R.A.Sharma - (1.) PETITIONER, who joined Life Insurance Corporation of India (hereinreferred to as L I.C.) in 1962 as Field Officer, has by means of this writ petition challenged the order of his retirement dated 18-12-1989, treating 23-9-1982 as his date of birth. PETITIONER, on the other hand, says that his date of birth is 23-9-1935, which was mentioned in his application for appointment submitted in 1962 before L.I.C. and is also entered in the High School certificate issued by the Board of High School and Intermediate Education U. P. Allahabad (hereinafter referred to as Board).
(2.) THE respondents have filed counter-affidavit and the petitioner filed rejoinder-affidavit in reply thereto. I have heard learned counsel for parties and the writ petition is being disposed of in accordance with the Rules of the Court. Grievance of the petitioner is that he has been retired after changing his date of birth without giving him any reasonable opportunity of being heard and in any case 23-9-1935, being the date of birth entered in the High School certificate issued by the Board, cannot be changed by the respondents and the retirement, as such, is illegal and without authority of law. Learned counsel for the respondents, on the other hand, argued that (i) the petitioner was given an opportunity of being heard, (ii) entry of date of birth in the High School certificate cannot be relied upon in absence of any other evidence and (iii) petitioner being workman has alternative remedy before Labour Court. In his application for employment before L.I.C. the petitioner mentioned 23-9-1935 as his date of birth. This date appears to have been accepted by the respondents while appointing the petitioner in 1962. But as the petitioner has not furnished High School certificate in proof of his date of birth, the respondents asked him from time to time to submit necessary proof. It was in 1977 that the petitioner submitted High School certificate before the respondents in which 23-9-1935 was entered as date of birth. It appears that the respondents had also written to the Secretary of the Board about petitioner's date of birth and in response there to the Secretary appears to have sent copy of U. P. Gazette dated 30-8-1957 in which High School result was published. In the Gazette, 23-9-1932 was mentioned as date of birth of the petitioner. After having received the aforesaid Gazette the respondents by letter dated 10-9-1984 (Annexure-9 to writ petition) informed the petitioner that 23-9-1932 has been recorded in the record, as his date of birth. Thereafter the respondent issued a notice dated 26-4-1985 calling upon the petitioner to show-cause as to why he should not be punished for misconduct of knowlingly mentioning wrong date of birth in his application for employment. The petitioner submitted his reply in response thereto. In connection with this enquiry it appears that the respondents again sought information from the Secretary of the Board, who by letter dated 3-10-1986 (Annexure-16 to writ petition) has informed the respondents that in tabulation register 23-9-1932 was entered as date of birth of the petitioner, but after verification his date of birth was changed from 23-9-1932 to 23-9-1935 and on that basis the High School certificate containing 23-9-1935 as date of his birth was issued to the petitioner. By order dated 10-1-1987 (Annexure-18 to the writ petition) the respondent held "the petitioner guilty to the extent of not responding to the various official communications addressed to him in connection with his date of birth which calls for stern action against him" and on that basis the petitioner was given warning. No finding was recorded in this order as to the correct date of birth of the petitioner and the petitioner was not punished and was not even issued warning for giving 23-9-1935 as date of his birth. It is apparent that on account of the aforesaid letter of the Board no action was taken against the petitioner, in pursuance of the aforesaid show-cause notice dated 26-4-1985 and the only thing he was found guilty of by order dated 10-1-1987 was that he did not respond to the various official communications in connection with his date of birth. It was not a charge levelled against him. In this connection it may also be mentioned that the date of birth was changed in 1984 as is clear from Annexure-9 dated 10-9-1984 whereas show-cause notice was issued in April, 1985 after changing the date of birth in the record and that too this notice was for punishment for having submitted wrong date of birth and as mentioned hereinbefore the petitioner was not found guilty even for this charge. It is thus clear that no notice and no reasonable opportunity of being heard was given to the petitioner before changing his date of birth. Supreme Court in the case of State of Orissa v. Dr. Binapani Dei, AIR 1967 SC 1269, has laid down that order changing date of birth, although administrative in nature must be passed consistently with rules of natural justice and alteration of date of birth without giving reasonable opportunity of being heard cannot be sustained. The same view was affirmed in the case of Sarjoo Prasad v. General Manager. AIR 1981 SC 1481.
