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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. 626 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                             627 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 629 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. 631