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Madhya Pradesh High Court · body

2005 DIGILAW 451 (MP)

ISHAQUE ALI v. SUB AREA MANAGER, WCL

2005-03-29

ARUN MISHRA

body2005
ORDER : Petitioner in this writ petition has submitted that his date of birth has been recorded in the service book as 1.7.47; it has been altered to 1.7.44; opportunity was not given to the petitioner to make alteration. The date of birth has been changed unilaterally and unauthorisedly, hence, order (P.1) dated 12-12-2003 retiring him w.e.f. 30-6-2004 is bad in law. 2. It is averred in the petition that petitioner was appointed on 1-1-1991 in Ambara Colliery, Western Coalfields Ltd. in Kanhan Area. His date of birth was recorded in Form B register as 1.7.47; suddenly the management has changed date of birth in Form B register and altered it as 1.7.44 and has issued order (P.1) of superannuation on 12-12-2003. Petitioner filed representation against the order of retirement. Representations (P.2, P.3 and P.4) have been filed on 8-1-2004, 17-2-2004 and 3-2-2004 respectively. Petitioner has submitted that at the time of appointment age could not have been more than 35 years which is prescribed in National Coalfields Ltd. agreement. Management reply (P.3) to the representations was sent on 16-1-2004. It was admitted that initially date of birth was mentioned as 1.7.47 in Form B register, it was changed as it was recorded due to mistake. Petitioner has submitted that date of birth as 1.7.47 has been recorded in medical card (P.S.-3) nomination form (P.S.-4) under the pension scheme, computer data etc. Petitioner has relied upon implementation Instruction No. 76. Petitioner has submitted that the computer data (P.7) which was issued to him, records the date of birth to be 1.7.47; same is binding, final and conclusive. In the notification (P-8) also date of birth was mentioned as 1.7.47 which has been altered to 1.7.44 without any notice to the petitioner, thus, the alteration made in the notification (P.8) is bad in law. Petitioner has also relied upon Form B (P.9) and (P. 10). In Medical card (P.S.-3) and nomination of pension scheme (P.S.-4) date of birth has been recorded as 1.7.47; in medical family card (P.11) date of birth is 1.7.47. Thus, change of date of birth is bad in law. 3. In the return filed by the respondents, it is contended that question of fact has been raised by the petitioner. In Medical card (P.S.-3) and nomination of pension scheme (P.S.-4) date of birth has been recorded as 1.7.47; in medical family card (P.11) date of birth is 1.7.47. Thus, change of date of birth is bad in law. 3. In the return filed by the respondents, it is contended that question of fact has been raised by the petitioner. His age was 38 years on the date of his appointment; on that basis date of birth was recorded in Form B as 1.7.44; initially 1.7.47 was erroneously recorded; it was corrected and correct date of birth was mentioned as 1.7.44. Petitioner has put his thumb impression. 4. Shri Piyush Dharmadhikari, learned counsel for the petitioner, has submitted that alteration has been made in Form B and in notification (P.8); initially the date was correctly recorded as 1.7.47; when it was altered has not been intimated to the petitioner, change has been made behind back of petitioner, thus, the order of retirement and alteration of date of birth is bad in law. No date has been put on the correction when it was ordered/made, has not been clarified by the respondents. Petitioner's counsel has placed reliance upon the decisions of the Apex Court in Sarjoo Prasad vs. General Manager, 1981 - Lab. I.C. 880 : AIR 1981 SC 1481 , State of Andhra Pradesh vs. M. Hayagreeva Sharma, 1990 - 60, FAC-LR, 837 and State of Orissa vs. Dr. (Miss) Linapani Dei, AIR 1967 SC 1269 . Apart from that he has placed implicit reliance on para 5 of the Implementation Instruction to contend that computer data is conclusive, final and binding and petitioner's case has to be treated as undisputed case. Computer data and other relevant records mention the date of birth as 1.7.47, hence, the order of retirement is bad in law. 5. Shri Anoop Nair, learned counsel for the respondents, has submitted that erroneously date of birth in Form B was mentioned 1.7.47, it has been corrected and correct date of birth as 1.7.44 in other documents, error has crept into due to wrong recording of date of birth. On specific query being made, respondents' counsel is unable to state when correction has been ordered and by whom; as initially date was mentioned as 1.7.47 which is reflected in subsequent documents also. 6. On specific query being made, respondents' counsel is unable to state when correction has been ordered and by whom; as initially date was mentioned as 1.7.47 which is reflected in subsequent documents also. 6. Implementation Instruction, para 5 is quoted below :- "Undisputed cases : It was agreed that in undisputed cases, with a view to have stable record of service, the entire data in the service Record should be computerized and a copy should be retained at the Colliery/ Project/Area/Subsidiary level and at the Headquarters of Coal India. Such undisputed cases will not be reopened. It was also agreed that after the task of computerization is over, a copy of the print out will be given to the employees concerned." 7. In computer data (P.7) dated 6-12-2003; date of birth has been mentioned as 1.7.47. It is clear from the reading of above quoted paragraph which is part of Implementation Instruction No. 76 that entire data in the service record should be computerized and a copy should be retained at the Colliery/ project/area/subsidiary level and at the Headquarters of Coal India. Such undisputed cases will be not reopened; after the task of computerization is over, a copy of the print out will be given to the employee concerned. Undisputedly computer data (P. 7) contains the date of birth as 1.7.47; this is supported by the initial entry made in Form B which is statutory register and also the notification (P.8) in which initial date of birth was mentioned as 1.7.47. There is no mention in the notification (P.8) of correcting the date of birth as 1.7.44; when it was corrected, by whom it was corrected, under whose order the correction was made. In Form B register the correction has been made; when correction has been carried out is not stated in the return nor the respondents' counsel is able to state the date of correction when it has been made. It is clear that it has been made subsequently as there are other documents which are untempered with on record issued by respondents; medical family card (P. 11) and Medical Card Form P.S.-3 (P. 10), nomination P.S.-4 (P.9) in which date of birth is recorded as 1.7.47, it was issued in the year 1998. Similarly in Form B initially date of birth was mentioned as 1.7.47. Similarly in Form B initially date of birth was mentioned as 1.7.47. It appears that change has been made subsequently; even in the computer data date of birth was mentioned as 1.7.47; before alteration of the date of birth petitioner has not been heard/noticed as it is clear that alteration is subsequent in point of time, hence, the alteration could not have been given effect without hearing the petitioner as per the law laid down by the Apex Court in State of Orissa vs. Dr. (Miss) Linapani Dei (supra) and also in the light of the decision rendered by the Apex Court in Sarjoo Prasad vs. General Manager (supra). It is not permissible to change the date of birth behind back of an employee. 8. In view of the Implementation Instruction para 5 and computer data the order of retirement of petitioner cannot be allowed to sustain. Consequently, the order (P. 1) of retirement of petitioner is hereby quashed. In case respondents want to change the date of birth which was initially recorded and mentioned in computer data, they have to grant opportunity of hearing to the petitioner and take an action if permissible not otherwise. Petitioner is held entitled for the back wages for which he has been deprived to work. 9. Resultantly, writ petition is allowed to the extent indicated above. Parties to bear their own costs as incurred.