 informed the Petitioner that he was to appear before the State Standing Medical Board, Guwahati on 2.1.2001 for medical examination. The letter was issued in reference to the aforesaid letter dated 15.12.2000. According to the Petitioner such medical examination was not at all necessary to ascertain his age in view of the fact that the authentic document like HSLC certificate was already available with the Respondents. 8. The Petitioner appeared before the Medical Board on 2.1.2001 and the Medical Board after examining him expressed its opinion by certificate dated 2.1.2001 that the Petitioner was above 50 and below 55 years of age. However, before any action could be taken regarding correction of date of birth of the Petitioner on the basis of the initiative taken by the ASEB itself, the Petitioner was released from service by an order dated 24.3.2001 purportedly on attaining the age of superannuation. Being aggrieved, the Petitioner preferred an appeal on 9.4.2001 before the Chairman, ASEB. The Chief Engineer (T and T) ASEB by his communication dated 24.6.2001 requested the Chief Engineer (D) ASEB to review the case of the Petitioner on the basis of the appeal preferred by him. When nothing was done, the Petitioner made a further representation on 16.10.2001. 9. The Petitioner could come to know that the Respondents had instituted an enquiry being case No. 18/01 for determining the age of the Petitioner. When nothing was done, the Petitioner made a further representation on 16.10.2001. 9. The Petitioner could come to know that the Respondents had instituted an enquiry being case No. 18/01 for determining the age of the Petitioner. He was directed by communication dated 29.10.2001 to appear before the Inquiry Officer on 5.11.2001 along with original testimonials and certificates. 10. The Inquiry Officer conducted the enquiry in association with the Petitioner and the Chief Engineer (D) ASEB and perused the originals of the certificates and testimonials produced by the Petitioner. Although the Petitioner was not furnished with the copy of the enquiry report, he could come to know about submission of such report by the Inquiry officer through order dated 14.2.2002 issued by the Chairman, ASEB. By this order dated 14.2.2002, the date of birth of the Petitioner was determined as 2.1.47 as against the date of birth as per HSLC certificate i.e. 1.8.50. By the said order, the Petitioner was taken back in service and his period of absence was to be adjusted against his due leave and extra ordinary leave without pay. As per the said order dated 14.2.2002, the date of superannuation of the Petitioner was 31.1.2005. However, in view of enhancement of the age of retirement to 59 years from 58 years, the Petitioner has been continuing in his service with his enhanced retirement age which is now 31.1.2006. 11. On the basis of the said order dated 14.2.2002, the Petitioner has been reinstated in his service fixing his date of birth as 2.1.47 as per the assessment made by the Chairman as reflected in the order. The period of absence of the Petitioner from 25.3.2001 to 20.11.2001 (241 days) and from 21.11.2001 to 6.3.2002 (106) days has been regularized against earned leave and half pay leave under Regulation 13(2)(a) and Regulation 13(4)(d) of the Board's General Service Regulation, 1960. 12. At the time of filing of the writ petition, the Petitioner was not furnished with the copy of the enquiry report. However, he could obtain a copy of the same during the pendency of the writ petition and was produced the same before this Court by filing an additional affidavit. 13. 12. At the time of filing of the writ petition, the Petitioner was not furnished with the copy of the enquiry report. However, he could obtain a copy of the same during the pendency of the writ petition and was produced the same before this Court by filing an additional affidavit. 13. According to the Petitioner, the Chairman, ASEB himself having recorded in the impugned order dated 14.2.2002 that the original recorded date of birth in the service book i.e. 1.2.43 was without any basis, ought to have ordered for recording the same on the basis of the age recorded in the HSLC certificate and that he could not have ordered for fixation of Anr. date of birth i.e. 2.1.47 contrary to HSLC certificate and the medical opinion. Further grievance of the Petitioner is that the period during which he was forced to remain on unemployment could not have been regularized at the cost of his leave account which ultimately would tell upon his service benefits and that he is entitled to get full salary for the entire period treating the same to be spent on duty. 14. As stated above, the Respondents have not filed any counter affidavit. Learned Counsel for the Respondents produced the records during the course of hearing. 15. I have heard Mr. K. Paul, learned Counsel assisted by Mr. D.K. Dey and Mr. A. Sarma, learned Counsel for the Petitioner and Mr. B.D. Das, learned Standing Counsel, ASEB assisted by Mr. H.K. Sarma, learned advocate. 