The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22396 of 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Guru Charan Swain …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : Mr. K. Pattnaik, Advocate For Opp. Parties : Mr. S. Jena, AGA PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 09.07.2024 and Date of Judgment: 09.07.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. K. Pattnaik, learned counsel for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging the order of punishment passed by Opp. Party No. 3 on 08.06.2022 under Annexure-9 so confirmed by Opp. Party No. 2 vide his order // 2 // dtd.30.06.2023 under Annexure-10. Vide the said order date of birth of the Petitioner was treated as 12.11.1959 in place of 02.01.1962 with a further condition that retirement and financial benefit will be allowed/sanctioned as per his date of birth as 12.11.1959. 4. Learned counsel for the Petitioner contended that Petitioner passed his HSC examination so conducted by the Board of Secondary Education in the examination held in the month of September, 1978 vide Annexure-1. In the said HSC pass certificate date of birth of the Petitioner was recorded as 02.01.1962. 4.1. It is contended that taking into account the date of birth recorded in his HSC pass certificate, Petitioner when entered into service as a PET in B.B. High School, Goda in the year 1980, in the service book annexed under Annexure-2, the date of birth of the Petitioner was also reflected as 02.01.1962. 4.2. It is contended that while so continuing in his service w.e.f. the year 1980 with his date of birth being taken as 02.01.1962, Petitioner for the first time was issued with a show-cause by Opp. Party No. 3 on 14.11.2019 vide Annexure-3. In the said show-cause, Petitioner was asked to submit his reply with regard to manipulation of his date of birth Page 2 of 11 // 3 // in the Govt. record as 02.01.1962, even though his date of birth is 12.11.1959. 4.3. It is contended that Petitioner though submitted his reply to the show-cause on 19.11.2019 under Annexure-4, but Opp. Party No. 3 not being satisfied with the same, initiated a proceeding against the Petitioner vide Memorandum dtd.06.12.2019 under Annexure-6 inter alia with the following charges:- “I. Violation of Odisha Govt. Servant Conduct Rules 1959. II. Violation of the Orissa Civil Service (CC&A) Rule, 1962. III. Dereliction of duties. IV. Misconduct. V. Negligence in duty.” 4.4. Learned counsel for the Petitioner contended that Petitioner though submitted his written statement of defence on 13.01.2020 under Annexure-7 and participated in the enquiry, but without supplying a copy of the enquiry report, the proceeding was finalized vide the impugned office order dtd.08.06.2022 under Annexure-9. Vide the said order Opp. Party No. 3 held the date of birth of the Petitioner as 12.11.1959 in place of 02.01.1962 and further held that Petitioner will be sanctioned with his retirement benefit by taking his date of birth as 12.11.1959. 4.5. Learned counsel for the Petitioner contended that since the proceeding vide Memorandum dtd.06.12.2019 under Annexure-6 was Page 3 of 11 // 4 // initiated under Rule 15 of OCS (CCA) Rules, 1962, the same could not
Decision
have been disposed of with passing of the impugned order on 08.06.2022 prior to providing a copy of the enquiry report to the Petitioner as provided under Rule 15(10) of the Rules. It is contended that after passing of the impugned order on 08.06.2022, Petitioner was provided with a copy of the enquiry report vide letter dtd.19.07.2022 so available under Annexure-6. 4.6. Learned counsel for the Petitioner contended that since prior to providing copy of the enquiry report along with 1st show-cause and issuance of the 2nd show-cause proposing the punishment, departmental proceeding was finalized vide impugned order dtd.08.06.2022 under Annexure-9, the same is not sustainable in the eye of law. 4.7. It is also contended that since in the HSC pass certificate so provided to the Petitioner under Annexure-1, the date of birth of the Petitioner was recorded as 02.01.1962 and the same date was also indicated as the date of birth in the service book of the Petitioner so opened in the year 1980, the order passed by the D.E.O. by taking the date of birth of the Petitioner as 12.11.1959 in place of 02.11.1962 is not sustainable in the eye of law, in view of the decision of this Court in the case of The Management of M/s. Tata Refractories Ltd. Vs. State of Odisha & Ors. (W.P.