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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: R.P. SHARMA

DATE OF JUDGMENT:       26/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The  respondent   a  Chief  Engineer  had  entered  the Government service on August 20, 1962 as Junior Engineer. In the M.P.  Civil List  published on July 1, 1964 his name was at Serial No.153 and his date of birth was mentioned therein as November 30, 1936. Equally, for the next year 1965 he was at Serial  No.162 and  the date of birth continued to be the same, i.e.,  as entered  in the record. It would appear that subsequently, the  service register  was not available; as a consequence, he  was called upon to produce the service book which he  did not  produce; instead, he supplied a photostat copy of  his date of birth certificate showing June 28, 1938 as his  date of  birth. The  report was  called for from the Secondary School  in which  the  respondent  admittedly  had studied which is placed at page 12 of Volume II of the paper book. The  report also shows that the school authorities had certified that  his date  of birth as November 30, 1936. His college certificate is also to the same effect. A report was called also  from middle  school in which the respondent had studied which is part of the record at page 105 of Volume II of the  paper book. Therein also, his date of birth is shown as November  30, 1936. He admittedly filed an application on August 31,  1978 for  sanction of  loan to  purchase a  car. Therein,  he   had  specifically   mentioned  his   date  of superannuation as  November 30,  1994. On the basis thereof, when  an  action  was  sought  to  be  taken,  he  filed  an application before  the Chief Minister for correction of his date of  birth. On the basis of that the Chief Minister made an endorsement  that his  date of  birth as  per the service record might be incorporated which was accordingly done.      It  would   appear  that  subsequently,  the  same  was withdrawn and  recorrected as June 28, 1938. One 5.5. Tiwari made a  complaint to  the Lokayukta  alleging fabrication of actual date  of birth of the respondent. The Lokayukta while conducting an  elaborate  enquiry  like  trial  of  a  suit,

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considered the  stand of  the respondent that he had studied in the  primary school  at Vikrampur  an his  date of  birth therein was  June 28, 1938 and also later his statement that he studied in Haryana for a part of time and the certificate thereunder produced  was also  considered, had  a  doubt  on authenticity of  the primary  school records.  The Lokayukta had sent  for opinion  of hand-writing expert and the report of the  hand-writing  expert  was  that  the  document  were fabricated by  the respondent. After elaborate consideration of the entire record, the Lokayukta had recorded the finding as under:      "To conclude,  I have no hesitation      in coming  to the  conclusion  that      the correct  date of  birth of Shri      Sharma is  30.11.1936  and  it  was      this  date   of  birth   which  was      declared and  entered originally in      the Service  Book  when  he  joined      service as Junior Engineer. Till at      least 1978 when Shri Sharma applied      for advance  for purchase  of a car      he acted  on the  footing that  his      date of birth is 30.11.1936. It was      at  some   stage  thereafter   that      taking advantage  of wrong  entries      in the  Gradation Lists Shri Sharma      started fraudulently  claiming that      his date  of birth is 28.6.1938 and      to  that  end  he  manipulated  and      altered the Service Book and got it      replaced by  a  photo  copy.  Later      Shri Sharma  manipulated to get the      Vikrampur School  Register  altered      by getting  a page  inserted  which      was originally  there. On the basis      of his  real  date  of  birth  Shri      Sharma  should   has   retired   on      30.11.1994. The  fraudulent conduct      of Shri Sharma continued even after      the fraud  was detected  and orders      Annexures   4   and   were   issued      respectively     31.5.1994      and      19.9.1994,   which    would    have      required   him    to   retire    on      30.11.1994. Shri Sharma then misled      the  Chief  Minister  by  filing  a      representation  on   the  basis  of      manipulation forged service book on      26.9.1994    and    succeeded    in      obtaining  a  favourable  order  on      14.11.94 (Annexure-6).  Shri Sharma      is guilty  of grave  misconduct  of      cheating, forgery  and using forged      documents and  continuing  to  earn      his salary  as Chief  Engineer  for      the period  after 30.11.94 to which      he was not entitled.           The Chief  Minister was misled      by  the   representation  of   Shri      Sharma and  committed a  mistake in      allowing it  but no  case was  made      out for  taking any  action against      him and,  therefore, no  notice was      issued to him. Similarly, the Under      Secretary only  complied  with  the

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    directions of  the  Chief  Minister      and he  was not in any way at fault      in issuing the order (Annexure-6)"      The  Lokayukta   made  his   recommendations   to   the Government to the following effect:           "In view of my finding reached      in para 8 above, my recommendations      are :      (A) The  Government  should  revoke           the   order   dated   14.11.94           (Annexure-6) and  retire  Shri           Sharma   with    effect   from           30.11.1994.      (B) Proceedings  be  taken  against           Shri Sharma  under Rules 8 and           9 of  the M.P.  Civil Services           (Pension)  Rules,   1976   for           withholding  his  pension  and           for recovering back the salary           paid to  him  for  the  period           after 30.11.94.      (C)  Criminal  case  be  registered           against him  for cheating  and           forgery or abetting forgery in           relation to  the Service  Book           and Vikrampur  School Register           and for  using as  genuine the           forged documents."      Based   thereon   and   they   being   bound   by   the recommendations, the  appellants corrected the date of birth of the respondent as November 30, 1936. The respondent filed the O.A. in the Administrative Tribunal. The Chairman of the Tribunal in  its  impugned  order  dated  30.12.96  in  O.A, No.859/95 concluded as under:      "The  applicant  could  be  retired      only after  the change  in the date      of  birth  in  the  service  record      after affording him an opportunity,      before doing so; which was not done      in the case probably presuming that      appearance of  the applicant before      the Lok  Ayukt in  the enquiry is a      sufficient   compliance    of   the      principles of  natural justice. But      actually the  enquiry  of  the  Lok      Ayukt  results  in  report  to  the      Government and  once the Government      accept the  report the  proceedings      for changing  the date  of birth in      the  service   book   has   to   be      undertaken and  during that process      a notice  had to  be given  to  the      applicant  and  after  hearing  his      submission  in  the  matter,  final      order has  to he  passed which  has      not  been   done  in   this   case.      Consequently it  is held  that  the      applicant shall  be  deemed  to  be      continued in  service from the date      he was  retired  and  he  shall  be      relegated to  the position which he      enjoyed on  the date of retirement.      He  is   also   entitled   to   all      consequential  benefits  which  may      accrue because  of the  continuance

