WP(C) 6301/2002 BEFORE THE HON’BLE SMT. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER The Station Commander, 511 SU Air Force in early 1993 issued an advertisement to fill up the post of Airman pursuant to which the petitioner sub mitted his application and was called for interview and having selected he was e nrolled as Airman on 27.04.1993. The petitioner on his enrollment filled up the form as required giving his date of birth as 05.02.1974 and in support of which he submitted the admit card issued by the Board of Secondary Education, Assam f or appearing as candidate in the High School Leaving Certificate Examination in the year 1991. The petitioner was, thereafter, sent for training for Air Crafts man for the period from 27.04.1993 to 07.01.1994 and on successful completion of the same he was attested and was posted at 19 FBSU (Forward Base Supporting Uni t) Air Force at Thoise, Chiachen. Meanwhile, as per the procedure in vogue on en rollment, necessary process for verification was initiated by the Air Force Auth ority relating to the certificates submitted by the enrolled personnel including the petitioner, during which the Board of Secondary Education, Assam (in short, the Board ) on 23.12.1998 confirmed that the date of birth of the petitioner h as been tempered with in the admit card submitted indicating the same to be as 0 5.02.1974 instead of 05.02.1972. On receiving the same, the petitioner was aske d to submit his explanation thereto and in response to which the petitioner subm itted an order purportedly issued by the Secretary of the Board under Memo dated 19.05.1999 to the effect that his date of birth has been corrected as 05.02.197 4 in place of 05.02.1972. The Air Force Authority again sent the said order to the Issuing Authority for verification, which has informed the Air Force Authori ty that the same is a forged one having not been issued at any point of time. 2. The petitioner was, thereafter, issued with a show cause notice dated 02.09.1999 by the Group Captain intimating him that though while filling u p of the form of enrollment he declared his date of birth as 05.02.1974 and in p roof of the same he submitted the admit card issued by the Board, upon verificat ion from the Board it has been found that his actual date of birth is 05.02.1972 and the date 05.02.1974 in the admit card has been tempered with. He was, ther efore, asked to show cause as to why the administrative action for removal/dismi ssal from service under Section 20(3) of the Air Force Act, 1950 (in short, the Act ) should not be taken against him for giving false answer to question No.2 in the form of enrollment and for submitting tempered admit card in proof of the date of birth so as to enrolled in the Air Force. The petitioner in his reply dated 09.09.1999 took a preliminary objection contending that the alleged miscon duct being a distinct offence under Section 44 of the Act, he cannot be tried by Court Martial as more than three years have elapsed from the date of commission of alleged misconduct, in view of the provision contained in Section 121 of the Act. On merit he has contended that his actual date of birth is 05.02.1974 and as some controversy arose relating to that he obtained the certificate from the Directorate, Health Services, Assam issued under Section 12 of the Registration of Births and Deaths Act, 1969, on 21.04.1999, certifying his date of birth as 05.02.1974 and has also obtained another copy of the admit card from the Board w herein his date of birth though recorded earlier as 05.02.1972 has been scored o ut and in that place the date 05.02.1974 has been written by the Board. The pet itioner has also contended that the principal of the school in which he read als o certified his date of birth as 05.02.1974. 3. The Court of enquiry constituted to go into the facts, thereafte r, recommended for dropping the charge of fraudulent enrollment against the accu sed/ petitioner on the ground of issuance of the birth certificate by the Regist rar of Births and Deaths, Government of Assam as well as on the ground of limita tion, having expired three years from the date of alleged offence as trial by th e Court Martial is barred under Section 121 of the Act. 4. The Air Force Authority, thereafter, sent the original admit car d to the Issuing Authority (the Board) for verification where the date of birth has been recorded as 05.02.1974 but the Board vide communication dated 22.02.200 1 has informed the Air Force Authority that the date of birth in the said admit card was manipulated. The Wing Commander, thereafter, having received the said communication dated 22.02.2001 from the Board wherein the Air Force Authority wa s informed that the order dated 19.05.1999 as produced by the petitioner was a f alse and fabricated document and his date of birth as per the Board’s record is 05.02.1972, issued the show cause notice dated 10.07.2001 asking him to show cau se as to why he should not be removed from the service under Section 20(3) of th e Act, read in conjunction with Rule 18 of the Air Force Rules, 1969 (in short, the Rules ) for giving false answer as to his date of birth at the time of his enrolment and for submitting a forged Memo dated 19.05.1999. The petitioner ha s submitted his reply in the month of July, 2001 itself, again taking the plea t hat he cannot be tried by Court Martial, the same having been barred under Secti on 121 of the Act, as more than three years have elapsed from the date of allege d commission of misconduct and has also denied having made any overwriting in th e original admit card. The petitioner in his reply has also placed reliance on the certificate issued by the Registrar of Births and Deaths, Government of Assa m as well as the Memo issued by the Board dated 19.05.1999. The Air Marshal, Air Officer Commanding-in-Chief, Eastern Air Commandant, IAF, thereafter, in exerci se of the power vested in him by Section 20(3) of the Act read with Rule 18 of t he Rules ordered for removal of the petitioner from service vide order dated 17. 