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Jharkhand High Court · body

2008 DIGILAW 467 (JHR)

Digvijay Singh v. Bharat Coking Coal Limited

2008-04-16

N.N.TIWARI

body2008
Order The petitioner is an employee of M/s Bharat Coking Coal Limited. He joined his service on 16.12.1972. Before joining the service, he had passed the Matriculation Examination in the year 1966 2. According to the Implementation Instruction of the respondents-Company, the evidence of date of birth of a person, who is Matriculate, is Matriculation Certifi is cate. 3. In the Matriculation Certificate, the petitioner's date of birth has been recorded as 9.1.1949. The petitioner during the tenure of his service found discrepancy in the entry of the date of birth in the service record. In place of 9.1.1949, as recorded in the Matriculation Certificate, the petitioner's date of birth in statutory Form-B Register and other records was recorded as 9. 1.1947. The petitioner pointed but the said discrepancy and requested for correction by filing representation dated 22.9.1989. He claimed correction on the basis of the entry in the Matriculation Certificate which was issued by the Bihar School Examination Board, Patna. He pro is duced the Matriculation Certificate in sup is port of his claim. The said certificate was sent for verification to Bihar School Ex is amination Board, Patna by Office Letter No. GM/AR-III/PD/89-1563/27718 dated 5.10.1989. The said Examination Board verified and found the same genuine. Even after receipt of the said verification report from the said Examination Board, the petitioner's date of birth was not corrected. The petitioner waited for long, but the records were not corrected. On the con is trary, a letter dated 16.8.06 was served on him whereby he was informed that he would retire from service on 31.1.07 on attaining the age of 60 years according to the entry of his date of birth as 9.1.1947 in the service record. The petitioner filed representation before the Deputy Chief Per is sonnel Manager (P&IR), Govindpur Area protesting against the same and requesting him to correct the date of birth which has been wrongly entered as 9.1.1947 in place of his actual date of birth as 9.1.1949, as recorded in the Matriculation Certificate. 4. The said Deputy Chief Personnel Manager, Govindpur Area by his letter dated 15.9.06 forwarded the representation with the said report and his recommendation to the General Manager, Govindpur Area for consideration and necessary order in view of the Company's Implementation Instruc is tion No. 76 (Annexure-4). 4. The said Deputy Chief Personnel Manager, Govindpur Area by his letter dated 15.9.06 forwarded the representation with the said report and his recommendation to the General Manager, Govindpur Area for consideration and necessary order in view of the Company's Implementation Instruc is tion No. 76 (Annexure-4). The said Deputy Chief Personnel Manager, Govindpur Area in his report also mentioned that no old and original Form-B of Akshkinaree Col is liery, where the petitioner was initially ap is pointed, is available. Hence his age re is corded in the Matriculation Certificate is to be taken into consideration as per the Implementation Instruction' No. 76. The grievance of the petitioner is that in spite of the said recommendation, no order has been passed and the date of birth has not been corrected in the service record. The petitioner, in the meanwhile, has been forced to retire w.e.f. 31.1.07. Aggrieved by the said attitude of the respondents, the petitioner has filed this writ petition and prayed for quashing the notification served on him by Letter No. 603 dated 16.8.06 by the respondent No. 3 and has also sought for a direction on the respondents to make necessary 'correction in the date of birth wrongly recorded in the Com is pany's records allowing the petitioner to continue in service up to January 2009. 5. Writ petition has been contested by the respondents. Counter affidavit has been filed stating, inter alia, that the petitioner's date of birth has been recorded as 9.1.1947 in the existing statutory Form-B Register. The petitioner had accepted and acknowledged the said entry made in statutory Form-B Register and he is estopped from challenging the said entry at the fag end of his service. It has been stated that earlier the petitioner had never disclosed that his date of birth has been wrongly entered in the service record. The petitioner attained the age of superannuation on 31.1.07 and as such he has been rightly informed by the impugned notice regarding his superannuation. It has been stated that if there is any such dispute, the petitioner can get his age declared by the Civil Court of competent jurisdiction and can raise an industrial dispute under the provisions of the Industrial Disputes Act, 1947. The writ petition is not main is tainable against such notice or for the reliefs prayed for by the petitioner. 