JUDGMENT S. Rafat Alam, J.
1. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari quashing the order of the Deputy Project Manager (respondent No. 2) dated 31-12-1997 retiring him from service on attaining the age of superannuation.
2. The facts giving rise to the present petition lies in a narrow compass and centres round to the point as to whether an employee can be retired from service on the basis of the subsequent medical report altering the earlier date of birth recorded in the service book without affording him an opportunity of hearing.
3. It appears that the petitioner was appointed against Class IV post on 16-11- 1977 in U.P. State Bridge Corporation Limited (for short the Corporation) and was posted as Chaukidar of Mechanical Store of the Bridges Corporation Unit, Goindwala, Punjab. Thereafter, he was transferred and posted at Bijnor on 1-10- 1979 and remained there till 30-11-1983 when transferred to Gorakhpur and posted at Setu Nirman Ekai of the State Bridge Corporation at Gorakhpur. At the time of appointment his date of birth was recorded in the service record of the Corporation as 2-7-1944. However, in the counter-affidavit filed on behalf of the Corporation it has been stated that the petitioner was initially appointed on daily wage basis in the Mechanical Store of the Construction Unit, Goindwala, Punjab, which was a contract unit, and after completion of work his services automatically came to an end. Thereafter, he was again appointed on 1-4-1985 on the post of Chaukidar in Group 'B' (work charge). It has further been stated that at the time of appointment his date of birth as per Chief Medical Officer's report dated 3-8-1985 was 40 years, i.e., 3-8-1945. However, according to the petitioner, when the petitioner was being promoted in Group 'B' category, he was sent for medical examination by the Chief Medical Officer, Gorakhpur, who, in his certificate gave his age as 40 years in August, 1985. It has further been stated that since the petitioner was an active worker of labour union, the respondents wanted to get him out of job because of his involvement in labour union and, therefore, they asked him to appear before a Committee constituted by the Corporation known as "Karya Kushalta Mulyankan Samiti" (Work Efficiency Evaluation Committee) as per Clause-H of the Standing Order. The said Committee was of the opinion that by appearance the petitioner appears to be more than 58 years of age and, therefore, it recommended for re-determination of his age by medical examination. Consequently, the petitioner was asked to appear before the Chief Medical Officer on 26-12-1997. Thereafter, without giving him any opportunity of hearing or providing a copy of the medical report, the impugned order dated 31-12-1997 was issued retiring the petitioner as he had attained the age of retirement, i.e., 58 years on the basis of the Medical Report dated 26-12-1996, although the copy of the said report was never supplied to the petitioner. The fact of non-supply of the copy of the medical report has not been denied in the counter-affidavit filed by the Corporation. It has also not been asserted in the counter-affidavit that the petitioner was at any point of time asked to explain about the alteration or re- fixation of his date of birth as entered in the service record at the time of entry in service.
4. Shri Arun Prakash, learned Counsel for the petitioner vehemently argued that the date of birth once recorded in the service record at the time of entry in service cannot be unilaterally altered, changed or re-fixed without providing adequate opportunity of hearing or show cause to the employee. Strong reliance has been placed on a judgment of the Apex Court rendered in the case of State of Orissa v. Dr. (Miss) Binapani Dei and Ors., reported in AIR 1967 SC 1269. Learned Counsel for the petitioner further drew my attention to Clauses M-2 and M-3 of the standing order and submitted that it is not open to the Corporation to change or alter the date of birth recorded with the Corporation at the time of appointment of an employee, and thus, the impugned order cannot sustain.
On the other hand, Shri N.C. Rajvanshi, learned Counsel appearing on behalf of the respondents, opposed the writ petition on two grounds, viz. (i) writ petition is not maintainable in view of the alternative remedy and (ii) in view of Clause-H of the standing order the age of an employee can be re-determined after medical examination. While elaborating his submission, Shri Rajvanshi submitted that admittedly the petitioner is a workman and, therefore, he has got adequate efficacious remedy by raising an industrial dispute before the Labour Court and, as such, the present petition is not maintainable and deserves to be dismissed on the ground of alternative remedy. He further submitted that Clause-H-1 of the standing order gives discretion to the Management to ask the workman to undergo medical check up by a registered medical practitioner and if, on such examination, he is found unfit, he can be discharged form service. Since in the instant case, the petitioner by appearance was found to be above 58 years of age and, therefore, he was asked to undergo medical examination for determination of his age and consequently on medical examination he was found to be above 58 years by the Chief Medical Officer, Gorakhpur. The petitioner having attained the age of superannuation has no right to continue in service and as such the impugned order has rightly been passed :
In the instant case, admittedly at the time of appointment of the petitioner in Group-B category, his date of birth as per report of the Chief Medical Officer dated 3-8-1985 was recorded as 40 years in the service record. The date of retirement as per standing order is 58 years. Therefore, as per entry made regarding the date of birth by the Corporation in service record of the petitioner, he can not be made to retire in the year 1997.
5. It is settled legal position that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. There is nothing on record nor asserted in the counter-affidavit that the petitioner was asked to show cause as to why his date of birth be not corrected as per report of the Chief Medical Officer dated 26-12-1997 even a copy of such medical report was not given to the petitioner. Therefore, in the absence of an opportunity to the petitioner to show cause as to why his date of birth be not altered, the impugned order cannot sustain.
