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Madhya Pradesh High Court · body

2006 DIGILAW 351 (MP)

Charan Lal v. Western Coalfield Limited

2006-03-07

A.K.SHRIVASTAVA

body2006
ORDER 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is seeking the following reliefs: "(i) That, this Hon'ble Court may kindly be pleased to issue a writ or direction against the respondents to submit the entire service records of the petitioner from the possession of the respondents for its kind perusal. (ii) That, this Hon'ble Court may kindly be pleased to issue a writ in nature of mandamus directing to respondents to rectify or modify the date of birth of petitioner 20.10.1953. (iii) That, this Hon'ble Court be also pleased to issue a writ to respondents in nature quo warranto as on which basis, the respondents have mentioned the date of birth of the petitioner as 1.7.1950. (iv) That, the respondents may kindly be directed not to retire/superannuated to the petitioner unless he attains actual date of superannuation on the basis of actual date of birth 20.10.1953." 2. Preliminary objection has been raised by Shri Anoop Nair, learned counsel for the respondents, that as per own showing of the petitioner, he came to know in the year 1987 that his date of birth has been recorded as 1.7.1950 in form 'B' when the service record was circulated, however, he did not file any petition immediately, and the present petition has been filed after near about 18 years of the issuance of Annexure R-3 and, therefore, this petition be dismissed on the ground of delay and laches. 3. Another preliminary objection has been raised that the petitioner being a workman, is having an efficacious and alternative remedy by invoking the jurisdiction under the Industrial Disputes Act, 1947 and, therefore, on this count also this petition deserves to be dismissed. 4. On the other hand, Shri Mishra, learned counsel for the petitioner, by replying preliminary objections, has submitted that against recording of incorrect date of birth of petitioner as 1.7.1950, he submitted a representation Annexure P-4 on 2.5.1988 as well on 24.9.1989 (Annexure P-5) and when he found that he is sailing his boat in an endless ocean, he knocked the door of this Court by filing the present petition on 12.5.2005. It has also been submitted by him that before filing this petition, in January, 2005 he again submitted a representation Annexure P-6. Thus, according to learned counsel for the petitioner, this petition cannot be dismissed on the ground of delay and laches. It has also been submitted by him that before filing this petition, in January, 2005 he again submitted a representation Annexure P-6. Thus, according to learned counsel for the petitioner, this petition cannot be dismissed on the ground of delay and laches. 5. So far as the alternative remedy is concerned, it has been contended by learned counsel that the matter has been argued at length on merit and, therefore, it would not be fruitful to dismiss the petition on the ground of alternative remedy, since there is no absolute bar if a petition is filed under Article 226 of the Constitution of India. 6. The unfolded facts are that the service record of the petitioner was circulated in the year 1987 in which the date of birth 1.7.1950 has been mentioned and the date of entry in the employment has been mentioned as 18.4.1975. The requisite document has been placed on record as Annexure R-3. Thereafter 25.7.1988 the petitioner filled and submitted form 'B' which is a statutory form and is required to be filled by the employee in terms of section 48 of the Mines Act, 1952. In this context, Rule 77 of Mines Rules, 1955 may also be taken into consideration. Thus, the form 'B' mentioning the requisite information and particulars including the date of birth is having statutory force. The date of birth of the petitioner recorded as 1.7.1950 in the service record was circulated to the petitioner in the year 1987 but he did not file any petition disputing his date of birth before this court or assailing the action of respondents in any other forum. True, on 2.5.1988 and 24.9.1989 he submitted two representations which were not decided but it would not sweep the inordinate delay in order to pray this Court to invoke the jurisdiction under Article 226 of the Constitution of India. Since there is great delay of near about 18 years in filing the petition, therefore, in my opinion, this petition is to be dismissed on the ground of delay and laches. 7. However, since learned counsel for the parties have addressed the Court on merit, this petition is being decided on merit also. 8. Since there is great delay of near about 18 years in filing the petition, therefore, in my opinion, this petition is to be dismissed on the ground of delay and laches. 7. However, since learned counsel for the parties have addressed the Court on merit, this petition is being decided on merit also. 8. The contention of Shri Mishra, learned counsel for the petitioner, is that indeed the correct date of birth of the petitioner is 20.10.1953 and in support of his contention he has placed heavy reliance on Annexure P-3 which is a school leaving certificate mentioning the date of birth of the petitioner to be 20.10.1953. Thus, it has been contended by learned counsel that this date of birth should be recorded by the respondents in the service record. It has been further contended by learned counsel that the petitioner never accepted his date of birth to be 1.7.1950 as mentioned in Annexure R-3 as well as in form 'B' and, therefore, if the respondents themselves have written some other date of birth of the petitioner, he is not bound to accept the same. In support of his contention, learned counsel for the petitioner has placed reliance on the decisions of the Division Bench of this Court in the cases of S.C. Verma v. Union of India and another [ 2000 (4) MPHT 384 ] and Mahendra Kumar Soni v. State of M.P. and others [2004 (1) Vidhi Bhasvar 288 = 2003 (3) MPHT 22 ]. 