The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14184 of 2020 An application under Articles 226 & 227 of the Constitution of India. ……………… Rabindra Kumar Sahoo …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. B. Routray, S.P. Nath, S.D. Routray, B.R. Pattanayak & M.M. Panda. For Opp. Parties : M/s.H.M. Dhal, Addl. Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing:24.04.2024 and Date ofJudgement:24.04.2024 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- // 2 // “(i) Admit the writ application. (ii) Call for the record. (iii) And after hearing the parties. (iv) Issue Rule Nisi calling upon the opposite parties to show cause as to why the Office order No.649 dated 30.05.2020 under Annexure-7 the Block Education Officer, Kendrapara (opp.party No.4) shall not be quashed. issued by (v) If the Opposite Parties do not show cause or show insufficient cause issue a writ in the nature of certiorari or any order/orders, appropriate writ/writs, direction/directions quashing Office Order No.649 dated 30.05.2020 under Annexure-7 the Block Education Officer, Kendrapara (opp.party no.4). issued by other (vi) Issue a writ in the nature of mandamus or any other writ/writs direction/directions directing the opposite parties more particularly the opp.party No.3 and 4 to reinstate the petitioner till his age of superannuation taking into consideration 15.03.1962 as the D.O.B as it is in Annexure-1 and consequentially service benefits to the petitioner. financial release and all And/or (vii) order/orders, any direction/directions as this Hon’ble Court deems fit and proper for the ends of justice”. other pass 3.1. It is contented that Petitioner on being duly selected and on being sponsored was appointed as a Regular Primary School Teacher vide order of appointment issued on 08.10.1991 by the then D.I., School, Pattamundai under Annexure-3-Series. Pursuant to the order issued under Annexure-3, Petitioner joined in the School in question on 09.10.1991 and the said date of joining was also indicated in the service book so annexed vide Annexure-3-Series. Page 2 of 23 // 3 // 3.2. In the service book so opened on 14.08.1992 vide Annexure-3-Series, the date of birth of the Petitioner was recorded as 15.03.1962, which is also the date of birth of the Petitioner recorded in the HSC pass certificate so issued by the Board of Secondary Education, Orissa under Annexure-1. In the HSC pass certificate so issued under Annexure-1, name of the Petitioner was indicated as Rabindra Kumar Sahoo, Son of Sukadev Sahoo with date of birth as 15.03.1962. 3.3. It is contended that while so continuing when Petitioner was issued with a show cause by Opposite Party No.4 on 28.11.2019 under Annexure-A/4 to the counter so filed by Opposite Party Nos.3 and 4, Petitioner on 03.12.2019 under Annexure-B/4 prayed for some further time to give his reply. Contents of the show cause issued on 28.11.2019 reads as follows:- “In inviting a reference on the letter and subject cited above, I am to inform you that some allegations have been received from different quarters against your Name, Date of Birth, Institution / School where you are reading etc. So, you are directed to submit your written statement in prescribed format / proforma directly in the office of the undersigned by 5th December, 2019. Failing which action will be taken again you. The deadline must strictly be adhered to”. 3.4. It is contended that after submission of the application dtd.03.12.2019 under Annexure-B/4, no further intimation was made to the Petitioner for submission of his reply. However, an enquiry was Page 3 of 23 // 4 // conducted by the B.E.O., Kendrapara-Opposite Party No.4 and an ex-parte report was submitted on 13.03.2020 vide Annexure-C/4. 3.5. It is also contented that after submission of such a report on 13.03.2020, a joint enquiry was conducted by the self-same BEO, Kendrapara-Opposite Party No.4 basing on the direction issued by the D.E.O., Kendrapara vide his letter dtd.29.05.2020. Opposite Party No.4 basing on such direction conducted the enquiry on 30.05.2020 and submitted the report on the very same date vide Annexure-D/4. 3.6. It is contended that neither in the enquiry conducted by the B.E.O., Kendrapara-Opposite Party No.4 where he submitted a report on 13.03.2020 under Annexure-C/4 nor in the joint enquiry report submitted on 30.05.2020 under Annexure-D/4, Petitioner was ever noticed or given an opportunity to participate in the enquiry in question. Both the reports were prepared and submitted unilaterally by the concerned authority without giving any notice to the Petitioner. 3.7. It is contended that basing on the joint enquiry report so submitted on 30.05.2020 under Annexure-D/4, Petitioner was issued with the notice of superannuation by the self-same Opposite Party No.4 on 30.05.2020 under Annexure-7. Vide the said notice Petitioner was intimated that Petitioner will be superannuated from his Page 4 of 23 // 5 // services on 31.05.2020 taking his date of birth as
