INDI Vs. EXECUTIVE ENGINEER ELEC KEB

JUDGEMENT

(1.) HEARD Counsel.

(2.) THE petitioner in this case is an ex-employee of the Karnataka Electricity Board. He was originally recruited to service by the Mysore State Electricity Board in the year 1961 and his services were thereafter taken over by the Karnataka Electricity Board. According to the records of the Karnataka Electricity Board which had proceeded on the basis of the entries made in the records of the erstwhile Company, the petitioner's date of birth was recorded as 2.12.1938. Sometime in or about the year 1991, the petitioner produced a School Leaving Certificate in support of his contention that his medium of instruction has been 'Kannada'. A scrutiny of that Certificate disclosed that the petitioner's date of birth was recorded as 2.2.1932. THE Authorities therefore issued a show cause notice to the petitioner as they proposed to correct the records in question calling upon him to produce an extract of his correct date of birth. According to him, the authorities of the Bijapur Municipality stated that the records in relation to the original extract of births were not available. He therefore produced some other supportive evidence. THE authorities finally accepted the date of birth in the School Leaving Certificate and altered his date of birth from 2.12.1938 to 2.2.1932. On this basis, the petitioner was served with the notice of retirement which has been challenged by him in the present petition. Shortly after the petition was filed, the retirement order took effect and therefore, this Court did not grant any interim relief. THE petitioner has consequently retired and the learned Counsel submits that the only relief admissible to him at this stage would be a revision of the records whereby he would have to be treated as having been on duty up to the date on which he would normally have retired and whatever consequential adjustments are possible in relation to his salary etc. Petitioner's Counsel has submitted that the original date of birth as entered when the petitioner was recruited to service is the correct one and that the alternation or correction done by the authorities is not permissible. He has relied on a Decision State of Orissa v. Dr. Miss Binapani Devi Ors. In this unique Decision the Apex Court has laid down the salutary principle that the Rule of Audi Alteram Partem applies even with regard to administrative action, it was laid down that if an enquiry is to be held in relation to alternation of the candidate's date of birth, in the absence of a fair opportunity being afforded to the candidate in question, that the enquiry shall be bad in law. Petitioner's Counsel submits that in the present case, only a show cause notice was issued to him and he has submitted the documents in question in response to that, but that thereafter, if the date of birth was to be altered, that a formal enquiry ought to have been held and a form order should have been passed. He submits that the non-observance of this procedure vitiated the action.

(3.) THE petitioner's learned Counsel submitted that admittedly from the date of petitioner's original recruitment, the records did show his date of birth as 2.12.1938. Under these circumstances, he submits that the K.E.B. had already shown his date of birth as 2.12.1938 when the petitioner's services were taken over. Learned Counsel submits that these records have presumptive value insofar as the Court must assume that the correct date of birth was entered at the time when the petitioner was originally recruited. In support of this submission, learned Counsel has produced before me the original copy of the order served on the petitioner at the time when he was recruited into service whereby condition No. 7 very clearly specifies that proof of the date of birth is required to be furnished. It must therefore be assumed that such proof was in fact furnished and it was only on that basis that the original entry was made. If this is the position and if it is through no fault of the petitioner's that the records relating to his birth were not available in the year 1991 when the Municipality was asked to produce the same, the petitioner cannot be made to suffer from this.