9. On the other hand, it has been argued by Shri Anoop Nair, learned counsel for the respondents, that the petitioner filled and submitted requisite form 'B' mentioning his date of birth to be 1.7.1950 and as per section 48 of the Act, since it is statutory declaration which is having its own significance, thus the petitioner is estopped from raising any dispute thereafter because he himself submitted the said statutory form. It has also been submitted by learned counsel for respondents that no where in the representation Annexure P-4, P-5 or even in Annexure P-6 dated 2.5.1988, 24.9.1989 and January, 2005 respectively, the petitioner ever raised the dispute that he did not sign the statutory form 'B'. It has been contended by learned counsel that why the officers of respondent No. 1 would mention some other date of birth of the petitioner, there is no explanation in that regard. It has been contended by learned counsel that why the officers of respondent No. 1 would mention some other date of birth of the petitioner, there is no explanation in that regard. In support of his contention, learned counsel for the respondents has placed reliance on the decision of the Division Bench of this Court in the case of Shri Ismail Khan and six others v. General Manager, Pench Area, Western Coalfields Ltd. and another [LPA No. 133 of 2001], decided on 8.4.2005. 10. Learned counsel for the petitioner submits that on what basis the respondents have entered the date of birth of the petitioner to be 1.7.1950 in form 'B' there is no explanation. 11. After having heard learned counsel for the parties, I am of the view that this petition deserves to be dismissed on merit as well. 12. The Division Bench of this Court in the case of Shri Ismail Khan and six other (supra) while dealing to the point in hand in para-8 has held that under section 48 of the Act the legislature has imposed an obligation upon the employer to maintain registers of persons employed. Under subsection (1) of section 48 the register shall disclose the necessary particulars and clause (b) pertains to the age and sex of the employee. These relevant entries shall be authenticated by obtaining signatures or thumb impressions by the persons concerned. According to sub-section (3) no person shall be employed in the Mine until the particulars required by sub-section (1) have been recorded in the register and, therefore, before entering into the service, these declarations under this section are pre-supposed. A copy of old register (Annexure R-l) has also been filed by the respondents along with the return wherein the date of employment of the petitioner has been mentioned as 18.4.1975 and his age has been mentioned as 25 years. There is signature in the prescribed column of the petitioner. Thus, at the time of entry in service on 18.4.1975 the age of the petitioner was 25 years and if it is calculated, his date of birth would be in the year 1950. Thereafter the petitioner filled the statutory form 'B' mentioning his date of birth to be 1.7.1950. He also put his signature at the requisite place. This form was filled on 25.7.1988. Thereafter the petitioner filled the statutory form 'B' mentioning his date of birth to be 1.7.1950. He also put his signature at the requisite place. This form was filled on 25.7.1988. On going through the representations of petitioner Annexure P-4, P-5 and P-6 dated 2.5.1988, 24.9.1988 and January, 2005 respectively, it is gathered that only averment which has been made in these representations is that his date of birth has been incorrectly recorded. No where in the representations it has been mentioned that he did not fill the requisite statutory form 'B' and it does not bear his signature. Since the petitioner voluntarily declared his date of birth in form 'B', therefore, the theory of his date of birth to be 20.10.1953 appears to be concocted and afterthought. In this regard Annexure P-3 which is a school leaving certificate is perused which has been heavily relied by learned counsel for the petitioner. On going through this document, it is gathered that only on 9.12.2004 this school leaving certificate was prepared in which the date of birth of petitioner has been mentioned as 20.10.1953. It be seen that Annexure P-6 was submitted only in January, 2005 which would mean that first of all the material was being prepared meaning thereby the school leaving certificate was obtained on 9.12.2004 and thereafter the representation was made and ultimately this petition was filed by basing Annexure P-3. Learned counsel for the petitioner by inviting my attention to Annexure P-4 and P-5 has submitted that along with these representations, photocopy of school transfer certificate was submitted. However, the copy of the said certificate has not been filed in this petition. The petitioner has filed photocopy of school leaving certificate which he obtained on 9.12.2004. More over there is no pleading in the petition that any of the officer of respondent No.1 is keeping ill-will with the petitioner or is having any revengeful attitude against him. Thus, why a wrong date of birth would be mentioned in statutory form 'B' Annexure R-2. The decisions of S. C. Verma and Mahendra Kumar Soni (supra) placed reliance by learned counsel for petitioner are tangentially off the point. In both the cases there was no clause of recording the date of birth as prescribed by the statute. In the present case a statutory form 'B' is required to be filled by the petitioner mentioning his date of birth. In both the cases there was no clause of recording the date of birth as prescribed by the statute. In the present case a statutory form 'B' is required to be filled by the petitioner mentioning his date of birth. Thus, form 'B' is having its own significance and importance, since it is having statutory force. 13. For the reasons stated hereinabove, I do not find any merit in this petition and the same is hereby dismissed with no order as to costs.