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2005 DIGILAW 31 (JHR)

Fatik Chandra Dutta v. Bharat Coking Coal Ltd.

2005-01-13

N.N.TIWARI, SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER S.J. Mukhopadhaya, A.C.J. 1. This writ petition has been filed by the petitioner against the notice dated 3rd/4th May 2004, passed by 4th, respondent, whereby and where under, he has been informed that he will be completing 42 years of service and thereby he would retire on 31st October, 2004. 2. According to the petitioner, he can not be subjected to retire prematurely, prior to attaining the age of superannuation i.e. 60 years of age. On the other hand, according to the respondents, the minimum age of 18 years, prescribed for appointment in the services of the respondents, the petitioner can not continue beyond 42 years of service. 3. Brief facts of the case, as admitted by the parties, are that the petitioner was initially appointed on 20th October, 1962 as Cap Lamp In charge in one East Basuria Colliery, a private Colliery. After appointment, his date of birth was recorded as 1st November, 1945 in his service records, including other relevant records, which has not yet been changed. The said East Basuria Colliery was subsequently nationalized and made a Colliery under M/s Bharat Coking Coal Limited (in short M/s BCCI.) and services of the petitioner was also taken over. In the statutory Form-B, Register, the date of birth of the petitioner has been recorded as 1st, November, 1945. As per the Standing Order No. 31.0 "the age of retirement of the workman shall be 60 years in the Company." The respondents treated the petitioner to have been appointed at the age of 18 years and thereby, on completion of 42 years of service, they treated him to have completed 60 years of age and thereby noticed him of his retirement with effect from 31st October, 2004. 4. The stand of the parties has already been noticed above. According to the petitioner, his date of birth can not be changed and thereby he can not be made to retire prior to 60 years of age. On the other hand, as per the respondents, the petitioner having completed 42 years of service, can not be allowed to continue further. 5. Similar issue fell for consideration before Patna High Court as also before this Court from time to time and decisions have been rendered. On the other hand, as per the respondents, the petitioner having completed 42 years of service, can not be allowed to continue further. 5. Similar issue fell for consideration before Patna High Court as also before this Court from time to time and decisions have been rendered. In the case of Mokhtar Ahmad v. Bihar State Road Transport Corporation and Ors., reported in 1995 (1) PLJR 183, Division Bench of Patna High Court noticed Rule 54 of the Bihar Service Code, wherein, though the upper age limit for admission into pensionable Government service was fixed, no lower age limit was fixed therein. The Court also noticed Rule 73 of the Bihar Service Code, 1952, which envisages that a Government servant would retire only on attaining the age of 58 years. In the said case, the workman was made to retire on completion of 40 years of service. Therein also it was pleaded that one can join the service at the age of 18 years and can continue in service up to the age of 58 years and thereby an employee will remain in service for a maximum period of 40 years. On such ground, said Mokhtar Ahmad made to retire from service on completion of 40 years of service, though he had not attained the age of 58 years, the age as was fixed for superannuation. The Division Bench of Patna High Court having noticed the provisions, observed that the Rule does not say that a person would retire either on attaining the age of 58 years or completing 40 years in service.. The Court held that the Government servant can not be legally made to retire, by arbitrarily pushing back his date of birth and assigning him an imaginary date of birth. 6. In a similar case of Mantu v. Central Coalfields Limited, reported in 2001(1) JLJR 117 : 2001(1) JCR 181 (Jhr), a Single Judge of this Court, having noticed that an employee was forced to retire before the date of his superannuation, on completion of 40 years of service, by construing his initial appointment, purported to have been made at the age of 18 years, held the decision to retire him prior to the age of superannuation as incorrect and bad in law, taking into consideration the fact that no minimum age of 18 years was prescribed while the employee was appointed. In another case of Kalanand Jha v. State of Jharkhand and Ors., reported in 2001 (2) JLJR 297 : 2001(3) JCR 228(Jhr), Single Judge of this Court having noticed the provisions of Rule 54 and Rule 73 of the Bihar Service Code, as also Rule 57 of the Bihar Pension Rules, 1950 and found that no minimum age was prescribed at the time of appointment under Rule 54 of the Bihar Service Code, and that the age of superannuation, prescribed under Rule 73 as 58 years and that Rule 57 of the Bihar Pension Rules, 1950 suggests that there is a provision to appoint even at the age of 16 years, held that the State Government employee can not be superannuated on the ground that he had completed 40 years in service. 