6. In the case of State of Orissa v. Dr. (Mrs.) Binapani Devi and Ors., reported in AIR 1967 SC 1269, the Hon'ble Supreme Court has held that even an administrative order which involves civil consequences must be made consistently with the rule of natural justice after informing the evidence in support thereof and after giving an opportunity of being heard and meeting or explaining the evidence. Similar view was taken by the Hon'ble Supreme Court in the case of Sarju Prasad v. General Manager and Anr., reported in AIR 1981 SC 1481, wherein relying on the judgment in the case of State of Orissa v. Mrs. Binapani Devi (supra), it has been held that the date of birth without notice and without giving opportunity to the appellant cannot be altered to the disadvantage and prejudice of an employee because an administrative order which involves civil consequence must be made in conformity with the rule of natural justice which at its lowest minimum requires notice and opportunity to the person affected thereby.
7. It was contended by Shri Arun Prakash, learned Counsel for the petitioner that in view of Clause-M of the standing order, the age of a workman as recorded with the Corporation at the time of his employment is binding and cannot be changed or altered by the Corporation.
8. Clause-M of the standing order deals about the date of birth of workmen which reads as follows :
"M. Date of Birth.-M-l.- All categories of workmen, shall, on first appointment submit proof of age. Following documents shall be deemed to be satisfactory proof of age of workman entering the Corporation's service:
(a) School leaving certificate.
(b) Birth certificate.
M-2. A workman who is unable to produce any of the above documents in support of his age shall have to give an affidavit made before a First Class Magistrate or such workman shall be got examined by the registered medical practitioner or any other Doctor authorised by the management in this behalf and findings of the Medical Officer as to the workman's age shall be binding on all concerned.
M-3. The age of workman as recorded with the Corporation at the time of his employment shall not thereafter be changed or altered by the workman."
9. The language of Clause-M is clear and unambiguous. Clause M-l provides that workmen of all categories at the time of appointment are required to submit proof of age. School leaving certificate and birth certificate shall be deemed to be satisfactory proof of age. However of a workman is unable to produce any of the above two documents in support of his age, in that event either he is required to give an affidavit before the First Class Magistrate or he shall be examined by the registered medical practitioner or any other Doctor authorized by the Management in this behalf and the opinion of the Medical Officer regarding his age is binding on all concerned. Clause M-3 provides that the age recorded with the Corporation of an employee at the time of his appointment shall not be changed or altered subsequently by the workmen.
Clause M-3 only bars alteration in the date of birth at the instance of workman. It does not prohibit the Management from. making correction or alteration in the date of birth. Besides that under general rule the date of birth can be changed if on enquiry or investigation, it is found to be incorrectly, recorded in the service record but it can only be done after due notice and opportunity given to the workman or Government servant whose right is going to be affected by such alteration. Therefore, in view of the well settled legal position that the date of birth without notice and without giving opportunity to the employee concerned cannot be altered to the dis-advantage and prejudice to the concerned employee, the respondent-Corporation was not justified in altering the date of birth of the petitioner on the basis of the alleged medical report without giving him an opportunity of hearing or show cause, in the absence of which the impugned order suffers from the vice of principles of natural justice and as such, deserves to be quashed. As noticed earlier, there is no denial in the counter-affidavit filed by the respondents to the fact that before issuing the impugned order retiring the petitioner any opportunity of hearing or show cause for giving evidence was afforded to the petitioner at any point of time. In this view of the matter, the impugned order becomes laconic.
10. The contention of Shri Rajvanshi, learned Counsel for the respondents that under Clause-H the date of birth can be re-determined also, cannot be accepted for the reason that Clause-H of the standing order does not provide for re- determination of age of an employee recorded in his service record. It only empowers the Head of the Department or the Management to get a workman examined medically by the registered medical practitioner to find out that the said workman is physically/mentally unable to carry on his duties. If the workman is found unfit upon such medical examination, he shall be liable to be discharged from the service of the Corporation.
Clause-H of the Standing Order is reproduced below :
"H. Medical Examination. - H.-1. If the Head of the Department/ Management is of the opinion that any workman is physically/mentally unable to carry on his duties, the Management may its discretion require a workman to undergo a medical check up by a registered medical practitioner referred by the Management. If on such examination, the workman is found unfit he shall be liable to be discharged form the service of the Corporation."
11. Thus, the Clause-H only authorizes the management of the department to find out as to whether an employee is physically/mentally fit to carry on his duties or not? But under the garb of Clause-H, the Management cannot re-determine the age of a workman. In the case in hand, the petitioner has not been discharged from service on the ground that he is in capable to carry on his duties on account of his physically/mental disability, rather he has been retired on the basis of the age determined by the Chief Medical Officer.
12. The contention raised on behalf of the respondents regarding the alternative remedy can also not be accepted, in view of the facts and circumstances of the present case. It is settled legal position that mere existence of alternative remedy cannot preclude the High Court from exercising its power under Article 227 of the Constitution to interfere with the order passed in flagrant violation of law. The rule of alternative remedy is only a consideration for exercise of his discretion and does not exclude the jurisdiction of the High Court in exceptional cases and thus, where the impugned order is in flagrant violation of the principles of natural justice, the same can be interfered with by the High Court.
13. In view of the discussions made above, the writ petition succeeds and is accordingly allowed. The impugned order dated 13-12-1997, contained in Annexure-4 to the writ petition, is hereby quashed. However, it would be open to the Corporation to make necessary enquiry regarding the date of birth of the petitioner and pass appropriate order in accordance with law. However, there shall be no order as to costs.