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1988 Supreme(Cal) 260
HIGH COURT OF CALCUTTA
Mahitosh Mazumdar, J.
Narayan Chandra Dey
Vs
State of West Bengal & Ors.
C. O. No. 6121 (W) of 1987
Decided on : July 6, 1988
Subrata, Bose Kalyan Kumar Bandopadhyaya for petitioner;
Mrs. Manjuri Gupta for respondent.
The principles of natural justice and the right to a hearing are essential elements of procedure established by law under Article 21 of the Constitution, and any order passed in violation of these principles is illegal and void.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 14 AND 21 - WEST BENGAL SERVICE RULES PART I, RULE 9, SUB-RULES (4) AND (5) - VALIDITY OF ORDER CHANGING DATE OF BIRTH - PRINCIPLES OF NATURAL JUSTICE - BREACH OF ARTICLES 14 AND 21 - SETTING ASIDE OF IMPUGNED ORDER - DIRECTIONS TO CONSTITUTE MEDICAL BOARD TO DETERMINE AGE OF PETITIONER AND PASS REASONED ORDER - PAYMENT OF SERVICE BENEFITS AND SALARY TO PETITIONER.
Fact of the Case:
The petitioner, a government employee, challenged the order of the Director of Health Service changing his date of birth, which resulted in his premature retirement. The petitioner contended that the order was illegal, unauthorized, and violative of Articles 14 and 21 of the Constitution of India, as it was passed without any opportunity of hearing and in violation of the West Bengal Service Rules.
Finding of the Court:
The court held that the order changing the petitioner's date of birth was illegal and void, as it was passed in violation of the principles of natural justice and without affording the petitioner an opportunity of hearing. The court also held that the order was in breach of Articles 14 and 21 of the Constitution, as it deprived the petitioner of his livelihood.
Issues: 1. Whether the order changing the petitioner's date of birth was illegal and void for violating the principles of natural justice and Article 21 of the Constitution? 2. Whether the order was in breach of Article 14 of the Constitution?
Ratio Decidendi: 1. The court relied on the Supreme Court judgments in State of Orissa v. Binapani Dei and Maneka Gandhi v. Union of India to hold that the order changing the petitioner's date of birth was illegal and void for violating the principles of natural justice and Article 21 of the Constitution. The court held that the petitioner had a right to continue in service according to the rules framed under Article 309 and could not be removed from office before superannuation except "for good and sufficient reasons". The court also held that the petitioner was entitled to a hearing before any decision was taken to change his date of birth. 2. The court held that the order was in breach of Article 14 of the Constitution, as it was arbitrary and discriminatory. The court held that the respondent had failed to act in accordance with the provisions of sub-rules (4) and (5) of Rule 9 of the West Bengal Service Rules, which required the appointing authority to give the petitioner an opportunity of making any representation before modifying the date of birth.
Final Decision: The court set aside the impugned order and directed the Director of Health Service to appoint an Apex Medical Board to determine the age of the petitioner. The court also directed the Director of Health Service to afford an opportunity of hearing to the petitioner and to pass a reasoned order on the basis of the report of the Medical Board. The court further directed the respondents to pay the petitioner all service benefits for the period he was prevented from discharging his functions and to allow him to join his duties forthwith.
This writ application is directed against the order as contained in Annexure F at page 37 which is quoted below:–
"This is to write that as per review of the Service Book it is seen that date of birth certificate submitted by you has subsequently been changed by an affidavit which seem irregular. As per original date of birth shown in the certificate your superannuation should be on 31-10-1983. The matter has been referred to Dy. Director of Health Service (Admn.), West Bengal for his verification and final decision. So this office is painfully let you know that unless and until the final decision from Health Directorate is received the undersigned cannot allow you to continue your service henceforth.
So, you are requested not to join office henceforth till final decision. It is further to be noticed that Govt. will hold the right to recover your excess payment drawn by you after your superannuation taking into account the original date of birth certificate."
2. Mr. Bose, the learned Advocate duly assisted by Mr. Kalyan Kumar Bandopadhyay, the learned Advocate appearing for the petitioner while assailing the order as contained in Annexure F as indicated above claimed and contended that pursuant to the impugned orders, the respondent namely, the Director of Health Service, sought to regularize the order by passing an order dated September 8th/9th, 1987. The said order is quoted below:––
"After careful consideration the undersigned is directed to inform you that the date of birth of Sri Dey cannot be changed as 20.2.38 instead of 9.10.25 as prayed for. Sri Dey may kindly be enforced accordingly.
This may please be treated as extremely urgent"
3. Again on September 18, 1987 the Surgeon Superintendent passed an order which reads thus:––
"As per direction of Director of Health Service, Govt. of W.B. vide his Order No. HPT/60N 105 84.A 25090 dated 8.9.87 (copy enclosed) your date of birth to be taken as 9.10.25 and accordingly, your superannuation is to be taken from 1.11.83 forenoon.
You are, therefore, released from your service on and from 1.11.83 forenoon. This is in supersession of this office letter No. 957/87 dated 16.5.87 which may please be noted."
4. In the background of the facts and circumstances as aforesaid, Mr. Bose claimed and contended that the action of the respondent unilaterally changing the date of birth which are duly recorded by the concerned authority as would appear form Annexure B and C is ex-facie, illegal, unauthorized and violative of Articles 14 and 21.
5. Mrs. Gupta, the learned Advocate appearing for the respondent claimed and contended that the relevant column as regards the date of birth was rectified to the following effect:––
"20th February, 1939 as per Affidavit dated March 20, 1971"
Mrs. Gupta sought to justify the action of the respondents by contending, inter alia that some unseen hand is responsible for such rectification Government being the custodian of the records should not be allowed to take such plea before the Court of law."
6. A query was put to Mrs. Gupta that the order as regards the date of birth of the petitioner as on February 20, 1938 was issued by Mr. S. N. Mukherjee, Superintendent, Jail Hospital, Nadia and the said Memo was duly forwarded to the Director of Health Service, Writers' Buildings, Calcutta could be altered without any opportunity of hearing being accorded to the petitioner.
7. That being the position, the rectification of the date of birth as would be evident from Annexure B is not the foundation of the claim of the petitioner for the sole reason the date of birth was duly recorded by the Superintendent with copies thereof to the Director of Health Service. After lapse of almost 14 years, the action of the respondent in reviewing the date of birth of the petitioner was unauthorized and the petitioner was not accorded any opportunity of hearing. The entire decision was taken by the respondent behind the back of the petitioner.
8. Mrs. Gupta despite the direction passed by th
