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The Municipal Board Phalodi Through Its Chairman Vs. Krishna Gopal Joshi and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 41 of 1977
Judge
Reported in1982WLN(UC)78
AppellantThe Municipal Board Phalodi Through Its Chairman
RespondentKrishna Gopal Joshi and ors.
DispositionAppeal dismissed
Cases ReferredState of Rajasthan v. Sardara Ram
Excerpt:
rajasthan municipal service rules, 1963 - change in birth date--no insistence on production of school leaving certificate--birth date in service record changed--held, single judge rightly held that change was made without giving an opportunity--rules of natural justice not complied.;in none of the above referred documents there is any reference about the school leaving certificate obtained from shri sumer pushtikar higher secondary school, jodhpur or any other material in possession of the authorities concerned which might have been made the basis for holding the date entered in the service record to be incorrect.;we are in agreement with the findings of the learned single judge that the respondent was not given opportunity to meet out the case against him.;the certificate, having not..........prayer that the order of his retirement dated december 16, 1972 (ex. 2) and the resolutions of the board dated march 31, 1973 and january 5, 1974 exs. 3 and 4 respectively may be quashed. he also prayed for his rein statement on the post he was holding on the date of the impugned order of the chairman and claimed payment of all the emoluments, treating him in service and for restraining the board from retiring him from service before august 31, 1974. the grounds taken by the respondent in the writ petition were, that his correct date of birth was august 31, 1919 as mentioned in his service record which was duly verified by the then secretary and chairman of the board on june 21, 1962 that he was not given any opportunity to explain the material, even if any, with the board giving an.....
Judgment:

Kanta Bhatnagar, J.

1. This special appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the order of a Single Judge of this Court dated May 9, 1977.

2. Briefly stated, the facts of the case giving rise to this special appeal are as under: Respondent No. 1 Krishna Gopal was appointed as an Accounts Clerk on April 8, 1954 in the Municipal Board, Phalodi (here in after to be referred as 'the Board'). In his service record his date of birth was recorded as August 31, 1919. An anonymous complaint regarding his date of birth was made to the Sub Divisional Officer, Phalodi. The Sub Divisional officer, Phalodi enquired into the matter and arrived at a conclusion that the correct date of birth of respondent No. 1 was August 31, 1919. The Chairman of the Board also enquired into the matter and directed respondent No. 1 to produce his matriculation certificate or its duplicate to substantiate his case that the entry regarding the date of birth in his service record was correct. As the petitioner could not comply with that direction, the date of birth as entered in the school leaving certificate obtained from Shri Sumer Pushtikar Higher Secondary School, Jodhpur was considered to be correct. Consequently, it was held that respondent No. 1 had superannuated on October 1, 1972. He, therefore, vide Order Ex. 2 was retired from service in the afternoon of December 16, 1972.

3. Being aggrieved by the order of his retirement, respondent No. 1 made representation in this respect to the Board. The Board in its meeting dated January 5, 1973 directed the respondent to produce the copy of the matriculation certificate. As the respondent could not file the matriculation certificate or the copy of the same, the Board by its resolution dated November 30, 1973 confirmed the order passed by the Chairman of the Board on December 16, 1972. The respondent filed a writ petition in this Court under Article 226 of the Constitution of India with the prayer that the order of his retirement dated December 16, 1972 (Ex. 2) and the resolutions of the Board dated March 31, 1973 and January 5, 1974 Exs. 3 and 4 respectively may be quashed. He also prayed for his rein statement on the post he was holding on the date of the impugned order of the Chairman and claimed payment of all the emoluments, treating him in service and for restraining the Board from retiring him from service before August 31, 1974. The grounds taken by the respondent in the writ petition were, that his correct date of birth was August 31, 1919 as mentioned in his service record which was duly verified by the then Secretary and Chairman of the Board on June 21, 1962 that he was not given any opportunity to explain the material, even if any, with the Board giving an occasion to the latter to alter his date of birth and therefore, any alteration in his date of birth as entered in the service record was not justified. The respondent alleged that the principle of natural justice and the provisions of relevant rule applicable to the respondent were overlooked by the Chairman of the Board and the Board itself. The case of the Board was, that despite several opportunities being given, the respondent did not file the certificate substantiating his contention regarding his date of birth and therefore, the Chairman of the Board and the Board on its turn were fully justified in altering his date of birth and retiring him on his attaining the age of superannuation according to the correct date of birth.