16. Mr. Paul, learned Counsel for the Petitioner, in his usual persuasive pursuits argued that the date of birth of the Petitioner as 2.1.47 could not have been fixed ignoring the age recorded in the HSLC certificate and the medical opinion. He submitted that on the face of the impugned order dated 14.2.2002, the fixation of date of birth of the Petitioner by the Chairman, ASEB is on the basis of his subjective satisfaction without any objective assessment. As regards the period of absence of the Petitioner, Mr. Paul, learned Counsel submitted that the case of such absence being not attributable to the Petitioner and he having been forced to remain out of employment, as per the normal rule, the Petitioner is entitled to receive full salary for the period treating the same to be spent on duty. As regards the period of absence of the Petitioner, Mr. Paul, learned Counsel submitted that the case of such absence being not attributable to the Petitioner and he having been forced to remain out of employment, as per the normal rule, the Petitioner is entitled to receive full salary for the period treating the same to be spent on duty. He submitted that the Petitioner's services having been regularized after he had cleared the HSLC examination, his date of birth ought to have recorded as 1.8.50 as per the age recorded in the HSLC certificate. Placing reliance on the Annexure-B order dated 2.7.2002 issued by the Respondents in respect of one Sri Tarun Chandra Deka (retired UDA) regularizing the services rendered by him below the age of 18 years as 'Boy Service', Mr. Paul submitted that at the time of initial entry into the services of ASEB as work charged Jugali, the Petitioner, although was below 18 years of age by 5 months, same was permissible as 'Boy service'. He further submitted that in any case, the services of the Petitioner having been regularized only after clearing the HSLC examination and he having been appointed as Typist on that basis his date of birth ought to have been recorded as 11.8.50. He placed reliance on the following decisions in support of his argument. AIR 1967 SC 1269 (State of Orissa v. Dr. (Miss) Binapani Devi) 1997 (2) GLT 140 (Col. P.M. Xavier, PRO. v. Union of India and Ors. 2004 (2) GLT 56 (Mahendra Bherihar v. North Eastern Coal Fields and Ors.) 1994 SUPP (1) SCC 155 (Secretary and Commissioner, Home Department v. R. Kirubakaran) AIR 1991 SC 2010 (Union of India v. K.V. Jankiraman) 17. Countering the above arguments of Mr. Paul, learned Standing Counsel, ASEB, Mr. B.D. Das strongly contended that the Petitioner should consider himself to be lucky in determining his date of birth as 2.1.47, inasmuch as he having himself subscribed his date of birth in the service book as 1.2.43 while entering the service of the ASEB, he is estopped from questioning the same. Paul, learned Standing Counsel, ASEB, Mr. B.D. Das strongly contended that the Petitioner should consider himself to be lucky in determining his date of birth as 2.1.47, inasmuch as he having himself subscribed his date of birth in the service book as 1.2.43 while entering the service of the ASEB, he is estopped from questioning the same. He submitted that the Chairman, ASEB taking a lenient view of the matter and as per his own assessment based on the available materials fixed the date of birth of the Petitioner as 2.1.47 and thereby the Petitioner has gained few more years of service and thus the writ petition is misconceived. As regards the period of absence of the Petitioner pending consideration of his case, Mr. Das submitted that the period has been rightly regularized as per rules. 18. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also examined the materials on record including the service books of the Petitioner. It is not a case in which the Respondents have stuck to the original recorded date of birth in the service book. They entertained the representation made by the Petitioner. Correspondences were made amongst the authorities towards correction of his date of birth. It is also an admitted position that the initial date of birth recorded in the service book was without any basis and that if the said date of birth is accepted then the Petitioner would have been over aged for entering the services of the ASEB. 19. Similarly at the time of entering the services of the ASEB as work charged Jugali, the Petitioner was under aged by about 5 months. However, it is the case of the Petitioner that such an employment being temporary in nature and his service having been regularized after he had cleared the HSLC examination, his date of birth ought to have been recorded as 1.8.50 on the basis of the HSLC certificate issued and produced before regularization of his service and his eventual appointment as Typist. 20. I have verified the records produced by the learned Standing Counsel, ASEB. The records contain as many as 7 service books of the Petitioner prepared from time to time. The 1st service book indicates the date of appointment of the Petitioner as work charged Jugali on temporary basis with the date of appointment as 3.3.68. 