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2015 DIGILAW 165 (ORI)

Harihar Panda v. Collector, Puri

2015-03-09

B.K.DASH, S.N.DASH

body2015
ORDER : B.K.DASH, J. The applicant who was working as regular Peon in the office of Tahasildar, Puri vide order dtd.6.9.1977 and joined on 7.9. 1977 vide order at annexure- 2. While he was continuing in service one Patitapaban Panda who is an sworn enemy of the applicant made false allegation, stating that though the actual date of birth of the applicant is.5.12.1939 he has manipulated his date of birth while entering into service and he has already attained the age of 63 years. On such allegation, the Tahasildar, Puri called upon the applicant to submit his explanation regarding his date of birth and to produce documentary evidence. The applicant submitted his show-cause in Oriya, but without giving him any opportunity of being heard in person, issued the impugned notice as at annexure-6 dtd.2.11.2005, retiring the applicant from service with effect from 31.12.1999, treating his date of birth as 5.12.1939. It is submitted that the actual date of birth of the applicant is 5.12.1947 and as such he is to continue in service till he attains the age of 60 years, but without any proper enquiry and giving the applicant an opportunity of being heard, the impugned order of retirement was passed. The applicant has stated that the Collector or the Tahasildar, Puri are not competent to pass such order of retirement and as such liable to be quashed and he is to be treated to be in service till he attained the age of 60 years and should be given all service and financial benefit. 2. Respondent NO.1 filed counter, stating that the applicant entered into government service on 7.9.1977. However, during enquiry, the date of birth of the applicant was found to be 5.12.1939 and not 5.12.1947, for which the retirement notice vide order NO.1 0373. dtd.2.11.2005 was issued, retiring the applicant with effect from 31.12.1999(A. N). The enquiry was conducted by the Agdl. Tahasildar, Kanas who during the enquiry verified the affidavit dtd.28.1 0.1978 of the applicant and the report of the Headmaster-in-Charge of Grameswar U.P. (M.E) School, Olhan and ascertained that the actual date of birth of the applicant is 5.12.1939. dtd.2.11.2005 was issued, retiring the applicant with effect from 31.12.1999(A. N). The enquiry was conducted by the Agdl. Tahasildar, Kanas who during the enquiry verified the affidavit dtd.28.1 0.1978 of the applicant and the report of the Headmaster-in-Charge of Grameswar U.P. (M.E) School, Olhan and ascertained that the actual date of birth of the applicant is 5.12.1939. As during the enquiry it was established that the date of birth of the applicant is 5.12.1939, he was directed to retire on completing the age of 60 years on 31.12.1999 and was asked to refund the excess salary drawn during the period from 1.1.2000 to 30.9.2005. Thus, no illegality has been committed and the order as at annexure-6 is not liable to be quashed. 3. The applicant filed a rejoinder, stating that his actual date of birth is 5.12.1947 which was correctly reflected in the service book at the time of his joining in Class-IV post on 7.9.1977. He continued in service till 2.11.2005. But on the false allegation of Patitapaban Panda with whom he is involved in series of litigation the Respondents illegally passed the order of retirement. Since he is a regular government servant without initiating any departmental proceeding under the relevant rules, the respondents are not competent to take such action. The premature retirement without any enquiry amounts to compulsory retirement and as such order is liable to be quashed. . 4. Learned counsel for the applicant submitted that the applicant joined in regular service on 7.9.1977 and till 2.11.2005 no action was taken by the respondents for correction of his date of birth. The date of birth of the applicant has been correctly reflected in the service book as 5.12.1947, though a false allegation was made against him by his sworn enemy, Patitapaban Panda with whom the applicant is involved in series of litigations which is evident from the document as at annexure-8 series. The respondent-authorities have taken such strong action without any proper enquiry. Since the applicant is a regular government servant, he is amenable to the provision under O.C.S (C.C & A) Rules, 1962. The respondent authorities are not competent to pass any order of punishment, without following the provision under O.C.S(C.C & A)Rules. The principle of natural justice has also not been followed by giving due opportunity to the applicant. Since the applicant is a regular government servant, he is amenable to the provision under O.C.S (C.C & A) Rules, 1962. The respondent authorities are not competent to pass any order of punishment, without following the provision under O.C.S(C.C & A)Rules. The principle of natural justice has also not been followed by giving due opportunity to the applicant. The respondent-authorities are also not competent to pass the impugned order and accordingly, the said order is illegal and liable to be set aside. 