Legal Reasoning
09.05.1960. Petitioner being aggrieved by such action of Opposite Party No.4, filed the present Writ Petition inter alia challenging the aforesaid notice of superannuation issued on 30.05.2020 under Annexure-7 proposing therein to superannuate the Petitioner w.e.f. 31.05.2020. 3.8. It is contended that in the services book so opened after joining of the Petitioner under Annexure-3-Series his date of birth was recorded as 15.03.1962 and it remained as such till the impugned notice was issued on 30.05.2020. In view of such recording of the date of birth, Petitioner should not have been made to retire prior to completion of the age of superannuation, which falls due on 31.03.2022. But Petitioner in terms of Annexure-7 was made to retire on 31.05.2020, which is around two years prior to his actual date of retirement. 3.9. It is also contended that not only Petitioner was made to retire prior to around two years of his actual date of retirement, but basing on the ex-parte enquiry report so submitted, a F.I.R was lodged against the Petitioner in Nikirei P.S. Case No.84 dtd.17.07.2020 for the offences under Sections-417, 420, 465, 468 & 470 of the IPC. 3.10. It is however contended that in the aforesaid P.S. Case, concerned I.O. after conducting the investigation submitted the final form on 26.02.2021 under Annexure-15, by holding that there is no sufficient Page 5 of 23 // 6 // evidence established against the Petitioner to file the charge sheet and the same has been accepted by the concerned Court. 3.11.
Legal Reasoning
Mr. S.D. Routray, learned counsel for the Petitioner accordingly contended that since prior to issuing the impugned notice of retirement, no enquiry was conducted by giving due opportunity of hearing to the Petitioner nor any proceeding was initiated against him at any point of time to prove the allegations that Petitioner has manipulated the date of birth or manipulated any record by suppressing any material fact, the action of the Opposite Parties in making the Petitioner to retire on 31.05.2020 in terms of the impugned notice dtd.30.05.2020 under Annexure-7 is not sustainable in the eye of law and Petitioner is eligible and entitled to continue till he attain the age of 60 years which falls due on 31.03.2022 with all service and financial benefits. 3.12. It is also contended that basing on the impugned notice though Petitioner was made to retire on 31.05.2020, but till date he has not also been extended with the benefit pension and other pensionary benefits. Petitioner till date has also not been sanctioned with provisional pension. 4. Mr. H.M. Dhal, learned Addl. Government Advocate for the State on the other hand basing on the counter affidavit so filed by Opposite Party Nos.3 and 4 made his Page 6 of 23 // 7 // submission. It is contended that Petitioner while continuing in terms of the order of appointment issued under Annexure-2, basing on the allegation made by an RTI activist, Petitioner was issued with the show cause on 28.11.2019 under Annexure-A/4. 4.1. Petitioner after receipt of the same vide his letter dtd.03.12.2019 under Annexure-B/4 prayed for some further time to file his reply. But thereafter basing on the letter issued by the Opposite Party No.3, an enquiry was conducted by Opposite Party No.4 and he submitted the report on 13.03.2020 under Annexure-C/4 holding therein that the Petitioner though entered into service with his name as Rabindra Kumar Sahoo, but Petitioner Rabindra Kumar Sahooo and one Duryodhan Sahoo are one and same person. The date of birth of Shri Duryodhan Sahoo being 09.05.1960, the date of birth of the Petitioner should also be taken as 09.05.1960 and accordingly Petitioner was made to retire on attaining the age of superannuation on 31.05.2020 with issuance of the notice on 30.05.2020 under Annexure-7. 4.2. It is also contended that subsequent to the enquiry report submitted on 13.03.2020 under Annexure-C/4 basing on the further direction issued by the D.E.O.- Opposite Party No.3, a joint enquiry was also conducted on 30.05.2020 by Opposite Party No.4. In the said joint enquiry it was also found that Rabindra Kumar Sahoo Page 7 of 23 // 8 // and Duryodhan Sahoo are one same person and the date of birth of Duryodhan Sahoo being 9.5.1960, the date of the birth of the Petitioner is to be treated as 09.05.1960. Accordingly Opposite Party No.4 submitted the report on 30.05.2020 vide Annexure-D/4. 4.3. It is also contended that since Petitioner has committed fraud by not disclosing his proper identity and date of birth, a FIR was lodged against the Petitioner alleging such fraud in Nikeria P.S. Case No.84 dtd17.07.2020. Learned AGA vehemently contended that since Petitioner has committed fraud by changing his name as well as date of birth, he has been rightly made to retire on 31.05.2020 basing on the notice on 30.05.2020 under Annexure-7. 