Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 712 (GAU)

Kughaho Sema v. State of Nagaland

2017-06-01

L.S.JAMIR

body2017
JUDGMENT AND ORDER : L.S. Jamir, J. 1. Heard Ms. Vinitoli, learned counsel for the petitioner. Also heard Ms. S. Mere, learned Government Advocate appearing on behalf of all the respondents. 2. The petitioner was appointed as Dobashi (hereinafter referred to as 'DB') Grade-II under the establishment of Deputy Commissioner, Zunheboto by an order dated 09-01-1987. While entering in the service as DB Grade-II, the petitioner submitted his school leaving/transfer certificate which was issued by the Government High School, Aghunato wherein his date of birth was recorded as 25-01-1965. Thereafter, the petitioner's Service Book was opened and his date of birth was entered as 25-01-1965 on the basis of the school leaving/transfer certificate issued by the Government High School, Aghunato. The petitioner appended his signature in the Service Book accepting the entries made therein. Further, in 1994, the staffs under the Office of the Additional Deputy Commissioner, Aghunato were examined by the Medical Board. The petitioner also appeared before the Medical Board and in the Medical Report, the petitioner's date of birth was recorded as 25-01-1965 and his age is indicated as 29 years. The petitioner further applied for Birth Certificate in the year 1994 and the Government of Nagaland, Department of Economics and Statistics issued the Date of Birth Certificate wherein his date of birth is shown as 25-01-1965. The petitioner was also promoted to DB Grade-I in the month of March, 2003. 3. The Deputy Commissioner, Zunheboto sometime in the year 2006/2007 conducted a verification of the service records of all the employees under his establishment and while doing the same, the Service Book of the petitioner was also examined and the Deputy Commissioner, Zunheboto recorded his date of birth both in figures as well as in words as 25-01-1965. Sometime in 2013, some DBs. under the establishment of the Deputy Commissioner, Zunheboto submitted a representation against the petitioner and another person alleging manipulation of date of birth in the Service Book. It was also the case of those complainants that at the relevant point of time when the petitioner was appointed, there was an executive direction that an employee should not be below 35 years of age for appointment as DB and therefore, it was the case of the complainants that the petitioner's date of birth ought to be 25-01-1955 and not 25-01-1965. Against the complaint, the petitioner also submitted a representation dated 21-08-2014 explaining his position and with a further prayer to reject the representation made by the complainants. On the basis of the complaint made, the State respondents constituted a one man inquiry to inquire into the complaint made against the petitioner. Thereafter, the one man inquiry summoned the petitioner to the Office of the Deputy Commissioner, Zunheboto on 18-03-2015. However, apart from the summons, no notice was served upon the petitioner nor was the inquiry report furnished to the petitioner. Thereafter, on the basis of the one man inquiry, the Joint Secretary to the Government of Nagaland, Home Department wrote to the Additional Chief Secretary and Commissioner, Nagaland, Kohima conveying the views and observations of the Personnel and Administrative Reforms Department whereby, the P & AR Department conveyed for releasing the petitioner and another from service on attaining the age of 60 years reckoned from the actual date of birth or on realization of the service length of 35 years computed from the initial date of appointment, whichever is earlier in terms of the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 (hereinafter referred to as 'the Act of 2009'). Consequently, the Deputy Commissioner, Zunheboto issued release order 15-06-2015 by which the petitioner was released from service on superannuation with effect from 25-01-2015. Being aggrieved by the release order dated 15-06-2015, the petitioner has filed the present writ petition. 4. Ms. Vinitoli, learned counsel for the petitioner submits that while the petitioner entered into service as DB Grade-II in 1987, he has submitted his school leaving/transfer certificate which was issued by the Government High School, Aghunato. On the basis of the said certificate, the competent authority had entered his date of birth as 25-01-1965 which was agreed upon by the petitioner and thereafter, he had appended his signature in the Service Book. The petitioner's Service Book was also verified by the Deputy Commissioner, Zunheboto in the year 2006/2007 and his date of birth in the Service Book continued to be maintained as 25-01-1965. It was only on the basis of the complaint made by some DBs that the respondents have proceeded to conduct an inquiry by constituting a one man inquiry. She submits that the petitioner was summoned by the one man inquiry on 18-03-2015 to which the petitioner had responded. It was only on the basis of the complaint made by some DBs that the respondents have proceeded to conduct an inquiry by constituting a one man inquiry. She submits that the petitioner was summoned by the one man inquiry on 18-03-2015 to which the petitioner had responded. However, beyond the summons, no further notice was given to the petitioner nor was any effective hearing afforded to him. Learned counsel for the petitioner further submits that no inquiry report of the one man inquiry was furnished to the petitioner but instead the P & AR Department had given its views and comments by directing to release the petitioner from service on attaining the age of 60 years or on computation of 35 years of length of service in terms of the Act of 2009. It is also submitted that no notice was given to the petitioner for releasing him on superannuation with effect from 25-01-2015 which amounts to violation of the principles of natural justice. In that view of the matter, learned counsel for the petitioner submits that the release order dated 15-06-2015 stands vitiated and the same deserves to be quashed and set aside. 