Case: State Of Orissa Vs. Dr. (Miss) Binapani Dei &amp; Ors

1. The first respondent who holds the degree of M.B.B.S. of the Punjab University, the Diploma in Gynaecology and Obstetrics from the Madras University and the Diploma in Obstetrics from the Royal College of Obstetricians and Gynaecologists of London was appointed on June 12, 1938, an Assistant Surgeon in the Orissa Medical Service. At the time of her appointment by the Orissa Government, the first respondent declared that her date of birth was April 10, 1910. The first respondent claims that, her claim was supported by documentary evidence tendered by her father which was verified and accepted and the birth date was recorded in the Civil List and in the History of Service of Gazetted Officers of the Government of Orissa maintained by the Accountant-General of the State. In the normal course the first respondent would have been due for superannuation on April 10, l965 after completing the age of 55 years. But in consequence of a notification of the State of Orissa, dated May 21, l963, the age of superannuation was raised from 55 to 58 years in respect of all Government servants who were to retire after December 1, 19622. Some anonymous letters were addressed to the Accountant-General that the first respondent had misstated her age when she was admitted to service of the State. After an inquiry the first respondent was required to show cause why her date of birth should not be accepted as April 4, 1907. The first respondent submitted that her date of birth was correctly recorded and that certain school record relied upon by the State "was erased, altered or overwritten. By letter, dated June 27, 1963 the Government of Orissa determined the date of birth of the first respondent as April 16, 1907, and declared that she should be deemed to have retired on April l6, 1962, subject, however, to extension of service granted from April 16, 1962 till the afternoon of July 15, 1963. By this order the first respondent who should have on her case retired on April 10, 1968, was deemed to have retired on July 15, 19633. The first respondent then applied to the High Court of Orissa for a writ declaring that the order of retirement passed by the state Government was contrary to law and against the Constitution and principles of natural justice, and that in any event the order was passed maliciously by the Government to the prejudice of the first respondent, and for a writ of mandamus or certiorari quashing the order passed on June 27, 1963 and declaring the respondent to be entitled to continue in service till April 10, l968. The first respondent claimed that the order made by the State amounted to an order of compulsory retirement contrary to the rule. governing her service and was violative of the principles of natural Justice, that the same was arbitrary and mala fide, that the order of retirement amounted to punishment involving consequences such as loss of pay, status and deprivation of service and since it was not made in consonance with Art. 311 of the Constitution, the order was liable to he quashed as invalid4. The High Court held that the order declaring the first respondent to be super annuated on April 16, 1962 on the footing that her date of birth was April 16, 1907 amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to remove within the meaning of Art. 311 of the Constitution, and since the first respondent was not given a reasonable opportunity of showing cause against the action proposed to be taken, in regard to her the order was invalid. The High Court did not express any opinion on the plea of mala fides as it raised questions of fact which could not in the view of the Court appropriately be determined in a petition under Art. 226 of the Constitution. With certificate granted by the High Court this appeal has been preferred by the State of Orissa1. The first respondent who holds the degree of M.B.B.S. of the Punjab University, the Diploma in Gynaecology and Obstetrics from the Madras University and the Diploma in Obstetrics from the Royal College of Obstetricians and Gynaecologists of London was appointed on June 12, 1938, an Assistant Surgeon in the Orissa Medical Service. At the time of her appointment by the Orissa Government, the first respondent declared that her date of birth was April 10, 1910. The first respondent claims that, her claim was supported by documentary evidence tendered by her father which was verified and accepted and the birth date was recorded in the Civil List and in the History of Service of Gazetted Officers of the Government of Orissa maintained by thel of the State. In the normal course the first respondent would have been due for superannuation on April 10, l965 after completing the age of 55 years. But in consequence of a notification of the State of Orissa, dated May 21, l963, the age of superannuation was raised from 55 to 58 years in respect of all Government servants who were to retire after December 1, 19622. Some anonymous letters were addressed to thel that the first respondent had misstated her age when she was admitted to service of the State. After an inquiry the first respondent was required to show cause why her date of birth should not be accepted as April 4, 1907. The first respondent submitted that her date of birth was correctly recorded and that certain school record relied upon by the State "was erased, altered or overwritten. By letter, dated June 27, 1963 the Government of Orissa determined the date of birth of the first respondent as April 16, 1907, and declared that she should be deemed to have retired on April l6, 1962, subject, however, to extension of service granted from April 16, 1962 till the afternoon of July 15, 1963. By this order the first respondent who should have on her case retired on April 10, 1968, was deemed to have retired on July 15, 19633. The first respondent then applied to the High Court of Orissa for a writ declaring that