Keshab Chandra Majumer vs State Of Tripura And Ors

[1] Heard Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. N. Majumder, learned counsel appearing for the respondents.

[2] Being aggrieved by the office order under reference No.F.2-17/Estt/EDFO-KHW/For-15/4721-61 dated 10.12.2018, Annexure-9 to the writ petition, the petitioner has filed this writ petition urging this court to set aside the said office order dated 10.12.2018 and also to reinstate with all service benefits.

[3] At the outset Mr. R. Datta, learned counsel has submitted that behind the back of the petitioner the date of birth as recorded in the serviced book has been changed to 01.01.1958 from 02.01.1959. As consequence thereof, the petitioner by virtue of the said office order dated 10.12.2018 has been forced to retire from the service w.e.f. 10.12.2018 (afternoon). However, based on the verified date of birth i.e. 02.01.1959 the petitioner would have retired from the service on 31.01.2019. As such the relief that has been prayed for reinstatement has become infractuous. In view of this, Mr. Datta, learned counsel for the petitioner has submitted that the financial benefits for the period from 11.12.2018 till 31.01.2019 be given to the petitioner as the said exercise of the respondents is grossly arbitrarily, illegal and in denial of principles of natural justice.

[4] The petitioner was indisputably appointed as the Forester in terms of the offer of appointment containing that the Memorandum dated 06.09.1979, Annexure-1 to the writ petition. After the offer of appointment was accepted and when the petitioner was appointed, the petitioner was asked to file the attestation form. The petitioner had duly filled up the attestation form showing his date of birth as 02.01.1959. It is also not in dispute that the said date of birth was verified by the competent officer on 21.10.1980 and that fact would be evident from the copy of the service book as filed by the petitioner with the rejoinder. The petitioner did receive a copy of the intra-departmental communication relating to his superannuation under No.F.2-60/Estt/ Superannuation/SDFO-KHW/FOR-2016/2071-73 dated 13.09.2018, Annexure-8 to the writ petition whereunder it has been clearly noted that the petitioner on 31.01.2018 on attaining the age of 60 years. In the communication dated 13.04.2018 reference to his date of birth, as recorded in the Service Book made i.e. 02.01.1959 has been distinct by

[5] The communication processed by the Sub-Divisional Forest Officer, Khowai, Forest Sub-Division for issuance of the notice for retirement. But the fact remains that no notice was issued from the competent authority for preparing the pension proposal etc. By the officer order dated 10.12.2018, the petitioner was abruptly retired from the service and hence, the petitioner has challenged the said order.

[6] By filing the reply, the respondents has averred that the petitioner has no right to continue in the service beyond the period of 10.12.2018 inasmuch as the respondents on due verification came to a decision that the date of birth of the petitioner is 01.01.1958 not to 02.01.1959.

[7] According to those respondents, the declaration of the date of birth in the Attestation Form was wrong and the scrutiny of this records, it has been found that, in the transfer certificate issued by the Headmaster, Teliamura H. S. School, the date of birth of the petitioner has been recorded as on 01.01.1958 but in the Declaration/Attestation Form furnished by the petitioner at the entry of the service, the date of birth has been given as 02.01.1959.

[8] It has been further asserted that from the transfer certificate bearing No.143 of 1975 dated 02.04.1975 issued by the Head Master, Teliamura H. S. School, it is found that the date of birth of the petitioner is 01.01.1958. Thus, the petitioner who was supposed to retire on 31.01.2019 was forced to retire in terms of the office order dated 10.12.2018. Except the said transfer certificate, it has been admitted by the respondents the other testimonials as submitted by the petitioner such as, citizenship certificate etc. the date of birth of the petitioner has been recorded as 02.01.1959. Those respondents have in Para-15 of the reply have averred that the respondent No.4 issued a letter to the Directorate of School Education, Education Department, Government of Tripura vide letter No.2-17(12)/Estt./For-1979/32,741-744 dated 11.01.2018 for confirmation of that genuineness of the transfer certificate where the date of birth has been recorded as on 01.01.1958. It has been further asked that such verification be made without further delay. After verification according to the respondents, the transfer certificate bearing No.143 of 1975 dated 02.04.1975 was found genuine as per the report of the District Education Officer, District Zonal Office, Khowai Tripura.

