3 ^ BEFOBE THE STATE ADMINISTRATIVE •HtIBUNAL BENCH RAIPOR (Hp) Cirpf^) ^^ri^ Petitloner Respondent Smt. Sukhma Bal aged 66 years, (22-5-34) W/o DasharatMal Kaser, Retired as "Bhritya" from Sainudaylk Swasth Kendra Qongargaon, Oistrict Rajnandgaon. Versus 1. The State Sovt.of M.P. Through s The Secrelary, Publtc Health Deptt. Vallabh Bhawan, BHOPAL. 2. Chief Medlcal and Health Officer, Rajnandgaon (K.p.). 3. Jolnt Dlreetor, Treasury Accounts & Pension, Ghari Chowk,- Raipur (M.p.). PETITION V/s 19 OP THE M.P. ADHINISTRATIVE TRIBUNAL ACT 1985. • /t HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Writ Petition (S) No.3243/2005 PETITIONER RESPONDENTS Smt. Sukhma Bai Versus State of Madhya Pradesh (now C.G. and others Appearance: Shri Somkant Verma, counsel for the petitioner. Shri Ajay Dwivedi, Dy. Govt. Advocate for the State. ORAL-ORDER (Passedon 9.3.2010) 1. By this petition, the petitioner has challenged the order dated 31st May / 1999 (Annexure P-7) as also Authority letter dated 31st May 1999 (Annexure P-8). 2. Case of the petitioner is that the petitioner was working as Peon in the Primary Health Center, Dongargaon, District-Rajnandgaon. Petitioner claims that her date of birth is 22nd May, 1934. After attaining the age of superannuation of 60 years, order of retirement was issued on 1.2.1994 (Annexure P-1) stating that as the petitioner is attaining the age of superanriuation she is being retired. A communication was made on 14.12.1995 (Annexure P-2) by the Chief Medical SE Healfh Officer, Rajnandgaon to the Joint Director, Treasury, Accounts & Pension stating fhat as the petitioner is retiring on 31st May, 1934, her pension case is being forwarded for further action. In the endorsement dated 16.9.1994 (Annexure P-3) made by the Chief Medical 85 Health Officer to the Joint Director, Treasuiy, Accounts 8s Pension, Raipur, the date -2- ;18"5@gas?^' of retirement of the petitioner was mentioned as 31.5.1994. In the communication dated 16.9.1994 (Annexure P-4) with regard to sanction for payment of family beneiit fund, the date of retireinent of the petitioner was mendoned as 31st May, 1994. 3. While scrutinizing the pension case of the petitioner, it was recorded that there has been some overwriting relating to date of birth as recorded in fhe service book. The Chief Medical 8s Health Officer, Rajnandgaon sent memo on 9.5.1997 to the Joint Director, Treasury, Accounts and Pension, who in tum, by his conimunication (Annexure R-3) informed that a noting has been made to the effect that in the service book, in place of 5.5.1933, 5.5.1934 has to be accepted as the date of birth of the petitioner and the pension case of the petitioner be decided treating 5.5.1933 as date ofbirth. 4. When the matter stood thus, an order dated 8.2.1999 (Annexure P-6) was issued by the State Govemment in which it was recorded that in view of overwriting in the service book of the petitioner, 5.5.1933 is accepted and sanctioned as the date of birth of the petitioner. On t^at basis the case of the petitioner for grant of pension was revised. As earlier, the petitioner was continued in service and retired treating her date of birth as 5.5.1934, respondents not only revised pension case of the petitioner but also proceeded to make recovery against the petitioner. Vide order dated 31st May, 1999 (Annexure P-7), Joint Director, Treasury, Accounts 6s Pension, Raipur directed recoveiy of Rs.25,984/- from the petitioner and issued order with regard to payment of retiral dues vide Annexure P-8 on the same date. 5. Contention of learned counsel for the petitioner is that the petitioner always asserted that her date of birth is 22.5.1934. Petitioner was continued in service and entries in service book also indicated that the /^"\ -3- fcT date ofbirth ofthe petitioner was 5.5.1934. According to the petitioner, certain corrections were made and overwriting indicated in the column relating to date of birth as recorded in the service book. Submission is athat the year 1933 was incorrect and year 1934 is correct year of birth. Leamed counsel for the petitioner further submits that in every document, the date of birth of the petitioner is recorded as 5.3.1934. It is also submitted that at the time of entry into service, way back in the .year 1979, petitioner had submitted an affidavit, which has been placed on record along with the retum of the respondents which also indicates the date of birth of the petitioner as 5.5.1934. In the proposal regarding entry to be made relating to date of birth (Annexure R-4), the Chief Medical SE Health Officer recorded date of birth of the petitioner as 5.5.1934. He further submits that the order passed by the Joint Director, Treasury, Accounts 85 Pension accepting petitioner's date of birth as 5.5.1933 in place of 5.5.1934 is violaltive of principle of natural justice. He argues that as the petitioner always insisted and asserted that her date of birth as 5.5.1934, before effecting any change in the date of birth of the petitioner, it was incumbent upon the. respondent authorities to hold a proper inquiry by affording an opportunity of hearing to the petitioner and then alone the date of birth of 5.5.1933 could be acted upon. He further contended that the effect of change of date of birth has resulted in civil consequences in as much it led to recovery of substantial amount of Rs.25,984/- from the petitioner, who is a low-paid employee. 