Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 60 (PAT)

Urmiia Devi v. Union Of India

2001-01-19

P.N.YADAV, S.N.JHA

body2001
Judgment S.N.Jha, J. 1. This Letters Patent Appeal arises out of a writ petition, CWJC No, 4275 of 2000 [Reported in 2001(2) PLJR 204 ], filed by one Nawal Kishore Prasad Singh (hereinafter called the petitioner). He died during the pendency of the case. After his death his widow Urmiia Devi and three sons got themselves substituted. They are appellants in this appeal. The writ petition was filed seeking direction to appoint petitioners son Satyajit Kumar alias Sanjit Prasad Singh (appellant no. 2 herein) on compassionate ground, and for quashing an order by which the writ petitioner had been retired, according to him, prematurely. Vide order dated 22.6.2000 passed in the connected CWJC, he gave up the relief so far as alleged premature retirement was concerned. The said order runs as under : "Learned counsel for the petitioner submits that in this writ petition he is only pressing his case for appointment on compassionate ground." 2. The dispute thus, it would appear, relates to the compassionate appointment of appellant no. 2. But as would appear from the facts stated hereinafter, the heart of the dispute is the controversy relating to the age of the writ petitioner i.e. Nawal Kishore Prasad Singh. The rules of the respondent Company, namely, Bharat Wagon & Engineering Limited Company of which the petitioner was an employee, as it then stood, provided for appointment of son of an employee seeking voluntary retirement five years prior to his due superannuation, in his place. And that is how dispute arose regarding the age of the petitioner. The claim having been rejected by the Company, the petitioner approached this Court in the concerned case. 3. The case of the writ petitioner-appellants, briefly stated, is as follows : The petitioner was appointed as Majdoor in Britannia Engineering Company Limited (Mokameh Unit) on 1.1.70. In course of time the said Company was taken over by the Central Government under an Act of Parliament titled the Britannia Engineering Company Limited (Mokameh Unit) and the Arther Butler and Company (Muzaffarpore) Limited (Acquisition and Transfer of Undertaking) Act, 1978. At the time of his appointment under the successor Company, called Bharat Wagon & Engineering Limited Company after the take-over, the, petitioner declared his date of birth as 10.2.1941, the date mentioned in the matriculation certificate. The petitioner had passed the matriculation examination from MP. High School, More, Mokamah, district Patna, in 1959. At the time of his appointment under the successor Company, called Bharat Wagon & Engineering Limited Company after the take-over, the, petitioner declared his date of birth as 10.2.1941, the date mentioned in the matriculation certificate. The petitioner had passed the matriculation examination from MP. High School, More, Mokamah, district Patna, in 1959. In course of time on 17.1.94 he submitted application seeking voluntary retirement on health ground in which he made a request to appoint his elder son Satyajit Kumar alias Sanjit Prasad Singh in his place, as per the rules of the Company. The request was turned down by letter dated 8.12.95. The petitioner was informed that he was due to superannuate from service on 2.1.96 and the application seeking voluntary retirement barely one year 11 months and 15 days prior to the date of retirement was not justified. Earlier on 8.7.95 he was informed that his date of birth was mentioned as 2.1.1938 as per his own declaration in the Declaration and Nomination Form (Form no. 2) under the Employees Provident Fund Scheme, 1952. According to the petitioner these decisions were taken without any enquiry and opportunity of hearing to him. He was eventually etired on 2.1.96. 4. The further case of the petitioner is that at about the same time on 21.1.96 he Company made reference to the Bihar School Examination Board to verify the genuineness of the matriculation certificate produced by the petitioner showing his date of birth as 10.2.1941. On 23.6.96 the Assistant Secretary of the Board informed the Company that as per the records Nawal Kishore Prasad Singh son of Late Tarkeshwar Prasad Singh had passed the matriculation examination in 1959 in the third division securing 341 marks and his date of birth was 10.2.41. On 28.6.96 the petitioner filed a complaint being complaint case no. 266(C)/96, before the Additional Chief Judicial Magistrate, Barh in which after enquiry under Section 202 Cr, P.C. cognizance was taken against the officers of the Company for offences under Sections 420, 466 and 120B IPC on 15.10.96, and summons were issued to them. The accused o fficials of the Company filed Cr. Misc. No. 23287/96 for quashing the said order of the Magistrate. The accused o fficials of the Company filed Cr. Misc. No. 23287/96 for quashing the said order of the Magistrate. By interim order dated 26.11.97 this Court directed the petitioner and his son to make fresh representation for compassionate appointment observing that if such representation is made the Company shall sympathetically consider the same and reconsider the earlier decision, if permissible under the Rules. In the light of the said order of this Court the petitioner made representation on 17.12.97 but no appointment was made till date. At this stage he approached this Court seeking directions as mentioned at the outset. 