Simanta Pradip Bora Vs the State of Assam and 3 Ors.

Heard Mr. K. Kalita, learned counsel for the petitioner. Also heard by Mr. B. Gogoi, learned Addl. Advocate General, Assam, appearing for the respondents.

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Page No.# 2/11

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2. The petitioner, by way of instituting the present proceeding, has presented a challenge to an order dated 04.12.2017, issued by the Deputy Commissioner, Golaghat, imposing upon the petitioner, penalties on conclusion of a departmental proceeding instituted against him.

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3. The facts, in brief, requisite for adjudication of the issue arising in the present proceeding is noticed as under:

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The petitioner, herein, had joined as a Lower Division Assistant in the establishment of the Deputy Commissioner, Golaghat, on 01.01.1989. It is projected in the written petition that the petitioner, while serving in such capacity, was required, vide the communication, dated 14.12.1993, to produce his original mark sheet and certificate of his educational qualifications from HSLC to graduation. It is further projected that the petitioner had submitted the original certificates pertaining to his educational qualifications to the designated authority in the establishment of the Deputy Commissioner, Golaghat. The petitioner contends that, basing on a suspicion arising with regard to the date of birth of the petitioner, an enquiry was initiated by the authorities. On conclusion of the enquiry, the petitioner, herein, was required to submit his original/duplicate copy of his HSLC pass certificate. It is also projected by the petitioner that he had submitted his duplicate copy of the HSLC certificate.

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Being not satisfied with the projection made by the petitioner of his date of birth; the Deputy Commissioner, Golaghat, issued a show-cause notice to the petitioner on 20.06.2012, requiring him to show cause as to why departmental proceedings would be not instituted against him for alleged manipulation of his date of birth in service records. The petitioner, basing on

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the allegations as set-out in the said show-cause notice, dated 20.06.2012, came to be placed under suspension vide an order, dated 20.07.2012, issued by the Deputy Commissioner, Golaghat. Pursuant to the said developments taking place; the Deputy Commissioner, Golaghat, as the disciplinary authority, proceeded to issue a show cause notice, dated 01.11.2012, to the petitioner under the provisions of Rule 9 of the Assam Service(Discipline and Appeal) Rules 1964, instituting a departmental proceeding against the petitioner.

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4(four) allegations came to be levelled against the petitioner in the said show-cause notice, dated 01.11.2012. The petitioner, herein, submitted his written statement of defence on 04.04.2013. The written statement of defence submitted by the petitioner not being found to be satisfactory, an enquiry came to be ordered in the matter by the disciplinary authority of the petitioner. Accordingly, an enquiry was conducted and on conclusion of the same, the enquiry officer submitted his enquiry report on 05.11.2015 and therein, concluded that the charges framed against the petitioner vide the show-cause notice, dated 01.11.2012, stood established.

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The petitioner submitted his representation against the enquiry report on 18.12.2015. The disciplinary authority, thereafter, on consideration of the matter, proceeded vide order, dated 04.12.2017, to impose penalty upon the petitioner. The penalty imposed upon the petitioner was withholding of one annual increment with cumulative effect. Further, the petitioner's date of birth was determined as 01.09.1959 and accordingly, he was required to proceed on superannuation with effect from 01.09.2019.

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Being aggrieved, the petitioner, herein, has instituted the present writ

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petition presenting a challenge to the said order, dated 04.12.2017.

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4. Mr. Kalita, learned counsel for the petitioner, has submitted that the petitioner, herein, had not manipulated his date of birth recorded in his service records. The learned counsel has further submitted that the date of birth of the petitioner was so recorded in his service book by the competent authority of the department basing on the certificate produced by the petitioner from the school wherein he had appeared for his matriculation examination.

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5. Mr. Kalita, learned counsel, has submitted that the date of birth of the petitioner in terms of the recording made in this connection in the school records works out as 01.09.1962. Accordingly, his service records also reflected his date of birth as 01.09.1962. Further, the learned counsel has submitted that in all governmental documents like Identity Card issued to the petitioner as well as in his driving licence, his date of birth has been duly recorded as 01.09.1962. The learned counsel has also submitted that the respondent authorities, basing on a perverse and misdirected enquiry, initiated for ascertaining his date of birth; had proceeded to conclude that the date of the birth of the petitioner is 01.09.1959 and accordingly, the departmental proceedings in the matter came to be instituted against the petitioner herein. Mr. Kalita, learned counsel, has further submitted that all relevant documents pertaining to the educational qualification of the petitioner, herein, including his original HSLC certificates were submitted with the designated authority in the establishment of the Deputy Commissioner, Golaghat. Accordingly, the plea taken by the respondents that the petitioner had not produced any document to justify his date of birth as 01.09.1962, would not mandate an acceptance.

