Narayana Pai, J.
1. The petitioner, who was in the service of the State Government of Mysore, prays for the issue of an appropriate writ directing the respondent State Government to calculate and pay to him all the pay and allowances due to him on the basis that he was in the service of the Government from 1-4-1959 to 13-3-1967 and also directing the Government to determine and pay his pension for the subsequent period.
2. The petitioner is an engineering graduate and joined the service of the Government of the erstwhile State of Mysore as a Senior Operator on 23rd November, 1945. Early in 1959 he was working as Executive Engineer (Electrical) at the Color Gold Fields.
3. According to the entry made in his Service Register, the date of his birth is 13th March, 1912. In 1959 the State Government appears to have redetermined the date of his birth as 28th January, 1904. By an order dated 1st April 1959, the petitioner was directed by the Government to retire from service, the period from 28-1-1959 to the date of the order being treated as extension of service beyond superannuation. The petitioner thereupon filed W.P. 524 of 1959 before this Court challenging the said order. He, however, withdrew the same with a view to take advantage of a certain Government order of 1958, the terms of which he thought might be of some advantage to him. As he could not get the benefit of the said order as anticipated by him, he filed before the District Judge of Bangalore on 28th March, 1962 O.S. No. 18 of 1962 against the Government for a declaration that he was still in service entitled to all the benefits flowing therefrom, for a decree setting aside the Government's order directing his retirement as invalid and for a mandatory injunction directing the Government to accept the date of his birth as entered in the Service Register as the correct date and to work out the date of superannuation and incidental relief on that basis.
4. The said suit was subsequently transferred to the Court of the Civil Judge of Bangalore and renumbered as O.S. No. 213 of 1964. On 31st March, 1965, the Civil Judge passed a decree declaring that the petitioner was still in service on the date of suit and directing the Government to accept the date of birth as entered in the petitioner's Service Register as correct and to work out the date of superannuation accordingly. The Civil Judge further directed the Government to pay the plaintiff-petitioner all such amounts and emoluments as may be found due to him, inclusive of increments.
5. The State Government preferred R.F.A. No. 14 of 1966 against the said decree to this Court. The appeal was disposed of on 20th September, 1968. This Court confirmed the decree of the Civil Judge to the extent it invalidates the Government's order directing the petitioner's retirement on the ground that the same was invalid for lack of opportunity to the petitioner to place his case before the Government before it concluded its enquiry as to the correct date of his birth. This Court, however, set aside the direction contained in the Civil Judge's decree compelling the Government to accept 13th March, 1912 as the correct date of the petitioner's birth. It also held that the direction contained in the trial Court's decree for payment of salary, emoluments, etc., was not sustainable and set it aside. The petitioner filed an application for permission to amend his plaint by adding a prayer for a decree for payment of arrears of salary, etc. The said application was rejected.
6. This writ petition was filed on 20th March, 1969.
7. When the petition was first posted before us for hearing, it came to our notice that review petition C.P. 41 of 1969 and S.C.L.A.P. 128 of 1969 made by the Government were pending disposal. As we considered that the disposal of those two petitions would simplify matters in this case, we adjourned further hearing of this writ petitioner till after the disposal of the said two matters. They were disposed of on 3rd July 1970.
8. In the review petition the original Bench which heard the first appeal made the following clarification :
'The decision of the Government revising the date of birth of the plaintiff-respondent was set aside by the trial Court and that finding was found to be correct in the appeal. Consequently it was held that the plaintiff-respondent was entitled to a declaration that he was still in service on the date of the suit. But that declaration can only be understood as declaring that in the absence of any refixation of the date of birth of plaintiff-respondent by the Government, the plaintiff-respondent must be deemed to be in service on the date of the suit. The abovesaid declaration cannot be understood to mean that the Government cannot refix the date of birth of the plaintiff-respondent according to law. We consider that this clarification is sufficient and no further order is necessary on the above review petition.'
The S.C.L.A.P. was withdrawn and dismissed.
9. In view of the express finding of this Court in the first appeal, as a consequence of which the decree for payment of arrears of salary made by the Civil Judge is set aside, and in view of the rejection by this Court of the petitioner's application to amend the plaint so as to include a prayer for such payment, we do not think that it will be proper for us under Article 226 of the Constitution to issue a mandamus for payment of the identical arrears of salary. This position is not challenged by Mr. Javali, learned Counsel for the petitioner. He, however, states that we could, with propriety make a direction to the effect that the Government do make a calculation of such amounts as may be due to him in the light of Rule 99 of the Mysore Civil Services Rules.
10. According to the said rule, -
'When a Government servant who has been dismissed, removed, compulsorily retired or suspended, is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the reinstatement shall consider and make a specific order,'
regarding pay and allowances to be paid to him. The rule contains further details with which we are not now concerned. Although the rule is framed in the context of dismissal, removal and suspension by way disciplinary action and the subsequent reinstatement upon exoneration or in consequence of an order of a competent Court, we do not think that the principle is inapplicable to a case like the present one.
11. But a calculation of the correct amounts, if any, due to the petitioner necessarily involves fixation of the correct date of the petitioner's birth. That the Government do have such a power to make a refixation is beyond doubt. Indeed, the existence of such a power is recognised and declared in the judgment of this Court in the regular first appeal referred to above. But, Mr. Javali contends that the said power of refixation of the date of birth has ceased to exist in this case because the same must be regarded as coming to an end when an officer ceased to be a Government servant by superannuation or otherwise. Mr. Advocate General appearing for the State Government controverts this contention. It is therefore necessary to decide this point before making any direction in the light of Rule 99 of the Mysore Civil Services Rules.