20. I have verified the records produced by the learned Standing Counsel, ASEB. The records contain as many as 7 service books of the Petitioner prepared from time to time. The 1st service book indicates the date of appointment of the Petitioner as work charged Jugali on temporary basis with the date of appointment as 3.3.68. This service book also indicates the date of regularisation of the services of the Petitioner with effect from 21.9.71. By that time, the petitioner had cleared his HSLC examination and he had obtained the certificate on 11.7.71. In this service book his date of birth was recorded as 1.2.43. The service book bears the signature of the Petitioner as well as the left hand fingers impression. If this date of birth is accepted to be the correct date of birth, then the Petitioner would have been over aged for a job in the ASEB as admitted by the Respondents themselves. The Respondents have also admitted that there was no basis of recording the date of birth as 1.2.43 and at the time, the Petitioner was a minor being aged about 17 years 7 months. It appears that such appointment on temporary basis was not impressible as would be evident from Annexure-2 order dated 2.7.2002 by which the period of service rendered by one Shri T.C. Deka, a retired UDA till the age of 18 years was regularized as "Boy Service". Be that as it may, if the date of birth of the Petitioner was recorded in the 1st service book while he was still a temporary and was only a work charged employee without any basis, as has been admitted by the Respondents themselves, the said date of birth cannot be accepted as authenticate. The Respondents themselves have accepted the position and have refixed the date of birth of the Petitioner as 2.1.47. 21. The 2nd service book was prepared on 12.9.94 with the signature of Additional Chief Engineer (G), ASEB recording the date of birth of the Petitioner as 1.2.43. However, as a token of acceptance of such a date of birth, the signature of the Petitioner was not obtained. 21. The 2nd service book was prepared on 12.9.94 with the signature of Additional Chief Engineer (G), ASEB recording the date of birth of the Petitioner as 1.2.43. However, as a token of acceptance of such a date of birth, the signature of the Petitioner was not obtained. In the 1st service book there is a Note to the effect that the entries made in the first age of the service book which include the date of birth recorded as 1.2.43 should be renewed atleast every five years and the signature in lines No. 8 and 9 should be dated. Lines No. 8 and 9 are in respect of signature of Board's servant and the signature and designation of the Head office, or other attesting officer respectively. In all other service books the line Nos. 8 and 9 have been clubbed together. As in the 2nd service book, in all other service books also the signature of the Petitioner was not obtained. 22. The 3rd, 4th and 5th service books of the Petitioner are also shown initiated on the same date i.e. 12.9.94 on which date the 2nd service book was initiated. The 3rd, 4th and 5th service books also bear the signatures of the same very authority i.e. the Additional Chief Engineer (G). In all the service books the date of birth of the Petitioner was recorded as 1.2.43. As in the 2nd service book, in these service books also neither the signature nor the fingers impressions of the Petitioner were obtained. 23. The 6th service book was initiated on 27.3.2001 with the signature of the Chief Engineer and the date of birth of the Petitioner was shown as 1.2.43. As to on which date, the last i.e. the 7th service book of the Petitioner was initiated is not indicated in the service book inasmuch as the Executive Engineer, who has signed the first page of the service book has not given any date. As in the other service books barring the 1st service book, in this service book also there is no signature of the Petitioner accepting the entries made in the first page of the service book including the date of birth. As in the other service books barring the 1st service book, in this service book also there is no signature of the Petitioner accepting the entries made in the first page of the service book including the date of birth. While in the last and the 7th service book the date of birth of the Petitioner has been recorded as 2.1.47, in all other service books the original entry relating to the date of birth, 1.2.43, has been scored off and substituted by the new date of birth, 2.1.47. Same is stated to be as per authority dated 7.3.2002. 24. The Respondents accepting the representation of the Petitioner for correct recording of his date of birth conducted two types of enquiry, one by constituting a Medical Board, which examined the Petitioner and by appointing an Enquiry officer to examine the case of the Petitioner on the basis of the available materials. The Medical Board in its reports dated 2.1.2001 clearly opined that the age of the Petitioner is above 50 years and below 55 years, which clearly tallies with the date of birth i.e. 1.8.50 as per the age recorded in the HSLC certificate. Thus based on these two documents, the date of birth of the Petitioner will have to be accepted as 1.8.50. In the normal circumstances, the age recorded in the HSLC certificate should be the basis for assessing the date of birth of an incumbent. 