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Allahabad High Court · body

2023 DIGILAW 627 (ALL)

Union of India v. Nathan Singh

2023-03-02

ARUN KUMAR SINGH DESHWAL, SALIL KUMAR RAI

body2023
JUDGMENT : ARUN KUMAR SINGH DESHWAL, J. 1. Heard Sri Manoj Kumar Singh, learned counsel for the petitioners and no one has appeared on behalf of the respondent. 2. Present writ petition has been filed on behalf of Union of India against the order dated 18.11.2020 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 330/00278 of 2019 by which application of the respondent has been allowed by the Central Administrative Tribunal by setting aside the order dated 24.12.2018 retiring him from service on 31.03.2019 on the basis of consideration of his date of birth as 12.03.1959, instead of 20.08.1961 by making correction on 27.01.1995. 3. The contention of learned counsel for the petitioners is that in the service record, date of birth of the respondent was incorrectly mentioned as 20.08.1961 though as per medical certificate issued by Chief Medical Officer, Allahabad dated 12.03.1984, age of the respondent was about 25 years at the time of entering into service in the year 1984 as majdur under Garrison Engineer, Bamrauli. Therefore, the same was corrected in the service record of the respondent in 1995. It was submitted by learned counsel for the petitioners that the respondent has filed time barred original application before Central Administrative Tribunal, Allahabad because as per Section 21 of the Central Administrative Tribunal Act, 1985, the limitation for filing the original application before the Central Administrative Tribunal is one year but, in the present case, the respondent has filed original application before the Central Administrative Tribunal, Allahabad in 2019, though correction in his date of birth was made in 1995. It was further mentioned that correction in the service record regarding the date of birth of the respondent was well in the knowledge of the respondent and he never made any objection or representation against the same to the competent authority. It was further contended by the petitioners that under the service rule, service book is required to be shown to Government servant every year and his signature should be obtained on the same. It was also submitted by learned counsel for the petitioners that it is the responsibility of the concerned Government servant that his service should have been duly verified by the competent authority. It was also submitted by learned counsel for the petitioners that it is the responsibility of the concerned Government servant that his service should have been duly verified by the competent authority. It was also submitted by the petitioners that on 30.10.2018, a seniority list of Mason HS-II was circulated by Headquarter CWE Allahabad mentioning the date of birth of the respondent as 12.03.1959 on the basis of correction made in the year 1995 and only thereafter, the respondent made representation against the correction of his date of birth to Headquarter CWE Allahabad which was duly considered and replied by letter dated 14.12.2018 stating that correct date of birth of the respondent is 12.03.1959 but the respondent has not filed any objection against the letter dated 14.12.2018 of HQCWE Allahabad nor have challenged the same before any competent authority but at the verge of retirement i.e. on 02.03.2019, the respondent has moved a representation for restraining the superannuation from service w.e.f. 31.03.2019 and also requested for necessary correction of his date of birth mentioned in the service record. But that was duly replied by the competent authority vide letter dated 06.04.2019. Thereafter, prior to his retirement, when the order dated 24.12.2018 was issued by the office of GE (AF Division) Gorakhpur, the respondent had challenged the same by filing original application before the Central Administrative Tribunal, Allahabad. 4. On perusal of record, it is found that in paragraph nos.4.18 and 4.20 of O.A. it was contended by respondent that no information regarding the change of date of birth of the respondent in 1995 was ever communicated by his employer nor any opportunity of hearing was afforded to him before making any correction in his date of birth and same was intimated to the respondent by letter dated 14.12.2018. This fact of non-communication of correction of date of birth in the year 1995 and non-granting of opportunity, mentioned in original application of the respondent was not disputed but virtually admitted in paragraph no. 16 of the counter affidavit of the petitioners before Central Administrative Tribunal. It was also admitted in counter affidavit by the petitioners that correction of date of birth in the service record of the respondent was intimated to him by letter dated 24.12.2018. 5. 16 of the counter affidavit of the petitioners before Central Administrative Tribunal. It was also admitted in counter affidavit by the petitioners that correction of date of birth in the service record of the respondent was intimated to him by letter dated 24.12.2018. 5. Considering the above facts, it is the petitioners who entered the date of birth of the respondent in his service record as 20.08.1961, at the time of entering the service of respondent and they unilaterally corrected the same by mentioning the date of birth of respondent as 12.03.1959 without giving any opportunity of hearing to respondent or giving any intimation to him till 2018. Therefore, original application filed by the respondent before the Central Administrative Tribunal, Allahabad was well within time and duly maintainable and because of non-intimation or non-granting opportunity of hearing before correction of date of birth of the respondent, there is a clear violation of Articles 14 and 16 of the Constitution of India, therefore, the view taken by the Central Administrative Tribunal, Allahabad of setting aside the impugned order on the ground of violation of principles of natural justice, as no opportunity of hearing was given to the respondent before making correction in his date of birth and retiring him on 31.03.2019 on the basis of amended date of birth, cannot be said to be perverse or erroneous. 6. Even otherwise, as per explanatory note of Fundamental Rules, 1956 clearly provides that date of birth of Government employee can be changed only within five years of entering into the service or it is clearly established that a genuine bona-fide mistake has occurred and in the present case, correction was made by the petitioners in the date of birth of the respondent after 11 years of entering into service and the same also cannot be said to be correction of genuine bona fide mistake. 7. The Apex Court has held in the judgment titled as State of U.P. vs. Sudhir Kumar Singh and Others, AIR 2020 SC 5215 in paragraph no. 39, which reads as under: “39. An analysis of the aforesaid judgments thus reveals: (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. 39, which reads as under: “39. An analysis of the aforesaid judgments thus reveals: (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. (2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.” 8. Paragraph no. 8 of the judgment titled as M/s. A.S. Motors Pvt. Ltd. vs. Union of India, 2013 AIR SCW 3830, is quoted herein-below: “8. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.” 8. Paragraph no. 8 of the judgment titled as M/s. A.S. Motors Pvt. Ltd. vs. Union of India, 2013 AIR SCW 3830, is quoted herein-below: “8. It was argued on behalf of the appellant that termination of the contract between the parties was legally bad not only because the principles of natural justice requiring a fair hearing to the appellant were not complied with but also because there was no real basis for the respondent-authority to hold that the appellant had committed any breach of the terms and conditions of the contract warranting its termination. We find no merit in either one of the contentions. The reasons are not far to see. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the Tribunal and the rules and regulations under which it functions. A Court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are a legion. We may refer to only some of the decisions on the subject which should in our opinion suffice.” 9. Paragraph no. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are a legion. We may refer to only some of the decisions on the subject which should in our opinion suffice.” 9. Paragraph no. 15 of the judgment titled as Uma Nath Pandey vs. State of U.P. 2009 AIR SCW 3200, is quoted herein-below: “15. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.” 10. From the above decisions, it is established position that application of principles of natural justice in the decision making process of the administrative body having civil consequences have been upheld. Therefore, rules of natural justice are foundational and fundamental concepts. 11. In the present case unilateral change in date of birth of respondent is having civil consequences upon respondent because same has affected the date of retirement of respondent, hence thereby causing prejudiced to respondent for non-grant of opportunity of hearing before making such correction in the date of birth of respondent in service record. Therefore, the order of Central Administrative Tribunal dated 18.11.2020 is well considered and absolutely correct and need no interference by this Court in exercising of its extraordinary jurisdiction under Article 226 of the Constitution of India. 12. Therefore, the present petition fails and deserves to be dismissed.