4.4. It is also contended that since for the self-same allegation, a criminal proceeding has been initiated, it is not expedient on the part of this Court to extend any relief in favour of the Petitioner till disposal of the criminal proceeding. 5. Mr. Routray, learned counsel for the Petitioner on the other hand contended that in the criminal case so initiated, the I.O. since could not find sufficient evidence no charge sheet was filed as indicated in Annexure-15. View of the I.O. so reflected in Annexure-15 is reproduced hereunder: Page 8 of 23 // 9 // “Therefore, I returned the case as F.R. insufficient evidence and submitted F.R No.44 dt.26.02.2021 U/s.417/420/465/468/471 insufficient evidence and the Court and Hon’ble Court has been prayed to accept the F.F.”. IPC as F.R 5.1. It is also contended that since prior to taking such extreme step in making the Petitioner to retire on 31.05.2020 taking his date of birth as 09.05.1960, principle of natural justice was never followed and basing on the ex-parte enquiry report so submitted under Annexures-C/4 and D/4, Petitioner was made to retire on 31.05.2020, the said action of the Opposite Parties is not sustainable in the eye of law and it requires interference of this Court. 5.2. In support of the aforesaid submissions, Mr. Routray, learned counsel for the Petitioner relied on the following decisions:- (1) Sangita Kumari Sahu vs. State of Odisha & Others (W.P.(C)(OAC) No.3933/2016 disposed of on 13.09.2023, (2) Sankar Lal vs. Hindustan Cooper Limited and Others (2022), 6 SCC 211, (3) State of Odisha & Others vs. Manmath Kumar Biswal & Another (W.P.(C) No.4668/2013 disposed of on 13.07.2022, (4) State of Orissa vs. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 & (5) Dr. Purna Chandra Mohakud vs. State of Odisha & Others
Decision
(WPC(OA) No.829/2017 disposed of 17.07.2023. 5.3. In Sangita Kumari Sahu (supra), this Court in Para-4.4., 4.5., 4.6. & 7 has held as under:- Page 9 of 23 // 10 // “4.4. In State of Orissa vs. Binapani Das, Hon’ble Supreme Court in Paragraph-12 has held as under:- “12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. 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 administrative character, order which but even involves an 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. 4.5. In Ware House Corporation (supra), Hon’ble Supreme Court in Paragraph-14 has held as under:- 14. The appellant is a Corporation constituted under the Uttar Pradesh State Warehousing Corporation (Act 28) of 1956, which was subsequently replaced by the Central Act 58 of 1962. It is a statutory body wholly controlled and managed by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singh's case (ibid). The ratio of Sukhdev Singh's case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. The respondent was employed by the appellant Corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil Page 10 of 23 // 11 // should the that required respondent and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross- examine the witnesses relied upon by the appellant- Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. Managing Director, Uttar Pradesh vs Vinay Narayan Vajpayee on 16 January, 1980 in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court/ under:- as 34 has held 33 & 4.6. In the case of Mulia Patra (supra), this Court in Paragraph 33. From the materials available on record, it is apparent that the conduct of the Opposite Party No.3 reflects a sorry state of affairs. Though the proceeding against the Petitioner initiated under Annexure-4 was a proceeding under Rule-15 of the Rules, but the Petitioner was never provided with the documents as prayed for under Annexure-5 and thereby enabling him to file his written statement of defence. Not only that the enquiry report was also never supplied nor any show-cause was issued proposing the order of punishment if any. Therefore, the initial order of punishment passed by the Opposite Party No.3 on 10.06.2003 under Annexure-13 was set aside by the appellate authority by remanding the matter for fresh enquiry and disposal. The Opposite Party No.3 after such Page 11 of 23 // 12 // in following remand once again without the provision contained under Rule-15, proceeded with the matter and upheld the order of punishment passed on 10.06.2003 vide order dated 26.03.2013 under Annexure-19. From the aforesaid conduct of the Opposite Party No.3, this Court finds that the order of punishment has been passed in complete violation of the principle of natural justice. 