6. Per contra, submission of learned counsel for the State is that when the petitioner's service book was scrutinized while preparing her pension case after her retirement, it was revealed that some overwriting .. :s£t.. ~i»~ i??;j^A 1 ''•'^s'S^"""^ ff' -4- ^ ^Siy'C/ ^s^ '""»„...'??:: 1. was made in the service book of the petitioner. The Authority has found that the date of birth of the petitioner as originally recoded was 5.5.1933, but it was subsequently changed to 5.5.1934. Learned counsel for the State submits that the petitioner herself has been clairamg different dates of birth. His submission is that in the affidavit filed by the petitioner on 14.6.1989 (Annexure A-5), petitioner stated that relevant entries relating to date of birth have been recorded in her ^service book and therefore an affidavit is being submitted. In that affidavit, petitioner declared that her date of birth is 22.5.1934, whereas fhe date of birth claimed by the petitioner and as recorded in the service book is 22.5.1934. This shows that the petitioner herself was not givmg the correct details. Submission of leamed counsel for the State is that an objection having been raised, service book was scrutinized and the Authority came to conclusion that 5.5.1933 alone appeared to be correct date of birth as originally recorded in the service book. On this finding and conclusion, the Joint Director accepted 5.5.1933 as the date of birth and accordingly the pension case of the petitioner was prepared. Since the petitioner had continued in her service beyond the prescribed period, recovery was consequently ordered to be made on 31.5.1999 which isjust and in accordance with law and it does not suffer from any illegality. Further submission is that the facts of the case are floating on the surface and even if no opportunity of hearing has been afforded, different view or conclusion is not possible. As such, in his submission, petitioner is not entitled to any relief on this technical ground of breach of violation of principle of natural justices. 7. I have heard leamed counsel for the parties and perused the reeord. ,:'/"' "•..'% •?.^^a3%..'i'. ;i '^i?sl'%! -5- fc^ A -^^.. 8. In the entire petition, petitioner has asserted that her date ofbirth was 22.5.1934. Affidavit dated 14.6.1989 (Annexure A-5) shows that the petitioner declared her date of birth as 22.5.1934 by stating that in her service book, date of birth has not been recorded. Respondents have placed on record an affidavit of the petitioner sworn on 21.11.1979, wherein petitioner declared her date ofbirth as 5.5.1934. Respondents have also placed on record proposal of Chief Medical 85 Health Officer, Rajnandgaon in respect of correction of date of birth of the petitioner after her retirement, in which it was recomraended to accept 5.5.1934 as the correct date of birth. A perusal of the photocopy of the pedtioner's service book shows that differententries have been made in column -5. It includes both 5.5.1933 as also 5.5.1934. It cannot be disputed that there was some dispute with regard to the date of birth of the petitioner. However, it is not found that any inquiry was made into the whole affair, much less affording the petitioner an opportunity of hearing. It is however clear that uptill the date of petitioner's retirement i.e. 31.5.1994, the date of birth of the. petitioner was recorded and accepted as 5.5.1934. Various orders including order of retirement issued by respondent authorides, placed on record as Annexure P-1, P- 2, P-3 & P-4 as also pedtioner's affidavit submitted in the year 1979 and proposal regarding petitioner's date of birth (Annexure R-4), indicate that pedtioner's date of birth is 5.5.1934. The only basis for accepting 5.5.1933 as the correct date of birth is an opinion formed by the Joint Director, Treasuiy, Accounts & Pension, Raipur that in view of certain overwriting made, 5.5.1933 alone should be accepted as the date of birth of the petitioner. No fmding has been recorded by any of the authorities as to which date ofbirth was originally recorded in the service book and the basis for the same. -6- ^^ 4 ^ • 9. As fhe peddoner was retired by respondents on 31.5.1994 treating her date of birth as 5.5.1934, it is apparent that on fhat date relevant entries in the service book indicated petitioner's date of birth as 5.5.1934. This was later on changed as 5.5.1933 resulting in adverse action against the petitioner. In the opinion of this Court, this alteration in the entries could not be effected without giving due