Nyamat Ullah vs Union of India

An order dated 04.08.1997 by which the petitioner has been compulsory retired form service is subject matter of challenge in this petition. The

circumstance sunder which this order came to be passed be noticed.

An exercise of the powers conferred under section 11 (1) of the central Reserve Police force Act 1949 read with CCS (CCA) 14 of Rules

1965, a departmental enquiry was ordered to be held. It was alleged that the petitioner when he entered into Government service suppressed his

actual date of birth. His actual date of birth is 01.06.1953. He mentioned his date of birth as 28.08.1951. It was stated that on account of this

factor he got into government service. This was considered to be an act prejudicial to the good order. Accordingly Article of charges were served

upon him. Sh. S.K. Singh, Asstt commandant, 143 Br. CRPF was appointed as inquiry officer. After inquiry was conducted a finding was

recorded that the date of birth of the petitioner was 01.06.1953 and not 28.08.1951. This inquiry report was examined by the Commandant. The

commandant took note of the fact that the petitioner had a long unblemished service, therefore, it would be apt to compulsorily retire him from

service with full pensionary service benefits. It is this order which is subject matter of challenge in this petition.

The facts which become apparent from the perusal of the objections preferred by the respondents is that order dated 04.08.1997 passed by the

Commander was reviewed. The reviewing authority was of the view that the petitioner should be removed form service and while removing from

service compassionate allowance not exceeding twothird of pension and gratuity under Rule 41(1) of CCS (Pension) Rules 1972 be allowed to

him. In the objections preferred, a statement or fact was made that some Annexure are being made part of the record. These are described as

Annexures R1, R2 and R3. As these were not supplied to the petitioner, he filed a CMP. This bears No. CMP No. 93D/2001. This was disposed

of vide order dated 30.10.2000. It appears that in pursuance of the order passed by this court, the order of compulsory retirement passed in Dec.

1997 has become available to the petitioner. This is made part of the record by preferring application bearing No. 21D/2001 Notice of this

application was given, but objections have not been filed.

So far as the assertion of the petitioner that he was not given opportunity before passing of the order or removal is concerned, the requisite

averments made in para 6 of the order are being noticed.

These read as under:

No. 690410447 ExHC Niyamat Ullah was given opportunity vide this office letter of even number dated 24.10.1997 to show cause as to way

punishment awarded to him by the commandant 134 Bn CRPF should not be enhanced to ""Removal from Service"". He was given 13 days time to

submit his representation but till date no reply has been received from him. It is obvious that he has nothing to state in his defence. Therefore, in

exercise of power conferred on the undersigned under 29(d) of CRPF Rule 1955, punishment awarded to ExHC Niyamat Ullah is enhanced from

'Compulsorily retirement' to removal from service w.e.f. 04.08.1997 i.e. from the date on which the charged HC was compulsorily retired"".

A perusal of this para indicates that the petitioner was given 15 days time to file reply. It is stated that the letter dated 24.1.1997 has been sent

to the petitioner. The question was not whether the letter was sent but the question was not whether the letter has been served on the petitioner or

not. The order does not indicate that the petitioner was served. Therefore, the order in question would remain an exparte order and would be

liable to be quashed.

The evidence which was marshalled against the petitioner was :

i. that there is no proof available on the record that at the time of recruitment to indicate that the actual date of birth of the petitioner was

01.06.1953 or is 28.08.1951;

ii. the delinquent had stated before the recruitment office that the had produced a certificate from the village chowkidar and according to this his

date of birth stood recorded as 28.08.1951;

iii. The school leaving certificate issued by the school authorities indicate the date of birth of the petitioner as 01.06.1953.

iv. the petitioner had sworn an affidavit indicating that his date of birth is 28.08.1951;

v. On the basis of the evidence noticed above, the Inquiry officer came to the conclusion that the School Leaving Certificate has to be relied upon.

The questions which were put by the Inquiry officer were required to betaken note of. The questions and answers are as under:

Q1. When you were recruited in CRPF at the time in which class did you read.

Ans : At that time I read in VIII (eight) class.

Q2. At the time of recruitment did you produce you D.O.B. certificate.

Ans: yes Sir, I produced my date of birth certificate issued by the village chokidar and not from school authority.

Q3. During the recruitment why you did not produce the certificate from School authority.

Ans: Since the school was closed I could not produce the certificate form school authority.

Sd/

No.690410447

HC Niyamat Ullah

Notwithstanding the stand taken by the petitioner. The inquiry officer recorded a finding that it is the date of birth as given in school leaving

certificate which is to be relied upon. After making this observation the finding was returned against the petitioner. This led to an order being

passed by the commanding officer dated 04.08.1997. The Reviewing Authority reviewed this order and converted this into removal from service

giving the benefit of compassionate allowance not exceeding twothird of pension and gratuity under Rule 41 (1) of CCS (Pension) Rules 1972

w.e.f. 04.08.1997.

The stand taken by the respondents be noticed.

The Stand taken by the respondents is that when the pay and accounts office was going through the service book it transpired that the date of

birth as recorded in the service book was 28.08.1951, whereas in the educational certificate in proof of his correct date of birth during the course

of his enrolment. There after the inquiry proceeded. It is submitted that the respondents took steps with a view to verify the date of birth from the

school authorities. It was found that the certificate given by the village chowkidar is incorrect. It is this factor, which led to a finding being recorded

against the petitioner. The resultant orders which came to be passed are indicated above.

