B. S. GHOSH v. BHARAT ELECTRONICS LTD. — 1995 DIGILAW 412 (KAR)

( 1 ) THIS writ petition filed by the ex-Assistant Personnel Officer of B. E. L. Ltd. raises certain interesting facets of the law relating the finality of an employee's date of birth as reflected in the company's records. The law with regard to this aspect of the matter is now reasonably well defined and has been crystalised to a position whereby the Courts have held that it will not he permissible to permit an alteration of the date of birth of an employee at a point of time when he is on the verge of his service coming to an end. The important principle underlying this decision is that the employment was secured on the basis of a clear-cut representation with regard to the date of birth which employment could possibly not have been secured by the petitioner for a variety of reasons had that date been different. It is, therefore, that the Courts have held that it would be impermissible to plead mistakes or a host of other reasons and ask for variation and that an employee will be pinned down to the representations made at that point of time. In amplification of these principles, the Supreme Court in the decision in Secretary and commissioner. Home Department v. R. Kirubakaran, (1994-I-LLJ-673) had occasion to hold that the Courts and Tribunals should not permit such belated applications and more importantly, that interim reliefs normally will not be granted in such cases because of the consequences which are irreversible vis-a-vis the organisation and department and more importantly the other employees who are immediately behind the litigant. Apart from this case, one of the latest decisions of the Supreme Court very clearly lays down that interim relief should not be granted in such proceedings even if for exceptional reasons, the court were to embark upon an enquiry in relation to the matter. It is basically, the rule of finality that underlines these decisions. Interestingly enough, the petitioner's learned Advocate has canvassed that very principle in support of his plea that has arisen in rather interesting circumstances. ( 2 ) THE petitioner joined the services of B. E. L. after some earlier stints of employment in the year 1973 and the records that have been produced by the company clearly indicate that he gave his date of birth as November 5, 1936. ( 2 ) THE petitioner joined the services of B. E. L. after some earlier stints of employment in the year 1973 and the records that have been produced by the company clearly indicate that he gave his date of birth as November 5, 1936. Two years later, the petitioner appears to have asked one of the Officers to correct the date of birth and pursuant to this date of birth on the basis of a rule that existed at that point of time whereunder in cases of doubt relating to the date of birth the company was required to go by the medical opinion, the matter was referred to the Medical officer who opined that the petitioner was 35 years old which would effectively bring his date of birth to July 8, 1941. The petitioner's contention was that his date of birth was November 5, 1941, and by virtue of his position in the personnel department the record was altered to show the petitioner's date of birth as November 5, 1941, in the year 1994, the company had occasion to re-examine the records and found that on the petitioner's own admission in several documents including the verification statement that has been secured from his earlier employer and references to the Court records that his date of birth was shown as November 5, 1936 and this fact was brought to the notice of the petitioner pointing out thereby that he was due for retirement. The petitioner contested this position and in order to be fair to the petitioner, the company instituted a fact-finding enquiry. The petitioner participated in this enquiry and the enquiry Officer conclusively held that the documentary evidence on record indicated that the petitioner's date of birth must be held to be November 5, 1936, as was the date reflected in the original documents of 1978. Consequently, the petitioner was asked to retire with effect from november 30, 1994, and it is this decision that was challenged by the petitioner through the present petition. Consequently, the petitioner was asked to retire with effect from november 30, 1994, and it is this decision that was challenged by the petitioner through the present petition. ( 3 ) AS indicated by me earlier, the principle, canvassed by the petitioner was that even accepting the rule of finality, that in the present instance it was the company that was bound by the date of birth as reflected in its own records that it was impermissible for the company to do violence to the principle of finality by seeking to reopen the issue just on the verge of the petitioner's retirement. Notice was issued to the respondent-company and since the petitioner was on the verge of retirement, an interim order was passed whereby in the unusual circumstances of this case this Court directed that the petitioner be allowed to continue provided he files an undertaking to the effect that in the event of the decision of of this Court going against the petitioner that he will refund to the company the emoluments paid to him after November 30, 1994. It appears that there was some error in the affidavit filed in so far as the undertaking as indicated by this Court was not reflected therein as a result of which, once that was condition precedent, the interim order did not become effective and the petitioner was relieved from service on November 30, 1994. The respondents contend that they also appointed another person to that position with effect from December 1, 1994. The pleadings have been completed, the matter has now come up for hearing. ( 4 ) MR. Bhajanthri, on behalf of the petitioner in the first instance, contended that the correction of the date of birth had taken place in the year 1975 within the framework of the company's rules which with then prescribed that the opinion of the Medical Officer shall