Mahendra Prasad Singh v. State Of Bihar — 1995 DIGILAW 76 (PAT)

Judgment 1. Heard learned counsel for the parties and perused the affidavits filed in this case. In this matter, the learned counsel for the petitioner draws the attention of this Court to the two supplementary affidavits filed on 2-2-1995. As those supplementary affidavits were filed without obtaining leave of this Court, I am not taking into consideration the contents of those affidavits while passing the following order. However, in my view, this matter should be disposed of finally at the admission stage. 2. The grievance of the writ petitioner is that his date of birth which has been recorded on the basis of certain documents in the records of the erstwhile employer Mohini Sugar Mill has not been followed by the respondents authorities, namely, Bihar State Sugar Corporation Limited (hereinafter referred to as the said Corporation) while passing the impugned order of retirement. 3. The case of the petitioner, as it appears from the writ petition, is that his date of birth is 29-3-1941 and in support of that the petitioner has filed a declaration and nomination form under the Employees Provident Funds Scheme, 1952 with the writ petition. Such form is signed by the Managing Director, Warisaliganj Co-operative Sugar Mills where the petitioner was working prior to the order of his retirement. From the impugned order of retirement it appears that the petitioner is entitled to continue in service till he reaches the age of 60 years and if the date of birth of the petitioner as 29-3-1941 is accepted, in that event, the petitioner will continue to remain in service till 29-3-2001 whereas the petitioner has been made to retire with effect from 1-8-1993 under the impugned order as contained in Annexure-4. 4. In the counter affidavit filed by respondents Nos. 2 and 3, it has been stated that the petitioner was previously working with M/s. Mohini Sugar Mills, Warisaliganj prior to take over of the said Mill by the respondent Corporation. 4. In the counter affidavit filed by respondents Nos. 2 and 3, it has been stated that the petitioner was previously working with M/s. Mohini Sugar Mills, Warisaliganj prior to take over of the said Mill by the respondent Corporation. According to the affidavit filed by the respondents, their stand is that from perusal of the records of the erstwhile management it has come to their notice that the petitioner was a regular contributor to the provident fund vide his Provident Fund Account No. B.R. / 199 / 104 /V. A.R. - 199 / 184 where the petitioners age has been shown as 23 years on 1-8-1956 and this fact is confirmed from a letter dated 15-10-1976. In the counter affidavit, the respondents have disclosed some of these documents under Annexure-A series. Those documents are a letter dated 6/10/1976 issued by the General Manager of Warisaliganj Co-operative Sugar Mills to the Accounts Officer of the Regional Provident Fund Commissioner, Bihar, Patna with a request to supply the date of birth. Pursuant to the said letter, the Accounts Officer of the Regional Provident Fund Commissioner, Bihar, wrote back to the General Manager of the said Sugar Mill to the effect that the representative of the Sugar Mill had reached the office of the Regional Provident Fund Commissioner on 8-10-1976 and copied the age of the members of the Provident Fund as per records available in the office. A list of various ex-employees of Mohini Sugar Mills Limited, Warisaliganj have also been disclosed in the said counter affidavit which is signed by the General Manager of the said Unit. In the said list the name of the petitioner appears at serial No. 78 and against his name "23 years" is written in hand. On the basis of these documents the respondents assert that the petitioners age is 23 years on 1-8-1956. 5. This Court is unable to appreciate how the respondents have come to the aforesaid conclusion that the age of the writ petitioner, so recorded in hand in the said list, was the age recorded as on 1-8-1956. In fact, it is no bodys case that the petitioner entered into the service of Mohini Sugar Mills on 1-8-1956. The respondents have not produced any scrap of document in support of the fact that the petitioner entered the service of Mohini Sugar Mills either prior to 1-8-1956 or on 1-8-1956. In fact, it is no bodys case that the petitioner entered into the service of Mohini Sugar Mills on 1-8-1956. The respondents have not produced any scrap of document in support of the fact that the petitioner entered the service of Mohini Sugar Mills either prior to 1-8-1956 or on 1-8-1956. As such the assertion made by the respondents that the petitioners age is 23 years on 1-8-1956 is not based on any material, on the other hand the petitioner in the rejoinder to the counter affidavit has disclosed materials to show that he had been appointed with effect from 16-12-1957 as a Seasonal Clerk in the Cane department. The said assertion of the petitioner has not been controverted by the respondents either by filing further affidavit or by any document. The petitioner has also disclosed in the rejoinder to the counter affidavit a transfer certificate granted by the Head Master of Shri Ganesh B. K. Sahu H. E. School, Warisaliganj, Gaya where his date of birth as recorded in the admission register was 29-3-1941. The petitioners counsel was asked by this Court to produce the original of the said certificate. The original of the said certificate was produced and the learned counsel for the respondents was allowed to peruse the same. 6. It is true that the petitioner has disclosed certain relevant documents in his rejoinder to the counter affidavit and those documents were not annexed to the writ petition but that does not preclude this Court from taking into consideration those documents annexed with the rejoinder to the counter affidavit. It has been held by the Supreme Court in the case of Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi V/s. State of Madras, reported in AIR 1965 SC 1578 in paragraph 17 at p. 1582 as follows: - "That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. " 7. Therefore, this Court cannot discard the materials disclosed by the petitioner in the rejoinder affidavit. The counsel for the respondents, if necessary, could have asked for an opportunity to file a further counter-affidavit. In the instant case, learned counsel for the respondents did not ask for any opportunity to file any further counter-affidavit. 