Dasarath Das vs Union of India (UOI) and Others

K. Lahiri, A.C.J.

Dasarath Das, the Petitioner has challenged the order of compulsory retirement rendered by the Divisional Superintendent (Personal), N.F. Railway, Tinaukia in this writ application under Article 226 of the Constitution of India.

The Petitioner was appointed as a Watchman by erstwhile Bengal Assam Railways with effect from 1.11.1945. In due course he was absorbed in the North Eastern Frontier Railways and promoted to the post of Travelling Ticket Examiner. In his Service Book his date of birth was recorded as 1.11.1925. In 1953 he came by a certificate issued by the Headmaster, P.D.U. High English School where his date of birth was recorded as 8.7.1927. He made representation to the Railway authorities, produced the requisite certificate to the then Divisional Superintendent for necessary rectification of his date of birth in his Service Book. The certificate was returned and the Petitioner assumed that it had been returned after necessary corrections of his date of birth in the Service Book. However, the Respondents continued to publish seniority lists from 1961 to 1980 showing the Petitioner''s date of birth as 1.11.1925. Thereafter, the Petitioner received the impugned letter from the Divisional Superintendent (Personnel), Respondent No. 3, stating that he would retire from service from the forenoon of 1.4.1981. The Petitioner claims that under Rule 2046 (F.R. 56 XXI) of the Railway Establishment Code, volume II the date of his compulsory retirement is the date on which he attains the age of 58 years. He claims that according to his school certificate his date of birth is on 8.7.1927 and he could be retired only on 8.7.1985 and not earlier as his been done by the impugned order. The Respondents were bound to correct the wrong date of his birth entered in his Service Book as he had produced the School Certificate. In the alternative, the Petitioner claims that he could not have been retired from service prior to 1.11.1983 when his date of birth was recorded in the Service Book as 1.11.1925. The Respondents do not contest that the age of his superannuation is the date on which he attains the age of 58 years. They also do not contest that the date of birth of the Petitioner was entered in the record of service as 1.11.1925. However, the Respondents claim that the Petitioner''s date of birth was altered to 5.3.1922 in accordance with the provisions of Rule 145 of the Railways Establishment Code, Volume I, As such, the common case of the party is that Petitioner on entering railway service, declared his date of birth on 1.11.1925 and the same was duly recorded in his Service Book. The Respondents claim that the date of birth contained in the service Book was altered from 1.11.1925 to 5.3.1922 by the Divisional Superintendent on the authority of an order palled by the Chief Commercial Superintendent (P).

WHEN COMPULSORY RETIREMENT AMOUNTS TO REMOVAL OR DISMISSAL AS CONTEMPLATED UNDER ARTICLE 311 OF THE CONSTITUTION?

Article 311 is a Constitutional protection given to Government servants who have title to office, against arbitrary and summary dismissal. It follows, therefore, that compulsory retirement before the age of follows, therefore that within the scope of Article 311 of the Constitution. Age of superannuation is common to all permanent civil servants which inevitably happens by passage of time unless ofcourse the employee dies earlier or resigns from the post. It does not depend on the discretion of the employer or the employee. Notwithstanding the rule fixing an age of superannuation, a person appointed to such a post acquires title to it. However, the same cannot be said of a compulsorily retirement person before the age of superannuation, Compulsory retirement is not an incident of the tenure nor does it work automatically - it is a mode of terminating the employment at the discretion of the appointing authority. Rule 2046 of the Railways Establishment Code is under the heading "Compulsory retirement", fixes the age of superannuation for different categories of service. The date of compulsory retirement of a Railway servant other than the Ministerial Service has been fixed as the date on which ''he attains the age of 58 years.'' It is thus seen that a railway servant acquires a lien to the post and does not lose it till he attains he attains the superannuation. It confers a title to the post with all the advantages appertaining to the post, and, ordinarily it comes to an end only on the incumbent attaining the age of Superannuation. The fundamental rule creates offices of stability and security. Therefore, the termination of service of such a servant can only be dismissal or removal for he will be deprived of his title to the office. Compulsory retirement on attaining the age of superannuation is neither dismissal nor removal nor a punishment. Compulsory retirement simplicity does not amount to dismissal or removal or reduction of rank to attract Article 311, if It is a compulsory retirement in accordance with the terms and condition of service. A railway servant has no right to continue beyond his age of superannuation, however, he has right to continue in service upto the age of superannuation. Compulsory retirement may amount to punishment where the order of compulsory retirement stipmatise the incumbent or it is made or the ground to misbehavior or incapacity of the employee. An order of compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned by the employee. The order of compulsory retirement, if arbitrary and malafide can be successfully challenged. An employee can successfully challenge the order of compulsory retirement if it is made in breach of the rules governing the service conditions.