4. The learned Single Judge of this Court, by his order under appeal, held that, respondent No. 1 was not given proper opportunity to meet-out the case against him and therefore, any alteration in the date of his birth without intimating the intention to do so was erroneous. The learned Single Judge accepted the writ petition and held that the respondent had completed the age of 55 years on August 31, 1974 according to the date of birth entered in his service record. The impugned orders were therefore, quashed. As the respondent had already attained the age of superannuation, the order regarding his reinstatement could no be passed. He was further held entitled to his emoluments and other service benefits for the period between December 16, 1972 and August 31, 1974, when he would have normally retired on superannuation. The respondent was also allowed the costs of the writ proceedings from the Municipal Board, Phalodi which were assessed at Rs. 300/-.

5. Being dissatisfied by the order passed by the learned Single Judge of this Court, the Board has preferred this special appeal.

6. Mr. Mridul learned Counsel for the appellant has advanced two fold arguments to assail the findings of the learned Single Judge that the respondent was not given a fair dealing in the enquiry and the principle of natural justice and the service rules applicable to him were violated. The first contention of Mr. Mridul is that it is not in all cases of departmental enquiry that principle of natural justice is attracted. According to him, the employer has every right to alter the entries in the service record if there is substantial material to do so. To substantiate his argument he placed reliance on the principle enunciated in the case of R.C. Sharma v. Union of India and Ors. : AIR1976SC2037 wherein their Lordships have been pleased to observe that it is only when opportunity denied is of such a nature that denial contravenes a mandatory provision of law or a rule of natural justice that it would vitiate the whole departmental trial. Prejudice to the government servant resulting from on alleged violation of a rule must be proved.

7. In that case the plea of the delinquent-officer was that he has been subjected to trial on the allegations which had been the subject-matter of previous enquiries. Their Lordships were pleased to hold that if an enquiry is held at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it does not debar a departmental trial. Their Lordships also discussed the various grounds taken by the appellant to substantiate his case that there was a denial of opportunity to him to stand the departmental trial and arrived at a conclusion that the case of the appellant was in no way prejudiced on that count.

8. Another case referred to by the learned Counsel for the appellant it, The Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee : [1977]2SCR904 . The case related to an order of cancellation of certificate by the Board of Mining Examination. While discussing the facts and circumstances of the case their Lordships formed an opinion that the delinquent respondent had, in the form of the appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board and he was, therefore, heard and there was compliance of the relevant regulations. Their Lordships were pleased to observe further that the unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating. The following principle was enunciated in the case:

If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendation of the subordinate authority which held the preliminary enquiry, there is no error in law,.

With regard to the general observation in the case relating to the principles of natural justice and when they are attracted their Lordships observed that they must be tested on the concrete facts of each case and every minuscule violation does not spell illegality. The guide lines laid down in the case were as under:

If the totality of circumstances satisfy the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures,.

9. It is well settled that even in administrative orders, which have further consequences, principle of natural is attracted whether that principle has been adhered to in a particular case depends on the facts and the circumstances of that case.

10. Keeping this in view and turning to the facts and circumstances of the present case we do not find any force in the arguments of Mr. Mridul that reasonable opportunity was given to the respondent to meet the case against him or to explain the material sought to be used against him.

11. Mr. Joshi, learned Counsel for the respondent No. 1 has drawn our attention to the various documents on record and vehemently argued that the Chairman and also the Board in its turn were insisting on the production of the matriculation certificate alone for verification of the date of birth of the respondent.