34. Relying on the decision cited by Mr. Rath and the view expressed by the Hon’ble Apex Court, this Court has got no hesitation interfering with the office order dated 26.03.2013 passed under Annexure-19. While quashing the same, this Court directs that since the Petitioner has retired in the meantime, the Petitioner will be treated to have been continued in his service till his superannuation. While directing so, this Court further directs the Opposite Parties to sanction and disburse all service and financial benefits as due and admissible in favour of the Petitioner within a period of four months from the date of receipt of this order. In order to mitigate the hardship caused to the Petitioner, this Court while allowing the Writ Petition imposes a cost of Rs.20,000/- on the then Inspector of Schools, Keonjhar who have passed the initial order of dismissal on 10.06.2003 and the subsequent order on 24.03.2013. The aforesaid cost is to be recovered from the salary / pension of the said District Education Officer, Keonjhar. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, since it is found that Opp. Party No. 4 has passed the impugned order without issuing any show-cause and without following the principle of natural justice and that too basing on the allegation made by a private person, this Court placing reliance on the decision as cited supra is inclined the order dtd.25.10.2016 under Annexure-7. While quashing the same, this Court allows the Petitioner to continue in her service as usual”. to quash 5.4. In Sankar Lal (supra), Hon’ble Supreme Court in Para-21 has held as under:- “21. We do not think the appellant’s complaint over the dispute was belated so as to non−suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person Page 12 of 23 // 13 // for voluntary retirement, under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time the VRS benefit after accepting an of quantifying employee’s application the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age−correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latter’s service tenure and they ought not to be permitted to fall back on the Form “B” which would curtail the VRS benefit of the appellant”. 5.5. In Manmath Kumar Biswal (supra), this Court in Para-7, 8, 9, 10, 11, 12 & 15 has held as under:- “7. In Union of India v. Harnam Singh, (1993) 2 SCC 162, the apex Court lucidly explained the relevance of date Page 13 of 23 // 14 // of birth in the context of superannuation and the basic principles relating to correction or rectification of the same. 8. In Mohd. Yunus Khan v. U.P. Power Corporation Ltd., (2009) 1 SCC 80, the apex Court held that correction of date of birth as recorded in service book should not be normally done on the verge of retirement, since any such correction might adversely affect the service conditions of the employee. 9. In State of M.P. v. Mohanlal Sharma, (2002) 7 SCC 719, the apex Court held the date of birth recorded in Matriculation Certificate carries more probative value than that contained in a retired headmaster’s certificate or in a horoscope. 10. In view of the fact that the Service Book is opened taking in lightly Matriculation Certificate, considered, rather that should have been accepted. the date of birth entered that should not be into account 11. The ratio decided in Dr. (Miss) Binapani Dei (supra) is crystal clear that in case of dispute regarding date of birth in the Service Book, which is in custody of the Employer, a regular enquiry should be conducted by the Authority allowing a chance to Opposite Party No.1 to be heard. The same having not been complied with, there is gross violation of Principle of Natural Justice. the and Justice 12. In Shankar Lal (supra), the apex Court held that the action of the Employer lacking in authority of law on two counts. First, it fails for not adhering to the Principles of Natural decision not to follow the Service Book recordal was taken without giving an opportunity of hearing to the Appellant. The opportunity of hearing of the Appellant also accrued because the Employer themselves had proceeded on the basis that the later date i.e., 21st September, 1949, was the birth date of the Appellant and this was a long established position. Moreover, since in the own records of the Employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake crept in. The process would have had to involve participation of the Appellant, which would have been compatible with the principles of natural justice. There are several authorities in which the apex Court deprecated the practice on the Page 14 of 23 // 15 // part of the employees at the fag-end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. xxx xxx xxx 15. In view of such position, this Court is of the considered view that in the instant case since the Employer is the custodian of the Service Book, any change thereof, without affording opportunity of hearing to the Petitioner, with regard to his date of birth, cannot be sustained in the eye of law. In other words, if any change of date of birth is made at the level of the Employer, it has to be done in compliance of the Principles of Natural Justice. The same having not complied with, the corrected date of birth, i.e., 20.04.1954, as mentioned by the Employer, cannot be sustained. In any case, the Tribunal, while adjudicating the matter, observed that for noncompliance of Principle of Natural Justice by giving adequate opportunity of hearing to the Petitioner or without causing any fair and open inquiry, the action taken by the Authorities cannot be sustained, and such finding of the Tribunal was in consonance with the observations made by the apex Court in the case of Rabindra Kumar Barik v. State of Orissa, AIR 1988 SC 269”. 