The first contention of the Petitioner is that his age of superannuation is on 8.7.1985. The Petitioner joined railway service on 1.11.1945 and declared his date of birth as 1.11.1925. He came by a school Certificate in 1953 where his date of birth was recorded as 8.7.1927. There after he made a representation "to the railway authorities" and ho was called upon to produce the requisite certificate in 1961. Accordingly, he produced the school certificate. However, the same was simply returned on 7.3.1962. Thereafter, the seniority lists were published from year to year showing his date of birth as 1.11.1925. The Petitioner did not take any steps to correct his age recorded in his service book as required under the Rules. Under Rule 145(1) of the General Rules published in the Establishment Code, Vol. J, every person, on entering railway service-must declare his date of birth and the same is entered in the record of service. The procedure for alteration or correction of the date of birth is provided in Rule 145(3), which, we extract herein below:

Date of birth.

* * * *

(3) The date of birth as recorded in accordance with those rules shall be held to be binding and no alteration of such date shall ordinarily be permitted subsequently. It shall, however, be open to the President in the case a gazetted railway servant, and a General Manager in the case of a non-gazettcd railway servant to cause the date of birth to be altered-

(i) where in hit opinion it had been falsely stated by the railway servant to obtain an advantage otherwise inadmissible, provided that such alteration shall not result in the railway servant being retained in service longer than if the alteration had not been, made, or

(ii) where, in the case of illiterate Staff, the General Manager is satisfied that clerical error has occurred, or

(iii) where a satisfactory explanation (which should ordinarily be submitted within a reasonable time after joining service) of the circumstances in which the wrong date came to be entered is furnished by the railway servant concerned together with the statement of any previous attempts made to have the records amended.

It is seen that the date of birth entered in the Service Book of an employee is binding on the employers and the employees Ordinarily no alteration of such date is permissible once it is entered in the record of service. However, the President, in the case of Gazetted Railway Servants, and the General Manager in the case of non-gazetted railway servants may cause the date of birth to be altered under the circumstances set out in Clauses (i) and (ii) and (iii). According to the Petitioner his case does not fall under Clauses (i) and (ii). He is a non-gazetted railway servant and only the General Manager could alter his date of birth However under Clause (iii) the General Manager may alter the date where a satisfactory explanation is submitted within a reasonable time after joining service, of the circumstances in which the wrong date came to be entered was furnished by the railway servant concerned. In the instant case there is no material to show that the Petitioner ever submitted any application to the General Manager and/or any other competent person to alter his date of birth as recorded in his Service Book. It appears that the pensioner made no exercise at all to correct his date of birth. When the Petitioner noticed that his date of birth was corrected even after submission of his certificate, he should have taken action, which he did not do. There is no explanation, not to speak of satisfactory explanation, of the circumstances in which the wrong date came to be entered in his Service Books, Situated thus, we find that the Petitioner did not make any representation to the General Manager or other competent Authority to have his age altered in terms of Rule 145(3)(iii). Further submission of the school certificate was not made "within a reasonable time after joining service", No attempt was made by the Petitioner to alter his date of birth recorded in his Service Book even after the seniority lists were published, showing his date of birth as 1.11.1925. The certificate produced before us is also not a University certificate. Further, the certificate dated 5.7.1953 was obtained from a school in the then East Pakistan, As the Petitioner did not make any endeavour to have his name corrected as enjoined by Section 145(3) of the Rules and in view of latches, he is not entitled to any Writ of Mandamus or order of the like nature. Further in the absence of any explanation as to how and why the wrong date could be entered in his Service Book, which was endorsed by him, the question of issuing any direction to the Respondents to correct his age after 40 years of the entry in the Service Boot does not arise. Accordingly, the contention fails.

