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2008 DIGILAW 1057 (JHR)

Gobardhan Mahto v. Bharat Coking Coal

2008-09-02

RAKESH RANJAN PRASAD

body2008
ORDER R.R. Prasad, J. 1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the office order as contained in memo No. 134 dated 25.4.2006 (Annexure 3) issued by respondent No. 4 whereby and whereunder petitioner was made to retire on 30.11.2006 taking the date of birth of the petitioner as 21.11.1946 which was never recorded in Form 'B' register or in other service excerpt, rather in those documents age of the petitioner has been recorded as 32 years as on 13.1.1981. 2. The case of the petitioner is that the petitioner was employed on 30.1.1981 in Lohapati Colliery, a unit of M/s. Bharat Coking Coal Limited as under ground Trammer. Thereupon, service excerpt was prepared on 22.3.1987 wherein age of the petitioner was recorded as 32 years as on 13.1.1981 in Form 'B' register. Accordingly, in the identity card the same age was recorded but all on a sudden, the petitioner was served with a notice on 25.4.2006 as contained in Annexure 3 whereby petitioner's date of birth was shown as 21.11.1945 and the date of retirement on superannuation was shown as 30.11.2006. Immediately thereafter petitioner lodged a written protest to the respondent but when nothing was done, the petitioner made a representation before the respondent No. 4 but in stead of passing any order on the representation, the petitioner was made to retire on 30.11.2006. Being aggrieved with that order, the petitioner has filed this application. 3. Counter affidavit has been filed by the respondent- M/s. Bharat Coking Coal Limited stating therein that age of the petitioner was determined by a Medical Board as 34 years as on 21.11.1980 and such assessment of the age of the petitioner was communicated to the petitioner vide the office order dated 27/28.4.1986 and, accordingly, necessary correction was made in Form 'B' register whereupon the petitioner put initial over the corrected portion on 24.5.1986. Thereafter also when L.P.C was issued on 10.6.1992, the date of birth of the petitioner was shown as 34 years as on 21.11.1980 and, therefore, the petitioner on superannuation was made to retire on 30.11.2006 and as such the authority has never committed any illegality. 4. Thereafter also when L.P.C was issued on 10.6.1992, the date of birth of the petitioner was shown as 34 years as on 21.11.1980 and, therefore, the petitioner on superannuation was made to retire on 30.11.2006 and as such the authority has never committed any illegality. 4. Learned Counsel appearing for the petitioner submitted that when the age of the petitioner was recorded as 32 years as on 13.1.1981 in the statutory Form 'B' register which stood as such for years together, there was no justification on the part of the respondent to get it changed on the basis of the report of the Medical Board and that too without affording any opportunity of being heard before making him retired on 30.11.2006. In similar situation, this Court in a case of Baij Nath Mahato v. Bhart Coking Coal Limited (2008) 2 JLJR 308 did hold that such action of the respondent is highly condemnable and thereby respondent was directed to reinstate the petitioner in service with all consequential benefits. That order was even upheld by the Division Bench of this Court in LPA No. 167 of 2008. 5. Learned Counsel appearing for the respondent submitted that though the petitioner has come with the case that his age was recorded as 32 years as on 13.1.1981 in statutory Form 'B' register which was arbitrarily changed by the respondent by putting age of the petitioner as 34 years on 21.11.1380 but that got changed on the basis of age being determined by Medical Board which was communicated to all concerned including the petitioner under order dated 27/28.4.1986 (Annexure A) but this fact was never averred by the petitioner in the writ application. It was further pointed out that subsequently the petitioner was served with notice of superannuation dated 25/26.4.2006 intimating therein that he has to retire on superannuation on 30.11.2006 but the petitioner never raised any dispute and now having retired from the service, this writ application has been filed raising dispute regarding change of date of birth which, in the facts and circumstances, cannot be allowed to do so when he had not challenged the opinion of the Medical Board at any stage in view of the decision rendered in a case Bharat Coking Coal Limited v. Presiding Officer and Anr. 6. 6. In this respect it was further submitted that petitioner being workman within the meaning of Section 2(s) of the Industrial Dispute Act, he should have raised Industrial dispute under Section 2(k) of the Industrial Disputes Act but admittedly, he did not chose that forum and straightway came to this Court to get the disputed question of fact decided and as such, the petitioner is not entitled to any relief. Having heard learned Counsel appearing for the parties, it appears that admittedly age of the petitioner was recorded as 32 years as on 13.1.1981 in the statutory Form 'B' register which got changed as 34 years as on 21.11.1981 on the basis of age assessment report given by the Medical Board and the said decision was communicated to all concerned including the petitioner by office order dated 27/28.4.1986 (Annexure A) and subsequently, necessary correction was made in Form 'B' register whereby, according to the respondent, petitioner put his initial. Subsequently, six months before the retirement, the petitioner was served with a notice of superannuation dated 25/26.4.2006 intimating therein that the petitioner would be retiring on superannuation on 30.11.2006 but at no occasion, the petitioner raised any objection. However, after having been retired, this writ application has been filed and as such the petitioner is not entitled to any relief particularly when petitioner never challenged the opinion of the Medical Board at any stage which proposition seems to have been laid down by Hon'ble Supreme Court in a case of Bharat Coking Coal Limited v. Presiding Officer and Anr. 7. On other count also the petitioner is not entitled to any relief. Undisputedly, the petitioner was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and, during service period when the age of the petitioner got changed on the basis of Medical Board, he should have raised industrial dispute before the competent authority as the dispute which has been raised here definitely falls within the meaning of Industrial Disputes as defined in Section 2(k) of the Industrial Disputes Act and, therefore, remedy never lies before this Court or any other civil court as dispute which is being raised is an Industrial Dispute arising out of the right or obligation created under the Industrial Disputes Act and hence the only remedy was to seek adjudication under the Act. However, the other court may have jurisdiction to deal with the dispute but that dispute must not be an industrial dispute nor relating to the enforcement of any other right under the Act. 8. So far the decision in the case of Baij Nath Mahato v. Bharat Coking Coal Limited (supra) is concerned, the fact appears to be somewhat different. In that case, the date of birth was altered and was made to retire without affording him proper opportunity of being heard but here, in the instant case, as has been noted above, the petitioner was informed about his age as 34 years as on 21.11.1980 after the assessment of the age was made by the Medical Board and thereupon Form 'B' register was rectified with respect to age of the petitioner, upon which the petitioner put his initial and even subsequently, the petitioner was given notice six months prior to his retirement intimating therein about the date of his retirement but at no occasion, any objection was raised and therefore, it can never be said that respondent by changing the age of the petitioner violated the principle of natural justice. 9. Accordingly, I find no merit in this application. Hence, this application is dismissed. Application is dismissed.