Patna High Court
Md. Isa vs The State Of Bihar And Ors. on 12 January, 1998
Equivalent citations: 1998(1)BLJR564
Author: R.A. Sharma
Bench: R.A. Sharma
JUDGMENT R.A. Sharma, J.
1. Heard Counsel for the parties.
2. Being aggrieved by an order dated 5.2.1997, passed by the Executive Engineer, Mechanical Division (Irrigation), Chandil, district Singhbhum (respondent No. 4), as contained in Annexure-6, retiring him from the post of helper on 31.10.1997, the petitioner has filed this writ petition. His grievance is that his date of birth is 2.10.1949 and as such he is entitled to continue in service upto 2007.
3. The petitioner was employed in 1968. At the time of entering into service he was medically examined on the basis of which he was declared to be of 24 years old in 1968. His Service Book was also prepared and according to the petitioner, 2.10.1949 was mentioned as the date of his birth therein. As he was transferred from one place to another, his Service Book also followed him from place to place, but in the year 1995 it was discovered that his Service Book was not returned to Adityapur, to which place he was transferred. Apprehending foul play, he went on Dharna in 1995. Vide letter dated 25.4.1995, he was assured by the Superintending Engineer, Sawarn Rekha Bandh Anchal, Chandil (respondent No. 5) that attempts are being made to trace out his Service Book and if it was not possible to do so, the guilty person, who was responsible for its loss shall be punished. However, neither the Service Book was traced out nor any action was taken against the persons, who were responsible for its loss, and a duplicate Service Book was prepared in which 2.10.1939 has been mentioned as the date of birth of the petitioner on the basis of which the impugned order of retirement has been issued.
4. From the pleadings of the parties and the documents annexed there with, one thing is quite clear that the respondent authorities prepared the duplicate Service Book of the petitioner without consulting him and without giving him any opportunity of being heard. It also appears that they have also not taken into consideration the material available on their own records as well as the relevant circumstances. In this connection, it may be mentioned that at the time of entering into service in 1968, the petitioner was medically examined and a medical certificate was issued, in which it was mentioned that at that time he was 24 years of age. This fact was brought to the notice of the concerned authorities by the Executive Engineer, Mechanical Division, Balmikinagar, vide letter dated 9.1.1996, as contained in Annexure-'H' to the counter-affidavit, by which he objected to the date of birth of the petitioner as entered in the duplicate Service Book on the ground that it is contrary to the medical certificate, which was given in the year 1968 at the time of his entry into service. But no action has been taken on the basis of the said letter.
5. In paragraph No. 12 of the writ petition, it has been stated by the petitioner that at the relevant time the maximum age limit for appointment of a general candidate in the Government Service was 25 years and if the petitioner's date of birth is taken to be of 1949, he will be of about 19 years of age at the time of his entry into service and was thus entitled for appointment. It followed there from that if his date of birth is taken to be of 1939, he will be about 2.9 years of age at the time of his entry into service and as such he could not have been appointed in 1968. These averments made in the writ petition have not been denied in the counter-affidavit. This is an important aspect, which was not taken into account by the respondents while preparing the duplicate Service Book.
6. Learned standing Counsel No. I in this connection has stated that the duplicate Service Book of the petitioner contains his Thumb Impression and signature and, therefore, he cannot raise any objection to it now. This submission has got to be rejected. From paragraph No. 14 of the writ petition, it is clear that before the duplicate Service Book was prepared, the petitioner's signature and thumb impression were taken. This is also borne out from paragraph No. 17 of the counter-affidavit. Therefore, his signature and thumb impression on the duplicate Service Book are hardly of any value and he cannot be non-suited on this ground.
7. Any action by the Government or its officers, which is likely to adversely affect an employee, has to be taken only in accordance with the principles of natural justice. Change in date of birth or preparation of the duplicate Service Book does affect the employee adversely. Therefore, the respondents should have prepared the duplicate Service Book of the petitioner after giving him an opportunity to have his say. In the instant case the respondents have prepared the duplicate Service Book without any notice and without giving an opportunity to the petitioner to have his say in the matter.
8. The duplicate Service Book has been prepared without consulting the petitioner and without taking into consideration the relevant materials and the facts and circumstances of the case. It, therefore, cannot be sustained. As the impugned order is based on such a Service Book, the same has also to go.
9. The writ petition is, accordingly, allowed with cost, which in view of the facts and circumstances of the case is assessed at Rs. 5,000/- (rupees five thousand), which shall be paid to the petitioner within three months from the date of receipt/production of a copy of this judgment. The respondents are directed to prepare a fresh duplicate Service Book of the petitioner after giving him reasonable opportunity to have his say, within a period of three months form the date of receipt/production of a certified copy of this judgment. While preparing the duplicate Service Book the respondents, specially respondent No. 2, shall also find out the persons responsible for misplacing the Service Book of the petitioner and steps shall be taken to recover the cost awarded by this Court form those persons. The respondents shall also take suitable action against them.
10. Till the new duplicate Service Book is prepared question of reinstatement of the petitioner does not arise. It will depend upon the new Service Book prepared by the respondents. If it is found that his date of birth is of 1949, he will be reinstated and will be paid the pay and allowances and other consequential benefits from the date the impugned order was passed. It will be open to the petitioner to seek appropriate relief, regarding other grievance after the duplicate Service Book is prepared.