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IN THE HIGH COURT OF ORISSA AT CUTTACK
B.R.SARANGI, SANJAY KUMAR MISHRA, JJ.
State of Orissa & Others – Appellants
Versus
Manmath Kumar Biswal and Another – Respondent
W.P.(C) NO. 4668 of 2013
Decided on : 13-07-2022
Date of Birth - Service Continuity - 16.03.1957, 20.04.1954 - Union of India v. Harnam Singh, (1993) 2 SCC 162; Mohd. Yunus Khan v. U.P. Power Corporation Ltd., (2009) 1 SCC 80; State of M.P. v. Mohanlal Sharma, (2002) 7 SCC 719 - The court held that the correction of date of birth as recorded in the service book should not be normally done on the verge of retirement, and the date of birth recorded in the Matriculation Certificate carries more probative value than that contained in other documents. The court also emphasized the importance of conducting a fair inquiry and providing an opportunity to be heard before making any changes to the date of birth in the service book.
Fact of the Case:
Opposite Party No.1, a government employee, was forced out of service due to a change in his date of birth in the service record. He filed a representation contending that the change was not done in compliance with the Principles of Natural Justice.
Finding of the Court:
The court found that the change of date of birth was done unilaterally without giving any opportunity of hearing to Opposite Party No.1, and the principles of natural justice were violated. The court also cited relevant judgments emphasizing the importance of the date of birth recorded in the Matriculation Certificate and the need for fair inquiry before making any changes to the service record.
Issues: The main issue was the unilateral change of date of birth in the service record without providing an opportunity for the employee to be heard, and the violation of the Principles of Natural Justice.
Ratio Decidendi: The court emphasized the importance of conducting a fair inquiry and providing an opportunity to be heard before making any changes to the date of birth in the service book. It also highlighted the probative value of the date of birth recorded in the Matriculation Certificate.
Final Decision: The court dismissed the Writ Petition, upholding the order of the Tribunal to reinstate Opposite Party No.1 with full pay for the period he was forced to continue out of service, as the change of date of birth was not done in compliance with the Principles of Natural Justice.
JUDGMENT :
B.R. SARANGI, J.
The State of Odisha and its functionaries, by means of this Writ Petition, have sought for quashment of the Order dated 23.08.2012 passed in O.A. No. 216 of 2012 under Annexure-3, by which the Odisha Administrative Tribunal, Bhubaneswar, while quashing Annexures-4 and 8 to the Original Application, directed the Petitioners to reinstate Opposite Party No.1 in service with full pay, for the period he was forced to continue out of service, as Opposite Party No.1 was not responsible for such non-engagement and such interruption in service was caused due to irregular action of the Petitioners, as adequate opportunity was not allowed to Opposite Party No.1 before change of his date of birth, and such order was directed to be complied with within a period of three months.
2. The factual matrix of the case, in brief, is that Opposite Party No.1 entered into Work-charged Establishment as Mate on 13.03.1973 under Subarnarekha Bridge (R & B) Sub-Division. Thereafter, on transfer he joined, on 20.04.1973, at Balasore (R & B) Division. While working as such, he was brought over to Regular Establishment, vide Order dated 31.12.1991. He was promoted to the post of Work Sarkar, vide Order dated 31.12.1999. Basing on the date of birth entered in the service record available in the Circle Office, (R &B) Balasore, as well from Incumbency Register, the S.E.E.C. (R &B), Balasore, vide letter dated 22.12.2011, intimated the Executive Engineer, Balasore (R &B) Division-Petitioner No.4 that Opposite Party No.1 is due to retire from Government service w.e.f. 30.04.2012. Accordingly, Petitioner No.4 verified the date of birth of Opposite Party No.1 from Service Book and issued retirement notice, vide letter dated 29.12.2011. The date of birth of Opposite Party No.1 in the Service Roll was entered as “16.03.1957”, both in figure and words. But later the same was corrected by the then Assistant Engineer, Sri B.B. Kar of Balasore (R & B) Sub-Division as “20.04.1954”, both in figure and words, under his signature with seal on 01.07.1981. Aggrieved by the letter dated 29.12.2011 of the Executive Engineer-Petitioner No.4, Opposite Party No.1 made a representation before him to allow him to continue in Government service till 31.01.2015 on the basis of date of birth originally mentioned in the Service Book, as well as the date of birth reflected in his Matriculation Certificate as 16.03.1957. But Petitioner No.4 rejected the representation of Opposite Party No.1, vide Order dated 09.02.2012, against which Opposite Party No.1 filed O.A. No.216 of 2012 before the Tribunal contending that the change of date of birth in his Service Book was not done in compliance of the Principles of Natural Justice and, therefore, the Orders dated 29.12.2011 and 09.02.2012 be quashed and he be allowed to continue in service till 31.03.2015 with all service benefits. The Tribunal, after due adjudication, came to hold that change of date of birth was done without complying the principles of natural justice and by holding so, directed the Petitioners to reinstate Opposite Party No.1 with full pay for the period he was forced to continue out of service as the Opposite Party No.1 was not responsible for such non-engagement and, as such, discontinuance of service was caused due to irregular action of the Petitioners. Hence, this Writ Petition.
3. Mr. J.P. Pattnaik, learned Government Advocate appearing for the State-Petitioners contended that the correct date of birth of Opposite Party No.1 is 24.04.1954, as has been mentioned in his provident fund withdrawal application. It is contended that the date of birth mentioned in the Matriculation Certificate cannot be relied upon, as Opposite Party No.1 would be underage in case of appointment in 1973, if his date of birth is taken as 16.03.1957. Therefore, the Tribunal has committed gross error apparent on the face of the record, by allowing Opposite Party No.1 to continue in service till the age of superannuation,
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