12.2001. Hence the present writ petition. 5. I have heard Mr. Islam, the learned counsel for the petitioner, Mrs. R. Bora, the learned Central Government Counsel appearing on behalf of the respondent Nos.1 to 3 and Mr. T.C. Chutia, the learned counsel appearing for the respondent No.4. 6. The learned Central Government Counsel, however, could neither p roduce the records of the Court of enquiry conducted against the petitioner, whi ch has recommended dropping of charge against him nor the records of the proceed ing initiated vide show cause notice dated 02.09.1999, for which an affidavit ha s been filed indicating the reason for not being able to produce such records st ating that the said records have been destroyed as per decision of the Board of Officers of the unit concerned on 22.11.2006 in terms of the provision contained in paragraph 1026 of Regulations for the Air Force 1964, which requires the Dep artment to preserve the records of files and documents for not more than three y ears. The learned Central Government Counsel, however, produced (i) the origina l admit card issued by the Board which was submitted by the petitioner at the ti me of his enrollment as Airman; (ii) the original communication dated 23.12.1998 issued by the Assistant Controller of Examination of the Board to the Commandin g Officer relating to the verification of the educational document intimating th at though the mark sheet submitted by the petitioner is genuine, the date of bir th in the admit card has been tempered with and his actual date of birth is 05.0 2.1972; (iii) the original mark sheet issued by the Board in proof of his passin g the High School Leaving Certificate Examination in the year 1991 and (iv) the copy of the communication dated 22(23).02.2001 issued by the Assistant Controlle r of the Examination of the Board to the Squadron Leader, who is the Commanding Officer, intimating that the Memo stated to be issued by the Board on 19.05.1999 is a false document and such letter was never issued from the Board’s Office an d also reiterating that the petitioner’s date of birth has been recorded as 05.0 2.1972 in the office record of the Board. Mr. Chutia, the learned counsel for t he Board has also produced certain papers in support of the contention that the petitioner’s date of birth as per the record of the Board is 05.02.1972 and the same was never corrected as 05.02.1974. 7. Challenging the order dated 17.12.2001 passed by the Air Marshal , Air Officer, Commanding-in-Chief removing the petitioner from service, it has been submitted by the learned counsel that the petitioner once having been exone rated by the Court of Enquiry conducted by the Authority he cannot be punished a nd removed from service for the same allegation for which the Court of Enquiry w as held. It has further been submitted that the Authority while passing the ord er impugned in the writ petition has not taken into consideration the finding re corded in the Court of Enquiry held against him on the basis of the allegation o f making false declaration. According to the learned counsel, the petitioner wa s enrolled as Airman on 27.04.1993 and the alleged misconduct committed by him b eing a distinct offence under Section 44 of the Act, he cannot be removed from s ervice as Section 121 of the Act imposes a bar in conducting a trial of Court Ma rtial, after expiration of a period of three years from the date of the alleged fraudulent enrollment or false answer on enrollment. The learned counsel has fur ther submitted that no action having been taken on the basis of the proceeding i nitiated vide the show cause notice dated 02.09.1999 under Section 20 (3) of the Act, no fresh proceeding can be initiated as has been done by issuing the subse quent show cause notice dated 10.07.2001 that too after more than 8 (eight) year s from the date of his enrollment as Airman. 8. Referring to the certificates issued by the Headmaster of the Sc hool in which the petitioner studied (Annexure-A) as well as the certificate iss ued by the Chief Registrar of Births and Deaths, Government of Assam (copy of wh ich has been produced during the course of hearing), it has been submitted by th e learned counsel that the petitioner never gave the false answer to the questio n relating to his date of birth at the time of his enrollment, as 05.02.1974 is the actual date of birth. It has further been submitted that the petitioner has never been supplied with any copy of any communication issued by the Board cont ending that the documents as produced by the petitioner is forged and his date o f birth has not been corrected in the Board’s record. Such relevant documents, w hich are the basis for taking action against the petitioner, having not been sup plied to him, the entire proceeding is vitiated because of non adherence to the basic principles of natural justice as the petitioner has been kept in dark abou t any communication issued by the Board. Therefore, the learned counsel submits that the impugned order is liable to be set aside. 