5.6. In the case of Binapani Dei, Hon’ble Apex Court in Para-9 to 12 has held as follows:- “9. The date of birth disclosed by the first respondent at the time when she entered service was accepted by the State. She claims that a statement was made by her father on that occasion relying on which the date of her birth was determined and entered in the service register, and thereafter the State sought arbitrarily to refix the date of her birth. In considering that plea the relevant Service Rules regarding superannuation may be noticed in the first instance. Rule 13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, sets out the penalties which may be imposed "for good and sufficient reasons" on a Government servant and the seventh penalty is "compulsory retirement". But the Explanation to the rule states that "compulsory retirement" of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a Page 15 of 23 // 16 // penalty within the meaning of the rule. Rule 459(b) of the Civil Service Regulations provides that officers, other than ministerial, who have attained the age of 55, should ordinarily be required to retire on completion of that age. By notification dated May 21, 1963, the age of superannuation was fixed at 58 in respect of all public servants who were to retire after December 1, 1962. 10. The first respondent held office in the Medical Department of the Orissa Government. She as holder of that office, had a right to continue in service according to the rules framed under Art. 309 and she could not be removed from office before superannuation except"for good and sufficient reasons." The State was undoubtedly not precluded, merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an enquiry if there existed sufficient grounds for holding such enquiry and for refixing her date of birth. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity of correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with involving civil authority consequences. It is one of the fundamental rules of our constitution 'setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be perform; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the tails of justice be ignored and an order to the prejudice of to adjudicate upon matters Page 16 of 23 // 17 // 'a person is made, the order is a nullity. That is a basic concept of the rule of importance thereof transcends the significance of a decision in any particular case. law and The State has undoubtedly 11. to compulsorily retire a public servant who is superannuated. But when that person disputes the claim he must be informed of the case of the State and the evidence in support thereof and he must have a fair opportunity of meeting that case before a decision adverse to him is taken. authority 12. In this background, the facts of the case may be reviewed. In. 1957 anonymous letters were received by the Director of Health Services that the first respondent had misstated her age, but no steps, were taken immediately to hold an enquiry. In 1961 some investiture was undertaken through the Vigilance Department. The Secretary to the Government in the Health Department on August 23, 1961 informed the first respondent that the Government of Orissa had information that when she was admitted into Class X in the Ravenousness Girl's School, her date of birth was 15 years, and when she was admitted into the First Year Class on July 9, 1924, her age was 17 years and 2 months, and she was required to show cause why May 9, 1907, should not be accepted as her date of birth on the basis of the entry in the Admission Register of the First Year Class. The first respondent submitted her explanation stating that she did not recollect if she had ever attended the Ravenous Girls' School. After 6 correspondence the Admission Register was examined by the first respondent in the presence of the Director of the Vigilance Health services and Department, and thereafter on March 19, 1962, she wrote a letter pointing out the irregularities in the entries relating to age in Ravenshaw Girls'. School Admission Register. The Additional Director of Family Planning Dr. S. Mitra was then asked to make a report. In his report Dr. S. Mitra largely relied upon a letter written by the Principal, Lady Hardinge Medical College, Delhi, that the birth date of the first respondent was April 4, 1908. In the course of the enquiry before Dr. S. Mitra the letter was shown to the first respondent but she declined "to