12. Ex. Rule 1 the first notice issued to the respondent does not of course specifically state about the matriculation certificate rather it makes a demand of the certificate regarding age and educational qualifications. Reply to that notice filed by the respondent is Ex. Rule 2. Therein he has submitted that about 20 years back, at the time of his appointment in the Board the certificates concerning his date of birth and educational qualifications had been verified by the Secretary and the Chairman of the Board. It has been specifically stated therein that the entry in the service record to that effect was sufficient according to the Rajasthan Service Rules. There is an endorsement on that reply by one Mr. Rathi that the original matriculation certificate may be produced on April 20, 1971. Ex. Rule 3 is an application by the respondent to the Chairman of the Board with the submission that the entry in the service record verified by the Chairman was sufficient and the matriculation certificate demanded from him was not traceable with him, despite efforts and he would further make efforts and if traceable would file the same. He also referred therein to the relevant provisions of Rajasthan Service Rules 1951 to the effect that the age entered in the service record at the time of the appointment of the employee needs no further consideration in case it is verified by competent authority. At the bottom of that application there is a direction by Devi Prasad Rathi, Officer of the Board, that in case matriculation certificate is not available duplicate copy may be obtained and produced within one month. This direction on the application submitted by respondent No. 1 clearly indicates that he was pinned down to the production of the matriculation certificate or its duplicate copy and no other evidence was desired. Ex. Rule is the notice issued to the respondent for non-compliance with the direction given in Ex. Rule 3 and he was asked to file the duplicate copy of the matriculation certificate within one month. Again time was sought by the respondent but he being unable to obtain the duplicate copy, filed a reply Ex. Rule 7 to the notice. In that reply he referred to the findings of the Sub Divisional Officer, Phaoldi, in the inquiry on the anonymous complaint against him relating td his date of birth, and submitted that complaint had been dismissed as being baseless. He also reiterated his submission that the entry in the service book regarding his age was verified by the then Secretary and the Chairman of the Board. He further submitted that as he was not recollecting his roll number in the matriculation examination, it was not possible to obtain the duplicate, matriculation certificate. The Chairman of the Board was not satisfied with the submission made by the respondent and therefore, vide Ex. 8 dated December 16, 1972 ordered the retirement of the respondent from December 16, 1972 for the reason that his correct date of birth was October 1, 1917 and therefore, he had superannuated on October 1, 1972. In consequence of that order, Ex.2 was passed on December 12, 1972 retiring the respondent from that date.

13. It is pertinent to note that in none of the above referred documents there is any reference about the school leaving certificate obtained from Shri Sumer Pushtikar Higher Secondary School, Jodhpur or any other material in possession of the authorities concerned which might have been made the basis for holding the date entered in the service record to be incorrect.

14. In such circumstances we are in agreement with the findings of the learned single Judge that the respondent was not given opportunity to meet out the case against him.

15. It is also relevant to note, that the respondent, had no notice of the intention of the concerned authorities to alter the date of his birth as entered in the service record. None of the documents in this concern any where discloses that there was any intention on the part of the authorities concerned to make an alteration in the date of birth of the respondent. In this connection we may refer to the proceedings and the order by the Board in pursuance of the representation made by the respondent against the order of his retirement on a date on which according to him he had not completed the age of superannuation. Ex. 3 the proceedings of the Board dated April 12, 1973 mentions the opinion of one of the number that the respondent may be given an opportunity to adduce any other evidence along with matriculation certificate if he so desires to substantiate the correctness of the entry in the service record. That suggestion of the member was not accepted by other members and the production of the matriculation certificate only was insisted upon and opportunity for that purpose alone was given. Vide Ex. 4, the decision of the Board dated November 30, 1973 the order of retirement passed by the Chairman of the Board was confirmed and the representation was rejected for the reason that the respondent had failed to produce the matriculation certificate to its duplicate copy. The Board despite the fact that insistence was on the production of the matriculation certificate or its duplicate only, held the date of birth in the School Leaving Certificate of Shri Sumer Pushtikar Higher Secondary School, Jodhpur as correct. The learned single Judge carefully examined the School Leaving (Certificate and gave reasons for not considering it worth reliance. We do not consider it necessary to discuss that point. Suffice it to say, that the certificate, having not been brought to the notice of the respondent and he getting ho opportunity to explain the same, should not have been used against him. We are alive of the principle that alteration in the service record can be made at any time if circumstances so warrant. But in case it is so done without, affording an opportunity to the person affected to contest the alteration, there is violation of the principle of natural justice.