6. The writ petition is not main is tainable against such notice or for the reliefs prayed for by the petitioner. 6. Two issues arise out of the- said rival contentions made by the' parties: is (i) Whether the date of birth 'recorded in the Matriculation Certificate duly authenticated is the conclusive proof of age or the date of birth recorded in the service record of the respondents is the conclusive proof of age? (ii) Whether the issue regarding the wrong entry of date of birth can be raised at the fag end of service? 7. Exactly the same controversy arose in the case of Kamta Pandey vs. M/s B.C.C.L. [ 2007(3) JLJR 726 ] and the same was considered and answered by a Full Bench of this Court. The Full Bench in similar fact situation and the contentions made by the parties decided the said point with reference to the Implementation Instruction No. 76 of the National Coal Wage Agreement-III, which provides for determination of the age at the time of appointment and also for review/determination of the date of birth in respect of the existing employees. Implementation Instruction No. 76 reads as follows:- "Implementation Instruction No. 76 Procedure for Determination/Verification of Age of Employees (A) Determination of the age at the time of appointment (i) Matriculates In the case of appointees, who have passed Matriculation or equivalent examination, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circum is stances." 8. Considering the said Implementation Instruction and other aspects as also a number of decisions, the Full Bench answered that "the date of birth recorded in the Matriculation Certificate duly au is thenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by Implementation Instruction No. 76 of National Coal Wage Agreement-III". It was also held in the light of the Supreme Court decision that if the Court is fully satisfied that there has been real injustice to the person concerned and his' claim for correction of date of birth has been made in accordance with the procedure prescribed and when a clear case, relating to the date of birth, is made out on the basis of clinching materials, then necessary direction to make a declaration of the said date of birth can be given even at the fag end of the service. 9. In this case the petitioner had made representation long back in the year 1989. On his representation, the depart is ment had sent his Matriculation Certificate for verification to the Bihar School Exami is nation Board, Patna. On verification, the said Examination Board found the certifi is cate genuine and informed the same to the concerned authority. The petitioner was served notice of his retirement in the year 2006. Thus, it cannot be said that the petitioner had claimed correction in the entry of the date of birth at the fag end of his service. The objection of the respond is ents that the petitioner's claim for correction of date' of birth at the fag end of service cannot be entertained, is also not acceptable. 10. Since the issues arising out in the instant case are no longer res integra and the same have been decided by a Full Bench of this Court in Kamta Pandey case (supra), the said issues must be answered in favour of the petitioner. It is held that on the basis of the petitioner's date of birth recorded in the Matriculation Certificate date of birth of the petitioner has to be corrected in the service record. 11. In the light of the above discussions, this writ petition is allowed. The respondents are directed to correct the petitioner's date of birth in the service record as per the entry of date of birth in his Matriculation Certificate. The petitioner, who has been made to prematurely retire, shall be reinstated and shall be allowed to work till he attains the age of superannuation on the basis of his date of birth recorded in the Matriculation Certificate as 9.1.1949. The impugned Letter No. 603 dated 16.8.06 is quashed. The petitioner, who has been made to prematurely retire, shall be reinstated and shall be allowed to work till he attains the age of superannuation on the basis of his date of birth recorded in the Matriculation Certificate as 9.1.1949. The impugned Letter No. 603 dated 16.8.06 is quashed. Since the petitioner had been forced to stop working by the said illegal order of the respondents, he shall be entitled to get all consequential benefits of the intervening period in is cluding the arrears of salary/allowances. The arrears of salary shall be paid to the petitioner within a period of two months from the date of receipt/production of a copy of this order.