The next contention of the Petitioner is that his date of birth was duly recorded as 1.11.1925 as required under Rule 145 of the Rules and as such his date of superannuation is 1.11.1983 in terms of the provisions of Rule 2046 (F.R. 56(1)) of the Railway Establishment Code, Vol. II. The impugned order of retirement on 5.3.1980 was in breach of Rule 2046 (F.R. 56). Mr. A.R. Barooah, learned Counsel for the Respondents concedes that the Petitioner could not have been retired on 5.2.80 if the date of birth had been recorded as 1.11.1925. Learned Counsel fairly submits that if the date of birth recorded in the Service Book is 1.11.1925 the Petitioner could not be retired prior to 1.11.1983. However, Mr, Barooah, learned Counsel for the Railways submit that although the date of birth of the Petitioner had been recorded as 1.11.1925, it was altered to 5.3.1922 in accordance with the provisions of Rule 145 of the Establishment Code, Vol. 1. Learned Counsel fairly submits that the alteration was made under Clause (1) of Sub-rule (3) of Rule 145. Learned Counsel submits that the alteration could not have been done and was not done under Rule 145 (3)(ii) and (iii). Indeed the only provision which may be applicable in the instant case is Rule 145 (3)(i) extracted in paragraph s above. If we turn to Rule 145(3)(i), we find that the President of India in the case of Gazetted Railway Servants and the General Manager in the case of non-gazetted Railway servants could cause the date of birth altered. Admittedly, there is no such order of the General Manager altering the date of birth of the Petitioner, nor do we find any such order of any degatee of the General Manager. What we find in the Service Book is but a note made by the Divisional Superintendent stating, that the date of birth of the Petitioner was altered from 1.11.1925 to 5.3.1922, vide C.C.S, (P)''s letter No. 554E/291/ID dated 25.3.1981. There is no averment made in the affidavit of the Respondents that the date was altered by the General Manager, nor is there any averment that it was so done by any other competent person. We are, therefore, of the opinion that the alteration was not made by a competent person. Further, there is no order whatsoever by any authority or person that he was of the opinion that the date of birth had been recorded on the false statement made by the Railway servant to obtain advantage otherwise inadmissible. The competent authority could exercise the power and jurisdiction under Rule 145(3)(i) of the Rules only after the formation of opinion that the Petitioner had made a false statement at the time of recording his date of birth and that the false statement was made to obtain advantage otherwise inadmissible to the railway servant. Nothing could be produced before us by learned Counsel for the Respondents to show that there was any order from any authority holding that the Petitioner made a false statement about his date of birth and that it was so made to obtain an advantage otherwise inadmissible to him. The date of birth recorded under Rule 145(i) is binding on the employer as well as the employee, and no such alteration is ordinarily permissible. However, it may be altered by the General Manager and/or his delegates upon formation of opinion that the recording of the date of birth was the result of "false statement" by the Railway servant "to obtain an advantage otherwise inadmissible to him. In the absence of any order holding that the Petitioner had made a false statements that the date of birth was recorded in the Service Book of the Petitioner on the basis of false statement made by him to obtain an advantage not admissible to him the order of alteration must be declared illegal and invalid which we hereby do.