25. The Inquiry Officer appointed by the ASEB authorities to find out the correct date of birth of the Petitioner clearly opined for taking back the Petitioner in service of the Board taking his date of birth as 1.8.50. In his report, he has indicated as to how for the post of Typist, the minimum qualification required at the relevant point of time was matriculation. As noticed above, the Petitioner after regularization of his services with effect from 21.9.71 joined the services of the Board after a proper selection as Typist as per order dated 28.2.72. If the Petitioner had applied for his direct recruitment as Typist, the Respondents must have had examined the certificates and testimonials. The Petitioner could not have been appointed without being a matriculate and naturally his HSLC certificate formed part of his documents while making the application for the post of typist. If the Petitioner had applied for his direct recruitment as Typist, the Respondents must have had examined the certificates and testimonials. The Petitioner could not have been appointed without being a matriculate and naturally his HSLC certificate formed part of his documents while making the application for the post of typist. This aspect of the matter has been clearly highlighted by the Inquiry Officer in his report. The Inquiry Officer has also recorded in his report as to how the Petitioner would have been over aged in the event of taking his date of birth as 1.2.43. He has also recorded in his report that the actual age of the Petitioner and for that matter the date of birth should be reckoned on the basis of his regular appointment and not on the basis of the entries made during his temporary appointment. 26. Inspite of the aforesaid clear findings recorded by the Inquiry Officer as well as the Medical Board, the Chairman, ASEB in his impugned order dated 14.2.2002 ordered for recording his date of birth as 2.1.47. The basis for such a finding is the personal opinion of the Chairman upon examining the Petitioner. Although the Chairman has referred to the enquiry report and the opinion of the Medical Board, which more or less tallies to each other, he even after accepting the factual aspect of the matter came to the opinion upon personal look of the Petitioner that he would be aged about 55 years. The Petitioner appeared before the Chairman on 12.2.2002 and it was on that basis taking his age as 55 years as on that date, the Chairman fixed the date of birth of the Petitioner as 2.1.47 ordering his retirement from service on attaining the age of superannuation on 31.1.2005. By the same very order he also ordered for treating the period of absence as on leave/extra ordinary leave without pay. 27. On the face of the order dated 14.2.2002 passed by the Chairman, same does not stand to any reason. If the Respondents had decided to examine the case of the Petitioner on the basis of an enquiry and the opinion of the Medical Board, they were bound to accept the reports thereof. 27. On the face of the order dated 14.2.2002 passed by the Chairman, same does not stand to any reason. If the Respondents had decided to examine the case of the Petitioner on the basis of an enquiry and the opinion of the Medical Board, they were bound to accept the reports thereof. As noticed above, the opinions expressed by the Medical Board and the Inquiry Officer as regards the date of birth of the Petitioner, more or less tally with the date of birth as per HSLC certificate. If that be so, the Chairman, ASEB had no other option than to accept the same, but instead he evolved his own devise of determining the date of birth of the Petitioner on the basis of his speculation on a personal look of the Petitioner upon his personal appearance before him. In the process, he ignored the date of birth as suggested by the HSLC certificate, the Inquiry Officer and the Medical Board. As noticed above, it is not a case in which the ASEB authorities stuck to the original date of birth recorded in the service book, rather they decided to ascertain the correct date of birth of the Petitioner for which the enquiry was conducted by way of appointing an Inquiry Officer and taking the opinion of the Medical Board. However, while recording the date of birth of the Petitioner on that basis, a strange procedure was adopted by the Chairman as noticed above. 28. In the case of Dr. (Ms) Binapani Devi (supra), the Apex Court held that the non-furnishing of the enquiry report to the Petitioner before refixing the date of birth of the Petitioner was violative of the principles of natural justice. This case was pressed into service to put emphasis that the Petitioner ought to have been furnished with the copy of the enquiry report before taking a decision on that basis. In the case of Col. P.M. Xavier (supra), a Division bench of this Court observed that the power of rectification of the recorded date of birth is given to advance the cause of justice and justice will be always the guiding factor in the process of correction of age. A discretion is given to promote the cause of justice and discretion means that something is to be done according to the Rules and reasons and justice. A discretion is given to promote the cause of justice and discretion means that something is to be done according to the Rules and reasons and justice. It cannot be unjust, arbitrary, vague and fanciful. 