be final. According to him, therefore, the alteration in the year 1975 supersedes whatever had come on record earlier and applying the rule of finally it was thereafter not permissible to once again reopen the issue. Normally, I would have straightway upheld this contention. According to him, therefore, the alteration in the year 1975 supersedes whatever had come on record earlier and applying the rule of finally it was thereafter not permissible to once again reopen the issue. Normally, I would have straightway upheld this contention. The learned advocate has relied on a decision of the Supreme Court in the case of Deoki Nandan Pravhar v. Agra District co-operative Bank, 1972 Serv LR 803, wherein the Supreme Court had struck down an order passed by a successor-officer who withdrew a quasi-judicial order of his predecessor. The facts of that case were entirely different and in any event, the order in question was a quasi-judicial order and the Supreme Court frowned upon such a procedure whereby a successor in office sits in appeal on the order of the predecessor which is certainly not permissible. The next case relied on is a decision of the Supreme Court in the case of Jiwan Kishore v. Delhi Transport corporation, (1981-I-LLJ-271) wherein, in the case of dispute, the Delhi Road Transport corporation accepted the age as determined by the Medical Board appointed by the employer. To my mind, that case could hardly assist the petitioner's case. It was virtually a consent order and not an order whereby the Court had adjudicated such a dispute. The next decision relied upon by the learned advocate is in the case of Dr. Smt. Kuntesh Gupta v. Hindu Kanya mahavidyalaya, Sitapur, 1987 5 Serv LR 843, wherein a dispute concerning the U. P. State universities Act came before the Court and it was found that in a proceeding, whereby the vice-Chancellor had disapproved of the dismissal, the subsequent Vice-Chancellor reviewed the order and took a contrary view. The Supreme Court struck down this order on the ground that such a course of action was not permissible. ( 5 ) THE principle canvassed by Mr. Bhajanthri is that the corrective action in the year 1975 is not reviewable. He emphasised the fact that the date of birth came to be altered to November 5 1941 in the year 1975 and that this was an act of the company which imparted a degree of finality to it and precluded or stopped the company from going back on that position. He emphasised the fact that the date of birth came to be altered to November 5 1941 in the year 1975 and that this was an act of the company which imparted a degree of finality to it and precluded or stopped the company from going back on that position. It is necessary to emphasize here, that the principle canvassed by the learned Advocate is perfectly correct but this cannot be made an inflexible rule de hers the facts of a particular case. There is one important aspect to the present proceeding, namely. That the respondent's learned counsel, Mr. Holla, seriously contested the matter and has produced all the relevant documents before the Court stating that the company was required to reopen the issue because an examination of the record' indicated certain disturbing features. The petitioner was working as a responsible Officer in the personnel department which is the department concerned with records relating to employees. This happened to be his own case and he was instrumental in setting in motion a situation whereby the matter was referred to the Medical Officer for determination of his age without filing any formal application on record indicating the circumstances under which any incorrect dates could have been indicated by him at the time of his employment in 1973 and justifying reasons that corrective action was necessary. Mr. Holla further points out that the Medical officer has given a cryptic one sentence report that the petitioner appears to be 34 years old and if that was the position, the date of birth would be July 8, 1941, whereas the record was corrected to read as November 5, 1941. There is no explanation as to how this happened and it was precisely on that ground, that the suspicion of the company were aroused and the earlier applications were checked. Since effectively, the original date of birth was November 5, 193 6, according to the doctor's opinion it should have been July 8, 1941, and the records had been corrected to read November 5, 1941. The position had to be reconciled and the company decided that in all fairness the petitioner be given a chance to resolve the position. Since effectively, the original date of birth was November 5, 193 6, according to the doctor's opinion it should have been July 8, 1941, and the records had been corrected to read November 5, 1941. The position had to be reconciled and the company decided that in all fairness the petitioner be given a chance to resolve the position. It was in these circumstances that the fact-finding enquiry was set up in which the petitioner participated and he was unable to produce any evidence of any value in support of his plea that his correct date of birth was November 5, 1941. Mr. Holla, therefore, submitted that the very rule of finality which the petitioner's learned Advocate is seeking to use against the company has in fact been correctly and justifiably applied by the company in his case and that no interference is called for by this court on the basis of the present record. I need to observe here that, to my mind, the company has acted very fairly and very correctly and since the petitioner was unable to resolve the matter in the manner which he desired it is inevitable that he be bound down by his own representations made in the year 1973 which undisputely indicate that his correct of birth was November 5, 1936. As regards the question whether this procedure constitutes a review or revocation of a concluded matter, to my mind, that would be an incorrect assessment. It was for this reason that I have indicated that all principles are required to be applied in relation to a particular