CASE NO.:
Appeal (civil) 1730 of 2005
PETITIONER:
State of Punjab
RESPONDENT:
Mohinder Singh
DATE OF JUDGMENT: 14/03/2005
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 22477/2003
ARIJIT PASAYAT, J.
Leave granted.
Appellant-State calls in question legality of the judgment
rendered by a learned Single Judge of the Punjab and Haryana High Court
dismissing the Second Appeal filed by it under Section 100 of the Code
of Civil Procedure, 1908 (in short the 'Code') holding that no question
of law was involved.
The background facts are as under:
The respondent (hereinafter referred to as the 'plaintiff') was
appointed as a Patwari on 5.2.1958. At the time of appointment he
disclosed his date of birth to be 1.10.1934. Complaints were received
and preliminary enquiry was conducted and it was held that his actual
date of birth is 25.11.1931. A suit was filed by the respondent for
declaration to the effect that his date of birth as recorded in service
book i.e. 1.10.1934 is the correct date of birth and plaintiff is
entitled to all benefits and privileges which would have accrued to him
had he continued on that basis till the date of superannuation i.e.
30.9.1992 and for setting aside the punishment awarded for allegedly
manipulating records and disclosing wrong date of birth.
Following issues were framed by the trial Court:
"1. Whether the High Court was justified in
observing that no substantial question of law arises
in the second appeal, whereas the substantial
question of law was/is whether interpretation of the
expression "Government" in Rule 2.5 Note 1 of Punjab
Civil Service Rules is not competent/appointing
authority, who is the Deputy Commissioner in this
Case?
2. Whether as per Rule 2.5 Note 1 of Punjab Civil
Service Rules, the date of birth entered in the
Service Book of an employee cannot be changed by the
Competent Authority after conducting a regular
enquiry and giving proper opportunity of hearing to
the said employee?
3. Whether submission of wrong date of birth at
the time of joining service amounted to misconduct on
the part of the said employee?
4. Whether the date of birth entered in the
matriculation certificate shall not prevail over the
date of birth mentioned in the horoscope?
5. Whether entering a correct date of birth in
service book after valid enquiry qua the correct date
of birth of the Respondent can be challenged, which
was entered after affording proper opportunity of
hearing and which is final and never challenged as
bad?
6. Whether the respondent, who is literate and was
qualified to be appointed as Patwari was supposed to
know the admissibility of document in respect of date
of birth, did not tamper with documents by submitting
a wrong date of birth i.e. 1.10.1934 instead of
25.11.1931?
7. Whether a long span of 33 years ought to be
allowed to come in the way to correct a false entry
regarding date of birth made on wrong and tampered
documentation of an employee, which undoubtedly being
the date of birth shall seriously affect the services
of the colleagues of the said employees in the same
cadre?"
Learned Civil Judge (Senior Division) dismissed the suit holding
that there was no ground to interfere with the orders of the Deputy
Commissioner who, on the basis of the enquiry conducted, had observed
that the date of birth was 1931 and not 1934 and if he had given actual
date of birth he would have been over age and would not have been
eligible for the post of patwari. The enquiry report of the Additional
Deputy Commissioner was submitted on 21.5.1985. The Sub-Divisional
officer, Sangrur who hold the enquiry held that the charge regarding
change of date of birth from 25.11.1931 to 1.10.1934 was proved. The
Deputy Commissioner dismissed the respondent from service with effect
from 27.7.1988 after granting opportunity of hearing. An appeal was
filed before the Commissioner who by order dated 18.6.1990 dismissed
the same. He, however, reduced the punishment by observing that ends
of justice would be met if he is reduced by one stage in his running
grade with effect from the date on which he was charge-sheeted till
retirement and he will not earn any increment during the period of this
reduction till the date on which respondent was superannuated from
service.
Against the order passed by the trial court an appeal was
preferred before the District Judge who held that the materials on
record do not show that there was any change in the true date of birth
and the claimed date of birth i.e. 1.10.1934 is the actual date of
birth as recorded. Second Appeal filed by the appellant as noted above
was dismissed on the ground that no substantial question of law was
involved.
Learned counsel for the appellant submitted that the approach of
the first Appellate Court is not proper. On the basis of materials on
record and after enquiry it was held that the date of birth was
25.11.1931 and not on 1.10.1934 as claimed. School register and the
connected records were produced which clearly show that the date of
birth was 25.11.1931. The evidentiary value of these documents was
discarded by the first Appellate Court primarily on the ground that a
horoscope was produced according to which the date of birth was
1.10.1934.
