Himachal Road Transp. Corpn. & Anr vs Hukam Chand

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 2

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.

3

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.

4

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 5

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 6

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)