29. In the instant case, reasons assigned in the impugned order dated 14.2.2002, as noticed above, are on the basis of the subjective satisfaction of the Chairman, ASEB without any objective assessments of the attending materials so clinching and glaring on the face of it. It is in this context, the Division Bench of this Court made the following observation: The power of judicial review is relatable to jurisdiction of the higher Courts to review the acts, decision and omission of the public authority in order to ascertain as to whether the authorities exceeded or abused its power. The public authority when charged with a discretion, the said authority is to address itself properly on the matter in accordance with law and must not use its power for improper purposes and it must not act unjustly, unfairly and unreasonably. The power to decide an issue in accordance with law must be read to exclude ultra-vires decision, as alluded earlier, there is no unfettered discretionary power and the discretion is to be exercised justly and reasonably in the light of the aims and purposes in conformity with the powers clothed upon the authority keeping in mind the relevant purposes. The power of judicial review was conferred by the Constitution with a view to protect the democratic principle of political sovereignty of the people. The power of judicial review as enshrined in the India Constitution is intended to protect the individual again the abuse of power. The power is intended to see that the relevant authorities use its power in a proper manner on proper consideration of facts and the law. The Court is to see that the lawful authority is not abused by unfair treatment. 30. In the case of Mahendra Bherihar (supra), this Court under similar circumstances accepted the claimed date of birth of the Petitioner. It was found that the action of the Respondents in not accepting the claimed date of birth of the Petitioner was an exercise unguided by any valid reason. 31. 30. In the case of Mahendra Bherihar (supra), this Court under similar circumstances accepted the claimed date of birth of the Petitioner. It was found that the action of the Respondents in not accepting the claimed date of birth of the Petitioner was an exercise unguided by any valid reason. 31. The case of R. Kirubankaran (supra) has been pressed into service to emphasis that the Petitioner is entitled to receive full salary of the period of forced absence of the Petitioner and that it is a clear case on the basis of conclusive materials towards recording the date of birth of the Petitioner as 1.8.50. Similarly, the case of K.V. Jankiraman (supra) has been pressed into service to bring home the argument that the Petitioner is entitled to full salary for the aforesaid period of absence. 32. From the above discussions, there is no manner of doubt that when the materials on record are so overwhelming, there is no escape from accepting the date of birth of the Petitioner as 1.8.50. The Respondent themselves having ordered for enquiry to ascertain the actual date of birth of the Petitioner and the reports submitted by the enquiry authorities having tallied with the date of birth on the basis of the HSLC certificate, they could not have ignored those materials so as to determine Anr. date of birth on mere conjectures and surmises and on the personal opinion of the Chairman, ASEB. The Respondent themselves having initiated a process are bound to accept the outcome of such a process. 33. As regards the period of absence of the Petitioner, there is no gainsaying that such absence of the Petitioner was not on his own accord but was a forced one. Even before releasing him from service, the opinion of the Medical Board was available with the Respondents. In fact, while passing the impugned order dated 14.2.2002 towards reinstating the Petitioner in service with refixation of his date of birth as 2.1.47, the Chairman, ASEB took note of the said opinion of the Medical Board. Thus, the delay in considering the case of the Petitioner cannot be attributed to the Petitioner so as to disentitle him to full pay and allowances for the period of absence. Thus, the delay in considering the case of the Petitioner cannot be attributed to the Petitioner so as to disentitle him to full pay and allowances for the period of absence. It is in this context the Apex Court while cautioning against passing interim order towards continuation of an employee who disputes the recorded date of birth in the service books, has observed that in the event of ultimate final decision in the matter, the employee would get all the consequential benefits. 34. In the instant case, even on the basis of the impugned decision erroneously fixing the date of birth of the Petitioner, the Respondents have accepted that the Petitioner would continue in his service upto 31.1.2005. Thus, as per this decision also, the Petitioner would be entitled to get his full pay and allowances for the period of his absence and the same cannot be adjusted from his leave account, which needless to say will eventually tell upon his service benefits, which he would otherwise be entitled to at the time of his retirement from service on attaining the age of superannuation. 35. In view of the above, the writ petition succeeds. The impugned order dated 14.2.2002 (Annexure-R) stands interfered with so far as the same fixes the date of birth of the Petitioner as 2.1.47 and the period of absence mentioned above as on leave/extra ordinary leave. Consequently, the Petitioner will be entitled to continue in his service taking his date of birth as 1.8.50 and will be entitled to full pay and allowances for the aforementioned period of absence treating the same to be spent on duty. The arrear pay and allowances for the said period shall be paid to the Petitioner within four months from today. 36. Writ petition succeeds, leaving the parties to bear their own costs. Petition allowed.