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Baghel Singh Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1970)ILLJ469MP; 1968MPLJ466
AppellantBaghel Singh
RespondentUnion of India (Uoi)
Cases ReferredM) v. State of Madhya Pradesh
Excerpt:
.....fully satisfied after making a proper enquiry that there was no mistake in making the entry of his date of birth as 15 january 1910. thirdly, he admittedly never applied for an alteration of the entry within a reasonable period of his appointment. 6. the decisions relied upon are clearly distinguishable on facts. it shall, however, be open to the president in the case of a gazetted railway servant, to cause the date of birth to be altered- (i) where in his opinion it had been falsely stated by the railway servant to obtain an advantage otherwise inadmissible, provided that such alteration shall not result in the railway servant being retained in service longer than if the alteration had not been made, or where in the case of illiterate staff, the general manager is satisfied that a..........226 of the constitution, the petitioner baghel singh applies for quashing the entry regarding his date of birth appearing in his service record, and for an appropriate writ or direction requiring the railway administration to allow him to enter therein his correct date of birth in his own handwriting as per rule 145(1) of the railway establishment code.2. the facts leading; to this application, briefly stated, are these-. on 25 june 1927, the petitioner was appointed as a routine clerk in the office of the director of railway clearing accounts under the railway board. his services were eventually transferred to the south eastern railway and he was working as senior travelling inspector (accounts) on 11 september 1967, when this application was made and when he was on the verge of.....
Judgment:
ORDER

A.P. Sen, J.

1. By this application under Article 226 of the Constitution, the petitioner Baghel Singh applies for quashing the entry regarding his date of birth appearing in his service record, and for an appropriate writ or direction requiring the railway administration to allow him to enter therein his correct date of birth in his own handwriting as per Rule 145(1) of the Railway Establishment Code.

2. The facts leading; to this application, briefly stated, are these-. On 25 June 1927, the petitioner was appointed as a routine clerk in the office of the Director of Railway Clearing Accounts under the Railway Board. His services were eventually transferred to the South eastern Railway and he was working as senior travelling inspector (accounts) on 11 September 1967, when this application was made and when he was on the verge of retirement, and since than he has retired from service on 25 January 1968, The petitioner had, prior to the filing of this application, served the railway administration with a notice under Section 80 of the Code of Civil Procedure on 1 June 1967 of his intention to file a civil suit claiming the same reliefs on precisely the earns grounds. It is now asserted that a suit is not an equally efficacious remedy and, therefore, this application lies.

3. Before dealing with this application, It is necessary to set cut a few more facts. At the time of his initial appointment, the establishment clerk entered '15 January 1910' as the date of birth of the petitioner in his service record and this entry was duly attested by the petitioner. These records were destroyed by fire in the year 1945 and they have since been reconstructed. In the reconstructed record, the date of birth again appears to be 15 January 1910 and this entry has also been attested by the petitioner. The petitioner now alleges that, at the time of his appointment, he had given his date of birth as ' 13 January 1911', but the establishment clerk made a mistake in making the relevant entry. This was said to be a 'mere clerical mistake' and, as regards the attestation of the entry by the petitioner, it was asserted that, as a fresh entrant, he did not know that he had to verify the entries made, but had simply signed at the place indicated by the clerk concerned. This was said to be due to his 'inexperience.' It is rather significant that the petitioner never moved the authorities for rectifying the alleged mistake in recording a wrong entry of his date of birth in his service record within a reasonable period of his appointment. The petitioner first made an attempt in the year 1955 to get the entry changed. but this was turned down on the ground that the entry, having been attested by him in his own handwriting, no alteration of such date was permissible under the rules. Thereafter the petitioner has been making persistent efforts to get alteration of the entry, but the authorities have adhered to their earlier decision that the date of birth as entered cannot be altered.

4. This application must fail for various reasons. In the first place, the assertion that there was a wrong entry by the establishment clerk cannot be accepted unless the allegation is substantiated by evidence. Apart from thin, the petitioner, having himself attested the entry, the entry would be deemed to have been made by him in his own handwriting.

Secondly, under the relevant rules, the making of an alteration is not obligatory and the authorities were fully satisfied after making a proper enquiry that there was no mistake in making the entry of his date of birth as 15 January 1910.

Thirdly, he admittedly never applied for an alteration of the entry within a reasonable period of his appointment.

Fourthly, there in no explanation forthcoming why the petitioner again attested the entry of his date of birth as 15 January 1910 in the reconstructed service record if there was really a mistake.

Lastly, the petitioner, having served a notice under Section 80 of the Code of civil Procedure, has an adequate alternative remedy by way of a suit.