8. In my view the stand of the respondents, namely, that the age of the petitioner is 23 years on 1-8-1956 is not based on any documents. Apart from that reliance on the records of the office of the Regional Provident Fund Commissioner also cannot be made for record of age in view of a clear admission made by the office of the Regional Provident Fund Commissioner, Bihar, Patna in its letter dated 30-12-1994 inasmuch as in the said letters addressed to the General Manager, B.S.S.C. (L), Warisaliganj, Nawadah, it is clearly stated that the office of the Provident Fund Authorities is not competent and authorised to issue the date of birth certificate. It is a clear admission on their part that the documents maintained in their office cannot be utilised for the purpose of maintaining the date of birth of the employees concerned. 9. This Court places reliance on the transfer certificate issued by the School. The genuineness of that document is not questioned and it is certainly a document maintained in the regular course of business. 9. This Court places reliance on the transfer certificate issued by the School. The genuineness of that document is not questioned and it is certainly a document maintained in the regular course of business. In this connection reliance is placed on the decision of the Supreme Court in the case of Umesh Chandra V/s. State of Rajasthan reported in (1982) 2 SCC 202 : ( AIR 1982 SC 1057 ). In that case, the age of the accused came up for consideration before the Supreme Court and while considering the age of the accused entered in the School register and admission form maintained in the regular discharge of official course of duty existing ante litem motam it was held those are documents under Sec. 35 of the Evidence Act. In this connection the learned Judges of the Supreme Court relied on another judgment of the Supreme Court in Mohd. Ikram Hussain V/s. State of U. P., reported in AIR 1964 SC 1625 and reproduced the excerpts from the judgment of Hidayatullah, J., as His Lordship then was, in the said case of Mohd. Ikram Hussain (supra) which is set out below "In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from School registers which showed that on 20/06/1960, she was under 17 years of age. There were also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam. (Emphasis supplied). " 10. Their Lordships of the Supreme Court further in paragraph 14 of the said judgment in the case of Umesh Chandra (supra) while considering the entries made in the admission form of the school, were pleased to observe as follows "At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth or for that matter the exact date on which he was born and there could not have been any motive on the part of the parents of the accused to give a false date of birth because it was his first admission to a school at a very early age." 11. This Court respectfully follows the ratio of the aforesaid judgment of the Supreme Court in the facts of this case. 12. For the reasons aforesaid, this Court relying on the age of the petitioner, as recorded in the transfer certificate issued by the school, accepts the same. In that view of the matter, this Court holds that the petitioner has not reached the superannuation age of 60 years on 1-8-1993 and he will reach the age of 60 years on 28-3-2001 and should be allowed to work till that date. 13. Learned counsel for the respondents, however, stated that a disputed question of fact is involved in this case and as such this case should not be decided by a writ court. 14. This Court is of the view that having regard to the age of the petitioner as recorded in the school certificate, it cannot be said to be a case of disputed question of fact and by merely raising such a plea the respondents cannot defeat the claim of the petitioner. In this connection reference is made to the decision of the Supreme Court in the case of State of Orissa V/s. Dr. (Miss) Binapani Dei reported in AIR 1967 SC 1269 . In paragraph 6 at p. 1270 of the said judgment, their Lordships of the Supreme Court has been pleased to hold as follows: - "Under Art. 226 of the Constitution the High Court is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Art. 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, the High Court may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the Court." 15. In view of the aforesaid principles of law, I hold that sitting in writ jurisdiction, this Court can in this case hold that the correct date of birth of the petitioner is the one which is recorded in the school transfer certificate granted by the school in question. In coming to the said finding the Court has not been called upon to decide any disputed question of facts. 16. This writ petition is thus allowed. In coming to the said finding the Court has not been called upon to decide any disputed question of facts. 16. This writ petition is thus allowed. The impugned order of retirement of the petitioner as contained in Annexure-4 to this writ petition is set aside. The respondents are directed to allow the petitioner to continue in service in accordance with law till he reaches the age of superannuation of 60 years by taking his date of birth as 29/03/1941. There will be no order as to cost.