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    in  service.   However,  the  State      shall  be   free  to  initiate  any      proceedings for  change in the date      of  birth   after   following   the      principles of  natural justice. The      applicant shall  all be entitled to      get  costs  of  Rs.500/-  from  the      respondents.     Application     is      allowed."      Thus, this appeal by special leave.      Shri Chowdhary,  learned Advocate  General of M.P., has contended that  the unimpeachable evidence on record coupled with the admission of the respondent in his loan application that  his   superannuation  date   is  November   30,   1994 clinchingly establishes  that the  correct date  of birth of the respondent is November 30, 1936 and the service register was found  now to  have  been  tampered  with.  Under  these circumstances, the  State Government  on the  recommendation made  by  the  Lokayukta  which  is  binding  on  the  State Government had corrected the date of birth. There is no need for; fresh  opportunity be  given to  the respondent  before correcting the  date of  birth. The  view of  the  Tribunal, therefore, was  not correct  in  law.  Shri  Madhava  Reddy, learned senior  counsel for  the respondent,  contended that though the  respondent had  an opportunity  to lead evidence before the  Lokayukta, the  report of  the Lokayukta was not supplied to  the respondent.  Since the  action taken by the State Government  pursuant to  the report  submitted by  the Lokayukta visits  with civil consequences, the principles of natural  justice   require  that   he  should  be  given  an opportunity before  an action  is taken  for correcting  the date of  birth. That  opportunity was  not given. Therefore, the view of the Tribunal was not incorrect in law.      Having  regard   to  the  respective  contentions,  the question that arises for consideration is: as to what is the correct date  of birth  on the basis of which the respondent requires to  be superannuated?  It is  seen that  his middle school certificate, secondary school certificate and college certificate clearly  show that his date of birth is November 30, 1936.  It is  seen that  he entered  into the service in 1962. His  gradation list  of 1964  and 1965 at the earliest point of time do indicate that his date of birth is November 30, 1936.  It would be obvious that these entries came to be made pursuant to the school certificate produced at the time of the  entry. His  service record  was opened  as  per  the secondary  and  college  record  produced  by  him.  In  his application dated  August 31,  1978 for grant of loan by the Government it was clearly admitted that he was due to retire from service  on November  30,1994. Thus, the finding of the Lokayukta that  his date  of  birth  is  November  30,  1936 remains unassailable  and unimpeachable. Obvious, therefore, Shri Madhava  Reddy did not make any attempt to tread on the path nor attempted to reply upon primary school certificate, the trump  card of  the respondent  which was  found  to  be fabricated. The service record was also found fabricated. As to who committed the fabrication of the date of birth is not material for  our purpose  since that is a matter to be gone into by  the criminal  court  consequent  on  receipt  of  a complaint now  lodged for  the forgery  etc. We,  therefore, refrain from  dealing with  it. The Lokayukta had admittedly given an  opportunity to  the respondent to lead evidence in that behalf.  After a full-fledged trial practically as in a civil Court,  the Lokayukta had conducted the enquiry, given full opportunity  and recorded  the findings.  The Lokayukla had the  report of  the hand-writing expert. On the basis of

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those  findings   now  action   has  been  taken  the  State Government. The only material relied on by Sri Madhava Reddy is the  withdrawal of  superannuation, on  November 30, 1994 due to  correction of  date of  birth as  June 28, 1938; the reasons are  not far  to seek.  Skillful political manoeuvre had given  edge to lodge back into service and the complaint of the Tiwari hooked him up at the spot with findings of the Lokayukta.      The question arises: whether a further opportunity need to be  given to  the respondent? In our considered view, the principles of  natural justice  cannot be  stretched to  the ridiculous edge  of opportunity at every stage. Lokayukta, a retired Chief  Justice  had  undertaken  full-fledged  trial whereat the  respondent had  been given ample opportunity to prop up  his best trump card and had given him report in the light of  the unimpeachable  evidence repeat  performance by the Government  in an empty ritual. The principle of natural justice must be pragmatically allowed fruitful play to meet. the  given  fact-situation.  When  the  respondent  had  the opportunity before  the Lokayukta  and had  adduced all  the evidence no further opportunity need to be given at the time of correcting  the date  of birth on the basis of the report submitted by the Lokayukla. It would, therefore, be seen the Tribunal was grossly in error in directing that he should be given an  opportunity afresh  before correcting  the date of birth.      The appeal is accordingly allowed with costs quantified at Rs.10,000/-  to be  paid  within  four  months  from  the receipt of  this order,  to the Supreme Court Legal Services committee .  On defaults,  it  would  be  recovered  by  the Committee as a decree.