[9] According to the respondents, another certificate was issued in the year 1977 there also the date of birth has been shown as 01.01.1958, for which the letter was issued from the Deputy Conservator of Forest, Head quarters to the Additional Director, Directorate of Secondary Education (General Section -11), Government of Tripura to confirm the date of birth whether that was on 01.01.1958 or on 02.01.1959. The verification report, however, was indicated that the date of birth of the petitioner was 01.01.1958. The verification report has reached the Directorate of Secretary Education along with a copy of the transfer certificate issued by the Headmaster, Teliamura H.S. School. The Principal Chief Conservator of Forest in short „PCCF‟ was accordingly communicated. It has revealed from the said transfer certificate that the date of birth of the petitioner is 01.01.1958.

[10] On the said verification of the date of birth, the impugned action has been taken against the petitioner and according to the respondents there is no illegality as the petitioner has manipulated the date of birth in some certificates and managed to get the date of birth verified in the attestation form on the basis of false declaration at the entry to the service.

[11] Confronting with the said reply, the petitioner has been persuaded to file a rejoinder and in the rejoinder the petitioner has placed all the relevant testimonials including intra-departmental communication under No.F.2-3/Estt/Dist.F.O-KH/2015/15218-22 dated 17.01.2019, Annexure-16 to the writ petition. The said communication has been made by the District Forest Officer to the Deputy Conservator of Forest (EAP) by stating inter alia as follows:

Important Notable Points:-

1) In seniority list of 1985 published by the Forest Head Quarters, Agartala date of birth of Sri Keshab Chandra majumder, (Retd) Fr. is 02-01-1959.

2) In service record of 1989 date of birth of Sri Keshab Ch. Majumder, (Retd) Fr. is 02-01-1959.

3) Transfer Certificate issued by the Headmaster of Teliamura H/S School mentioning the date of birth of Sri Keshab Ch. Majumder, (Retd) Fr. Is 02-01-1959 but it seems that it is tempered by unknown person.

4) In Aadhaar Card, Pan Card, P.R.T.C date of birth of Sri Keshab Ch. Majumder, (Retd) Fr. is mentioned 02-01-1959.

It is pertinent to mention that School Admission Certificate which is main Certificate for date of birth mentioned that the date of birth of Sri Keshab Ch. Majumder (Retd) Fr. is 02-01-1959."

[12] Mr. Datta, learned counsel appearing for the petitioner having referred the various documents including the Citizenship Certificate, Aadhar Card etc. has submitted that the most important document which may be relied by this court is the report of the verification carried out by the Additional Director, Directorate of Secondary Education, Tripura as available in the communication dated 02.06.2018, Annexure-13 to the writ petition. In the said verification report, it has been categorically observed that on verification of the transfer certificate bearing No.143 of 1975 dated 02.04.1975 issued by the Headmaster, Teliamura H.S. School, Khowai Tripura was found „GENUINE‟ and the same verification report was communicated to the District Education Officer, District Zonal Office, Khowai Tripura.

[13] The petitioner‟s assertion in respect of the verification report dated 02.02.1975 has not been even denied by the respondents. But the respondents have contended that upon a subsequent inquiry on the transfer certificate bearing No.143 of 1977 A.D dated 18.03.1977 as issued by the Headmaster, Teliamura H.S. School, it was found that the date of birth of the petitioner is not 02.01.1959 but 01.01.1958. The said certificate has been confirmed by the Joint Director, Directorate of Secondary Education by a communication dated 02.08.2018 addressed to the Deputy Conservator of Forests (Headquarters), Annexure- O to the reply filed by the respondents.