9. Mrs. Bora, the learned Central Government Counsel, on the other hand, supporting the order passed by the Authority removing the petitioner from service on the ground of giving false answer as to the date of birth at the time of his enrollment and for submitting a false document in support of his claim, has submitted that the Authority, no doubt initially issued a show cause notice dated 02.09.1999 to which the petitioner has submitted his show cause reply and thereafter, the Court of Enquiry constituted by the Authority to go into details though recommended dropping of the charge of fraudulent enrollment against the petitioner as accused on the ground of the limitation prescribed under Section 1 21 of the Act and issuance of the certificate by the Registrar of Births and Dea ths, Government of Assam, the Authority has the power under Section 20 (3) of th e Act read with Rule 18 of the Rules to remove any person serving under his comm and from service, as, such power is independent of the power to prosecute such p erson by convening Court Martials and punish him under the Act. It has further b een submitted by the learned counsel that though the Court of Enquiry recommende d dropping of the charges, it would not preclude the Authority from exercising t he power under Section 20 (3) of the Act read with Rule 18 of the Rules and the authority is not bound by the recommendation of such Court of Enquiry. Mrs. Bor a has further submitted that it is evident from the communications issued by the Board that the petitioner has made a false declaration and gave false answer as to his date of birth at the time of his enrollment by stating that his date of birth is 05.02.1974 instead of 05.02.1972 and has also produced a forged documen t being the memo dated 19.05.1999 purportedly issued by an Officer of the Board certifying the correction of his date of birth in the Board’s record as 05.02.19 74 in place of 05.02.1972, as the Board in the communications dated 23.12.1998 a nd 23.02.2001 denied making any correction in that regard and asserted that in t he Board’s record the date of birth of the petitioner has been recorded as 05.02 .1972. According to Mrs. Bora, the petitioner has given the false answer as to his date of birth at the time of his enrollment stating his date of birth as 05. 02.1974, as on the date of his enrollment, i.e. on 27.04.1993, he was not eligib le for enrollment having crossed the maximum age of enrollment, which was twenty years, and had the petitioner declare his actual date of birth, i.e. 05.02.1972 , he would not have been enrolled. Referring to the duplicate admit card, which has been annexed as Annexure-B to the writ petition, it has further been submit ted by Mrs. Bora that the fact that the date of birth of the petitioner was neve r corrected by the Board is apparent from the said document as had the date of b irth been corrected by the Board, the Board would have issued a duplicate admit card containing the corrected date of birth and not a duplicate admit card scori ng out the original date of birth and putting the corrected date of birth. It ha s further been submitted by Mrs. Bora that it is apparent from the certificate i ssued by the Chief Registrar of Births and Deaths, Government of Assam that the date of birth of the petitioner as 05.02.1974 was registered on 20.04.1999, i.e. much after giving the false answer relating to the date of birth at the time of his enrollment and, therefore, the petitioner cannot be allowed to claim his da te of birth on the basis of such certificate when his date of birth has been rec orded in the record of the Board as 05.02.1972. 10. Mr. Chutia, the learned counsel for the Board has also submitte d that the Board never corrected the date of birth of the petitioner, which is r ecorded as 05.02.1972 and the Board’s records still reflects that his date of bi rth is 05.02.1972. 11. There is no dispute to the fact that the petitioner was enrolled as Airman on 27.04.1993 and at the time of his enrollment he declared his date of birth as 05.02.1974. The petitioner was, thereafter, sent for training for A ir-Craftsman from 27.04.1993 to 07.01.1994 and on his successful completion he w as attached and posted at 19 FBSU Air Force at Thoise, Chiachen. It is also not in dispute that the petitioner discharged his duties to the best of his abiliti es and to the satisfaction of all concerned. The authority for the first time on 02.09.1999, i.e. after almost 6‰ years from the date of the petitioner’s enroll ment as Airman, issued a show cause notice asking him as to why he shall not be removed/dismissed from service under Section 20 (3) of the Act for giving false answer to the question No.2 in the form of enrollment and for submitting tempere d admit card in support of the proof of date of birth so as to get him enrolled in the Air Force. The petitioner, on receipt of such show cause notice, submitt ed his reply on 09.09.1999 denying the charges levelled against him and reiterat ing that his date of birth is 05.02.1974 and in support of which he has also pro duced a certificate issued by the competent authority, namely the Registrar of B irths and Deaths, Government of Assam. The petitioner has also denied tempering of the admit card as alleged in the said show cause notice. It is, however, not known, what final order has been passed thereafter, as neither any records rela ting to the proceeding initiated against the petitioner by the said show cause n otice has been produced by the respondents nor any statement has been made in th e affidavit filed. 