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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Manish Choudhury, J.
Kushal Chandra Sarma - Petitioner
Versus
The State of Assam Represented by the Commissioner & Secretary to the Government of Assam, Agriculture Department and ors. – Respondents
Writ Petition (Civil) no. 5995 of 2019
Decided On : 30-08-2022
Constitution of India, 1950 - Article 226 - Retirement – Superannuation - Pensionary benefits - speaking order – Challenged - At time of joining service, petitioner was asked to submit the testimonials/certificates regarding his education qualifications, age proof, etc. and accordingly, he submitted his High School Leaving Certificate [HSLC] Examination Admit Card in that regard before the concerned authority - Having noticed that his age was wrongly recorded in HSLC Examination, 1971 Admit Card as 19 years as on instead of 13 years, petitioner pointed out said anomaly before concerned authority at the time of joining his service - Concerned authority at that point of time, asked petitioner to bring a certificate from School he last attended, showing his actual date of birth for purpose of incorporation in service book - Petitioner thereafter, approached Head Master of Karara Government Aided H.E. School, School from which he appeared in HSLC Examination in year 1971 for issuing a certificate with regard to his age - On basis of an affidavit submitted by petitioner in that connection, Head Master of Karara Government Aided H.E. School issued a certificate on certifying that petitioner appeared in HSLC Examination in year as a regular candidate of said School and according to affidavit submitted by petitioner, his age was 20 years - Whether he wants to lead any evidence and asked to give any explanation about evidence led against him.
Finding of Court :
Employer of employee i.e. petitioner has sought to re-fix date of birth of petitioner by changing the same already recorded in service book of petitioner a long years earlier - As has been observed above, State has authority and power to re-fix date of birth of a Government employee even though a different date was accepted by Government at time of appointment, but same can be done only after an enquiry - Mandatory procedure laid down under Rules but same must be completed, with full co-operation from petitioner, within a period of 3 [three] months from today, considering the fact that dispute is of year - Any decision in relation to recovery will abide by findings and decision arrived at such enquiry with regard to date of birth of petitioner - It is provided further that in event State respondents take a decision that there would be no further enquiry, then they should process matter of pension and other retirement benefits of petitioner by taking petitioner's date of birth and upon finalisation, disburse the entire dues to the petitioner within a period of 2 [two] months from today.
Result : Writ petition is allowed.
JUDGMENT :
The petitioner has instituted the writ petition under Article 226 of the Constitution of India challenging a speaking order dated 24.06.2019 passed by the respondent no. 2 as the disciplinary authority in connection with a disciplinary proceeding initiated against the petitioner. In the speaking order dated 24.06.2019, the disciplinary authority [the respondent no. 2] has recorded a finding that the petitioner had overstayed in service for a period of 6 [six] years w.e.f. 01.04.2012 to 31.03.2018. Accordingly, the petitioner was released from service due to retirement w.e.f. 31.03.2012 on superannuation and the pensionary benefits, etc. would be released to the petitioner immediately after recovery of salary already drawn during the period of overstay. Besides seeking setting aside of the speaking order dated 24.06.2019, the petitioner has also sought for a direction to the respondent authorities to release full retirement benefits to the petitioner by taking his date of superannuation as 31.03.2018 i.e. the date till which the petitioner had served as Ex-Roneo Operator in the Directorate of Agriculture, Assam.
2. The petitioner was appointed temporarily as a peon w.e.f. 27.03.1978 in the office of the Additional Director of Agriculture [Hills], Assam at Diphu [the respondent no. 3] by an order dated 24.05.1979 issued under the hand of the respondent no. 3. During the course of his service tenure, the petitioner was promoted from the post of peon and in the year 2018, he was serving as Ex-Roneo Operator in the Directorate of Agriculture, Assam in the office of the respondent no. 2.
3. The case of the petitioner can be stated as follows :-
At the time of joining the service, the petitioner was asked to submit the testimonials/certificates regarding his education qualifications, age proof, etc. and accordingly, he submitted his High School Leaving Certificate [HSLC] Examination Admit Card in that regard before the concerned authority. Having noticed that his age was wrongly recorded in the HSLC Examination, 1971 Admit Card as 19 years as on 01.03.1971 instead of 13 years, the petitioner pointed out the said anomaly before the concerned authority at the time of joining his service. The concerned authority at that point of time, asked the petitioner to bring a certificate from the School he last attended, showing his actual date of birth for the purpose of incorporation in the service book. The petitioner thereafter, approached the Head Master of Karara Government Aided H.E. School, the School from which he appeared in the HSLC Examination in the year 1971 for issuing a certificate with regard to his age. On the basis of an affidavit submitted by the petitioner in that connection, the Head Master of Karara Government Aided H.E. School issued a certificate on 12.01.1978 certifying that the petitioner appeared in the HSLC Examination in the year 1971 as a regular candidate of the said School and according to the affidavit submitted by the petitioner, his age on 01.03.1978 was 20 years. Based on the said certificate issued by the Head Master, Karara Government Aided H.E. School, the date of birth of the petitioner came to be recorded as 01.03.1958 in the service book of the petitioner. If the said date of birth i.e. 01.03.1958 is taken as the actual date of birth of the petitioner then the petitioner’s date of retirement for reacting the age of superannuation of 60 years would be 31.03.2018.
3.1. It was on 31.03.2018, the respondent no. 4 by a letter of even date directed the petitioner to furnish his HSLC Examination Admit Card by 31.03.2018 itself for the purpose of ascertaining his date of birth. On 02.04.2018, the petitioner submitted an application before the respondent no. 4 stating interalia that due to theft occurred in his native home a few years earlier, he lost a number of important documents including the HSLC Examination Admit Card and asked for condonation for not being able to provide the HSLC Examination Admit C
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The disciplinary authority must afford reasonable opportunities and consider all submissions before imposing penalties; failure to do so violates natural justice principles.
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