Goswami, C.J. -
(1.) THIS Rule was obtained by the Petitioner who was first appointed on the 20th September, 3939 as an overseer in the Public Works Department, which is a non -gazetted post. He was promoted to a Gazetted post on 23rd December, 1952 and at the time of the application was the Superintending Engineer P. W. D. (R & B), in Shillong. The date of birth of the Petitioner as recorded in the service book which is produced before us is January, 1916, which the Petitioner states as 16th January 1916, perhaps, in view of Subsidiary Rule 8. According to the service record, therefore, the Petitioner is to retire on 16th January 1971 in accordance with Fundamental Rule 56. There was no doubt about his age until 29th December, 1964, on which date the Secretary to the Government wrote to him to furnish an attested copy of his Matriculation Certificate and, if the same was not available, he was asked to furnish the year of passing his Matriculation Examination, name of the school and centre of his examination and his roll number. The Petitioner replied to this letter stating that he had passed his Matriculation Examination of the Calcutta University In the year 1932 from Barpeta High School at Gauhati centre, but he did not remember his roll number.
(2.) IT appears that since the Petitioner could not furnish the original Matriculation Certificate or its attested copy, the Government got a duplicate of the same from the Calcutta University and also found the relevant entry regarding his passing the Matriculation Examination, with his age in the Calcutta Gazette dated 9th June. 1932. According to the information available from those records the Petitioner was 17 years 2 months on 1st March, 1932 as per his Matriculation Certificate, corroborated by the entry in the Calcutta Gazette. The Government wrote to the Petitioner on 15th April. 1965 as follows:
Please refer to the correspondence quoted above and to let this Department know whether your Matric Certificate is available with you. If so, an attested copy of the same may be furnished to this Department within 30th April -65.
Otherwise your date of birth will be calculated as per the age recorded in the Calcutta Gazette in which your result of Matric Examination was published.
We do not find any reply of the Petitioner to this letter. Nothing appears to have happened between this letter dated - 15th April, 1965 and May, 1969 in which month on 23rd May, 1969 the Government addressed a letter to the Accountant General altering the date of birth of the Petitioner in the service book to 1st January, 1915 instead of January, 1916. The letter reads as follows:
I am directed to say that the date of birth of Shri R. SC. Dutta, Superintending Engineer falls on 1st January, 1915, according to his Matriculation Certificate a duplicate copy of which has since been obtained by this Department from Calcutta University. Necessary correction (sic) this effect has been made in the Service Book where an attested copy of the certificate has also been placed.
A copy of this letter was forwarded to the Petitioner and it is mentioned therein that that was in continuation of another Government letter dated 10th April, 1969 a reply to which is still awaited". It is further mentioned: "According to his Matriculation Certificate, his date of birth falls on 1 -1 -1915 and as such, he will have to retire from service with effect from 1st January, 1970 (F. N) on attainment of 55 years of age". The order that is contained in this letter is being Questioned in this Rule.
It is contended on behalf of the Petitioner that the correction of his age in the service book was made without giving him a reasonable opportunity to show and establish his real age and as such the order is liable to be quashed, as the same has been done to his prejudice, compulsorily retiring him about an year earlier than it is due. Mr. Choudhuri the learned Counsel for the Respondent, draws our attention to the correspondence between the Petitioner and the Government, and particularly to the letters dated 15th April 1965 and 10th April 1969, the latter which the Petitioner denies to have received. Assuming that the Petitioner received both the letters and taking the entire correspondence between the parties into consideration, it is difficult to hold that the Petitioner was given a reasonable opportunity to establish his real age before the authority finally decided to correct his date of birth in: the service record basing on the Matriculation Certificate. That the r authority had the information's from the Calcutta University may be, said to be known, to the Petitioner. Whether this knowledge of the Petitioner that the authority had come to know about his age recorded in the Matriculation Certificate is sufficient to do away with any reasonable opportunity to the Petitioner prior to the Government taking action for correcting his service record?
In the letter dated 15th April, 1965, the Government let the Petitioner know if he could not furnish attested copy of the Matriculation Certificate the date of birth would be calculated as recorded in the Calcutta Gazette In which the result of the Matriculation Examination was published. From the above, it means that the Petitioner was asked to furnish the attested copy of the Matriculation Certificate within 30th April, 1965, failing which the date as recorded in the same shall be the determining age. This letter by itself cannot be a substitute for adequate opportunity to the Petitioner to establish his real age vis -a -vis the Matriculation In the letter dated 10th April, 1969 the Petitioner was asked to furnish the attested copy or duplicate of the Matriculation Certificate and also the documents on the basis of which his age was recorded in the service book, and it was staled therein that if However, you fail to produce the documents as aforesaid; your date of birth will be calculated on the basis of the age recorded in the Calcutta Gazette.
We do not think that even if this letter was received by the Petitioner, this would mean that he had adequate opportunity to establish his real age before the authority. It is also apparent that after this letter, no other correspondence took place between the parties and the impugned order was made on 23rd May, 1969 where it appears the Government was still awaiting reply to the letter dated 10th April, 1969. The Petitioner was therefore not given any reasonable opportunity to establish his age by giving evidence before the authority before it decided to act upon the age recorded in the Matriculation Certificate. This case is governed by the decision of the Supreme Court in State of Orissa v. Binapani Dei, : AIR 1967 SC 1269, and the following observations of the Court may be quoted.
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 discrepancies and to tender evidence about her, date of birth.
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."
This is exactly what was not done in the case of the Petitioner as well.
(3.) MR . Choudhuri relied on a decision of the Supreme Court in State of Assam v. M.K. Das, : AIR 1970 SC 1255 and another decision reported in Collector of Central Excise and Land Customs v. Sanwarmal Purohit, 1969 ALR (SC) 11 and lastly on the decision in State of U.P. v. Om Prakash Gupta, : AIR 1970 SC 679. In the last case, the following observations were particularly emphasised:
It is true that an enquiry under Section 240 of the Government of India Act, must be conducted in accordance with the principles of natural justice. But those principles are not embodied principles. What principle of natural justice should be applied in a particular case depends on the facts and circumstances of that case. All that the courts have to see is whether the non -observance of any of those principles in a given case is likely to have resulted in deflecting the course of justice.
In Mahendra Kumar Das case, : AIR 1970 SC 1255 the test that the Supreme Court applied was that the authority should not act upon any materials against the delinquent without affording him an opportunity to explain those facts collected against him. The Supreme Court held that this test was fulfilled in the case of the dismissed officer. Their Lordships observed:
If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such material has been relied on by the enquiry officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings are vitiated.
Having observed as above, the Supreme Court held that there was no warrant for the High Court to hold that there was "no doubt that the S. D. P. O. took into consideration the materials found by the Anti Corruption Branch....
The cases cited by Mr. Choudhury are therefore, clearly distinguishable and do not come to his aid.;