[14] Mr. N. Majumder, learned counsel has tried to impress upon this court that a bare look at the admission certificate as has been relied by the petitioner would demonstrate that the said entries were manipulated and for that plea, he has tried to persuade this court to believe that the said certificate was manipulated. As such, no inference should be drawn on the basis of that certificate.

[15] Mr. Majumder, learned counsel has further submitted that, the respondents who have admitted candidly that on the basis of such report when the action was contemplated against the petitioner, no show cause notice was issued nor any opportunity was afforded to the petitioner for laying his defence or for placing the documents in support of the verified date of birth. It is surprising to note that the decision relating to abrupt retirement was transmitted to the petitioner on 10.12.2018 and on the very date, the order of retirement as challenged in this writ petition [Annexure-9] was issued by effecting the retirement of the petitioner from the service in the afternoon.

[16] Mr. Datta, learned counsel, while challenging the said action of the respondents has submitted that the said action is grossly illegal, inasmuch as the entire exercise has been carried out behind the back of the petitioner and without affording any opportunity to him. The petitioner has already placed a sheaf of documents in support of his contention that the verified date of birth i.e. 02.01.1959 is the actual date of birth and there is no valid reason to change or alter it.

[17] Mr. Datta, learned counsel was quite caustic while he was contending that it is not known to the petitioner who has placed the so called transfer certificate in the records of the petitioner. On the basis of that certificate, the respondents had carried out inquiry and on the basis of the purported report of the said inquiry, they have altered the date of birth of the petitioner for purpose of forcing him to retire on 10.10.2018. However, it is found from the reply that it was the petitioner who had placed the said transfer certificate for perusal of the respondents.

[18] Mr. Datta, learned counsel, however, has denied that the petitioner had placed the transfer certificate to the respondents. The petitioner has asserted that he did not have any knowledge who had placed the said certificate in the service record for verification of the respondents. In support of his contention, Mr. Datta, learned counsel has relied on few reports of the apex court starting from The State of Orissa Vs. Dr (Miss) Binapani Dei and Others reported in AIR 1967 SC 1269 where the apex court had observed that some preliminary inquiry was made, but the report of that inquiry was never disclosed to the concerned employee. The employer was asked to show cause why the altered date of birth should not be accepted.

But the order was passed without affording such opportunities to the employee. Thereafter the apex court has observed as follows :

" 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 aside the order of the State." [Emphasis added]

[19] In State of Punjab and Others Vs. S. C. Chadha reported in (2004) 3 SCC 394, the apex court has observed, inter alia, as follows:

"13. As observed by this Court in State of T.N. v. T.V. Venugopalan reported in (1994) 6SCC 302 and State of Orissa v. Ramanath Patnaik reported in (1997) 5 SCC 181 when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The view expressed in R. Kirubakaran case reported in 1994 Supp (1) SCC 155 was adopted.

In the instant case the higher secondary examination certificate was issued on 3-6-1962 which contained information that the date of birth of the respondent was only 19-6-1944. If the said certificate disclosed a wrong date, it is not explained by the respondent as to why he did not make any move to get it corrected at that point or on any one of the occasions when he sought and obtained employment in 7/8 public institutions. Merely because in 1994 an opportunity was granted to the government employees to get their date of birth corrected, that does not take away the effect of inaction and continued silence for more than three decades, which dehors laches on his part would seriously reflect on the bona fide nature of the claim itself. Even in the application made for employment in the year 1992-93 the date of birth was indicated, as noted above to be 19-6-1944. No contemporaneous document was produced to show that recording of the date of birth to be 19-6-1944 was wrong. Accepting the plea of the respondent would result in two public records, educational on one side and service on the other reflecting two different and conflicting dates of birth. Such anomalous situations are to be averted and not to be countenanced.

According to this court, in the context, this report does not have much to impact, but there are general principles in respect of limitation after which period the date of birth can be altered.