7. One Venudhar Mohanti, who was in the services of the State of Jharkhand, was similarly made to retire on completion of 40 years of service, though he had not attained the age of superannuation l.e. 58 years. Single Judge of this Court by its judgment, rendered in the case of Venudhar Mohanti v. State of Jharkhand and Ors., reported in 2003(1) JCR 320 (Jhr), held the same illegal. 8. Likewise one Roopchand Mahto, an employee of M/s BCCL was also made to retire on completion of 42 years of ser vice, though he had not reached the age of superannuation. The learned Single Judge of this Court held the same illegal M/s B.C.C.L., thereafter, move in appeal against the order, passed by the learned Single Judge. A Division Bench of this Court in the case of B.C.C.L. v. Roopchand Mahto, (LPANo. 691 of 2001) vide its judgment dated 7th December, 2001 (un-reported) held as follows: "Undoubtedly the writ petitioners recorded date of birth is 1943 and on that recording he could not be superannuated on 5.9.2000. The fact that he had obtained employment in 1959 when he was less than 18 years, cannot alter the situation as far as his actual age is concerned. It is his right to serve till he reaches the age of superannuation. Whether in 1959. The fact that he had obtained employment in 1959 when he was less than 18 years, cannot alter the situation as far as his actual age is concerned. It is his right to serve till he reaches the age of superannuation. Whether in 1959. there was any provision that a person below 18 years would no be given a job in the Mines is not at all relevant because as on date what is of utmost relevance is the actual age of the writ petitioner because that would determine the date of his superannuation. The learned Single Judge was wholly right in allowing the writ application. We see no reason to interfere with the same." 9. Counsel for the respondents placed reliance on one unreported decision of Single Judge of this Court in the case of Ram Kishore Ojha v. B.S.E.B. and Ors., (CWJC No. 2837 of 1999), disposed of on 19th April, 2001. In the said case, the workman was made to retire from service on completion of 42 years of service, though he had not attained the age of superannuation i.e. 60 years. In the said case, the Court noticed the statutory Regulations, framed under Section 79(c) of the Electricity (Supply) Act, 1948, published vide Notification dated 9th September, 1997, whereby and where under, it was laid down that a workman of the Electricity Board, who had completed 42 years of service under the Board or had attained the age of 60 years, whichever is earlier, shall retire. The aforesaid case can not be made applicable in the present case in absence of any Rule/Guideline to the effect that an employee/workman of M/s BCCL will retire on completion of 42 years of service or on attaining the age of 60 years, whichever is earlier. 10. Much reliance was placed by the counsel for the respondents on a Division Benchs decision of this Court, rendered in the case of Shri Raja Ram Sharma v. Ranchi Municipal Corporation, reported in 2004 (2) JLJR 1 . In the said case, the petitioner was made o retire on completion of 40 years of service, though 58 years of age was prescribed for superannuation under the Rule. 11. We have also noticed the facts of the case of Shri Raja Ram Sharma and the relevant Rules, as was noticed by the Court in the said case. In the said case, the petitioner was made o retire on completion of 40 years of service, though 58 years of age was prescribed for superannuation under the Rule. 11. We have also noticed the facts of the case of Shri Raja Ram Sharma and the relevant Rules, as was noticed by the Court in the said case. The case of Shri Raja Ram Sharma is distinguishable to the extent that in the said case minimum age of 18 years was prescribed under the Rules, when the employee was appointed under Ranchi Municipal Corporation. For the said reasons, Division Bench of this Court upheld the retirement of Shri Raja Ram Sharma on completion of 40 years of service. 