(3.) ACCORDING to the Life Insurance Corporation of India (Verification of date of birth of employees) Instructions, 1970, copy of which has been filed by the petitioner as Annexure-SA-25 along with a supplementary affidavit, the date of birth of every employee of L.I.C. is required to be entered in the record after verification in accordance with the provisions of these Instructions. Paragraphs 4 and 5 of the Instruction, being relevant, are quoted below :- "4. (1) The date of birth of every employee of the Corporation shall be entered in the staff record by an order duly made in accordance with the provisions of these Instructions. (2) No order for entry shall be made except on the basis of a listed document relating to the employee concerned and unless the document demostrably pertains to the employee and the authority passing the order is satisfied that it is the most authentic, it has not been tampered with and it can be relied up on that it shows the correct date of birth of the employee. (3) Where, as on the date of these Instructions an entry has been made on a verification carried out on after 1st September, 1956 either on the basis of any of the proofs specified in Entry No. 1, 2 or 3 of the First Schedule or after examining such proofs but accepting any other listed document, such entry shall be deemed to have been made under these Instructions by an order of the competent authority. (4) Subject to the provisions of these Instructions, the entry shall be conclusive evidence of an employee's date of birth for the purpose of his service in the Corporation and notice of retirement of any other action on the basis there of shall be final. 5. (1) In any case where no entry has been made, or where entry has not been made under these Instructions the verifying authority shall take action for duly recording the date of birth of the employee in the staff record in accordance with these Instructions. (2) Every employee of the Corporation shall, as soon as he is called upon so to do, produce any of the listed documents that may be available in proof of his date of birth and comply with and obey all orders and directions which may be given to him in this behalf by any person or persons under whose jurisdiction, superintendence or control, he may, for the time being, be placed. (3) If out of the various listed documents the employee has in his possession or power two or more documents showing different dates of birth, or he has reason to believe that there exists or can be obtained any listed document showing a different date of birth, he shall inform the verifying authority of the discrepancy and produce all such documents as may be available and state which he believes show his true date of birth and the reasons for such belief. (4) If the verifying authority is not satisfied with the document of documents produced by an employee, it may direct the employee to produce any other listed document or it may itself arrange to procure any such document. (5) Where the employee has produced a single document being a document specified in Entry No. 1,2 or 3 of the First Schedule or where such employee has not studied upto such level as to obtain a document specified in Entry No. 1 of the First Schedule and has produced a document specified in Entry No. 4 or 5 and in either case there is not report nor does he contend that his date of birth is shown differently in any other listed document which may be available and there is nothing in the files of the Corporation to show any other date of his birth, the verifying authority may order that his date of birth be entered in the staff record on the basis of the document produced by him if it is satisfied with the document produced." Relevant extracts of the First Schedule of these Instructions are also quoted below : "Description of Document 1. Marticulation certificate of S.S.L.C. or in the case of any qualification recognised by the Central Government or equivalent to matriculation or S.S.L.C., the corresponding certificate therefore. 2. Certified extract from the records of the Board or Authority conducting the final examination in respect of the certificate referred to in Entry No. 1. 3. Gazette Notification in which the results of the final examination in respect of the certificate referred to in Entry No. 1 appeared." ACCORDING to these Instructions it is open to an employee to prove his date of birth by any one of the three documents specified in Entries 1, 2 or 3 of the First Schedule. Document specified in Entry No. 1 is matriculation certificate or its equivalent, recognised by the Government. High School certificate issued by the Board is the certificate which falls under the aforesaid Entry No. 1 and an employee of LI C. can prove his date of birth by High School certificate. As mentioned before in the proceedings against the petitioner the respondents made enquiries from Secretary of the Board about correctness of the date of birth in the High School certificate and the Secretary by letter dated 3-10-1986 (Annexure-16 to the writ petition) has verified 23-9-1935 as the correct date of birth of the petitioner. There was thus no justification for the respondent to change the date of birth of the petitioner in the service records from 23-9-1935 to 23-9-1932. Relying on the decision of the Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1996, learned counsel for the respondents has, however, argued that entry relating to the date of birth in the school register and the certificate though relevant under section 35 of the Evidence Act does not have evidentiary value to prove the date of birth of a person in the absence of the material on which the age was recorded and mere proof of the documents would not amount to proof of all its contents or correctness of the date of birth entered therein. The controversy before the Supreme Court related to the age of the candidates whose nomination papers were rejected by the Returning Officer under Representation of Peoples Act on the ground that they had not completed 25 years of age. Under Representation of Peoples Act the question of age of a candidate is to be decided as a fact both by oral and documentary evidence. The provisions in the Instructions referred to above, issued by L.I.C. are different, as under these provisions the date of birth of the employee is to be verified on the basis of one of the three documents specified in the Schedule appended to those Instructions and one of the documents is the High School certificate. As under the Instructions mode of proving the date of birth has been confined to one of three documents listed in the Entries 1, 2 or 3 of the Schedule, production of oral or any other documentary evidence is not permitted for proving the date of birth as long as specified documents are available. The principle laid down by the Supreme Court in the aforesaid case, as such, cannot be applied.;