(C) No. 7252 of 2014) decided on 14.12.2022. It is Page 4 of 11 // 5 // also contended that placing reliance on the aforesaid decision of this Court in the case of The Management of M/s. Tata Refractories Ltd., this Court vide order dtd.12.04.2024 in W.P.C.(OAS) No. 50 of 2018 also held the date of birth recorded in the HSC pass certificate is to be taken as the date of birth for all purposes. The view taken by this Court in Para 5, 5.1 & 5.2 of the order dtd.12.04.2024 reads as follows:- “5. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that Petitioner while entered into service as a Peon, he had not passed the HSC examination and in the service Book so opened under Annexure-8, his Date of birth was recorded as 12.07.1948. But as found from the HSC Pass Certificate issued by the Board under Annexure-1 as well as Transfer Certificate issued by the School under Annexure-2, the date of birth of Petitioner is recorded as 12.07.1950. The said date of Birth was also recorded rightly in the Service Book opened in favour Page 8 of 9 of the petitioner under Annexure-4, after he joined as a Diaristcum- Typist on 15.02.1973. Placing reliance on the decision as cited supra, this Court is of the view that date of birth recorded in the HSC Pass Certificate is to be taken as the Date of birth for all purposes. 5.1. In view of the same, this Court is of the view that the date of Birth recorded as 12.07.1950 in Annexure-4 should have been taken as the date of birth of the Petitioner and he should have been made to retire on 31.07.2008 in place of 31.07.2006. 5.2. Therefore, this Court is inclined to quash the order dt.17.08.2006, so issued under Annexure-7 and consequential rejection available vide order dt.16.11.2006 and Annexure-15. Page 5 of 11 // 6 // While quashing the order available at Annexure-7 and Annexure- 15, this Court held the Petitioner to have continued in service till 31.07.2008. However, since the Petitioner has not discharged any duty for the period 01.08.2006 to 31.07.2008, he will not be entitled to get any salary for the said period. However, the pay of the petitioner be fixed on notional basis and pensionary benefits of the Petitioner be revised accordingly. After such revision of the pension and other pensionary benefits, differential amount be released in favour of the petitioner. The entire exercise shall be undertaken and completed by Opp. Party Nos.2 & 3 within a period of three (3) months from the date of receipt of this order.” 4.8. Learned counsel for the Petitioner further contended that challenging the order of punishment so passed by Opp. Party No. 3 vide order under Annexure-9, Petitioner though preferred an appeal before Opp. Party No. 2, but the appellate authority without proper appreciation of the grounds taken in the appeal while rejecting the same, confirmed the order passed by the disciplinary authority-Opp. Party No. 3. The appellate authority while rejecting the appeal passed the following order:- “i) The date of birth of the appellant is declared as 12.11.1959 instead of the manipulated date 02.01.1962 ii) The retrial benefit will be as per the declared superannuation date 30.11.2019 relying on the actual date of birth i.e.12.11.1959. iii) Recovery to be made for the over stayed period i.e. from 01.12.2019 to 31.01.2022 as per rule.” Page 6 of 11 // 7 // 4.9. Learned counsel for the Petitioner contended that since the proceeding was not conducted in accordance with the provisions contained under Rule 15 of the Rules and the date of birth of the Petitioner so recorded as 02.01.1962 was taken as 12.11.1959 in place of 02.01.1962, the impugned order is contrary to the decisions as cited (supra) and requires interference of this Court with quashing of the same. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 3. Though it is not disputed that taking into account the date of birth recorded in HSC pass certificate so available at Annexure-1, date of birth of the Petitioner was recorded as 02.01.1962 in the service book so issued under Annexure-2, but it is contended that Opp. Party No. 3 subsequently came to know that Petitioner has manipulated his date of birth in the year 2019. Accordingly, Opp. Party No. 3 issued the show-cause on 14.11.2019 under Annexure-3 asking the Petitioner to submit his reply as to why his date of birth will not be taken as 12.11.1959 in place of 02.01.1962. Even though Petitioner filed a detailed reply, but Opp. Party No. 3 on not being satisfied with the same, initiated a proceeding vide Memorandum dtd.06.12.2019 under Annexure-6. It is contended that in the said proceeding the Enquiry Officer while submitting the report vide letter dtd.03.07.2020 Page 7 of 11 // 8 // recommended to change the date of birth of the Petitioner from 02.01.1962 to 12.11.1959 and to lodge F.I.R. against the Headmaster and Office Asst. of Grameswar High School, Panchpalli. 