Nomal Ch. Bhuyan vs State of Assam and Others

N. Surjamani Singh, J.—Upon hearing the learned Counsel on both sides, it appears to me that the writ Petitioner, Shri Nomal Ch. Bhuyan made a prayer in this writ petition for a direction to the Respondents to recall or cancel the impugned memo/orders dated 7.1.93 issued by the Asstt. Inspector General of Police (T), Assam, Guwahati treating the day of retirement of the writ Petitioner as on 30.6.94 as in Annexure III to the writ petition, the order dated 5.5.93 issued by the Superintendent of Police, Kokrajhar, deciding the date of retirement of the writ Petitioner as on 30.6.94 as in Annexure IV and also the order dated 29.6.93 issued by the Superintendent of Police, Kokrajhar allowing the writ Petitioner to go on superannuation pension w.e.f. 1.7.94 FN as in Annexure V to the writ petition by contending inter alia that the writ Petitioner was initially appointed as Constable in the Assam Police Battalion on 1.1.95, that the Petitioner was later on promoted as Armed Branch Sub-Inspector and subsequently he was confirmed in the aforesaid post w.e.f. 10.7.79 and thereafter, he was again promoted to the post of Armed Branch Inspector w.e.f. 30.6.87 and at the relevant time he was as Armed Branch Inspector at Kokrajhar.

According to the writ Petitioner, his date of birth was recorded as 1939 in the related Service Record/Sheet. The factum of the correct date of birth is supported by the documents namely the office letter bearing No. PNB/R/88/209 dated 19.1.88 as in Annexure I issued by the Superintendent of Police, Nalbari to the effect that the date of birth of the writ Petitioner falls on/in the year 1939. The said Superintendent of Police, Nalbari, further furnished the service particular of the writ Petitioner showing the factum of his date of birth in the year 1939 which was made and highlighted long back in the year 1988. However, the writ Petitioner received a copy of the office letter/order dated 7.1.93 bearing Memo No. TAP/C/116/Pt-V/278 issued by the Asstt. Inspector General of Police, the Respondent No. 3 herein to the effect that his date of retirement falls on 30.6.94 and subsequently, another order of 5.5.93 as in Annexure IV was issued by the Superintendent of Police, Kokrajhar the Respondent No. 4 herein to the effect that the date of retirement of the writ Petitioner falls on 30.6.94 and lastly, the Petitioner has been allowed to go on superannuation pension w.e.f. 1.7.94 A.N. vide order dated 29.6.93 issued by the Superintendent of Police, Kokrajhar, the Respondent No. 4 herein as in Annexure- V to the writ petition to the prejudice of the writ Petitioner.

It is also the case of the writ Petitioner that the Respondents did not make any inquiry as required by SR 8 and did not give the Petitioner any opportunity of being heard before altering his date of birth, thus denying him the equal protection of law in complete violation of the Petitioner''s undamental Rights as granted under Article 14 of the Constitution of India. The writ-Petitioner went on to contend that, the impugned-orders of 7.1.93, 5.5.93 and also the order dated 26.6.93 as in Annexures III, IV and V are Violative of the principles of natural justice and that the same are liable to be set aside and quashed as the Respondents acted arbitrarily, illegally, unreasonably and whimsically in altering the date of birth of the writ Petitioner merely on the assumption of the fact that he joined the services on 1.1.55 and his age on that date was 19 years without making any proper enquiry as required under the law.

Being aggrieved by the action of the Respondents, the writ Petitioner approached this Court with this writ petition.

The case of the writ petition is contested by the Respondents through their conducting learned Counsel, Shri A.K. Sarma. But, the Respondents did not file any counter affidavit in support of their case.

At the hearing, Shri A.K. Bhattacharjee, the learned senior counsel assisted by his junior Shri K. Agrarwal, contended that a great injustice had been done to his client/Shri Nomal Ch. Bhuyan the writ Petitioner herein by the Respondents and that, the Respondents passed the impugned order of 7.1.93, 5.5.93 and 29.6.93 as in Annexures III, IV and V to the writ petition without any justification and that, the impugned orders are violative of the principles of natural justice. In support of the case of the writ Petitioner, Shri Bhattacharjee has drawn my attention to a decision of the Apex Court rendered in Smt. Naseem Bano Vs. State of U.P. and others, and contended that the statements and averments made by the writ Petitioner in his writ petition are not controverted by the Respondents by filing affidavit-in-opposition and therefore, this Court should proceed on the basis that the averments made by the writ Petitioner had been admitted by the Respondents. At this stage, I am of the view that it is an accepted principle of law that if the averments of a party is not controverted by the other party, the Court should proceed on the basis that averments had been admitted by the Respondents. But, in the instant case, those averments made by the writ Petitioner is controverted by the Respondents through their counsel Shri A.K. Sarma even though the Respondents did not file their counter affidavit to the writ petition. Therefore, the contention of Shri A.K. Bhattacharjee in this respect has little force.

Shri A.K. Bhattacharjee, learned senior counsel went on to contend, that the impugned orders are not tenable in the eye of law as the same were issued in complete violation of the principles of natural justice. On the other hand, Shri A.K. Sarma, learned Counsel for the Respondents contended that the principles of natural justice cannot be attracted in the instant case inasmuch as the Asstt. Inspector General of Police (T), the Respondent No. 3 herein, on his proper scrutiny of the service record/sheet of the writ Petitioner and also on perusal of the related documents, the Respondent No. 3 was of the opinion that the date of birth of the writ Petitioner initially written in the first page of the related sheet has been apparently tampered and subsequently written two different years of birth viz., ''1936'' and ''1939'' and similar discrepancy is found in verification roll also as seen in the document marked Annexure III. On the basis of the office letter/order issued by the Respondent No. 3, the Respondent No. 4/superintendent of Police, Kokrajhar, rightly issued the impugned order dated 5.5.93 and 29.6.93 as in Annexures IV and V treating the date of retirement of the writ Petitioner as on 30.6.94 and allowing the writ Petitioner to go on superannuation pension w.e.f. 1.7.94 A.N. and as such, there is no irregularity or infirmity in the related impugned orders, Shri Sarma contended.