record and special facts and on the basis of the aforesaid two factors, I have no hesitation in holding that where a degree of ambiguity emerges and where the record itself is inconclusive, the right procedure would be to reopen the matter and re-examine it which is precisely what the company has done. This would not constitute either a review or relegation of the decision to the realm of a disciplinary which would be competent particularly where certain disturbing features came to the notice of the company in the year 1994. The Enquiry Officer has referred to this aspect of the matter wherein he points out that the petitioner's subordinate Officer admitted having altered the record in 1975 at the instance of the petitioner who was his superior Officer. The Enquiry Officer has referred to this aspect of the matter wherein he points out that the petitioner's subordinate Officer admitted having altered the record in 1975 at the instance of the petitioner who was his superior Officer. This aspect of the matter is really conclusive and indicates that a re-examination was very necessary. ( 6 ) THE petitioner's learned Advocate advanced another argument which is of some interest. He submitted that if it was the charge of the company that the petitioner has been responsible for false statements or misleading the company in relation to his correct date of birth, then there was only one course of action open, namely, that the petitioner being held guilty of an act of serious misconduct and under the discipline and appeal rules applicable to the company it was essential for them to have instituted full-fledged disciplinary proceedings. Mr. Bhajanthri submitted that there is an additional reason why he insists that this ought to have been the correct course of action in so far as according to him the consequences or the outcome of the enquiry would curtail the petitioner's tenure of service which according to him is tantamount to a punishment and, therefore, that no such order curtailing the petitioner's tenure of service could have been passed without holding a disciplinary enquiry. Mr. Holla has refuted this position and he submits that the company had two clear options before it. It could have adopted the course of action of serving a charge-sheet in which case if the enquiry went against him, a punishment order which could possibly have been one of termination or dismissal would have resulted. The other option open to the company was to hold a fact-finding enquiry and if the result of that enquiry indicated that there was no misrepresentation in 1973 and that the date of birth was in fact November 5, 1986, then no disciplinary proceedings were either necessary or competent. He, therefore, submitted that the latter course of action was chosen in so far as the company desired to first come to a factual conclusion as to whether there was ground to hold that misconduct had been committed or not. He, therefore, submitted that the latter course of action was chosen in so far as the company desired to first come to a factual conclusion as to whether there was ground to hold that misconduct had been committed or not. The fact-finding enquiry indicated that the original date of birth was in fact correct and that there was no a misrepresentation which was why the company did not resort to any further disciplinary proceeding and acted on the basis of that date of birth. ( 7 ) THE submission canvassed by Mr. Bhajanthri on behalf of the petitioner is a rather involved one. It is inadvisable and inappropriate that, in the case of a senior employee on the verge of retirement an employer should recklessly embark upon disciplinary, proceedings. To my mind, this is one of the rare cases where an employer has acted with letter perfect precision. The correction is that the facts must be carefully assessed, evaluated and finalised. On the present record it may not have been fully justifiable for the company to have come to its own conclusion and, it has virtually adopted a magnanimous course of action in holding a fact-finding enquiry which is rather unusual to my mind the most appropriate and correct course of action. That enquiry, as indicated by me earlier, went against the petitioner's contention but at the same time resulted in one beneficial result in so far as it confirms that his original representation to the company in 1973 was correct. The petitioner was virtually saved the ignominy of disciplinary proceedings being instituted against him. Thanks to the fact that the company exercised due care and caution, it is in this back ground that Mr. Bhajanthri's submissions cannot be upheld in so far as there was virtually no justification for the institution of disciplinary proceedings against the petitioner and it would be incongruous for the petitioner to insist in this background that a disciplinary proceeding was the correct course of action. ( 8 ) THIS briefly summarises the position both on facts and in law as far as the present petition is concerned. To my mind, having conclusively held that the company was justified in acting on the petitioner's date of birth as November 5, 1936, the petitioner has correctly been retired from service with effect from November 30, 1994. ( 8 ) THIS briefly summarises the position both on facts and in law as far as the present petition is concerned. To my mind, having conclusively held that the company was justified in acting on the petitioner's date of birth as November 5, 1936, the petitioner has correctly been retired from service with effect from November 30, 1994. He would, therefore, not qualify for any relief whereby he has prayed that he should be permitted to work for five years more. Had the petitioner succeeded, such a relief was certainly competent to this Court and he could have been reinstated. The facts of the present record do not qualify him for such a relief. All that he is, therefore, entitled to would be his normal terminal benefits. ( 9 ) THE petition falls and stands disposed of. In the circumstances of the case, there shall be no order as to costs.