Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
DR. (MISS) BINAPANI DEI & ORS.
DATE OF JUDGMENT:
07/02/1967
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
MITTER, G.K.
CITATION:
1967 AIR 1269 1967 SCR (2) 625
CITATOR INFO :
F 1968 SC 240 (8)
RF 1968 SC 292 (11)
R 1970 SC 150 (19)
D 1970 SC 158 (10)
E 1970 SC1896 (7)
RF 1971 SC 40 (11,12)
D 1971 SC 173 (7)
RF 1972 SC2185 (6)
F 1973 SC 205 (5)
R 1973 SC 834 (20)
MV 1973 SC 855 (43)
R 1974 SC 87 (11)
R 1975 SC 569 (3,4)
D 1975 SC2057 (9)
F 1976 SC 667 (4)
RF 1976 SC1207 (266)
RF 1977 SC1980 (14)
F 1977 SC2328 (42)
D 1978 SC 597 (32,59)
E&R 1978 SC 851 (66)
R 1979 SC 592 (37,39)
RF 1981 SC 136 (7)
RF 1981 SC 818 (19,26)
RF 1981 SC 873 (67)
R 1981 SC1481 (1)
R 1983 SC 75 (7)
RF 1985 SC1416 (100)
R 1988 SC 686 (12)
D 1988 SC1737 (87)
RF 1989 SC1038 (6)
R 1990 SC1402 (22)
C 1991 SC 101 (150)
RF 1991 SC1309 (3)
RF 1992 SC 61 (5)
RF 1992 SC1020 (12,17,25)
ACT:
Natural Justice- Government servant-Enquiry held into date
of birth-Report and evidence not disclosed-Opportunity to
meet evidence not given-Date re-fixed and compulsory
retirement ordered-order whether sustainable.
Constitution of India, Art. 226-High Court’s discretion to
go into questions of fact.
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HEADNOTE:
The first respondent joined the service of the State
Government in 1938. In 1961 the Govermment held an enquiry
into her date of birth. She was then asked to show cause
why a certain date should not be taken as her date of birth.
The report of the enquiry officer was not disclosed, and the
first respondent was not given an opportunity to meet the
evidence used against her. The Government refixed the date
of birth of the first respondent and ordered that she be
compulsorily retired. The first respondent then filed a
writ petition in the High Court which was allowed.
The State appealed
It was contended on behalf of the appellant State that (i)
the High Court in dealing with a petition under Art. 226 of
the Constitution ought not to have proceeded to determine
disputed questions of fact, (ii) & order refixing the date
of birth of the respondent was an administrative order and
the High Court had no power to sit in appeal over the
decision of the State authorities.
HELD : (i) Under Art. 226 of the Constitution the High Court
is not precluded from entering upon a decision on questions
of fact raised by the petition. Where an enquiry into
complicated questions of fact arises in a petition, the High
curt may in appropriate cases decline to enter upon the
enquiry and may refer the party claiming relief to a suit.
But the question is one of discretion and not of the
jurisdiction of the Court. No interference with the
exercise of the discretion of the High Court in the present
case was called for. [627 G]
(ii)Even an administrative order which involves civil
consequences must be made consistently with the rules of
natural justice. The person concerned must be informed of
the case of the State and the evidence in support thereof
and must be given a fair opportunity to meet the case before
an adverse decision is taken. In the present case no such
steps were admittedly taken; the High Court was therefore
right in setting aside the order of the State. [630 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 499 of 1965.
Appeal from the judgment and order dated May 6, 1964 of the
Orissa High Court on O. J. C. No. 254 of 1963.
Dipak Dutta Choudhury and R. N. Sachthey for the appellant.
Naunit Lal, for the respondents.
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The Judgment of the Court was delivered by
Shah, J. The first respondent who holds the degree of
M.B.B.S. of the Punjab University, the Diploma in
Gynecology and Obstetrics from the Madras University and the
Diploma in Obstetrics from the Royal College of
Obstetricians and Gynecologists of London was appointed on
June 12, 1938,.as Assistant Surgeon in the Orissa Medical
Service. At the time of her appointment by the Orissa
Government, the first respondent declared that her date of
birth was April 10, 1910. The first respondent claims that
her claim was supported by documentary evidence tendered by
her father which was verified and accepted and the birth
date was recorded in the Civil List and in the History of
Service of Gazetted Officers of the Government of Orissa
maintained by the Accountant General of the State. In the
normal course the first respondent would have been due for
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superannuation on April 10, 1965, after completing the age
of 55 years. But in consequence of a notification of the
State of Orissa dated May 21, 1963, the age of
superannuation was ,raised from 55 to 58 years in respect of
all Government servants who were to retire after December 1,
1962.
