Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 511 (ORI)

Prahalad Nayak v. State of Orissa

2017-05-03

S.N.PRASAD, S.PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India wherein the order passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack dated 19.08.2016 in O.A. No. 1703 (C) of 2015 is under challenge, whereby and where under the Tribunal has refused to interfere with the letter dated 07.04.2015 instructing to correct the date of birth of the applicant as 06.10.1955 in view of the order dated 07.06.1996. 2. The brief fact of the case is that the petitioner was appointed as a Peon on 18.05.1983 by the opposite party no.4 and according to him the date of birth was recorded as 06.10.1958. He was continuing as such, the school was taken over by the State Government vide Resolution dated 16.12.1994 with effect from 07.06.1994, his appointment was duly approved by the competent authority, he was getting his regular salary along with all consequential benefits, but all of a sudden the authority has come up with a letter dated 15.07.2015 whereby and where under the date of birth recorded in the service book has been directed to be corrected as 06.10.1955, he having no option, has approached the Tribunal, the Tribunal has dismissed the Original Application which is under challenge before this Court by way of this writ petition. 3. Learned Senior Counsel representing the petitioner has vehemently argued while assailing the order on the grounds that the Tribunal while dismissing the Original Application has not taken into consideration the fact that the date of birth as has been recorded in the service book has unilaterally been directed to be corrected without any information in this regard to the petitioner/applicant and as such there is gross violation of Principle of Natural Justice and on this ground alone, the entire action of the authorities is said to be illegal and unjustified. He further argued that even though there was a punishment as has been reflected in the order impugned having been passed on 07.06.1996, but subsequently that has been modified as would be evident from the order dated 21.10.1998, but the Tribunal has not taken into consideration this aspect of the matter. He further submits that the authorities cannot only on the basis of the vigilance enquiry take any decision which adversely affect the right of the applicant. 4. He further submits that the authorities cannot only on the basis of the vigilance enquiry take any decision which adversely affect the right of the applicant. 4. While on the other hand, learned counsel representing the School & Mass Education Department, Government of Orissa has submitted that the Tribunal has not erred in passing the order rather, the Tribunal after taking into consideration entire aspect of the matter, has passed the order. He submits that the petitioner was appointed as a Peon in Bamanal High School, Bamanal on 18.05.1983 and his service book was opened in which his date of birth was found to be wrongly recorded, hence an inquiry was initiated which ultimately being culminated into an order of punishment dated 07.06.1996 under Office order No. 6882 wherein the Headmaster of the concerned school was directed to correct the certificate and other records concerned accordingly, as such the petitioner was knowing about the facts, but the authorities who have been directed to make necessary correction, has not acted upon and when the authorities have came to know a letter has been issued on 15.07.2015 directing the authorities again to act upon in pursuance to the order dated 07.06.1996 and as such it cannot be said that the letter dated 15.07.2015 is on the basis of fresh decision of the authority, rather, it is the reiteration of the decision already taken vide order dated 07.06.1996, which the petitioner even after knowing fully, has not challenged, hence the Tribunal after taking note of the aspect of the matter has refused to interfere with the letter dated 15.07.2015. He further submits that the fact regarding fraud has been ascertained even by the Vigilance Inquiry wherein on the basis of the verification of the Admission Register, it has been found that the date of birth of the petitioner is 06.10.1955 and not 06.10.1958. He relies upon the Transfer Certificate and by referring to it, it has been submitted that even the Transfer Certificate has been manipulated both in figure as well as on number as would be evident from the Transfer Certificate annexed to the document. He relies upon the Transfer Certificate and by referring to it, it has been submitted that even the Transfer Certificate has been manipulated both in figure as well as on number as would be evident from the Transfer Certificate annexed to the document. He also submits that the Transfer Certificate is also a manipulated one, the authorities after knowing about these facts have initiated a departmental inquiry, which ultimately culminated into the order of punishment with a direction to the authorities to correct it by inserting the date of birth as 06.10.1955 in place of 06.10.1958, hence taking into consideration the date of birth as 06.10.1955, he has rightly been superannuated from service. In view of such a fact, it has been submitted that the writ petition needs no interference by this Court. 