5. Ms. S. Mere, learned Government Advocate per contra submits that there is overwriting in the Service Book of the petitioner and therefore, a doubt has arose with regard to the date of birth of the petitioner. To that effect, learned Government Advocate has produced the Service Book of the petitioner in original for perusal of this Court. It is submitted that the signature of the Deputy Commissioner, Zunheboto does not tally with the signature of the then Deputy Commissioner, Zunheboto and therefore, the same has cast a strong suspicion as to whether that signature is the real signature of the Deputy Commissioner, Zunheboto. She, further submits that there is overwriting in the date of birth of the petitioner and therefore, the respondents have decided to constitute a one man inquiry to look into the matter. She, further submits that there is overwriting in the date of birth of the petitioner and therefore, the respondents have decided to constitute a one man inquiry to look into the matter. The one man inquiry had thereafter submitted its report which was submitted to the Additional Chief Secretary and Commissioner, Nagaland and thereafter the views and observations of the P & AR Department was furnished whereby it was decided that the petitioner and another persons should be released from service on attaining the age of 60 years reckoned from the actual date of birth or on realization of service length of 35 years computed from the initial date of appointment whichever is earlier. It was only thereafter that the Deputy Commissioner, Zunheboto had issued the release order dated 15-06-2015. She submits that the respondents had taken all due care to verify into the matter and on noticing that there is alteration in the date of birth of the petitioner in the Service Book, the respondents have constituted a one man inquiry and had thereafter decided that the date of birth of the petitioner should be 25-01-1955 and accordingly, the release order dated 15-06-2015 was issued. She, therefore, submits that there is no merit in the writ petition and the same deserves to be dismissed. 6. I have considered the submissions forwarded by the learned counsel for the parties. 7. The Service Book in original furnished by the learned Government Advocate has also been considered by this Court. A perusal of the Service Book would indicate that the date of birth of the petitioner as 25-01-1965 has been recorded twice in figures and once in words. It appears that the Service Book of the petitioner was verified twice by the Deputy Commissioner, Zunheboto and the Additional Deputy Commissioner, Zunheboto wherein they have appended their signatures. 8. Basing on the complaint made by some DBs, the respondents have decided to verify into the matter and therefore, a one man inquiry was constituted. The petitioner was summoned on 18-03-2015 by the one man inquiry to which the petitioner had responded. However, beyond that there is nothing on the record to indicate that an opportunity of hearing was given to the petitioner by the one man inquiry. The petitioner was summoned on 18-03-2015 by the one man inquiry to which the petitioner had responded. However, beyond that there is nothing on the record to indicate that an opportunity of hearing was given to the petitioner by the one man inquiry. It is also not in dispute that the inquiry report was not furnished to the petitioner but instead, behind the back of the petitioner, the respondents have proceeded on the basis of the one man inquiry report. This Court is of the considered opinion that the one man inquiry report should have been furnished to the petitioner in order to allow him to respond to such report. 9. It appears from the materials on record that the respondents have proceeded against the petitioner on the basis of one man inquiry which culminated in the views and comments of the P & AR Department who decided that the petitioner should be released from service on attaining the age of 60 years or on computation of 35 years length of service whichever is earlier. All these steps by the respondents were taken behind the back of the petitioner without giving him an opportunity of being heard. 10. In the case of Mahipal Singh Tomar v. State of Uttar Pradesh and Others, reported in (2013) 16 SCC 771, the Hon'ble Supreme Court has held as under :- "15. In administrative law, the "rules of natural justice" have traditionally been regarded as comprising audi alteram partem and nemo judex in sua causa The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. This has been used by the courts for nullifying administrative actions. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. This has been used by the courts for nullifying administrative actions. The premise on which the courts extended their jurisdiction against the administrative action was that the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure." 11. In the present case in hand, apart from non-furnishing of the inquiry report to the petitioner, no show cause notice was given indicating that the petitioner would released from service with effect from 25-01-2015. The same is also not disputed by the learned Government Advocate in her usual fairness. This is also another violation of the principles of natural justice. 12. Considering the facts and circumstances of the case as well as on perusal of the materials available on records, it is seen that the petitioner has been deprived of an opportunity of being heard both at the stage of the one man inquiry and also when the respondents have taken a decision to release the petitioner from service with effect from 25-01-2015. In that view of the matter, the impugned release order dated 15-06-2015 stands vitiated and the same is accordingly set aside and quashed. The respondents are directed to forthwith reinstate the petitioner back into service along with all other consequential service benefits. Liberty is however given to the respondents to proceed against the petitioner, if so advised, however, in accordance with law. 13. Writ petition is accordingly allowed. 14. No costs.