An arbitrary retirement order passed without a proper inquiry into the employee's date of birth and without affording him an opportunity to be heard violates the principles of natural justice and is unsustainable in the eye of law.

1. The Petitioner in this writ petition seeks quashing of the order of his retirement from the Government service on the ground that the said order was passed without any proper inquiry as to his date of birth.

2. It appears that initially the petitioner was employed as a work charge in the Irrigation Department. Later on, his services were regularised on the post of an orderly. The service book was duly complied and his date of birth recorded therein as 7-5-1938. Lateron, it was contended that the date of birth of the petitioner was 7-5-1928 and not 7-5-1938. Consequently, vide letter Annexure "D" to the writ petition, the petitioner was referred to Chief Medical Officer, Anantnag, for verification of his actual age. Vide annexure "E" it was opined by the said Chief Medical Officer that as per clinical examination the age of the petitioner on the day of examination i.e. 7-2-1985 was forty six years, In the meanwhile, the following order which is impugned in this writ petition, came to be passed by the Executive Engineer, Irrigation Department, Anantnag, addressed to the Executive Engineer, Irrigation Department Kulgam which reads as follows:

Sub:- Establishment of Mohd Shaban Bhat chowkidar. Ref:- Your letter No: 1860-63 dated: 18-10-1984.

From the perusal of records it transpires that the date of birth of the chowkidar is actually 7-5-1928 instead of 7-5-l938.

However while submitting the list to the chief Engineer Kashmir Irrigation and Flood Control Department Srinagar vide this office No: 7289-90 dated: 1-2-83 it has been reflected as 7-5-38 which seems to have been done erroneously. Before further scrutiny in the instant case it is requested that the Chowkidar be informed that he stands retired from the Government services w.e.f. 31-5-1983."

3. The writ petition come to be admitted on 7-5-1985. On 2-9-1985, the learned counsel for the respondents was directed to file the counter affidavit. He failed to do so till 28-8-1986, when he was given further four weeks in this behalf. Despite this opportunity, the counter was not filed till 8-12-1986 with the result that the case was ordered to be listed for hearing without filing of counter.

4. Heard learned counsel for the parties. The record was also examined. It may be mentioned here that after heating arguments in the case it was felt necessary to examine the service book of the petitioner. As per order of this court dated: 23-2-1987, the service book was sent for. After receiving the same, it was examined in presence of the learned counsel for the parties, They were again heard thereafter.

5. A short point is involved in this writ petition as to whether the petitioner could be retired by the respondents without holding a proper enquiry into his actual date of birth moreso when it was recorded in his service book as 7-5-1938 which they arbitrarily held as 7-5-1928?

6. Mr. Manzoor learned Government Advocate argued that the petitioner has tampered with the date of birth as recorded in his service book, and changed it from 7-5-1928 to 7-5-1938. Firstly, there is no proof on the file to fortify the argument of Mr. Manzoor as to commission of forgery by the petitioner. Secondly, the petitioner is a petty orderly and an illiterate person. The service Book was not in his own custody that he could tamper with it at his own whim and caprice. Under rules, the service Book of the subordinate employees of a department remain under the lock and key of the head of the department or the head of the Office. Thirdly, even if it be so this was a matter to be inquired in to. The Executive Engineer could not determine the actual date of birth of the petitioner at his back and without affording him an opportunity of being heard. The order impugned as reproduced above makes a funny reading and speaks volumes of its arbitrariness. It only says that the perusal of records shows that the date of birth of the petitioner is actually 7-5-1928 and not 7-5-1938, and that

Click Here to Read the rest of this document