5.1. It is contended that since in the enquiry so conducted by the Enquiry Officer, Petitioner was found guilty of the charges, Opp. Party No. 3 basing on the said report disposed of the proceeding vide order dtd.08.06.2022 under Annexure-9 and while so disposing Opp. Party No. 3 rightly take the date of birth of the Petitioner as 12.11.1959 in place of 02.01.1962. The appeal preferred by the Petitioner against such order was also duly considered by Opp. Party No. 2 and Opp. Party No. 2 while confirming the same vide order dtd.30.06.2023 under Annexure- 10 held the date of birth of the Petitioner as 12.11.1959 in place of 02.01.1962 and further directed that the date of superannuation of the Petitioner be taken as 30.11.2019 in place of 31.01.2022. The appellate authority further directed to recover the excess payment so drawn by the Petitioner for the period from 01.12.2019 to 31.01.2022. It is accordingly contended that the impugned orders have been rightly passed and it requires no interference. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner passed his HSC examination in the year 1978 and in the HSC pass certificate so Page 8 of 11 // 9 // issued by the Board of Secondary Education, Odisha under Annexure-1, date of birth of the Petitioner was recorded as 02.01.1962. In the service book opened under Annexure-2 on the joining of the Petitioner as a P.E.T. in the year 1980, date of birth of the Petitioner was also recorded as 02.01.1962. Only for the first time after around 39 years, a show- cause was issued by Opp. Party No. 3 under Annexure-3 inter alia on the ground that Petitioner has manipulated his date of birth as 02.01.1962 in place of 12.11.1959. 6.1. Even though Petitioner submitted a reply to the show-cause under Annexure-4, but Opp. Party No. 3 initiated a proceeding vide Memorandum dtd.06.12.2019 under Annexure-6. As found from the record, Petitioner without being provided with a copy of the enquiry report along with 1st show-cause as well as the 2nd show-cause proposing the punishment in terms of the provisions contained under Rule 15(10) of the OCS (CCA) Rules, 1962, was straight away imposed with the punishment by Opp. Party No. 3 vide order dtd.08.06.2022 under Annexure-9. Vide the said order Opp. Party No. 3 treated the date of birth of the Petitioner as 12.11.1959 in place of 02.01.1962 and with a further direction that retirement and financial benefit will be allowed/sanctioned by taking his date of birth as 12.11.1959. Page 9 of 11 // 10 // 6.2. The appeal preferred by the Petitioner before Opp. Party No. 2 was also rejected vide order dtd.30.06.2023 under Annexure-10 and the appellate authority while confirming the order passed by Opp. Party No. 3 held the date of birth of the Petitioner as 12.11.1959 and his date of superannuation as 30.11.2019 in place of 31.01.2022. While holding so, it is also directed to recover the excess payment drawn by the Petitioner for the period from 01.12.2019 to 31.01.2022. This Court after going through the materials placed, finds that Petitioner was never provided with a copy of the enquiry report along with 1st show-cause as well as 2nd show-cause proposing the punishment in terms of the provisions contained under Rule 15 of the Rules. Therefore, it is the view of this Court that the disposal of the proceeding with the punishment imposed vide the impugned order under Annexure-9 so confirmed vide order under Annexure-10 is completely vitiated because of such non- compliance of the statutory provision and it cannot sustain legal scrutiny. Not only that placing reliance on the decisions of this Court as cited (supra), this Court is also of the view that date of birth recorded in the HSC pass certificate is to be treated as the date of birth for all purposes. 6.3. In view of such analysis, this Court is inclined to quash order dtd.08.06.2022 so passed by Opp. Party No. 3 under Annexure-9 and further order passed by the appellate authority on 30.06.20223 under Page 10 of 11 // 11 // Annexure-10. While quashing both these orders, this Court allows the writ petition and dispose of the same accordingly. Orissa High Court, Cuttack Dated the 9th of July, 2024/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Jul-2024 18:17:28 Page 11 of 11