5. Learned Government Advocate, on the other hand submitted that only after an allegation was made with regard to the correctness of the date of birth, the matter was enquired into by the Addl. Tahasildar, Kanas, during which he found the allegation to be correct and as the applicant had completed the age of superannuation, he was asked to retire retrospectively from 31.12.1999. The applicant has also been given opportunity to submit his explanation, but he did not avail such opportunity. The order of retirement has been passed taking into consideration the actual date of birth of the applicant as 5.12.1939 and hence the impugned order not liable to be quashed. 6. Admittedly, the applicant was appointed to a Class- IV post as per order at annexure-2 and joined as Peon in the Tahasil Office, Puri vide order at annexure-2. The copy of the service book which is relied upon by the applicant as at annexure-I shows the date of birth as 5.12.1947. This document has not been disputed by the respondents in the counter. The only stand taken by the respondent is that on the allegation of one Patitapaban Panda, the Addl. Tahasildar, Kanas made an enquiry and found the date of birth of the applicant to be 5.12.1939 and accordingly was asked to retire from government service with effect from 31.12.1999. The report of enquiry of the Add!. Tahasildar, Kanas has not been filed in order to show the manner in which the enquiry was conducted. 7. As per the provision under the Orissa Service Code, the service book of a government employee is opened at the time of entry into government service. As indicated above, the copy of the service book reveals the date of birth of the applicant as 5.12.1947, which has been duly attested by the Tahasildar, Puri. Such entry has not been disputed. As per the provision under the Orissa Service Code, the service book of a government employee is opened at the time of entry into government service. As indicated above, the copy of the service book reveals the date of birth of the applicant as 5.12.1947, which has been duly attested by the Tahasildar, Puri. Such entry has not been disputed. A government employee is made to retire on the basis of the entry made in the service book with regard to the date of birth. The date of birth as entered in the service book of the applicant has never been corrected or modified. As per the provision under Rule-65 of the O.G.F.R. the date of birth can be corrected either at the instance of the government servant or at the instance of the State Government. Any clerical mistake in the date of birth can be changed by the appointing authority. Any other change in the date of birth is to be made by the State Government. In the present case, nothing has been shown that the date of birth as entered in the service book has been changed by the order of the competent authority i.e. Government and without making any change or correction in date of birth in the service book, no action can be taken. 8. In the case of Dr.(Miss.) Binapani Dei which was upheld by the Hon'ble Supreme Court in the decision reported in A.I.R. 1967 SC 1269 (State of Orissa-vrs- Dr.(Miss) Binapani Dei & others) it is held that:- "For change of date of birth). principle of natural justice is to be followed. Rightly or wrongly, the applicant's date of birth had been accepted by the joining authority as 5.12.1947 and as such a right is accrued to the applicant to retire or attaining age of superannuation on, the basis of this date of birth as entered into service book. If this right is sought to be affected, the principle of natural justice has to be followed." 9. As per the provision under Rule-65 of O.G.F.R., the State Government is the competent authority to change the date of birth of the applicant, but following the principle of natural justice. The respondent authorities are not competent to effect any change in the date of birth and consequently take any action in retiring the applicant. As per the provision under Rule-65 of O.G.F.R., the State Government is the competent authority to change the date of birth of the applicant, but following the principle of natural justice. The respondent authorities are not competent to effect any change in the date of birth and consequently take any action in retiring the applicant. Therefore, the order passed by respondent NO.1 as at annexure-6 is illegal and liable to be quashed. 10. Accordingly, the O.A, is allowed and the order at annexure-6 is quashed and we consequently direct the respondent authorities to treat the applicant to be in service till he attained the age of 60 years (superannuation) and consequently he is entitled to all service and financial benefits. Since the applicant was asked to retire vide order dtd.2.11.2005, it appears that he was in service till that date. As he has not performed actual duty from 3.11.2005 till the date of his superannuation, we direct that he be paid only 50% of actual salary for that period, but he is entitled to ail consequential benefit and accordingly his pension and other pensionary benefit be paid, taking into consideration this salary he is entitled to get as on the last date of his retirement. All such benefits be paid to him within a period of five months from the date of receipt of a copy of this order. 11. With these orders, the O.A. is disposed of No order as to cost. I agree.