Petitioner submits:

i. that he had never given any wrong information.

ii. that he did made available the date of birth duly verified by the village chowkidar;

iii. that the petitioner was forcibly recruited in the C.R.P. Force. This was the stand taken by giving answer to question No. 12;

iv. that the recruitment board never took objection to the certificate to furnished by the village chowkidar;

v. that the father of the petitioner was illiterate and was not aware of his date of birth;

vi. that if educational certificate was to be taken note of and if that was to be made the basis for the recruitment, then this should have been insisted

upon at the time of entry into service and not after the petitioner had completed 18 years of service;

vii. that in terms of Directorate clarification communication No. Sxii2/83 dated 24.06.1983 it was incumbent upon the respondents to have verified

the date of birth within five years of the entry of the petitioner in service. Having not done so the respondent authorities cannot turn around and

punish him in the manner done by them;

viii. that order of review passed by the reviewing authority by which the petitioner stands removed from service has been passed without affording

an opportunity of hearing and that it could not be given retrospective effect;

ix. The stand of the petitioner that this order of removal has been passed at the back of the petitioner is specifically taken in para 5 of the CMP

referred to above. This application was disposed of on 13.10.2000. The stand taken in the application was not rebutted by the Union of India.

If above' is the situation, then so far as the order dated 08.12.1997 is concerned, where by the order of compulsory retirement has been

converted into that the removal from service, cannot be sustained. 1stly, it is expert and 2ndly; it has been given retrospective effect. On both

counts this order cannot be sustained.

So far as the order of compulsory retirements concerned, there is nothing on the record and at least it is not apparent from the order

annexureP1 as to why the explanation given by the petitioner vizavis his date of birth as given by village chowkidar is not believable. A village

chowkidar is a functionary, which is governed by the rues framed under the land revenue Act. The certificate given by the village chowkidar is a

certificate issued by a functionary, which is duly recognized by the statutory rules.

A Kotwar's Book containing entries of births and deaths in village is an officials document and it was held to be admissible by a Division Bench

of Nagpur Marwadi Vs Jagoba Mahipat Kumbli, AIR 1937 Nagpur 264.

Equal importance was given to entry made in the daily diary of a Kotwal in another decision of the Nagpur High Court in case Mr. Bansi and

Others Vs Zamaji and others, AIR 01927Nagpur326.

Patna High Court expressed an opinion that a 'Hathchita of the Chowkidr containing date of birth of person is admissible in evidence. This

view was expressed by the Patna High Court in case Madho Sarna Singh Vs Manna Lai and others, AIR 1933 Patna 473.

In the case reported as Jalandhar Samal and Another V/s Malathi Dei and another, AIR 1971 Orissa 230 it has been observed that an entry in

Hathchitha Book of Chowkidar has great evidentiary value.

Even the entry made by Gram Sevak made in the register of Death and Birth is admissible in evidence. This view has been expressed by the

Petna High Court in AIR 1985 Pat 35, Mst Manni Devi Vs Ramayan Singh.

No doubt the entry in the school register are also admissible in evidence, but regarding this a word of caution was sounded by the Supreme

Court of India in case Brij Mohan Singh Vs Priya Brat Narain Sinha and others, AIR 1965 SC 282. It was observed that in actual life it often

happens that persons give false age of the boy at the time of his admission to a school so that actual life it often happens that persons give false age

of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum

age for eligibility is often prescribed. It was observed that court of fact cannot ignore this fact while assessing the value of the entry and it would be

improper for the court to base any conclusion on the basis of the entry.

In the present case the petitioner appeared before the officer, who was making recruitment. He produced certificate signed by the village

chowikidar. It was at that point of time and age of the petitioner should have been assessed. That officer must have seen the physical appearance

of the petitioner at that time and must have satisfied regarding the age of the petitioner. Later on placing reliance on the certificate issued by the

school authorities which was never brought on the record and without giving opportunity to the petitioner to contradict what was contained in the

school register, cannot be relied upon. If this be the position then the question arises as to whether the certificate issued by the village Chowkidar

could be rejected. If this was to be ignored, then there should have been given plausible reasoning. No such reason has been given.

Again the plea of the petitioner that he was not willing to join but was forced to join as other people were not coming to join is a plea which is

required to be taken note of. It was duty of the officer who recruited the petitioner to examine the date of birth. After 18 years the plea of equitable

estoppedl would step in.

In view of the above I am of the opinion:

i). that the certificate issued by the village chowkidar is to be treated as a certificate issued by a public servant,

ii). that if this certificate was to be rejected, then cogent reasons should have been given. As to why certificate issued by the village chowkidar is

not being relied and as to why the certificate issued by the school authorities is given preference, has not been explained.

In view of the above, this petition is allowed. The order dated 04.08.1997 which seeks to give preference to the school leaving certificate and

ignores the certificate issued by the village chowkidar is set aside. The petitioner shall be reinstated. He shall be given all consequential benefits

except monetary benefits. Monetary benefits he would get if he is able to establish that during the period this litigation was pending, he was not

gainfully employed elsewhere.

Disposed of accordingly.