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2008 DIGILAW 139 (JHR)

Baij Nath Mahato v. Bharat Coking Coal Ltd.

2008-02-08

N.N.TIWARI

body2008
Order The petitioner is permitted to make necessary correction in Para-1 of the writ petition. 2. In this writ petition, the petitioner has prayed for a direction on the respondents not to force the petitioner to retire from service before attaining the age of superannuation according to the entry of his date of birth recorded in Statutory Register Form B of the employer-Respondent. 3. Petitioner's case is that he was appointed in the services of the Respondent-BCCL as Miner (Piece Rated) Worker on 7th/12th April, 1977. At the time of appointment, his date of birth was recorded as 20th February, 1957. The said date of birth was also entered in Statutory Form B Register of the Respondent-BCCL. On the basis thereof, the identity card was issued mentioning the said date of birth in other service records as well as the same date of birth has been mentioned. 4. The respondents suddenly sent a notice by Office Order No. 42/3687 dated 18th/22nd April, 2006, whereby the petitioner was intimated that he has to retire with effect from 1st October, 2006, whereas according to his date of birth mentioned in the Statutory Form B Register, the petitioner is due to retire in February, 2017. 5. The petitioner protested the said letter by filing representation before the Chief General Manager, Sijua Area, and requested him to verify the record and pass appropriate order. 6. In spite of the petitioner's protest and representation, he was forcibly superannuated and was prevented from attending his duty after 1st October, 2006. 7. It has been submitted that the said action of the respondents forcing premature retirement of the petitioner without informing the reason and without any prior notice or opportunity of hearing to him is wholly illegal, arbitrary and violative of principle of natural justice. 8. A counter affidavit has been filed on behalf of the Respondent-BCCL. It has• been stated, inter alia, that the petitioner had himself raised dispute regarding his date of birth and made request for assessment of his age by Apex Medical Board. On his request, he was referred to the Apex Medical Board for assessment of his age. The Apex Medical Board ex" amined the petitioner on 5th December, 2006 and assessed his age as 60 to 65 years. On his request, he was referred to the Apex Medical Board for assessment of his age. The Apex Medical Board ex" amined the petitioner on 5th December, 2006 and assessed his age as 60 to 65 years. It has been stated that since the assessment of age by the Apex Medical Board is conclusive and final, the same cannot be questioned by the petitioner. The petitioner has been superannuated, as according to the decision of the Apex Medical Board, he has already attained the age of 60 years. He cannot be now reinstated after retirement. 9. I have heard learned counsel for the parties and considered the facts and materials available on record. It has not been disputed by the respondents that the petitioner's date of birth was recorded in Statutory Form B Register, as 20th February, 1957, at the time of his entry in the service in April, 1977. The Statutory Form B Register is the authentic record. On the basis of the said record, identity card was issued to the petitioner mentioning his date of birth as 20th February, 1957. The entry recording the petitioner's date of birth continued undisputed for about 29 years. It has been alleged by the respondents that the dispute regarding the date of birth was raised by the petitioner himself. The petitioner has denied to have raised any such dispute at any point of time. No document whatsoever has been produced by the respondents to show that any such dispute was ever raised by the petitioner. 10. At the time of hearing, Mr. A.K. Mehta, learned counsel, appearing on behalf of the respondents referred to the petitioner's representation, Annexure-7 to the writ petition, as the basis of the dispute for determination of his age by the Medical Board. On perusal of Annexure-7, I find that by the said representation, the petitioner had protested against the notice, whereby he was sought to be superannuated prematurely. In the said representation, the petitioner has clearly mentioned that his date of birth has been recorded as 20th February, 1957 in Statutory Form B Register and the notice has been illegally issued seeking his premature retirement. In the said representation, the petitioner has clearly mentioned that his date of birth has been recorded as 20th February, 1957 in Statutory Form B Register and the notice has been illegally issued seeking his premature retirement. By the said Annexure-7, the petitioner has not raised any dispute regarding his date of birth, rather he has protested against his premature retirement citing instance that his said date of birth is recorded as 20th February, 1957 in Statutory Form B Register. 11. The respondents have not been able to show any basis, justification or occasion for assessment of the petitioner's age by the Apex Medical Board after 29 years of his service, when the petitioner's date of birth was clearly mentioned in the statutory record. The aforesaid action of the respondents is, thus, whimsical, arbitrary and illegal. The respondents cannot curtail the tenure of the petitioner's service by fixing and altering his date of birth contrary to the entry made in the service record without giving the petitioner prior notice informing the reason and without affording him proper opportunity of hearing. The said action of the respondents offends Articles 14, 16 and 21 of the Constitution of India and is violative of principle of natural justice. Such step by an instrumentality of the welfare State is a slur and is highly condemnable. 12. In view of the above discussions, the impugned notice dated 18th/22nd April, 2006, so far as the petitioner is concerned, is hereby quashed. This writ petition is allowed. The respondents are directed to reinstate the petitioner in service forthwith with all consequential benefits. 13. Since the petitioner was forcibly prevented from discharging his duty, he shall be entitled to get full salary and allowances for the intervening period. The respondents shall pay the said arrears to the petitioner within a period of four weeks from the date of receipt/production of a copy of this order. 14. The respondents shall also pay a cost of Rs. 25,000/- (rupees twenty five thousand) to the petitioner within the said period.