make any comments thereon." Thereafter on September 28, 1962 there was a notice from the Secretary in the Department of Health stating that according to the, school Admission Register her date of birth was August 22, 1906, and according to Page 17 of 23 the officers of // 18 // the First Year Class Admission Register it was April 1907, and it was intended to treat the latter date as the date of her birth, and the first respondent was called upon to show cause why that date should not be accepted. The report which Dr. S. Mitra had submitted to the State was not disclosed to the first respondent. It may be recalled that there were four different dates before the State authorities ; (1)- the entry in the Ravenshaw Girls' School Admission Register showing the date of birth as August 22, 1906, (2) the entry in the Admission Register of the First Year Class showing the date of birth as some date in April, 1907; (3) the report of the Principal, Lady Hardinge Medical College, Delhi, showing the date of birth as April 4, 1908, as recorded in the Medical College Admission respondent's statement first Register; and supported by her father's statement at the time when she joined the service in 1938 giving her date of birth as April 10,1910. If an enquiry was intended to be made, the State authorities should have placed all the materials before the first respondent and called upon her to explain the discrepancies and to give her explanation in respect of those discrepant and to tender evidence about her date of birth. the (4) 5.7. Similarly, in the case of Dr Purna Ch. Mahakud, this Court in Para-7, 7.1 and 7.2. has held as follows:- “7. Having heard learned counsel for the parties and after going through the materials available on record, it is found that the petitioner entered into service as an Assistant Surgeon on 01.09.1981 and the service book was opened with due signature of the concerned authority dated 13.09.1982. In the service book the date of birth of the petitioner was recorded as 01.06.1955. This Court after perusal of the original service book also finds that no manipulation has been made with regard to the entry made by the authority showing the date of birth of the petitioner as 01.06.1955. No document has also been filed by the Opposite Parties in the counter or in the additional affidavit showing that the petitioner has any of role with regard to any manipulation. The stand taken by the opposite parties that the petitioner admits his date of birth as 01.06.1951 while giving his reply to Annexure-15 on the recording made in the pay slip issued by the Accountant General, the same cannot be taken as an admission, as the petitioner never produced the HSC pass Page 18 of 23 // 19 // certificate issued by the Board of Secondary Education showing his date of birth as 01.06.1951. But subsequently the petitioner after obtaining a duplicate of his HSC pass certificate produced the same before the authority and in the said certificate the date of birth of the petitioner has been recorded as 01.06.1951. Therefore, taking into account the entirety of the facts and the admission made by the Opposite Parties that the petitioner has no role with regard to the date of birth recorded in the service book as 01.06.1955, this Court is of the view that after allowing the petitioner to discharge his duty for more than 32 years, the authorities are not supposed to take a different view in absence of any cogent material available against the petitioner. 7.1. The admission made by the petitioner to the notice issued under Annexure-15 regarding recording of his date of birth as 01.06.1951 in the pay slip issued by the Accountant General cannot be treated as an admission. It is also found that while giving the reply to Annexure-15 the petitioner had never produced the HSC Certificate, so produced before the authority later, which has been annexed as Annexure-B/1 to the affidavit filed in Court today. Therefore, this Court is of the view that the very initiation of the proceeding against the petitioner vide Annexure-4 and consequential order passed under Annexure-11 are not sustainable in the eye of law as the said action has been taken by the authority after 32 years of service and after making the petitioner to retire vide the alleged notification dated 06.06.2014. Since manipulation has been made in the year 1982, no proceeding can also be initiated with regard to such allegation, after making the petitioner to retire vide notification dated 06.06.2014 in respect of an incident which admittedly relates to 4 years prior to the initiation of the proceeding in terms of the provision contained under Rule 7 of the OCS(Pension) Rules, 1992. 