5. The respondent company does not deny the relationship of employer and employee between the parties. It also does not deny that the rules of the company, as existing at the relevant time, gave an option to the employee to get his son employed in this place provided he sought voluntary retirement at least five years prior to his due retirement. The case of the Company is that the petitioner was an employee of Britannia Engineering Company Limited which was taken over under the 1978 Act (supra). The Act, inter alia, laid down that no liability of Britannia Engineering Company (Mokamah Unit) shall be enforceable against the Central Government or the Government Company, as the case may be. The employees working in the said Company, however, were retained after selection by the Selection Committee. The petitioner, like other employees, filed application on 26.2.74 to retain him in service wherein he gave details of his Provident Fund Account etc. In course of interview before the Selection Committee on 30.1.75 he declared his date of birth as 10.2.1941. On the basis of such declaration the said date was mentioned in the Bio data sheet with the note "as per the attested certificate without having official stamp subject to the production of original school certificate on 1.2.75 or else not to be admitted". The petitioner signed the proforma agreeing to abide by the terms and conditions of the services. In Column (b) of the said proforma it was stated that in the matter of Provident Fund the old membership will continue. The petitioner signed the proforma agreeing to abide by the terms and conditions of the services. In Column (b) of the said proforma it was stated that in the matter of Provident Fund the old membership will continue. The case of the company is that at the time of his initial appointment under the Britannia Engineering Company on 1.1.70 he had declared his age as 33 years, in the Declaration/Nomination From under the Employees Provident Fund Scheme also be mentioned "38 years" in the date of birth column on 2.1.76. Thus, as per the record of the Company the date of birth of the petitioner was treated is 2 1 76. Thus, as per the record of the Company the date of birth of the petitioner was treated as 2.1.1938 on the basis of declaration of age "38 years" on 2.1.76. Till 17.1.94 the petitioner took no step go get the entry/record corrected. After he submitted application for his voluntary retirement and appointment of his son, on 30.3.95 he was aksed to explain as to why the application was being filed at such a belated stage. A reminder notice was sent on 30.5.95. On 5.6.95 the petitioner requested for a weeks time and finally he submitted his explanation on 13.6.95. After considering his explanation decision was taken to treat 2.1.1938 as the date of birth on the basis of age declared in the Declaration & Nomination Form (Form- 2) i.e. 38 years. Accordingly, in accordance with the said decision, as the petitioner had submitted application for his voluntary retirement and his sons employment within 5 years of the date of his due retirement, the application dated 17.1.94 filed by him in that regard was rejected on 4.12.95 which was communicated to him by Annexure 5 on 8.7.95 which was originally impugned in the writ petition as mentioned at the outset. 6. The Company relies, besides the entries in the service record, viz. declaration of age at the time of his initial appointment under the Britannia Engineering Company and declaration in the Provident Fund Nomination Form, on an affidavit sworn by the petitioner himself before the Notary Public, Barh on 30.8.95 and the medical unfitness certificate dated 30.11.95, marked Annexure F and G to the counter affidavit respectively. declaration of age at the time of his initial appointment under the Britannia Engineering Company and declaration in the Provident Fund Nomination Form, on an affidavit sworn by the petitioner himself before the Notary Public, Barh on 30.8.95 and the medical unfitness certificate dated 30.11.95, marked Annexure F and G to the counter affidavit respectively. In the said affidavit the petitioner had declared his age as "about 57 and half years" on 30.8.95 in the medical certificate his age was mentioned by the doctor as "near about 57 years" on 30.11.95. 7. It would thus, appear that while the petitioner relies on matriculation certificate verified to be genuine by the Bihar School Examination Board, the Bio data sheet and the Identity Card, the company relies on the entry regarding age at the time of the petitioners original appointment in the Britannia Engineering Company on 1.1.70, his declaration of age in the Provident Fund Nomination Form-2 the affidavit dated 30,8.95 and the medical unfitness certificate dated 30.11.95. 8. Regarding the Bio data sheet and the Identify card the explanation of the Company is that the date of birth "10.2.1941" was mentioned on the basis of petitioners own declaration subject to verification on production of original school certificate which he never produced, it was on that basis that the Identity Card was issued, the petitioner therefore cannot claim any advantage on that basis. Regarding declaration of age at the time of his original appointment, or in Form 2 of the Provident Fund Scheme, the explanation of the petitioner is that entries are not in his pen, he had merely put his signature. Be that as it may, there is no explanation as to how on 30.8.95 i.e. after the dispute had arisen the petitioner declared his age in the aforesaid affidavit as about 57 and half years. The age mentioned by the Doctor on 30.11.95 was also almost to the same effect. They tally the age mentioned at the time of his original appointment on 1.1.70 as well as in the Provident Fund Nomination Form-2 on 2.1.76. 9. in fairness to the writ petitioner it must be observed that at the same time that reference to the Bihar School Examination Board was answered in favour of the petitioner. The date of birth mentioned in the matriculation certificate was found to oe genuine. 