Now, this Court is to see and examine whether the Respondents concerned had passed the impugned orders mentioned above in accordance with law or not.

It is an admitted position that the competent authority had entered the date of birth of the writ Petitioner at the initial state and on the basis of the available materials on record, the date of birth of the writ Petitioner falls on/in the year 1939 as seen in the related order of 19.1.88 and 26.4.88 as in Annexures I and II to the writ petition. But, subsequently, the date of birth of the writ Petitioner has been changed under the related impugned orders. It is also an admitted fact that the date of birth of the writ Petitioner has been altered and changed under the related impugned orders without serving any notice or without affording any reasonable opportunity of being heard to the writ Petitioner. 8. It is an accepted principle of law that violation of natural justice amounts to the decision void and violation of such principles, if exists/existed in the order passed in quasi-judicial proceeding by a competent authority, the Courts shall always invoke its extra-ordinary jurisdiction under Article 226 of the Constitution of India for quashing the said decision. In the book "Administrative Law", Prof. HWR Wade has said : "Where an administrative act or decision is initiated by a breach of natural justice, the Court may award any appropriate remedies. The remedy will frequently be certiorari to quash on the footing that the initiated decision is void and a nullity...."

Traditionally, natural justice has been confined to the two rules now to be discussed ; that a man may not be judged in his own cause; and that the main defence must always be fairly heard. It has not, as yet, included the requirement mat reasons should be given for decisions. On the other hand, there is an isolated judicial statement that natural justice requires decisions to be based on some evidence of probative value. The Courts are now so conscious of natural justice that they may well extend its scope in both these directions....

Further, in the same book, Prof. Wade has also stated:

How tar can this obvious principles of justice be transplanted from its native judicial soil into the territory of administration ? Can the Courts impose an administrative technique of their own devising by laying down standards, and are there any standards of universal validity ? The answer is, that the Courts have succeeded in enforcing the principles very widely, broadly speaking in all cases where legal rights or status are affected by exercise of administrative power saving only cases where the difficulty is insuperable; and that, accordingly, natural justice has become, a doctrine with a high degree of universality. It does not follow that it need be modelled strictly on Court procedure; hearing need not always be oral hearings, nor need sources of evidence always be disclosed. But in general, the notion of a fair hearing extends to the right to have notice of the other side''s case, the right to bring evidence and the right to argue.

Now, it has been revealed that once the date of birth of the writ Petitioner had been recorded by the competent authority and thereafter the same has been changed and altered under the related impugned orders without affording reasonable opportunity of being heard which involve civil consequence. It has also been further revealed, that no proper enquiry has been made by the competent authority for the purpose of altering or cancelling or changing the date of birth of the writ Petitioner. In my considered view, the impugned orders as in Annexures III, IV and V were passed by the Respondents concerned in complete infraction and violation of the principles of natural justice and accordingly, the same deserve to be quashed. At mis stage, I hereby recall the decision of the Apex Court rendered in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, wherein the Apex Court held, that even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. In another case amongst Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, , the Apex Court observed that if the date of birth of a public servant is corrected only on the basis of a report submitted by a Revenue Officer after holding enquiry, it will introduce uncertainty, in public services. Correction of the date of birth of public servant is permissible, but that should not be done in a casual manner. Any such order must be passed on materials produced by the public servant from which the irresistible Conclusion follows that the date of birth recorded in the service book was incorrect and as such, the Court or Tribunal should be more cautious because of growing tendency amongst section of public servants to raise such dispute without explaining as to why it was not raised earlier. But, in the instant case, the question of correction of date of birth of the writ Petitioner was not raised by the present writ Petitioner but such correction was done by the Respondents concerned without affording any reasonable opportunity of being heard to the writ Petitioner.

For the reasons and discussions made above, this Court need not go more into detail as this Court finds sufficient materials on record for coming to the conclusion that the impugned orders as in Annexures III, IV and V were issued by the concerned Respondents in complete violation of the principles of natural justice and accordingly, these impugned orders of 7.1.93, 5.5.93 and 29.6.93 as in Annexures III, IV and V are accordingly quashed.

On further perusal of the available materials on record, it has been further revealed that this Court, by an order dated 29.9.93 issued Rule and stayed the operation of the impugned order dated 29.6.93 as in Annexure V asking the Petitioner to go on superannuation w.e.f. 1.7.94 and that, the said stay/interim order issued by this Court is not yet modified or altered till date. Therefore, it shall be deemed that the writ Petitioner had been in service till the due date of his retirement by taking his date of birth as in the year 1939. Accordingly, I direct the Respondents concerned to pay the writ Petitioner the salary/allowances and other dues on and from 1.1.94 to 30.6.97 ; another sum of Rs. 10,000/- (Rupees ten thousand) being the amount sanctioned for withdrawal from GPF Account and his retirement dues after his retirement on and from 30.6.97 if not already paid, within a period of 2 (two) months from the date of receipt of this judgment and order.

With the aforesaid observation and direction, this writ petition is accordingly allowed. No cost. Interim order, if any, is hereby merged with this judgment and order.