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6. Mr. Kalita, learned counsel, has further submitted that in the enquiry held, the enquiry officer had placed a reliance on documents which were procured behind the back of the petitioner, more particularly, the clarification issued with regard to the date of birth of the petitioner by the authorities of the Board of Secondary Education, Assam. The learned counsel by referring to the order, dated 04.12.2017, has submitted that the one of the penalties imposed upon the petitioner is with regard to determination of date of birth as 01.09.1959 and with a further direction to the petitioner to proceed on superannuation with effect from 01.09.2019. The learned counsel has submitted that the respondent authorities, at the fag end of the career of the petitioner; had proceeded to alter the date of birth so recorded in his service book which is contended to be impermissible. Mr. Kalita, learned counsel, has further submitted that no material having come on record in the enquiry to demonstrate that it was the petitioner who had manipulated his date of birth in his service records, the penalty as imposed upon the petitioner of withholding of one annual increment with cumulative effect was impermissible to be so imposed upon him.

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7. In the above premises, Mr. Kalita, learned counsel, has submitted that the order, dated 04.12.2017, would call for an interference by this Court with consequential service benefits flowing to the petitioner on account of such interference.

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8. Mr. Kalita, learned counsel for the petitioner, has further submitted that this Court would be pleased to direct the respondent authorities to deem that the petitioner had continued in his services by reckoning his date of birth as 01.09.1962 and to release to the petitioner his salaries for such period beyond 01.09.2019.

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9. Per contra, Mr. Gogoi, learned Addl. Advocate General, Assam, has submitted that the materials coming on record in the enquiry had demonstrated that the date of birth of the petitioner prior to 1994, was recorded in his service records as 01.09.1959 but subsequently after 1994, it was found that the date of birth of the petitioner was altered and recorded as 01.09.1962. Mr. Gogoi, learned Addl. Advocate General, Assam, has further submitted that the petitioner had failed to justify as to how he had projected 01.09.1962 to be his date of birth, inasmuch as, the records maintained by the Board of Secondary Education, Assam, had clearly revealed that the date of birth of the petitioner was recorded in his HSLC records as 01.09.1959. Mr. Gogoi, learned Addl. Advocate General, Assam, has further submitted that in the enquiry, the petitioner was afforded all requisite opportunities to place his defence in the matter. The enquiry officer, thereafter, on consideration of the materials coming on record in the enquiry including the clarification given by the authorities of the Board of Secondary Education, Assam, with regard to the date of birth of the petitioner recorded in his service records, had proceeded to hold that the charges levelled against the petitioner vide Show Cause Notice, dated 01.11.2012, stood established against the petitioner, herein.

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10. Accordingly, Mr. Gogoi, learned Addl. Advocate General, Assam, has further submitted that vide order, dated 04.12.2017, only one penalty was imposed upon the petitioner i.e. withholding of one annual increment with cumulative effect which he contends to be commensurating to the allegations levelled and proved against the petitioner in the enquiry. Mr. Gogoi, learned Addl. Advocate General, Assam, has further submitted that the determination of the age of the petitioner as 01.09.1959, vide the said order, dated 04.12.2017 and on that basis, requiring the petitioner to proceed on superannuation with effect from 01.09.2019, cannot be deemed to be a

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penalty imposed upon the petitioner herein.

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11. In the above premises, Mr. Gogoi, learned Addl. Advocate General, Assam, submits that the order, dated 04.12.2017, would not mandate any interference from this court.

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12. I have considered the submissions advanced by the learned counsels appearing for the parties and also duly perused the materials made available on record.

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13. At the outset, it is to be noted that this Court, vide order, dated 30.01.2025, noticing the issues arising in the matter, had required the learned standing counsel, Board of Secondary Education, Assam, to clarify the actual date of birth of the petitioner as recorded in the records of the Board of Secondary Education, Assam. Accordingly, the learned standing counsel had produced before this court, a verification report in connection with the particulars of the petitioner recorded in the records of the Board of Secondary Education, Assam. A perusal of the verification report brings to the forefront that the age of the petitioner as on 01.03.1975 was recorded in the records of the Board of Secondary Education, Assam, as 15 years, 6 months and 0 days. The petitioner had appeared in the HSLC examination conducted by the Board of Secondary Education, Assam, in the year 1975 from Indrani Devi Government Aided High School, Dergaon. The said verification report submitted by the authorities of the Board of Secondary Education, Assam, in terms of the directions passed by this Court in the present proceeding, corresponds to the report submitted in the enquiry by the authorities of the Board of Secondary Education, Assam, vide communication, dated 25.04.2012. Considering the age of the petitioner recorded in the records of

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the Board as of 01.03.1975, it is seen that the date of birth of the petitioner is 01.09.1959. This Court finds that the petitioner, in the present petition, has annexed a copy of the first page of his service book. A perusal of the same reveals that therein the petitioner's date of birth has been recorded as 01.09.1962 and it has been endorsed that such recording is based on the school leaving certificate. As to when the said entry was so made is, however, not reflected therein.

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14. Having noticed the said position, this Court had required Mr. Kalita, learned counsel for the petitioner, to bring on record, materials to justify the date of birth so recorded in his service book as 01.09.1962. However, in spite of the grant of repeated opportunities, the learned counsel for the petitioner has failed to bring on record any document to justify the date of birth of the petitioner as recorded in the first page of the service book annexed to the present petition.