5. We have heard learned counsel for the parties and on perusal of the documents available on record, the fact which we have come across, it is evident that the petitioner has got appointment on 18.5.1983 on the strength of a Transfer Certificate, which has been annexed at Page-57 which is in English and at Page-55 which is in Vernacular. The authorities after knowing about the manipulation having been committed by him have directed to conduct an inquiry after the fact finding regarding fraud having been committed by him, the petitioner has fully participated in the same and thereafter the final order was passed on 07.06.1996, the relevant part of the final order is being reflected herein below. “Office Order No. 6882 dated 7.6.1996 Suspension of Sri Prahallad Nayak, 3rd Peon, Bamanal High School approved vide this office order No. 6726 dated 16.8.1994 with effect from 15.7.1994 is hereby vacated. The period of his suspension is treated as such as departmental penalty, for he had obtained forged TC knowingly and deliberately by changing his date of birth from 6.10.1955 to 6.10.1958. The Headmaster of Bamanal High School is required to correct the certificate and other records concerned accordingly. The Peon should join his duty forthwith.” It is evident from the order of punishment that the authorities have came to a definite finding regarding the manipulation in the date of birth and hence directed to rectify the same by replacing 06.10.1958 to 06.10.1955. 6. The Peon should join his duty forthwith.” It is evident from the order of punishment that the authorities have came to a definite finding regarding the manipulation in the date of birth and hence directed to rectify the same by replacing 06.10.1958 to 06.10.1955. 6. We have also come across the vigilance inquiry report wherein when the matter has been handed over to the Vigilance to conduct an inquiry, the Vigilance Team has called upon the Headmaster of the concerned school along with the Admission Register and on corroboration from the school record, the Vigilance team has come to conclusion that manipulation has been done in the date of birth of the applicant and as such suggestion has been given to make necessary correction in the date of birth. The petitioner is knowing all these facts right from the date when he had participated in the Departmental Inquiry, but he has not chosen to challenge the order dated 07.06.1996. 7. Learned Senior Counsel for petitioner however has drawn our attention to an order dated 21.10.1998 whereby and where under the period of suspension has been directed to be treated on duty, on the strength of these orders, it has been submitted that the order dated 07.06.1996 inflicting the punishment stands superseded, but we are not in agreement with the said argument, reason being that the order of punishment dated 07.06.1996 is in two folds, 1st is with respect to the period of suspension and the 2nd direction upon the Headmaster to correct the certificate and other records concerned accordingly. The order dated 21.10.1998 is only with respect to the period of suspension, which has been directed to be treated on duty. Hence the part of the order by which the Headmaster has been directed to correct the certificate has remain unaltered, but on one pretext or the other the date of birth has not been rectified, which ultimately has been directed by the authorities vide letter dated 15.07.2015 to rectify the date of birth in compliance to the order dated 07.06.1996 which has been challenged before the Tribunal and the Tribunal while dismissing the Original Application has refused to interfere with the letter dated 15.07.2015. 8. 8. We have gathered from the argument advanced on behalf of the parties and on the basis of the materials available on record and especially the date of birth certificate, have found that the date of birth as has been recorded in the Transfer Certificate was 06.10.1955 and subsequently it has been manipulated as is evident from the Vigilance inquiry report and the order of punishment dated 07.06.1996, which has never been questioned by the petitioner. It is settled that when any order is passed being adverse to the interest of an employee if not reversed, the same will be binding upon him. However in this case, the effect of the order dated 07.06.1996 has not been given by the authority which ultimately been given vide letter dated 15.07.2015, which according to the petitioner, cannot be done at the belated stage, but it cannot be said to be at the belated stage reason being that it is only the reiteration of the decision taken by the authorities vide order dated 07.06.1996, which has never been reversed and as such according to our conscious view, the authorities while issuing the letter dated 15.07.2015 have not committed any illegalities, rather they have taken the right decision in order to rectify their defect by following the principle that the illegality cannot be allowed to be perpetuated. We after taking into consideration these aspects of the matter and going through the finding of the Tribunal are of the considered view that the Tribunal has not erred in passing the order. Accordingly we find no reason to interfere with the same. In the result, the writ petition stands dismissed.