12. The respondents in the affidavit filed pursuant to the order dat ed 05.02.2008 passed by this Court directing them to file the affidavit disclosi ng the reason for not producing the record and under what authority of law the r ecords have been destroyed, has stated that the relevant records were destroyed as per the decision of the Board of Officers of the Unit concerned on 22.11.2006 , in terms of the provision contained in paragraph 1026 of the regulation, which says that the department is to preserve the records of files and documents for not more than three years. Such explanation cannot be accepted in view of the f act that the petitioner approached this Court in the year 2002 and during penden cy of the writ petition, questioning the petitioner’s removal from service, the records have been destroyed and that too after filing the affidavit-in-oppositio n by the respondents (which was filed on 26.05.2003). Such action of the respon dents creates doubt in the mind of the Court about the bonafide of the Authority in destroying the record and, therefore, adverse presumption has to be drawn ag ainst the respondents. 13. It appears from the statements made in the writ petition that a Court of enquiry was conducted by the authority, which has also submitted a repo rt in the month of September, 1999 recommending dropping of the charges of fraud ulent enrollment against the petitioner by holding that that date of birth might have been erroneously entered as 05.02.1972 in the school/college records and t he petitioner’s genuine date of birth is 05.02.1974 and as such well within the stipulated age required for enrollment in the IAF. The said Court of enquiry al so took into consideration the certificate issued by the Registrar of Births and Deaths, Government of Assam as well as the certificate provided by S Adm 0 511 SU, AF. The said Court of enquiry having been constituted to record finding rel ating to the allegation of giving false answer to the query at the time of enrol ment, the authority is required to take into consideration the same while passin g the impugned order, which has not been done in the instant case. The authorit y having failed to produce the relevant records before the Court relating to the proceeding initiated vide show cause notice dated 2nd September, 1999 and havin g not stated about the outcome of such show cause notice it has to be presumed t hat the proceeding initiated by the said show cause notice against the petitione r was dropped, as the adverse presumption has to be drawn against the respondent s having failed to produce the relevant records or making any statement in that regard in the affidavit filed. The authority, when the action taken by it is ch allenged, is duty bound to produce the record before the Court to demonstrate th at the proceeding initiated vide show cause notice dated 02.09.1999 reached its logical conclusion, which has not been done by the respondents in the present ca se. 14. The authority, thereafter, again issued a show cause notice on 1 0.07.2001, i.e. after more than 8 (eight) years from the date of enrollment of t he petitioner as Airman in the Air Force again asking him to show cause as to wh y he shall not be removed from service under Section 20 (3) of the Act read with Rule 18 of the Rules, on the basis of the same allegation, i.e. giving false an swer as to the date of birth at the time of enrollment and on another allegation for alleged submission of the forged memo dated 19.05.1999 without, however, di sclosing the basis on which the authority considers that the memo dated 19.05.19 99 submitted by the petitioner is a forged document. The petitioner was even not furnished with any communication issued by any authority stating that such memo dated 19.05.1999 submitted by the petitioner is a forged one. The petitioner, on receipt of the said show cause notice, submitted his reply denying the charge s levelled against him and stating that the memo dated 19.05.1999 issued by the Board is not a forged one, which he received by post and believing it to be genu ine submitted the same before the Air Force Authority. The petitioner reiterate d his date of birth as 05.02.1974 and in support of his contention he also place d reliance the certificate issued by the Registrar, Births and Deaths, Governmen t of Assam as well as the school certificate issued by the school authority. Th e Air Force Authority, thereafter, removed the petitioner from service by the im pugned order dated 17.12.2001 by holding that he has given false answer as to th e date of birth at the time of his enrollment and for submission of forged memo dated 19.05.1999. The Authority, however, while recording the finding that the petitioner gave false answer relating to the date of birth stated to be 05.02.19 74 has not ascertained as to whether 05.02.1974 is the actual date of birth of t he petitioner or not? The allegation against the petitioner being that he has d eclared his date of birth as 05.02.1974 in place of 05.02.1972, the Authority mu st before taking any action against the petitioner by holding that he has made a false declaration, has to record the finding that his date of birth is not 05.0 2.1974 but 05.02.1972, which has not been done in the instant case. The ground on which the certificate issued by the competent authority, namely the Registrar of Births and Deaths, Government of Assam, has been ignored by giving precedent to the Board’s document relating to the age of the petitioner, is not tenable, when the petitioner was not informed about any document issued by the Board to t he Air Force Authority relating to the allegation that his date of birth was man ipulated. As noticed above, the petitioner was never supplied with any communic ation issued by the Board stating that the memo dated 19.05.1999 is a forged doc ument and was never issued by the Board, the petitioner in fact was kept in dark about the same,