7.2. This Court in view of the aforesaid finding though is inclined to quash the proceeding as well as the order of punishment so imposed against the petitioner, but taking into account the fact that the petitioner while producing the duplicate HSC pass certificate admits his date of birth as 01.06.1951, this Court directs Opposite Party No.1 to calculate the pension and pensionary benefits by taking his date of retirement as 31.05.2011. However, no recovery can be effected either from the pension or from Page 19 of 23 // 20 // any other benefit which the petitioner entitled”. is otherwise 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner was duly appointed as a Primary School Teacher vide order of appointment issued on 08.10.1991 under Annexure-3- Series. Pursuant to the said order, Petitioner joined on 09.10.1991. Taking into account the date of birth recorded in the HSC pass certificate so annexed vide Annexure-1, date of birth of the Petitioner was recorded as 15.03.1962 and his father’s name was recorded as Sukadev Sahoo in the service book so opened on 14.08.1992. 6.1. Petitioner after such joining on 09.10.1991 was allowed to continue as such, till for the first time a show cause was issued on 28.11.2019 under Annexure-A/4. Petitioner after receipt of the show cause though prayed for further time to submit his reply on 03.12.2019, but thereafter without taking any further action as provided under law enquiry was conducted by the B.E.O.,- Opposite Party No.4 basing on the direction issued by the D.E.O.-Opposite Party No.3 with regard to the allegation made against the Petitioner by the RTI activist. 6.2. As found from the record in both the enquiry so conducted by the B.E.O.-Opposite Party No.4 with submissions of the report under Annexure-C/4 and D/4, Page 20 of 23 // 21 // Petitioner was never noticed nor any opportunity was given to him to participate in such enquiry. Basing on such ex-parte enquiry report so submitted under Annexure-C/4 and D/4, Petitioner was issued with the impugned notice under Annexure-7 on 30.05.2020, fixing his date of superannuation to 31.05.2020. Petitioner as found from the record was also never provided with the complaint, basing on which Annexure-A/4 was issued. Opposite Parties prior to taking the date of birth of the Petitioner as 09.051960, never initiated any proceeding nor followed the principle of natural justice, save and except issuing the show cause on 28.11.2019 under Annexure-A/4. 6.3. It is also found from the record that allegation of fraud so raised against the Petitioner with initiation of the criminal case in Nikirai P.S. Case No.84 of 2020 has no basis as while submitting the final form on 26.02.2021 under Annexure-15, the I.O. clearly indicated that Petitioner cannot be charge sheeted, as there is no sufficient evidence found against the Petitioner in course of enquiry. 6.4. In view of the aforesaid analysis, this Court is of the view that since the date of birth of the Petitioner so recorded in the service book under Annexure-3-Series is the date of birth recorded in the HSC pass certificate so issued under Annexure-1, the said date of birth should Page 21 of 23 // 22 // have been taken as the date of birth of the Petitioner for all purposes. In the HSC Pass Certificate the date of birth of the Petitioner is recorded as 15.03.1962, which is also the date of birth recorded in the service book. Since basing on the ex-parte enquiry report submitted under Annexure-C/4 and D/4, Petitioner was made to retire on 31.05.2020 basing on the impugned letter issued on 30.05.2020 under Annexure-7 by taking his date of birth as 09.05.1960, this Court placing reliance on the decisions as cited (supra) is of the view that the date of birth so recorded in the HSC pass certificate and reflected in the Service Book is to be taken as the date of birth of the Petitioner. Therefore, this Court is inclined to quash Annexure-7and held the Petitioner entitled to continue till he attained the age of superannuation, which falls due on 31.03.2022. 6.5. Since without any fault of the Petitioner, he remained out of employment for the period from 01.06.2020 to 31.03.2022 Petitioner will be eligible and entitled to get all service and financial benefits as due and admissible for the period 1.6.2020 to 31.03.2022. Not only that by holding the date of retirement of the petitioner as 31.03.2022, this Court held the Petitioner entitled to receive his retiral benefits as due and admissible. This Court accordingly directs Opposite Party Nos.3 & 4 to release all the benefits as directed Page 22 of 23 // 23 // hereinabove in favour of the Petitioner within a period of two (2) months from the date of receipt of this order. 6.6. Further, in order to enable the Petitioner to survive, this Court directs Opposite Party No.4 to sanction the provisional pension as due and admissible on receipt of this order immediately. Petitioner is permitted to provide a copy of this order before Opposite Party Nos.3 & 4 for compliance. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 24th April, 2024/ Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-May-2024 17:44:28 Page 23 of 23