16. Assuming for the sake of arguments that the respondent could not produce the matriculation certificate or the duplicate of the same, still it was incumbent upon the concerned authorities to intimate him that on account of his failure to do so his date of birth entered in the service record was going to be changed on the basis of a particular document available with the employer. Mr. Mridul fairly stated that it should have done so, but at the same time urged that failure to do so has not caused any prejudice to the respondent who was well conversent with the proceedings initiated against him.

17. We find no force in this submission for the reasons discussed above and also in view of the facts that principles audi alterem partem was attracted in the case.

18. In the case of State of Orissa v. Dr. (Miss) Binapani Dei and Ors. : (1967)IILLJ266SC their Lordships had an occasion to discuss in detail the applicability of the rules of natural justice. That was a case of compulsory retirement based on a certain disputed date of birth of a Doctor. That date in the service record was mentioned according to the statement of her father. Thereafter anonymous complaint was filed against her. On enquiry different dates of birth entered at different places came to the notice of the authorities concerned. One of them was considered to be correct by the concerned authorities and consequently the alteration in the service record was made and the concerned Doctor was retired, according to the altered date of birth. In view of the facts and circumstances of the case their Lordships were pleased to observe that if an enquiry was intended to be made the State authorities should have placed all the materials before the first respondent and called upon her, to explain the discrepancies and give her an opportunity to submit explanation in respect thereof and tender evidence about her date of birth.

19. While discussing the importance of affording an opportunity to the person to whose prejudice the order is passed, their Lordships were pleased to hold as under:

An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon.

20. Their Lordships were further pleased to observe as under:

The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicia tribunals and bodies of persons invested with authority to adjudicate consequence.

21. The guide lines laid down in the above referred case were followed by the Kerala High Court in a Full Bench decision in the case of E Rama Verma Raja v. State of Kerala and Anr. 1970 S.L.R. 550.

22. In that case the date of birth entered in the service record on the basis of horoscope was corrected by the Government on the basis of the School Register without opportunity to show cause to the employee. It was, therefore, held that the date of birth could only be changed on the basis of enquiry held on the principles of natural justice.

23. In view of the above discussion of the facts and circumstances of the case and the principles of law enunciated in various cases, we are inclined to hold that the rub s of natural justice were not adhered to in this case and an order prejudicial to the respondent was passed without giving him a fair opportunity to explain the material against him.

24. The learned single Judge has also examined the provisions of Rule 7 of the Rajasthan Service Rules (hereinafter to be referred as the 'Rules') applicable to the employee by virtue of Rule 36 of the Rajasthan Municipal Service Rules 1963, wherein the procedure is laid down for correctness of the date of birth. The rule provides that so far as the date of birth is concered the entry given in the service book of a government Servant should be adhered to; failing which the date of birth given in the personal file should be accepted. It is only in case when none of these are there, the entry available in the school certificate may be taken as an authentic date of birth and if i.e. not available then the entry in the Municipal birth certificate may be accepted.

25. The learned singal Judge has rightly held this rule applicable in the case of the respondent and by virtue of that the entry in the service record was correct. As observed above, that could have been altered only after proper enquiry, according to the rules of natural justice and after compliance with the relevant rules and regulations. In this view of the matter we hold that the learned single Judge was justified in quashing the impugned retirement Order.

