IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 595 OF 2009 (Arising out of SLP [C] No.14191 of 2007)

Himachal Road Transport Corpn. & Anr. … Appellants

Vs.

Hukam Chand … Respondent

O R D E R

Leave granted. Heard.

2. When  the  respondent  entered  the  employment  of

appellant,  as  he  did  not  produce  any  documentary  proof

regarding his date of birth, his date of birth was entered

in  the  service record as  11.1.1948 on the  basis of his

affidavit  dated  4.2.1982  declaring  the  said  date  as  his

date of birth. As the age of retirement in the appellant

corporation was 58 years, the respondent was to retire on

31.1.2006, with reference to the said date of birth.  

3. On the basis of a complaint received, alleging that

the  real  date  of  birth  of  respondent  was  2.4.1945,  the

appellant  by  letter  dated  26.8.1994,  called  upon  the

respondent  to  produce  his  school  certificate.  It  also

secured a school leaving certificate from the school where

the respondent had studied, on 23.1.1995, which showed his

date of birth as 2.4.1945. Respondent was prosecuted by the

State for offences punishable under sections 420, 468 and

471 IPC in Cr. Case No.109-II/1998 on the file of the Chief

Judicial Magistrate, Kangra at Dharamshala. The prosecution

case  was  that  though  the  appellant’s  date  of  birth  was

02.4.1945,  and  his  school  records  showed  that  date  of

birth, he had given a false affidavit claiming to be an

illiterate born on 11.1.1948 to have a longer period of

service. After trial, the learned Magistrate, by judgment

dated 25.11.2002, accepted the prosecution case and held

the respondent guilty of having submitted a false affidavit

regarding age at the time of employment and sentenced him

to rigorous imprisonment for one year.  

4. The respondent submitted his pension claim papers on

3.3.2003 in the prescribed form, giving the details of his

family members and declaring his date of birth as 2.5.1945.

Acting  on  the  said  declaration  of  date  of  birth  as

02.5.1945,  furnished  by  the  respondent  voluntarily  and

unconditionally,  the  respondent  was  superannuated  from

service on 31.5.2003.  

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5. In the meanwhile, the respondent had challenged his

conviction in the criminal case, by filing an appeal. A few

months  after  his  retirement,  the  Sessions  Court,  by

judgment dated 1.9.2003, allowed his appeal, set aside his

conviction,  and  acquitted  him  by  giving  the  benefit  of

doubt.  The  respondent  thereafter  approached  the  HP

Administrative Tribunal alleging the employer had altered

his date of birth to his disadvantage, without holding any

enquiry,  merely  on  the  basis  of  a  conviction  in  the

criminal  case,  and  consequently,  prematurely  retired  him

from  service  on  31.5.2003;  and  when  the  appellate  court

held him not guilty, the basis for changing his date of

birth disappeared and he was entitled to be reinstated and

continued in service till 31.1.2006. The Tribunal allowed

the said application by order dated 12.9.2006 holding that

the respondent’s date of birth could not have been changed

to  his  disadvantage,  without  enquiry,  and  therefore,  he

ought to have been continued in service till 31.1.2006 with

reference  to  the  date  of  birth  earlier  entered.  The

Tribunal held that the respondent was entitled to salary

and  other  service  benefits  for  the  period  31.5.2003  to

31.1.2006. That order was confirmed by the High Court by

dismissing  appellant’s  writ  petition.  The  said  order  is

challenged in this appeal.

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6. The Tribunal and the High Court have proceeded on the

assumption that the appellant changed the recorded date of

birth of the respondent from 11.1.1948 as 02.5.1945 solely

on  the  basis  of  a  conviction  by  the  criminal  court  in

regard to false declaration of age, without any independent

enquiry.  It  is  true  that  the  criminal  court  found  the

respondent guilty of having concealed his date of birth and

furnished a false affidavit with wrong date of birth and

convicted on 25.11.2002. It is also true that there was no

‘enquiry’ before altering the date of birth in the service

record. But what was ignored by the Tribunal and the High

Court is the fact that the conviction in the criminal case

was not the only reason for the change of date of birth as

02.5.1945.  After  his  conviction,  the  respondent  had

submitted his pension claim papers on 03.3.2003, declaring

his date of birth as 2.5.1945 and date of retirement as

31.5.2003. It is relevant to note that he did not state

while making such declaration that he was giving the said

date of birth without prejudice to his contention that his

date  of  birth  was  11.1.1948,  nor  did  he  assert   that

02.5.1945 was not his actual date of birth, nor stated that

he was giving the altered date of birth without prejudice

to  his  pending  criminal  appeal.  There  was  thus  a

categorical  and  voluntary  declaration  and  admission  on

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03.3.2003  that  his  date  of  birth  was  2.5.1945.  The

appellant merely acted on the said declaration and request

and retired him on 31.5.2003. Compliance with principles of

natural justice, either by holding an enquiry or by giving

the employee an opportunity of hearing or showing cause, is

necessary, where an employer proposes to punish an employee

on a charge of misconduct which is denied, or when any term

or condition of employment are proposed to be altered to

the  employee’s  disadvantage  without  his  consent.  On  the

other hand, if there is an admission of misconduct, or if

the employee pleads guilty in respect of the charge, or if

the employee consents to the alteration of any terms and

condition of service, or where the employee himself seeks

the alteration in the conditions of service, there is no

need for holding an enquiry or for giving an opportunity to

the employee to be heard or show cause. Holding an employee

guilty  of  a  misconduct  on  admission,  or  altering  the

conditions  of  service  with  consent,  without  enquiry  or

opportunity to show cause, does not violate principles of

natural justice.   

7. In the circumstances, the Tribunal and the High Court

were  clearly  wrong  in  accepting  the  claim  of  the

respondent. The absence of enquiry before altering the date

of birth as 02.5.1945 did not affect the validity of the

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retirement  of  respondent.  Nor  did  the  acquittal  in  the

criminal appeal subsequent to his retirement, entitle the

respondent to claim that his date of birth should have been

treated as 11.1.1948 or that he should have been reinstated

and continued in service till 31.1.2006.  

8. We therefore allow this appeal, set aside the order of

the High Court and the Tribunal and dismiss respondent’s

application (OA No.85/2005) before the Tribunal.

___________________J. (R V Raveendran)

New Delhi; _________________J. February 3, 2009. (Markandey Katju)

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