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15. The respondent authorities on noticing the fact that there was a manipulation made with regard to the date of birth of the petitioner recorded in his service book and after 1994, had proceeded to institute a departmental proceeding against him by issuance of a show cause notice, dated 01.11.2012. In the show cause notice, dated 01.11.2012, one of the allegations levelled against the petitioner is that he had not produced any supporting documents for the purpose of ascertaining his date of birth and accordingly, the authorities had approached the Board of Secondary Education, Guwahati, for providing the details in this connection. It was spelt-out in the said Show Cause Notice that the authorities of the Board of Secondary Education, Assam, had furnished the particulars of the petitioner recorded in their records including his age as of 01.03.1975. Accordingly, it was alleged that the actual

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date of birth of the petitioner was “01.09.1959” and not “01.09.1962”. Also, the petitioner in his written statement of defence while denying that he had manipulated his date of birth in his service records, had not countered the disclosure made by the authorities of the Board of Secondary Education, Assam. The petitioner, herein, had not denied the allegation number 4(four) so levelled against him vide the Show Cause Notice, dated 01.11.2012.

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16. It is seen that the enquiry officer on conclusion of the enquiry, submitted his enquiry report and therein, basing on the records maintained in the school from wherein, the petitioner had appeared for his HSLC examination in the year 1975 as well as the disclosure made by the authorities of the Board of Secondary Education, Assam, with regard to the date of birth of the petitioner, proceeded to hold that the allegations levelled against the petitioner vide the issuance of a Show Cause Notice, dated 01.11.2012, stood established.

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17. Further, it is to be noted that in the representation submitted by the petitioner against the enquiry report furnished to him, the petitioner had not brought on record any clarification and/or had not brought on record any material to demonstrate that his actual date of birth is “01.09.1962” and not “01.09.1959”. Accordingly, the disciplinary authority vide order, dated 04.12.2017, upon considering the materials brought on record in the enquiry including the representation submitted by the petitioner against the enquiry report; proceeded to dispose of the disciplinary proceeding instituted against the petitioner by imposing the following penalties upon the petitioner.

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“ It is, therefore, in exercise of powers conferred under Rule 7 of the Assam Service(Discipline and Appeal) Rules 1964, ordered that

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(A) The date of birth in the service book of Shri Simanta Pradeep Bora be corrected as 01/09/1959 as per record received from the Board of Secondary Education, Assam and accordingly he will proceed on superannuation w.e.f. 01/09/2019.

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(B) One normal Annual increment of Shri Simanta Pradeep Bora, Sr. Asstt. O/O the Deputy Commissioner, Golaghat, be stopped having cumulative effect to superannuation from the Government service after reinstatement.”

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18. Accordingly, the penalties as imposed upon the petitioner, noticed hereinabove, would go to reveal that one annual increment of the petitioner was withheld with cumulative effect. The other penalty with regard to determination of his date of birth and the that he shall proceed on superannuation with effect from 01.09.2019; in the considered view of this Court cannot be deemed to be a penalty, inasmuch as, it pertains to prescription of the tenure of service of the petitioner by reckoning his actual date of birth.

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19. As noticed hereinabove, the petitioner had brought on record the first page of his service book as an annexure to the present written petition. A perusal of the said service book would go to reveal that therein his date of birth has been recorded as “01.09.1962”. However, as noticed hereinabove, the petitioner has failed to bring on record any material to justify such recording of his date of birth in his service records. The petitioner, herein, basing on the determination of his actual date of birth, had already proceeded on superannuation with effect from “01.09.2019”.

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20. In the view of the discussions made hereinabove as well as the materials brought on record in the present proceeding, this Court is of the considered view that the recording of the date of birth of the petitioner as “01.09.1959” by the respondent authorities, cannot be said to be erroneous and accordingly, the petitioner being required to proceed on superannuation with effect from “01.09.2019”, also cannot be said to be erroneous in any manner.

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21. Furthermore, the petitioner having been subjected to a departmental proceeding and there being an admitted manipulation in his service records with regard to the date of birth which stood established in the enquiry; this Court is of the considered view that the penalty of withholding of one annual increment imposed upon the petitioner vide the order, dated 04.12.2017, cannot be said to be disproportionate to the allegations levelled against the petitioner and proved in the enquiry and accordingly, the said penalty would not mandate any interference by this court.

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22. Thus, in view of the above position, the order, dated 04.12.2017, and the date of birth of the petitioner as highlighted therein, as well as the penalty of withholding of one annual increment imposed upon the petitioner; would not mandate an interference.

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23. Accordingly, the instant writ petition is held to be devoid of merit and consequently, the same stands dismissed. However, there shall be no order as to costs.

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JUDGE

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Comparing Assistant

Simanta Pradip Bora v. the State of Assam and 3 Ors.

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Simanta Pradip Bora v. the State of Assam and 3 Ors.

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