Further the alteration was made by a unilateral action of the Respondents. No notice or opportunity was given to the Petitioner. The Respondents are not precluded merely because of the acceptance of the date of birth of their employees in the Service Register from holding an enquiry if there exist sufficient reasons for holding such an enquiry and refixing his date of birth. The alteration of the date of birth in the Service Book is done by an administrative order. However, it involves civil consequences and, therefore, the order must be made consistently with the Rules of Natural Justice. An order of the Railways to the prejudice of an employee in derogation of his vested rights may be made, but only in accordance with the basic Rules of justice and fair play. The deciding authority is under a duty to hold the enquiry, give a person against whom the enquiry is held an opportunity to set up his defence and to controvert any evidence in the possession of the authority which is to be relied upon to his prejudice. For this purpose, the person must be informed about the case he is called upon to meet and to controvert the evidence in support of the case. The power to alter the date of birth is a power to decide and determine the question to the prejudice of the employee, and, naturally the corresponding duty of the authority is to act judicially-it is implicit in the exercise of such power. Besides, an order passed against an employee under Rule 145 obviously affects the railway servants adversely, as such orders result in pecuniary loss to the servant, These principles are called from-

Daud Ahmad Vs. The District Magistrate, Allahabad and Others,

Cooper v. Board of Works for the Wands worth District 14 CB (NS) 180;

Nakkuda Ali v. M.F. De. S. Jayaraine 1951 AC 66;

Ridge v. Baldwin (1963) 2 All ER 66;

Board of H.S. and Intermediate Education v. Ghanshyam Das Gupta (1962) Supp 3 SCR 36;

Kind v. Electricity Concurs (1924) 1 KP 171;

Province of Province of Bombay Vs. Kusaldas S. Advani and Others,

R.S. Kallolimath Vs. State of Mysore and Another,

State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, and

M. Gopalakrishna Naidu v. State of M.P. AIR 1968 SC 140.

In the instant case the date of birth was unilaterally altered without assigning any reason for the alteration. Further, the alteration was made without holding any enquiry and without affording any opportunity to Dasarath, the Petitioner, and admittedly the alteration was made to hit prejudice. As such, the alteration was made in breach of the principles of natural justice, and, accordingly it is quashed.

WHAT IS THE AGE OF RETIREMENT OF RAILWAY SERVANTS?

Originally the date of superannuation of Railway Servants was 56 years, On December 5, 1962, the retirement age of all railway servants was increased to 58 years. However, by a circular of the Railway Board, the age of retirement of ex-company employee like Dasarath, was reduced to 55 years. In Navnit Lal Manilal Bhat Vs. Union of India (UOI) and Others, the said circular was declared discriminatory and void by the Supreme Court. As such, the age of superannuation of the Railway employees stands at 58 years.

The recorded date of birth of the Petitioner, under Rule 2046 (F.R. 56), is 1.11.1925, and, accordingly his date of superannuation should have been 1.11.1983. However, by the impugned order Dasarath, the Petitioner, was compulsorily retired on 1.4.1981, which was in breach of Rule 2046 (F.R. 56). Accordingly, we quash the impugned order marked Annexure 2 and direct that Dasarath was entitled to be retained in service upto 1.11.1983, however, the date is long over. As such, Dasarath is not entitled to reinstatement but will be entitled to pay, allowances and other monetary benefits from 1.4.1981 to 1.11.1913. But, Dasarath has died on 13.11.1984. On his death his heirs and legal representatives were substituted. As such, we direct the Respondents to pay due salary, allowances and other monetary benefits to which Dasarath was entitled from 1.4.1981 to 1.11.983 to the heirs and legal representatives of Dasarath, who have since been impleaded as Petitioners in this writ application.

Mr. A.R. Barooah, learned Counsel for the Respondents realizing the predicaments of the heirs and legal representatives, of Dasarath informs the court that the payment will be made to them by the Respondents within 3 months from the date of receipt of this order. In view of the just and proper stance taken by Mr. Barooah, we do not award costs against the Respondents. In the result, the petition is allowed.