9. in fairness to the writ petitioner it must be observed that at the same time that reference to the Bihar School Examination Board was answered in favour of the petitioner. The date of birth mentioned in the matriculation certificate was found to oe genuine. The date of birth shown in the matriculation certificate supports the case of the petitioner. 10. The matriculation certificate ordinarily is treated as authentic proof of age in matters relating to public employment, unless it is found that the person had secured employment by suppressing the date of birth/age mentioned in the matriculation certificate. He then later cannot apply for correction on the basis of such certificate. In the instant case there does not appear to be any suppression. Even as per the date 10.4.1941, the petitioner was eligible for appointment as Majdoor on 1.1.70. 11. The age of the petitioner however, is not directly in issue. It becomes an issue indirectly because the issue of appointment of his son was linked with his age. As indicated above, the petitioner had sought quashing of the order by which treating 2.1.38 as his date of birth he was retired from service on 2.1.96 but he gave up the relief in that regard and confined the writ petition to the appointment of his son alone. 12. Though the controversy relating to the age of the petitioner involves disputed question of fact, even assuming that his date of birth was 10.2.41, whether any direction can be issued for appointment of his son on compassionate ground? 13. The Company in paragraph 30 of its counter affidavit has stated that on account of ongoing financial crisis the Board of Directors in their 113th meeting on 16.3.2001 resolved not to make appointment on compassionate grdund as it is not feasible for the Company to appoint new personnel in view of the expected losses when the Company has already taken effective steps to set aright the surplus manpower through voluntary retirement scheme. Only in cases of fatal accidents within the factory premises appointment on compassionate ground can be made. The minutes of the proceeding of the Board of Directors dated 16.3.2000 and the policy decision on the subject of compassionate appointment dated 6/8.11.2000 have been enclosed as Annexure L and M to the counter affidavit. 14. it would thus appear that the decision not to appoint the appellant no. The minutes of the proceeding of the Board of Directors dated 16.3.2000 and the policy decision on the subject of compassionate appointment dated 6/8.11.2000 have been enclosed as Annexure L and M to the counter affidavit. 14. it would thus appear that the decision not to appoint the appellant no. 2 may not be said to be arbitrary, it is true that the voluntary retirement scheme and the revised poiicy decision in the matter of compassionate appointment saw the light of the day later. However as the things stand now, when the industry is facing crisis and trying hard to survive in market, and keeping that in view, reducing the work force, in my opinion, it would not be an appropriate exercise of discretion to direct the Company to appoint the appellant no. 2 thereby adding burden to the Companys finance. 15. Another aspect of the case is that though the age/date of birth shown in the matriculation certificate is ordinarily treated as determinative of age of the employees, where the service records are at variance with it, the employee is supposed to take steps for correction of the mistake, if that is not done the employer is supposed to act on the basis of the age mentioned in the records. The petitioner never applied for correction of the records. Bio data sheet mentioned the date of birth on his own declaration subject to production of the matriculation certificate which, it is stated, the petitioner never produced. The Identity card was prepared on the basis of the entry in the Bio data sheet. Having not taken steps for correction of the records as per the matriculation certificate, if the Company proceeded on the basis of its record, the action cannot be said to be arbitrary or without any basis. By reason of the notices dated 30.3.95 and 30.5.95 pursuant to which he in fact filed an explanation on 13.6.95, it cannot be said that opportunity of hearing was not given to the petitioner. In any view, on account of the financial crisis staring at the face of the company, I do not think, direction for appointment of his son i.e. appellant no. 2 ought to be issued at this stage. The interim order dated 26.11.97 in Cr. Misc. no. In any view, on account of the financial crisis staring at the face of the company, I do not think, direction for appointment of his son i.e. appellant no. 2 ought to be issued at this stage. The interim order dated 26.11.97 in Cr. Misc. no. 23287/96 (supra), it may be mentioned, lost its effect with the dismissal of the case at the stage of final hearing on 10.3.2000. 16. Before concluding the case, it may be mentioned that in the writ petition the petitioner referred to instances of sons of the employees being appointed in their places. The definite case of the Company in this regard is that-in all such cases the employees had made offer of voluntary retirement beyond five years of their due retirement and their cases were thus different. In paragraph 15 of the memo of appeal the appellants have stated that notwithstanding the alleged adverse financial condition, Md. Jamil Akhtar has been appointed on compassionate ground. As indicated above, the Company has not completely done away compassionate appointment, it has been limited to cases of fatal accidents within the factory premises. The circumstances in which Md. Jamil Akhtar has been appointed, assuming it to be true, have not been disclosed. On that basis alone I do not feel satisfied to issue any direction for appointment of appellant no. 2 in place of the deceased petitioner. 17. In the result, I do not find any merit in the appeal which is accordingly dismissed. There will be no order as to costs. P.N.Yadav, J. 18 I agree.