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Orissa High Court · body

2017 DIGILAW 658 (ORI)

Prasana Kumar Chhotaray v. Vice Chancellor, Orissa University of Agriculture and Technology, Bhubaneswar

2017-07-04

B.R.SARANGI

body2017
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner was initially joined in the State Government in Agriculture Department under the Block Development Officer, Kendrapara-II in the year 1966. Thereafter, he was deputed to Orissa University of Agriculture and Technology (hereinafter referred to as “O.U.A.T.”) from 07.12.1967 to discharge the duties and responsibility of Research Assistant, Department of Plant Pathology, College of Agriculture, Bhubaneswar, where he was absorbed permanently w.e.f 05.07.1970. The service book of the petitioner was opened by the B.D.O., Kendrapara-II at the time of his first appointment under Government. The date of birth, as had been recorded in the service book by the B.D.O., Kendrapar, was 09.09.1944. While he was working as Senior Research Assistant, his date of birth was corrected as 09.09.1941 taking into consideration the communications made by the Headmaster, Ananta Narayan High School, Narasinghpur vide his letter dated 16.05.2002 and also the Deputy Secretary, Board of Secondary Education, Orissa Cuttack vide letter dated 11.06.2002. Being aggrieved by the correction of date of birth from 09.09.1944 to 09.09.1941, relying upon the correspondences made by the Headmaster of Ananta Narayan High School, Narasinghpur as well as Board of Secondary Education, Orissa, Cuttack dated 18.05.2002 and 11.06.2002 respectively, the office order dated 12.06.2002 was issued retiring the petitioner w.e.f. 30.09.2001, which is the subject matter of challenge in this writ application. 2. Ms. S. Patnaik, learned counsel appearing on behalf of Mr. J. Patnaik, learned Senior Counsel for the petitioner states that correction of date of birth, as indicated in the service book from 09.09.1944 to 09.09.1941, has been done by impugned order dated 12.06.2002 in Annexure-1 all on a sudden without affording opportunity of hearing to the petitioner and the same has been done unilaterally relaying upon the report furnished by the Headmaster of Ananta Narayan High School, Narasinghpurm as well as Deputy Secretary, Board of Secondary Education, Orissa, Cuttack. It is contended that the retirement has been done with retrospective effect, i.e., 30.09.2001, which is not permissible under law. It is further contended that the order of retrospective retirement could not have been passed by the authority on the basis of the changed date of birth, which has been done without complying the principles of natural justice, as no opportunity of hearing was afforded the petitioner. 3. Ms. G. Patra, learned counsel appearing on behalf of Mr. It is further contended that the order of retrospective retirement could not have been passed by the authority on the basis of the changed date of birth, which has been done without complying the principles of natural justice, as no opportunity of hearing was afforded the petitioner. 3. Ms. G. Patra, learned counsel appearing on behalf of Mr. P. Acharya, learned Senior Counsel for opposite parties states that the petitioner had manipulated his date of birth in the service record. To that effect a complaint having been received, an inquiry was conducted and on the basis of school record, as was reported by the Headmaster of the School, where the petitioner was prosecuting his studies, his date of birth was corrected as 09.09.1941, which has also been duly certified by the Board of Secondary Education, Orissa, Cuttack. As the petitioner by manipulating the service record had managed to record his date of birth as 09.09.1944, the same had been corrected and accordingly, he was directed to superannuate from service w.e.f. 30.09.2001 on attaining the age of superannuation of 60 years. Consequentially, the authority has not committed any illegality or irregularity in superannuating the petitioner from service w.e.f. 30.09.2001 taking into account the correct date of birth as 09.09.1941. 4. Having heard learned counsel for the parties and after going through the records, pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this matter is being disposed of finally at the stage of admission. 5. Admitted position is that in the service book of the petitioner, the date of birth has been entered as 09.09.1944. As per the provisions contained under Statute-15 of the OUAT Employees (Condition of Service) Statutes 1989, the date of retirement of a University employee shall be the date on which he/she shall retire on the last day of the month. Keeping in view such provision, on the basis of the date of birth entered in the service book as 09.09.1944, the petitioner ought to have been retired from service w.e.f. 30.09.2004, but by impugned order dated 12.06.2002 he has been made to retire on 30.09.2001 retrospectively. 6. As is borne out from the records, a complaint was received against the petitioner that he had manipulated the date of birth in the High School Certificate. 6. As is borne out from the records, a complaint was received against the petitioner that he had manipulated the date of birth in the High School Certificate. Pursuant thereto, a confidential enquiry was undertaken to know the actual date of birth of the petitioner. The petitioner, being a student of Ananta Narayan High School, Narasinghpur, and requests were made to the Headmaster of the School vide letter no.6652 dated 08.04.2000 to check up the date of birth of the petitioner and vide letter no. 9216 dated 15.05.2002 to find out entry in the admission register containing the date of birth of the petitioner. Another request was made to the Deputy Secretary, Board of Secondary Education to verify the original records and intimate the date of birth of the petitioner. In response thereto, the Headmaster of the Ananta Narayan High School, Narasinghpur and the Deputy Secretary of the Board of Secondary Education separately by letter dated 18.05.2002 and letter dated 11.06.2002 respectively indicated that the date of birth of the petitioner is 09.09.1941. Accordingly, the petitioner was requested through his Controlling Officer by letter dated 08.04.2002 to produce the photo copy of his Matriculation Certificate for verification. Instead of submitting the written evidence, the petitioner took the plea that his matriculation certificate has been damaged in cyclone. As confirmed by the Board of Secondary Education relating to actual date of birth, the opposite parties reached at a conclusion that the date of birth of the petitioner is 09.9.1941 and not 09.09.1944. Accordingly, applying the provisions contained in Statute-15 of the OUAT Employees (Condition of Service) Statutes 1989, the petitioner was retired on 30.09.2001 taking into consideration his date of birth as 09.09.1941 instead of 09.09.1944 vide Annexure-1. 7. From the narration made above, it is evident that the correction of date of birth has been made pursuant to the reports of the Headmaster of Ananta Narayan High School, Narasinghpur as well as the Deputy Secretary, Board of Secondary Education, Orissa, Cuttack, but without complying the principles of natural justice, and as such, no opportunity of hearing was given to the petitioner. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after giving an opportunity of being heard and meeting or explaining the evidence. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after giving an opportunity of being heard and meeting or explaining the evidence. No materials have been produced before this Court to indicate that, while carrying out the correction of date of birth, the principle of natural justice was not adhered to. 8. In Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851 the apex Court held that civil consequences’ over infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation and wide umbrella, everything that affects a citizen in his civil life inflicts a civil consequence. Same view has also been taken in Canara Bank v. Debasis Das, (2003) 4 SCC 557 . 9. In D.K. Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259 the apex Court held that the order of termination of the service of an employee visits him with civil consequences of jeopardising not only livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. 10. This question no more remains as res integra in view of the judgment of the apex Court in State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 , where similar question of correction of date of birth has already been considered by the apex Court. 11. In view of the law laid down by the apex Court, as discussed above, this Court has no hesitation to hold that correction of date of birth from 09.09.1944 to 09.09.1941 has been done without following the principle of natural justice. Thereby, the order dated 12.06.2002 in Annexure-1 is liable to be quashed, accordingly, the same is hereby quashed. The matter is remitted back to the opposite parties to take steps for necessary correction of date of birth of the petitioner by affording him opportunity of hearing and in due compliance of the principle of natural justice, as expeditiously as possible. 12. Accordingly, the writ petitioner is allowed. No order to cost.