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2003 DIGILAW 1198 (PAT)

Mehdi Mirza v. Bihar State Electricity Board

2003-11-21

R.S.GARG

body2003
Judgment 1. Heard learned counsel for the parties. 2. In relation to the petitioner, an employee of the Bihar State Electricity Board, a question arose that what was his exact date of birth or what was his actual age. From annexure-C, copy of the service book, it appears that there are certain interpolations in the column of the age and date of birth. Taking an exception to all this, the Employer, the Bihar State Electricity Board referred the matter of the age of the petitioner to the Medical Board. The Medical Board examined the petitioner and vide annexure-B to the counter affidavit observed that the age of the petitioner could be between 56 to 53 years. The Respondents being in norns of dilemma instead of observing the age as 56 or 58 took an average of the same and recorded that the petitioner is 57 years of age and would retire in November, 2003. The petitioner being aggrieved by the order contained in annexure-2 bearing no. 7865 dated 13.12.2000 has come to this Court. 3. Learned counsel for the petitioner submits that on earlier occasion these questions assumed importance and the High Court had decided the matter. It was submitted that on earlier occasion the High Court observed that the average of the age would be a proper basis for retiring the employee. It is also to be seen that subsequent to that the matter again came to this Court and a Division Bench of this Court in the Letters Patent Appeal observed that in case of confusion relating to the age the benefit of the lesser age would be given to the employee. The matter was taken to the Supreme Court and the Supreme Court upheld the order passed by this Court. Thereafter, vide circular no. 177 dated 5.6.2002, annexure-4 to the writ application, the Secretary, Bihar State Electricity Board observed that in view of the judgment and order dated 6.3.2002 passed by the Apex Court it stands decided that with effect from 6.3.2002 in a case where the Medical Board determined the age of an employee in terms of minimum and maximum age, the minimum age will be taken into consideration for purposes of determining the date of birth of the employee. 4. 4. Armed with this circular the petitioner now submits that in accordance with the judgment of the Supreme Court so also the circular issued by the Board, the petitioners age should be treated to be 56 years and he should be allowed to Fetire on 30.11.2004. 5. To jettison the argument raised by the petitioner, it is contended by the learned counsel for the Board that general principles have been decided by the Letters Patent Court and the Supreme Court and in any case the generality of the principles would not cover the particularity of the case. According to him, the present was a case of interpolation/overwriting and in an identical situation in the matter of Sone Lai Rai vs. Bihar State Electricity Board in C.W.J.C. No. 9415/2002 decided on 5.9.2002 this Court has considered all the things. After taking into consideration everything including those judgments of the Supreme Court, this Court has observed that the said principles cannot be applied to a case where there was interpolation in the records. 6. After hearing the parties, I must at once record that the defences raised by the Bihar State Electricity Board are per se unjustified. The judgment in the matter of Sone Lai Rai was on the special facts of that case. In that case it was found that the said petitioner had made certain interpolations in the records and certain actions were proposed to be taken against him. In the present matter instead of taking an action either to lodge a report against him to the police or to initiate a departmental enquiry the Board thought that the matter can be settled by the Medical Board. If at the first available opportunity the Board did not find present to be a case either for initiating a departmental enquiry or for making a complaint to the police then at this stage they cannot be allowed to say that present being a case of interpolation, the principles laid down in the matter of Bihar State Electricity Board vs. Bihar Powers Workers Union reported in 2000(3) PLJR Page 65 cannot be applied. 7. In the present matter the Board on its own volition referred the matter to the Medical Board. It is trite law that if the Medical Board is constituted, then neither of the parties can be allowed to challenge the findings of the said Board. 7. In the present matter the Board on its own volition referred the matter to the Medical Board. It is trite law that if the Medical Board is constituted, then neither of the parties can be allowed to challenge the findings of the said Board. If the employee is bound by the findings of the Medical Board then the said findings would also bind the Bihar State Electricity Board. The only exception to this generality would be that in a case where the age was between minimum and maximum the benefits of the minimum age would be given to the petitioner. 8. The petitioners case is fully covered by the Judgment of the Division Bench of this Court in the matter of Bihar State Electricity Board (supra). Accordingly, the directions contained in annexure-2 dated 13.12.2000 are quashed and it is directed that the petitioner being a man of 56 years would be entitled to work upto to the age of his superannuation, i.e., the age of 60 years. 9. The petition is allowed.