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2000 DIGILAW 529 (PAT)

Jalil Mian v. B. C. C. L.

2000-04-04

M.Y.EQBAL

body2000
Judgment M.Y.Eqbal, J. 1. In this writ application, the petitioner has prayed for quashing the notice dated 19.11.99 issued by the respondent No. 5, the Manager, Industry, Dhansar Colliery, Dhanbad, whereby the petitioner was intimated that he would be retiring from the service of the respondent-company with effect from 12.5.2000 and further prayed for a declaration that the date of birth of the petitioner would be treated as 12.5.1949 instead of 12.5.40. 2. The petitioner is at present working as underground Munshi in Industry Colliery, Dhansar. According to him, his date of birth is 12.5.1949, He was appointed in the service of Industry Colliery in 1970 while it was a private colliery. In the service record, the date of birth of the petitioner was shown as 12.5.49. A copy of the alleged service record has been annexed as Annexure-1 to the writ application, It is contended that some interested and scrupulous persons have made cutting/interpolation in the service record of the petitioner and the date of birth was changed as 12.5.40 and on that basis, the impugned notice was issued by the respondents informing him that he would retire on 12.5.2000. 3. A counter-affidavit has been filed stating, inter alia, that the impugned notice was issued to the petitioner intimating him that he would retire on 12.5.2000 on the basis of date of birth recorded in the statutory Form register, which was prepared in terms of Sec. 48 of the Mines Act, 1942-It is stated that at the time of appointment of the petitioner at Industry Colliery, the date of birth of the petitioner was recorded as 12.5.1940 which was duly acknowledged and signed by the petitioner in token of acceptance of entry in the statutory Form B register. It is further stated that in the year 1987-88 when service records of all the workmen were being prepared and delivered to the workmen, the Dealing Assistant inadvertently mentioned the date of birth of the petitioner as 12.5.1949. However, at that very stage the mistake was corrected and the actual date of birth was recorded and the same was accepted by the petitioner without any objection. 4. I have heard learned Counsel for the petitioner and learned Counsel for the respondents. 5. However, at that very stage the mistake was corrected and the actual date of birth was recorded and the same was accepted by the petitioner without any objection. 4. I have heard learned Counsel for the petitioner and learned Counsel for the respondents. 5. The petitioner based his claim on Annexure 1, which, according to the petitioner, is the copies of the service record while the stand of the respondents in support of the date of birth of the petitioner is Annexure A, which is a copy of Form B register prepared under the Act. From perusal of these documents, it appears that Annexure 1 is not a copy of the service record rather it is a communication served on the petitioner in 1988, while Annexure A is a copy of statutory Form B register, which was prepared in 1970. Admittedly, Annexure 1 is a letter issued to the petitioner in 1988 wherein date of birth of the petitioner was shown as 12.5.1940. The contention of the petitioner is that the actual date of birth recorded in the said form as 12.5.1949 was deleted and 12.5.1940 was inserted. Admittedly, no objection was raised by the petitioner to such alleged deletion or interpolation in the date of birth since 1988. It is for the first time when at the verge of retirement, the petitioner was intimated that he will be retiring on 12.5.2000. The petitioner has come out with a case that there is interpolation made in the date of birth of the petitioner duly recorded in the service record. 6. As noticed above, Annexure 1 is not the service record rather it is a communication of date of birth of the petitioner which was issued in 1988. On the contrary, the date of birth shown in Annexure A, which is a copy of statutory Form B, was duly acknowledged and accepted by the petitioner by putting his signature/LTI. Besides the above, the petitioner has not produced any evidence to show that his date of birth is 12.5.49 and not 12.5.40. It has been repeatedly held by the apex Court that an application for change of date of birth should not be entertained when it is made at the verge of retirement. Besides the above, the petitioner has not produced any evidence to show that his date of birth is 12.5.49 and not 12.5.40. It has been repeatedly held by the apex Court that an application for change of date of birth should not be entertained when it is made at the verge of retirement. In the case of State of Tamilnadu V/s. T.V. Venugopalan -- , the apex Court considering similar case held as under: As held by this Court in Harnam case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in service employee should be made within five years from the date when the Rules had become into force, i.e., 1961. If no application is made, after expiry of five years, the Government employee loses his right to make an application for correction of his date of birth. It is seen that the respondent entered into the service on 12.1.1952, and only when he was due for superannuation at the age of 58 years on 31.8.1991, he made the application exactly one year before his superannuation. The Government rejected his claim before the attained the age of superannuation on 30.8.1991. When questioned, the Tribunal, for incorrect reasons, set aside the order and remitted the matter for consideration. The Government considered various facts and circumstances in the COMs No. 271 and rejected the claim on 31.3.1993, The evidence is not unimpeachable or irrefutable. The Tribunal in its judicial review is not justified in trenching into the field of appreciation of evidence and circumstances in its evaluation to reach a conclusion on merits as it is not a Court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The Government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. The Government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application on would be made to the Tribunal or Court just to gain time to continue in service and the Tribunal or Courts are unfortunately unduly liberal in entertaining and allowing the Government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing over indulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case arid given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground The appeal is accordingly allowed with costs quantified as Rs. 3,000. 7. Having regard to the entire facts and circumstances of the case and the law discussed hereinabove, I am of the definite opinion that the claim of the petitioner for declaration of his date of birth as 12.5.1949 is not entertainable and the respondents rightly issued the impugned notice intimating the petitioner that he will be superannuating on 12.5.2000. 8. In the result, there is no merit in this writ application, which is accordingly dismissed.