12. Mr. Javali relies strongly on a decision of this Court reported in Subba Rao v. State of Mysore (1963) 1 Mys. L.J. 80, in which it has been held that under the provisions of the Mysore Civil Services (Classification, Control and Appeal) Rules commencement of a disciplinary proceeding against a retired Government servant is impossible because at every material stage during a disciplinary proceeding the person against whom that proceeding may be commenced or continued should be a Government servant, i.e., must be a member of the civil services of the State and be one who holds a civil post in connection with the affairs of the State. According to Mr. Javali, an enquiry into the correctness of the date of birth of a Government servant is the same as, and not in any respect different in nature from, a disciplinary, enquiry. It is necessarily so in this case, according to him, because under the rules prevalent at the time the petitioner entered the service in the erstwhile State of Mysore, if a servant is found to have dishonestly given a wrong date of birth, he was liable to be dismissed from service.
13. It will be seen from the summary of the arguments given above that the one and only basis thereof is that an enquiry into the correctness of the date of birth of a Government servant is a disciplinary enquiry which may result in the imposition of a penalty or punishment on him. The question is whether such an inference can properly be made.
14. The Mysore Civil Services (Classification, Control and Appeal) Rules enumerates the nature of penalties which may be imposed on a Government servant in Rule 8. Compulsory retirement is one of them. But the explanation to the said rule states that compulsory retirement of a Government servant in accordance with the provision relating to superannuation or retirement shall not amount to a penalty within the meaning of the rule. Prima facie, therefore, a compulsory retirement upon superannuation according to the result of an enquiry into the correctness of the date of birth of a Government servant is not a penalty nor could therefore the preceding enquiry be regarded as a disciplinary enquiry. That such is the correct view to take is also clear from a decision of the Supreme Court in the case of State of Orissa v. Binapani Dei : (1967)IILLJ266SC . That was also a case where a Government servant was compulsorily retired upon a refixation of her correct date of birth by the Government. The order of the Government was ultimately set aside on the ground of disobedience of the rules of natural justice. But, for our present purpose, what is of importance is that whereas the High Court in that case appeared to have held that removal in the circumstances mentioned would be a removal within the meaning of Art. 311 of the Constitution (meaning thereby a removal involving or amounting to punishment) the Supreme Court, after referring to the relevant provisions of the Civil Service Regulations to the effect that compulsory retirement of a Government servant in accordance with the provisions relating to superannuation or retirement is not a penalty, laid down the following principle in para 10 of the judgment at page 1271 of the report :
'The State has undoubtedly authority to compulsorily retire a public servant who is superannuated. But when that person disputes the claim he must be informed of the case of the State and the evidence in support thereof and he must have a fair opportunity of meeting the case before a decision adverse to him is taken.'
While upholding the undoubted power of the Government to enquire into and settle a dispute as to the correct date of birth of a Government servant, their Lordships hold that the Government servant is entitled to an opportunity of meeting the case sought to be made against him by the Government on principles of natural justice. They do not say that the opportunity which, they say, a Government servant is entitled to is an opportunity contemplated by Art. 311 of the Constitution.
15. It is clear, therefore, that the enquiry into the correctness of the date of birth of the petitioner with a view to determine the correct date of his superannuation cannot be regarded as a disciplinary enquiry likely to result in the imposition of a penalty, As the Advocate-General points out, one of the tests for determining the nature of an enquiry would be the object with which the enquiry is instituted. If it is upon an allegation of any misconduct attracting penalty, then, of course, there is no doubt that the enquiry must be regarded as a disciplinary enquiry. Even in such a case, the Supreme Court has held in State of Punjab v. Sukh Raj : (1970)ILLJ373SC , that if no findings or conclusions are arrived at at such an enquiry and a Government servant is discharged from service for other reasons, the discharge cannot be regarded as one by way of punishment. It is further pointed out therein that an order if termination of service in an exceptionable form preceded by an enquiry launched only to ascertain whether a public servant should be retained in service does not attract the operation of Art. 311 of the Constitution.
16. Even in cases where a departmental enquiry followed by the imposition of a penalty for recovery of loss caused to the Government from salary becomes impossible after a Government servant's retirement from service, the Government still retains the right either to prosecute the Government servant in an ordinary criminal Court if the misconduct amounts to a punishable offence or sue him in a civil Court for recovery of loss caused to the Government by him on account of negligence or other culpable conduct.
17. We hold therefore that the power of the Government to hold an ordinary enquiry into the correctness of the date of birth of a Government servant does not come to an end on the retirement of the Government servant from service. It may be terminated by a decree of Court recording a finding as the correct date of birth after taking evidence adduced by both the parties.
18. The argument of Mr. Javali that the power is liable to abuse and that the proposition like the one stated above may lead to consequences such as the Government raking up the question of date of birth long after retirement is not of any consequence, in our opinion, because it cannot be presumed that so high an authority as the State Government would act in abuse of its powers, nor is any person aggrieved by actual abuse of such power in any given case without a remedy at law.
19. We, therefore, reject Mr. Javali's argument.
20. We make an order directing the Government to make a calculation of such amounts, if any, as may be due to the petitioner in the light of Rule 99 of the Mysore Civil Services Rules and make such order in the light result of their enquiry as may be fair to the petitioner and not prejudicial to public interest.
21. Time to conclude the enquiry four months.