Some anonymous letters were addressed to the Accountant
General that the first respondent had misstated her age when
she was admitted to service of the State. After an inquiry
the first respondent was required to show cause why her date
of birth should not be accepted as April 4, 1907. The first
respondent submitted that her date of birth was correctly
recorded and that certain school record relied upon by the
State "was erased, altered or overwritten". By letter dated
June 27, 1963, the Government of Orissa determined the date
of birth of the first respondent as April 16, 1907, and
declared that she should be deemed to have retired on April
16, 1962, subject however to extension of service granted
from April 16, 1962 till the afternoon of July 15, 1963. By
this order the first respondent Who should have on her case
retired on April 10, 1968 was deemed to have retired on July
15, 1963.
The first respondent then applied to the High Court of
Orissa for a writ declaring that the order of retirement
passed by the State Government was contrary to law and
against the Constitution and principles of natural justice,
and that in any event the order was passed maliciously by
the Government to the prejudice of the first respondent, and
for a writ of mandamus or certiorari quashing ,the order
passed on June 27, 1963, and declaring the respondent to be
entitled to continue in service till April 10, 1968. The
first respondent claimed that the order made by the State
amounted to an order of compulsory retirement contrary to
the rules governing her service and was violative of the
principles of natural justice, that the same was arbitrary
and mala fide, that the order of retirement amounted to
punishment involving consequences such as loss
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of pay, status and deprivation of service and since it was
not made in consonance with Art. 31 1 of the Constitution,
the order was liable to be quashed as invalid.
The High Court held that the order declaring the first
respondent to be superannuated on April 16, 1962, on the
footing that her date of birth was April 16, 1907, amounted
to compulsory retirement before she attained the age of
superannuation and was contrary to the rules governing her
service conditions and amounted to removal within the
meaning of Art. 311 of the Constitution, and since the first
respondent was not given a reasonable- opportunity of
showing cause against the action proposed to be taken in
regard to her the order was invalid. The High Court did not
expression opinion on the plea of mala hides as it raised
questions of fact Which could not in the view. of the Court
appropriately be determined in a petition under Art. 226 of
the Constitution. With certificate granted by the High
Court this appeal has been preferred by the State of Orissa.
Counsel for the State raised two, contentions in support of
this appeal:
(1) that the petition raised disputed
questions of fact and the High Court should
not have decided those questions in a writ
petition; and
(2) that the order refixing the age of the
first respondent, was an administrative order
and the High Count had no power to sin in
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appeal over the decision of the State
authorities refixing the age of the first
respondent.
In our view these contentions are without substance.
It was the case of the first respondent in her petition
before the High Court that the State had arbitrarily fixed
her date of birth as April 16, 1907, and on that basis had
declared her superannuated before she attained the age of 58
years. On behalf of the State it was denied that the true
date of birth of the first respondent was April 10, 1910,
and that the authorities of the State had arbitrarily and
maliciously chosen to refix her date of birth. Under Art.
226 of the Constitution the High Court is not precluded from
entering on upon a decision on quests s of fact raised by
the petition. Where an enquiry into complicated questions
of fact arises in a petition under Art. 226 of the
Constitution before the right of an aggrieved party to
obtain relief claimed may be determined, the High Court may
in appropriate cases decline to enter upon that enquiry and
may refer the party claiming relief to a suit. But the
question is one of discretion and not of jurisdiction of the
Court. In the present case the question in dispute was
about the regularity of the enquiry and the High Court was
apparently of the view that the question whether the State
acted arbitrarily did not raise any
M2Sup.CI/67-11
628
question of investigation into complicated issues of fact.
No interference with the exercise of the discretion of the
High Court is therefore called for.
It is common ground between the parties that no enquiry in
accordance with the provisions of Art. 311 was made by the
State Government. It was the plea of the State in the High
Court that Art. 31 1 has no application to the case of the
first respondent, because she has not been dismissed or
removed from service. The State contended that the true
date of birth of the first respondent was April 16, 1907,
and she had been properly declared superannuated in
consonance with the finding arrived at in an enquiry, held
for that purpose by the State.
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 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.
The first respondent held office in the Medical Department
of the Orissa Government. She as holder of that office, had
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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
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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
authority to adjudicate upon matters involving civil
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 ’a person is made, the order is a nullity.
That is a basic concept of the rule of law and importance
thereof transcends the significance of a decision in any
particular case.
The State has undoubtedly authority 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.
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’
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School. After 6 correspondence the Admission Register was
examined by the first respondent in the presence of the
Director of Health services and the officers of the
Vigilance Department, and thereafter on March 19, 1962, she
wrote a letter pointing out the
630
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 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 Register; and (4)
the first respondent’s statement 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.
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 character, but even an
administrative order which involves 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.
The appeal therefore fails and is dismissed with costs.
G.C.
Appeal dismissed.
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