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It would appear that subsequently, the same was withdrawn and recorrected as June 28, 1938.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, 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
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
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 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.