and proper opportunity of hearing to the petitioner. The contention of leamed counsel for the respondents that originally it was recorded as 5.5.1933, but later on, it was changed to 5.5.1934 and therefore only 5.5.1933 could be accepted as the date of birth itself is disputed. Whether 5.5.1933 or 5.5.1934 was originally recorded as date of birth itself was a matter of inquiry. Therefore it was incumbent on the part of respondents to hold due and proper inquiry into the whole matter and afford the petitioner an opportunity of hearing. In the case of State^f Orissa Vs. Dr. (Missl Biaanani Dei and others. AIR 1967 SC 1269, Supreme Court dealing with similar issue held as under: "12. It is true that some preliminary enquiry was inade by Dr S. Mitra. But the report, of that enquiry officer was never disclosed to the first respondent. Thereafter the first respondent was required to show eause why April 16, 1907 should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiiy and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in charaeter, but even an administa'ative order which involvescivil consequenGes, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No • A?. -7- M '<!!8li... "'V """''tSmsl^'" ^ / such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State." In the similar situation where the date of birth entered in the service record was altered without notic? and opportunity of hearing to the employee, Supreme Court in the case of Sarjoo Prasad Vs. The General Manager and another, AIR 1981 SC 1481 held as under: fl "l.....In State 6f Orissa v. Dr (Mtes) Binapani Dei (AIR 1967 SC 1269) this Court held that the date of birth without notice and without giving opporturiity to the appellant cannot be altered to the disadvantage and prejudice of an employee because an administrative order which involves civil consequences must be made iri conformity with the rules of natural justice which at its lowest minimum requires notice and opportunity to the person affected. thereby. That admittedly having not been done, on this short ground,,we allow this appeal and stet aside the order retiring the appellant froin service as well as the order correcting the birth-date." Similar view was taken in the case of Hari_^ingh_Vs. State of Bihar and others (2000) 10 SCC 284 and held as under: "2......We are not however delving into an inquiry on this aspect inasmuch as, in our opinion, the impugned order of the Government cannot be sustained as concededly the Government never put the employee on notice to indicate that the date of birth as entered in the service- book is incorrect though it could have done so. Since no notice has been given to the employee concemed for accepting a date of birth other thah tbe one entered in the service-book, the impugned order of retirement cannot be sustained. We set aside fhe impugned order altering the date of birth of the appellant. The appellant aiust be deemed to be continuing in service 'until duly superannuated in accordance with law." » ;• \«ffi5> V i'..,<<{SPS";il j ."}»i3' Jf •VV,sf •^Bsfi«!^ Praveen^ ^ 10. This is not a case where the respondents, though behind the back of the petitioner, held detailed inquiiy and arrived at conclusion after due consideration of material available on record Respondents themselves placed on record an affidavit of the petitioner sworn on 21.11.1979 (Annexure R-4) which indicates that date of birth of the petitioner is 5.5.1934. Though the petitioner has been claiming fwo different dates of birth, one as 5.5.1934 and 22.5.1934, in both the cases, the year of birth is the same. Taking into consideration the totality of the circumstances as emerging from the records of the case, I am of the opinion that respondents corrunitted illegality in changing the petitioner's date of birth as 5.5.1933, 5 years after her retirement. Purther,-all this was done without affording the petitioner due and proper opportunity of hearing. As such, I am unable to uphold the action of the respondents. 11. In the result, the pedtion is allowed and the order dated 8.2.1999 (Annexure P-6), order dated 31.5.1999 (Annexure P-7) to the extent of recoveiy 8s order dated 31.5.1999 (Annexure P-8) to the extent of recoveiy are declared illegal and are hereby set aside. 12.Respondent No.3 shall hold a proper inquiry into the matter after affording due and proper opportunity of hearing to the petitioner. If in the result, it is found that the petitioner's date of birth was 5.5.1934, entire amount recovered from the petitioner shall be refunded to her with the rate of interest prevalent from time to time. Respondent No.3 ~ shall complete the inquiiy as expeditiously as possible and shall make all endeavour to coniplete the exercise within a period of 3 months from the date of receipt of copy of this order. It is also made clear that petitioner shall be given an opportunity of placing relevant documents in the inquiry proceedings. Sd/- --i.-. 1Vlanin^^nstewastava Judge „ {..-.