the order of retirement passed by the state Government was contrary to law and against the Constitution and principles of natural justice, and that in any event the order was passed maliciously by the Government to the prejudice of the first respondent, and for a writ of mandamus or certiorari quashing the order passed on June 27, 1963 and declaring the respondent to be entitled to continue in service till April 10, l968. The first respondent claimed that the order made by the State amounted to an order of compulsory retirement contrary to the rule. governing her service and was violative of the principles of natural Justice, that the same was arbitrary and mala fide, that the order of retirement amounted to punishment involving consequences such as loss of pay, status and deprivation of service and since it was not made in consonance with Art. 311 of the Constitution, the order was liable to he quashed as invalid4. The High Court held that the order declaring the first respondent to be super annuated on April 16, 1962 on the footing that her date of birth was April 16, 1907 amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to remove within the meaning of Art. 311 of the Constitution, and since the first respondent was not given a reasonable opportunity of showing cause against the action proposed to be taken, in regard to her the order was invalid. The High Court did not express any opinion on the plea of mala fides as it raised questions of fact which could not in the view of the Court appropriately be determined in a petition under Art. 226 of the Constitution. With certificate granted by the High Court this appeal has been preferred by the State of

Reasoning: In the present case the question in dispute was about the regularity of the enquiry and the High Court was apparently of the view that the question whether the State acted arbitrarily did not raise any question of investigation into complicated issues ofo interference with the exercise of the discretion of the High Court is, therefore, called for10. The State has undoubtedly authority to compulsorily retire a public servant who is superannuated. But when that person disputes the claim he must be informed of the case of the State and the evidence in support thereof and he must have a fair opportunity of meeting that case before a decision adverse to him is takenIn this background, the facts of the case may be reviewed. In 1957 anonymous letters were received by the Director of Health Services that the first respondent had misstated her age, but no steps were taken immediately to hold an enquiry. In 1961 some investigation was undertaken through the Vigilance Department. The Secretary to the Government in the Health Department on August 23, 1961 informed the first respondent that the Government of Orissa had information that when she was admitted into Class X in the Ravenshaw Girls School, her date of birth was 15 years, and when she was admitted into the First Year Class on July 9, 1924 her age was 17 years and 2 months, and she was required to show cause why May 9, 1907, should not be accepted as her date of birth on the basis of the entry in the Admission Register of the First Year Class. The first respondent submitted her explanation stating that she did not recollect if she had ever attended the Ravenshaw Girls School. After some correspondence the Admission Register was examined by the first respondent in the presence of the Director of Health Services and the officers of the Vigilance Department, and thereafter on March 19, 1962, she wrote a letter pointing out the irregularities in the entries relating to age in Ravenshaw Girls School Admission Register. The Additional Director of Family Planning Dr. S. Mitra was then asked to make a report. In his report Dr. S. Mitra largely relied upon a letter written by the Principal, Lady Hardinge Medical College, Delhi, that the birth date of the first respondent was April 4, 1908. In the course of the enquiry before Dr. S. Mitra the letter was shown to the first respondent but she declined "to make any comments thereon." Thereafter on September 28, 1962 there was a notice from the Secretary in the Department of Health stating that according to the School Admission Register her date of birth was August 22, 1906, and according to the First Year Class Admission Register it was April 1907, and it was intended to treat the latter date as the date of her birth, and the first respondent was called upon to show cause why that date should not be accepted. The report which Dr. S. Mitra had submitted to the State was not disclosed to the first respondent. It may be recalled that there were four different dates before the State authorities: (1) the entry in the Ravenshaw Girls School Admission Register showing the date of birth as August 22, 1906, (2) the entry in the Admission Register of the First Year Class showing the date of birth as some date in April, 1907, (3) the report of the Principal, Lady Hardinge Medical College, Delhi, showing the date of birth as April 4, 1908, as recorded in the Medical College Admission Register, and (4) the first respondents statement supported by her fathers statement at the time when she joined the service in 1938 giving her date of birth as April 10, 1910. If an enquiry was intended to be made, the State authorities should have placed all the materials before the first respondent and called upon her to explain the discrepancies and to give her explanation in respect of those discrepancies and to tender evidence about her date of birth12. It is true that some preliminary enquiry was made 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 cause 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 enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, 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 such steps were admittedly taken, the High Court was, in our judgment, right in setting side the order of the State.