5. The learned Counsel appearing on behalf of the petitioner, relying upon the decision of their lordships of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. 1987-II L.L.J. 266 and Gopalkrishna Nayudu (M) v. State of Madhya Pradesh 1968-II L.L.J. 125] tries to contend that the very nature of the functions entrusted to the railway administration under Rule 145(3) of the Railway Establishment Code implies the duty to act judicially. He, therefore, urges that the orders turning down his representations are liable to be struck down as invalid on the ground that they were in broach of the principles of natural justice, He complains that the authorities never held an enquiry afforded the petitioner an opportunity to substantiate that his real date of birth was 13 January 1911, as recorded in his matriculation certificate. Apart; from this, the learned Counsel further urges that there is no finality attached to an entry regarding date of birth of a railway servant unless such entry had been made by him ' In his own handwriting,' in terms of Rule 145(1) of the Railway Establishment Code. The contentions raised are wholly devoid of substance.

6. The decisions relied upon are clearly distinguishable on facts. In State of Orissa v. Dr. (Miss) Binapani Dei and Ors. 1967-II L.L.J. 266 (vide supra), their lordships were concerned with a unilateral action of the Government changing the date of birth of Dr. Binapani Del on certain, anonymous complaints. This resulted in her premature retirement in violation of Article 811 of the Constitution. Their lordships stated in that context that the alteration in her service record, which had been accepted and acted upon all along, could not be made to her detriment unless she was afforded a reasonable opportunity to show cause against the action proposed to be taken. That is not the case here. Railway administration is not seeking the removal of the petitioner by altering an entry in his service record. In Gopalkrishna Nayudu {M) v. State of Madhya Pradesh 1968-II L.L.J. 125 (vide supra), their lordships have held that, under Fundamental Rule 54, the Government has a 'duty to hear' because the eventual action in treating the period of suspension as not spent in duty visits the servant concerned with evil consequences, namely, loss of salary. That is a matter which entirely turned on a construction of a Fundamental Rule 54

7. There is no merit in the other submissions based on Rules 145(1) and 145(3) of the Railway Establishment Code, which read thus:

145. (1) Every person, on entering railway service, shall declare his date of birth which shall not differ from any declaration expressed or implied for any public purpose before entering railway service. In the case of literate staff, the date of birth shall be the record of service in the railway servant's own handwriting. IN the case of illiterate staff the declared date of birth shall be recorded by a senior class III railway servant and witnessed by another railway servant.

(3) The date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date shall ordinarily be permitted subsequently. It shall, however, be open to the President in the case of a gazetted railway servant, to cause the date of birth to be altered-

(i) where in his opinion it had been falsely stated by the railway servant to obtain an advantage otherwise inadmissible, provided that such alteration shall not result in the railway servant being retained in service longer than if the alteration had not been made, or where In the case of illiterate staff, the General Manager is satisfied that a clerical error has occurred, or

(iii) where a satisfactory explanation (which should ordinarily be submitted within a reasonable time after joining service) of the circumstances in which the wrong date came to be entered is furnished by the railway servant concerned, together with the statement of any previous attempts made to have the records amended, or * * *

These provisions do not cast any obligation on the authorities concerned to make an alteration. The language of Sub-rule (3), particularly the expressions 'it shall be open,' where in his opinion 'and' is satisfied,' 'where a satisfactory explanation is submitted 'used therein, leave the matter entirely in the discretion of the authorities, and taking of action rests on their subjective satisfaction. Thus the authorities are under no statutory obligation to effect an alteration in the entry regarding the date of birth where they are not satisfied that any ground exists. Even otherwise, the authorities were satisfied after an enquiry that no alteration was permissible under the rules. The petitioner was served with a show-cause notice and be rendered his explanation which was considered. The requirements of fairplay had, therefore, been fully met.

8. We are not impressed that there was no finally attached to the entry. The entry was undoubtedly made 'in accordance with the rules ' within the meaning of Sub-rule (3) and was, therefore, binding on all concerned. The petitioner had admittedly attested the entries in the original as well as the reconstructed records. The effect of attestation was the acceptance on his part of the correctness of the entries appearing in the service record, including the entry regarding his date of birth. Thus, the entry would be deemed to have been entered by him 'in his own hand' because he adopted the entries as his own. The requirements of Sub-rule (1) were thus fulfilled.

9. In the view we have taken, this petition fails and is dismissed. The petitioner shall bear his own costs and pay out of the security amount those incurred by the respondents. The remaining amount of security shall be refunded to him. Counsel's fee Rs. 60 if certified.


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