In response, learned counsel for the respondent submitted that on
evaluation of evidence the first Appellate Court held that the date of
birth was 1.10.1934 and when a horoscope is available merely because a
different date is indicated in the school record same is of no
consequence.
During the course of hearing of the matter we directed the
respondent to produce the original school leaving certificate which was
sought to have been brought from the Government High School, Gujjarwal.
It was filed by the respondent. A perusal thereof shows that the date
of birth has been clearly indicated to be 25.11.1931. Stand of the
respondent as noted above was that the date of birth was entered in the
service record by relying on the horoscope. It is to be noted that
respondent claimed that both school leaving certificate and the
horoscope were produced and the date of birth was recorded by relying
on the horoscope. It has not been explained as to how varying dates
remained. If according to the respondent, the horoscope reflected the
actual state of affairs it has not been explained as to why no steps
were taken to get the school records corrected. The first Appellate
Court was not justified in its conclusion that there was no material
adduced by the present appellant to substantiate its stand regarding
the date of birth. One thing further significant is that a school
leaving certificate was produced at the time of appointment. On
enquiry it was found that the same was forged one. Apart from the fact
that there was no effort to reconcile the discrepancy in the so-called
horoscope and the school record is a factor which has rightly been
taken note of by the Trial Court. Without any plausible reason the
first Appellate Court took a different view.
In terms of Section 32, clause 5 of the Indian Evidence Act, 1872
(in short the 'Evidence Act'), the evidentiary value of a horoscope has
to be considered. No evidence was led by the respondent to prove
authenticity of the same. In any event the same was not to be given
primacy over the school leaving certificate. It was not shown as to
how the entry therein was wrong. The onus was on the respondent to
prove that the same was not correct, which was not discharged. Two
photostat copies of the school leaving certificate were produced before
the enquiry officer. He compared them and found that even to naked eye
change of figure "31" to "34" was visible. Interestingly in the said
copies the date of birth was indicated even after the change to be
25.11.1934 and not 1.10.1934 as claimed.
Horoscope is a very weak piece of material to prove age of a
person. In most cases, the maker of it may not be available to prove
that it was made immediately after the birth. A heavy onus lies on the
person who wants to press it into service to prove its authenticity.
In fact, a horoscope to be treated as evidence in terms of Section 32
Clause (5) must be proved to have been made by a person having special
means of knowledge as regards authenticity of a date, time etc.
mentioned therein. In that context horoscopes have been held to be
inadmissible in proof of age. (See Ram Narain Vallia v. Monee Bibi (ILR
9 Cal.613), Mst. Biro v. Atma Ram (AIR 1937 PC 101), Satish Chandra
Mukhopadhya v. Mohendra Lal Pathak (ILR 97 Cal. 849).
On the contrary, the statement contained in the admission
register of the school as to the age of an individual on information
supplied to the school authorities by the father, guardian or a close
relative is more authentic evidence under Section 32, Clause (5) unless
it is established by unimpeachable contrary material to show that it is
inherently improbable. The time of one's birth relates to the
commencement of one's relationship by blood and a statement therefore
of one's age made by a person having special means of knowledge,
relates to the existence of such relationship as that referred to in
Section 32 Clause (5).
As observed by this Court in Umesh Chandra v. State of Rajasthan
(1982 (2) SCC 202), ordinarily oral evidence can hardly be useful to
determine the correct age of a person, and the question, therefore,
would largely depend on the documents and the nature of their
authenticity. Oral evidence may have utility if no documentary evidence
is forthcoming. Even the horoscope cannot be reliable because it can
be prepared at any time to suit the needs of a particular situation.
Entries in the school register and admission form regarding date of
birth constitute good proof of age. There is no legal requirement that
the public or other official book should be kept only by a public
officer and all that is required under Section 35 of the Evidence Act
is that it should be regularly kept in discharge of official duty. In
the instant case the entries in the school register were made ante
litem motam.
Therefore, the school records have more probative value than a
horoscope. Where no other material is available, the horoscope may be
considered but subject to its authenticity being established. These
aspects were not considered by the first appellate Court and the High
Court.
The High Court was, therefore, not justified in dismissing the
Second Appeal by observing that there was no substantial question of
law involved.
Since the first appellate Court acted on irrelevant materials and
left out of consideration relevant materials question of law was
involved. The suit that was filed was rightly dismissed by the Trial
Court.
Accordingly the appeal is allowed. No costs.