12. So far as this petitioner is con cerned, he is guided by the Mines Act, 1952. Prior to 1983 there was a prohibition of employment of adolescent, who had not completed his 16 years of age. After amendment, made vide Act, 42 of 1983, which came into effect from 31st May, 1984, the employment of persons, below 18 years of age, was prohibited. Pre-amendment, relevant portion of Section 40 of the Mines Act, 1952 is quoted hereunder : "40. Employment of adolescent-(1) No adolescent shall be allowed to work in any part of a mine which is belong ground unless- (a) he has completed his sixteenth year;" For proper appreciation, it is also relevant to quote the post- amended, Section 40 of the Mines Act, 1952 : "40. Employment of persons below eighteen years of age.-(1) After the commencement of the Mines (Amendment) Act, 1983, no person below eighteen years of age shall be allowed to work in any mine or par thereof." 13. The petitioner was appointed on 20th, October, 1962 i.e. 22 years prior to amendment of Section 40 of the Mines Act. Therefore, the respondents can not presume that he was appointed at the age of 18 years and thereby they can not push back his date of birth arbitrarily, assigning him an imaginary date of birth. 14. Counsel for the petitioner relied on certain other unreported decision of Division Bench of Ranchi Bench of Patna High Court. Therefore, the respondents can not presume that he was appointed at the age of 18 years and thereby they can not push back his date of birth arbitrarily, assigning him an imaginary date of birth. 14. Counsel for the petitioner relied on certain other unreported decision of Division Bench of Ranchi Bench of Patna High Court. In the case of Azim Khan @ Asim etc v. B.C.C.L and Anr., (CWJC No. 1555 of 1993R, and three analogous cases) by order dated 13th July, 1993, the Court noticed that the petitioners of those cases were appointed below the age of 18 years, which was alleged to be not permissible according to the Mines Act, 1952. Having noticed that the amendment of Section 40 of the Mines Act, came into force much later and that the petitioner were appointed prior to the same, Division Bench held that after lapse of a long time, the respondents can not be allowed to change the dates of birth of the petitioners of the said cases, as it was not tenable in law. In another case of Ganesh Gope etc. v. B.C.C.L and Ors., (C.W.J.C. No. 2241 of 1993R and three analogous cases), Division Bench of Ranchi bench of Patna High Court having noticed that the petitioners were below 15 years of age at the time of appointment and that the minimum age was prescribed after coming into force Mines act, 1952, held that when the matter has become completely stale, it was not permissible and justifiable to correct the age of employees on presumption. 15. Although counsel for the petitioner has tried to suggest that the decision of Division Bench in the case of Shri Raja Ram Sharma, (supra) is contrary and in conflict of the Division Benchs decisions of this Court in the cases of Roopchand Mahto, (supra), Azim Khan @ Asim etc. (supra) and Ganesh Gope etc., (supra), I am not expressing any opinion in this regard, as I have already distinguished the case of the present petitioner with the case of Shri Raja Ram Sharma, (supra). 16. In view of the discussions, made above, I hereby hold that the respondents can not force the petitioner to retire prior to attaining the age of superannuation i.e. 60 years, as prescribed under the Standing Order. 16. In view of the discussions, made above, I hereby hold that the respondents can not force the petitioner to retire prior to attaining the age of superannuation i.e. 60 years, as prescribed under the Standing Order. The notice dated 3rd/4th May, 2004, being illegal and thereby forceful retirement of the petitioner with effect from 31st October, 2004, being illegal, is hereby set aside. The petitioner stands re-instates with all consequential benefits, including arrears of salary, for the period, he was forced to remain out of service. He will continue up to the age of superannuation i.e. 60 years, as prescribed under the Standing Order. The respondents are directed to accept the re-joining of the petitioner within a period of seven days from the date of receipt/production of a copy of this order and they will provide him all the consequential benefits, as per this judgment, i.e. arears of salary, within three months from the date of receipt/production of a copy of this order. Narendra Nath Tiwari, J. 17. I agree.