[20] Mr. Datta, learned counsel has pressed another decision of the apex court in State of Madhya Pradesh and Others Vs. Premlal Shrivas reported in (2011) 9 SCC 664 in the same line where the apex court has observed that in the matters involving correction of the date of birth of a government servant, particularly in the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to the date of birth, and if such a claim is made out in accordance with the procedure prescribed or consistent with the procedure as adopted by the department/the government concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again, this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of long years from his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights.

[21] It has been further observed that the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent- the employee, notwithstanding the fact that there was no specific rule and order, framed or made, prescribing the period within which such application should be filed. It is trite that even in such a situation, such application should be filed with a period which can be held to be reasonable. The apex court has observed that to circumvent is the rule, not to re-open after a lapse of quite considerable long time from the day of entering in the service.

[22] Mr. Majumder, learned counsel, has submitted that in the face of the verification report as gathered by the competent authority, it appeared to the respondents that the petitioner has played fraud on the official records and as such the impugned action has been correctly taken by the respondents.

[23] At this juncture, this court may like to refer the Fundamental (Fourth Amendment) Rules, 1979 whereby on altering the existing note-5 below Rule 56, the following note has been substituted:

"Note 5 - The date on which a Government servant attains the age of fifty eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller of Auditor General in regard to persons serving in the Indian Audit and Accounts Department, or an administrator of an Union Territory under which the Government servant is serving, if -

(a) a request in this regard is made within five years of his entry into the Government service;

(b) it is clearly established that a genuine bonafide mistake has occurred; and

(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union of Public Service Examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered the Government service."

[24] First of all, the narrow opening that has been brought about by the Note-5 is not for the employer but wholly for the employee. So for the employer is concerned, if they find out that a fraud has been exercised on the records at any point of time, the employer has a right to alter the said date of birth on the basis of "irrefutable record" and on observance of the principles of natural justice. A certificate of transfer cannot be treated as irrefutable record and when the source has been doubted by the respondents. Moreover, the petitioner has clearly stated that he has not placed the questioned document [the transfer certificate]. The respondents have failed to show from which source they had gathered that record. However, on verification when they found that the date of birth of the petitioner was not 02.01.1959 but it was 01.01.1951, they had a constitutional duty to follow the provisions of Article 311(2) of the Constitution of India by providing the petitioner reasonable opportunity to his version as the petitioner was bound to suffer serious prejudice. But the respondents did not bother to give such opportunity to the petitioner and issued the impugned order dated 10.10.2018 by forcing the petitioner to retire from the service on the same date i.e. 10.10.2018. In the considered view of this court, it is a case of complete denial of the principles of natural justice, and the action is manifest by arbitrary. Hence, such action cannot stand the scrutiny of law. Accordingly, the impugned order stands set aside.

[25] In the circumstances, the respondents are directed severally and jointly to give the petitioner pay and allowances till 31.01.2019 and to propose for the pension, by way of modification, on the basis of the last pay on 31.01.2019. It is needless to say all other retiral benefits which are related to the last pay would be accordingly determined and released to the petitioner. Such amount shall be released within a period of 4 months from the day when the petitioner shall produce the copy of this order to the respondents.

[26] However, if the respondents are so serious on exercise of fraud by the petitioner, they may prefer a departmental proceeding but such liberty can only be allowed to be exercised after payment of the pay and allowances as directed. Further, before such action is taken against the petitioner, the respondents shall be satisfied that the records falls within the category of "irrefutable records". For this purpose, the respondents may verify the other records including the notes as produced before this court during the final hearing.

[27] In terms of the above, this writ petition stands allowed. There shall be no order as to costs.

Needless to state that if any amount of pension and other benefits have been disbursed to the petitioner, it is to be deducted from the actual pay and allowances as to be paid to the petitioner as per the direction under this order.

Service records as produced by Mr. N. Majumder, learned counsel is returned.