26. Mr. Mridul next contended that even if this Court finds justification in setting aside the order of retirement, still the direction by the learned single Judge that the respondent would be entitled to his emoluments and all other service benefits for the period between December 16, 1972 and August 31, 1974 when he should have normally retired by superannuation, deserves to be set aside. The reasons given by Mr. Mridul are that the retirement order has been set aside for want of proper enquiry and therefore, it should be left open to the employer to launch a fresh enquiry giving the respondent proper opportunity to face the same, and in case the result of the enquiry going against him, he would be deemed to have been retired on December 16, 1972 by virtue of the altered date.

27. Meeting this argument Mr. Joshi, learned Counsel for the respondent no. 1 submitted that the respondent had already reached the age of superannuation, according to the order of the Court, on August 1974 and therefore, no enquiry could be launched afresh subsequent to his retirement. To substantiate his case he referred to the case of State of Assam and Ors. v. Padam Ram Borah A.I.R. 1965 SC. 47.

28. In that case when the service of the employer cam e to an end by the order of the employer the departmental enquiry not having been completed, the State Government passed an order extending his service period for three months. Their Lordships were pleased to order that the State of Government had no jurisdiction to pass an order extending the service of servant, as it could not by unilateral action create a fresh contract of service to make effect from April 1, 1961. If the State Government wished to continue the service of respondent for a further period, it should have issued a notification before March 31, 1961.

29. In the present case the order of the learned Single Judge was passed on May 9, 1977. According to the findings the date of birth as entered in the service record having been wrongly altered, the age of superannuation of the respondent was considered to be August 21, 1974. That date having already passed, it was not possible to pass any order regarding the reinstatement of the respondent. All that could therefore, be done was to allow him the emoluments and service benefits for the period between December 16, 1972 and August 31, 1974. That does not of course mean that in cases where the departmental enquiry cannot be completed before the retirement of the delinquent for some reason or the other, he becomes immune to any action against him, or no departmental inquiry if not instituted while in service, can at all be instituted after retirement. Rule 170 of the Rules makes provisions for such cases. It reads as under:

Rule 170--The Governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement:

(a) provided that such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service,

(b) Such departmental proceeding, if not instituted while the officer was in service whether before his retirement or during his reemployment,

(i) shall not be instituted save with the sanction of the Governor;

(ii) shall not be in respect of any event which took place more than 4 years before such institution; and

(iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service,

(c) no such judicial proceeding, if rot instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and

(d) The Rajasthan Public Service Commission shall becon suited before final orders are passed.

30. Proviso (a) deals with continuation of inquiries after retirement. Proviso (b) and (c) deal with cases in which departmental inquiries and judicial proceedings are not instituted while in service and the restrictions there to. Evidently in the present case if any departmental inquiry is now initiated the provisions of proviso (b) would be attracted. In the case of State of Rajasthan v. Sardara Ram 1979 RLW 3.9, referred to by Mr. Joshi, this Court had an occasion to discuss the implications of this Rule 170 and opined that the limitation contained in proviso (b)(ii) of Rule 170 of the Rules will also apply to Departmental proceedings under proviso (a) of the Rule 170 of the Rules. The whole idea behind is that the Government servant may not be harrassed for old matters and misconduct if any. The case in hand stands on a stronger footing. Here the Departmental inquiry row sought to be instituted relates to an entry made long back and verified in the year 1962.

31. In this view of the matter the arguments of Mr. Joshi that the enquiry could not be now initiated after the retirement of the respondent must prevail. The impugned retirement order having been quashed the natural corollary was holding August 31, 1974 as the age of superannuation. Hence the order of the learned Single Judge, entitling the respondent to his emoluments and other service benefits from December 16, 1972 to August 31, 1974 has full justification and calls for no interference.

32. Consequently, the appeal having no merits is hereby dismissed with costs.


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