IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 10139 of 2008. Reserved on: 25.05.2011. Decided on: 02.06.2011. _____________________________________________________ Achhar Singh. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioners. : Ms. Madhu Sharma, Advocate vice Mr. Raj Kumar Sharma, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was appointed as Chowkidar in the respondent-department in the year 1984-85. His services were regularized as Chowkidar on 01.01.1998. He submitted his date of birth at the time of his regularization as 23.12.1948 on the basis of Annexure P-C. A complaint was filed against the petitioner by one Shri Randhir Singh. According to him, the date of birth of the petitioner as per the school leaving certificate was 16.07.1942. The Assistant Engineer, IPH Sub-division, Baldwara conducted the preliminary inquiry. It was noticed during the course of preliminary inquiry that the petitioner has furnished false certificate of his date of birth. According to preliminary inquiry, the petitioner had studied at Government Primary School, Bharari 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. - 2 - up to fourth standard. According to the school leaving certificate produced, the date of birth of the petitioner was 16.07.1942. Thereafter, the charge-sheet was issued to the petitioner under Rule-14 of the CCS(CCA) Rules, 1965. Shri S.N. Dhiman, Assistant Engineer, IPH Sub-division, Sandhol was appointed as inquiry officer. He submitted the inquiry report dated 26.06.2002 to the disciplinary authority. Thereafter, the disciplinary authority, on the basis of the inquiry report, terminated the services of the petitioner vide memorandum Annexure-PF, dated 3rd July, 2002 by invoking Rule-5 (1) of Civil Services Rule (Temporary Services) Rule, 1965 and CCS (CCA) Rule-12. Petitioner preferred an appeal against the order dated 03.07.2002 (Annexure-PF) on 11th July, 2002 (Annexure-PE). Since the appeal was not decided by the appellate authority, petitioner filed an Original Application before the learned erstwhile Himachal Pradesh Administrative Tribunal bearing O.A. No. 1477 of 2002. Learned Tribunal by way of interim order dated 22.07.2002, directed the appellate authority to decide the appeal. The appellate authority decided the appeal on 03.01.2003 by passing a speaking and detailed order. However, the services of the petitioner were directed to be terminated w.e.f. 31.07.2002. Consequently, Annexure-PA was issued on 10.01.2003, whereby the services of the petitioner were terminated w.e.f. 31.07.2002 instead of 03.07.2002. The period of absence between the issuance of order of termination till 31.07.2002 was directed to be regularized from the kind of leave due. 2. Ms. Madhu Sharma, learned counsel for the petitioner has strenuously argued that the date of birth of the petitioner has been rightly recorded as 23.12.1948 as per Annexure-PC. She - 3 - then contended that the termination order dated 03.07.2002 and appellate order passed by the Superintending Engineer, I&PH Circle, Sundernagar on 03.01.2003 are contrary to law. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the date of birth of the petitioner as per school leaving certificate, i.e, Annexure-PD is 16.07.1942 and not 23.12.1948. He then argued that the petitioner has been afforded due opportunity of being heard before the decision was taken to terminate his services. He further argued that the petitioner had earlier filed Original Application No. 1477 of 2002 on the same and similar cause of action, which was dismissed by the learned Tribunal on 10.07.2003. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It is evident from Annexure-PD that the date of birth of the petitioner has been recorded as 16.07.1942. Petitioner has studied up to fourth standard in Government Primary School, Bharari. In view of this, no credence can be given to Annexure-PC, whereby the date of birth of the petitioner has been recorded as 23.12.1948. The disciplinary proceedings were initiated against the petitioner, as noticed above. He has been served with charge- sheet on 15.02.2002. Inquiry officer submitted his report on 26.06.2002, on the basis of which, services of the petitioner had been terminated vide Annexure-PF on 03.07.2002. Petitioner has approached the learned Tribunal by way of O.A. No. 1477 of 2002, seeking direction to the respondents to decide the appeal, which he has preferred vide Annexure–PE on 11th July, 2002. On 22.07.2002, interim order was passed by the learned Tribunal, - 4 - whereby the impugned order was stayed with a direction to the appellate authority to decide the appeal. The appellate authority decided the appeal on 03.01.2003 (Annexure–PB) by passing a speaking order. It is evident from the contents of Annexure –PB, dated 03.01.2003, that the petitioner had signed the statement during hearing on 16th August, 2002, whereby he has confessed that his date of birth as per school leaving certificate of Government Primary School, Bharari was correct and he could not produce the same since it was not provided to him by the Headmaster of the school. It is, thus, evident that the petitioner knew his date of birth, but has concealed this fact from the employer. He has, rather, furnished copy of the Parivar Register Annexure-PC, whereby his date of birth has been recorded as 23.12.1948 instead of 16.07.1942. In the earlier Original Application, the petitioner has also prayed for the same and similar relief. It is apparent from the order passed in O.A. No. 1477 of 2002 on 10.07.2003 that the petitioner had assailed the appellate order Annexure –R/1. In the instant case, Annexure-PB is the same what was Annexure R/1, dated 03.01.2003, validity of which was assailed in O.A. No. 1477 of 2002. The Court has serious displeasure in manner the petitioner has filed fresh Original Application after the dismissal of the earlier Original Application bearing O.A.(M) No. 1477 of 2002 on 10.07.2003 on same and similar grounds. The petition was barred by the principle of res judicata. Petitioner has been dealt with in just and fair manner. He ought to have disclosed his exact date of birth at the time of his regularization on 01.01.1998. - 5 - 6. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge May 02, 2011. (bhupender) - 6 - `