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2008 DIGILAW 728 (CAL)

Nanda Kisor Roy v. Steel Authority of India Ltd

2008-07-22

L.NARASIMHA REDDY

body2008
Judgment :- S.P. TALUKDAR, J. (1.) BY filing the instant application under Article 226 of the constitution, the petitioner sought to assail the impugned order dated 21st May, 2007 passed by the Assistant General Manager (Personnel), Steel Authority of India Ltd.-IISCO Steel plant, Burnpur. By such order, the respondent authority directed the petitioner to hand over the official residential accommodation and settle all outstanding dues since the petitioner was to attain the age of superannuation on 30th November, 2007. The relevant facts of the present case may briefly be stated as follows:- (2.) THE petitioner joined the Indian Iron and Steel Company Ltd. , Burnpur presently known as IISCO Steel Plant under Steel Authority of India Ltd. in February, 1973. His date of birth is 15th November, 1951. He passed school final examination in 1967. The aforesaid date of birth was recorded in his admit card as well as the certificate issued by the board. At the time of joining service, the petitioner had to produce authenticated documents in support of his age/date of birth. His pass number is 59893 and such renewed photo gate pass, which was countersigned by the respondent No. 4 on 27. 11. 2006, would also indicate his date of birth as 15th November, 1951. The petitioner applied for the post of senior Mechanic at KORF Compressor Section in terms of Circular dated 26th July, 1986 issued by the Personnel Department of the respondent No. 1. He was selected along with five other employees. The authority concerned discriminated him by giving effect to his promotion from 25th December, 1989 instead of 1st March, 1989. This prompted the petitioner to approach this Court with a writ application. The learned Single Bench of this court, by order dated 17th January, 2003, disposed of the same by directing the concerned respondents to give effect to the petitioners promotion w. e. f. 1st March, 1989 and to maintain his seniority along with other five candidates. The authority concerned out of vengeance went on taking illegal steps. Things took such bad shape that the petitioner was constrained to initiate criminal proceeding against the Chairman-Managing Director, the (3.) GENERAL Manager (Personnel and Administration) and others. A case being No. C/438 of 2003 under Sections 406/120b of the Indian Penal Code was registered. The concerned persons approached this Court with the prayer for quashing of the said criminal proceeding. Things took such bad shape that the petitioner was constrained to initiate criminal proceeding against the Chairman-Managing Director, the (3.) GENERAL Manager (Personnel and Administration) and others. A case being No. C/438 of 2003 under Sections 406/120b of the Indian Penal Code was registered. The concerned persons approached this Court with the prayer for quashing of the said criminal proceeding. The learned Single Bench of this Court, by order dated 31st January, 2007, disposed of the said revisional application granting liberty to the parties to proceed in accordance with law. The order of the High Court dated 31st January, 2007 was challenged by the accused persons by preferring Special Leave to Appeal being No. 2919/2007. The Apex Court, by order dated 17th May, 2007, admitted the appeal and stayed all further proceedings of the criminal case being No. C/438 of 2003. During pendency of the Special Leave Petition, the petitioner all on a sudden was served with the impugned memo bearing reference No. CPD/5004 dated 21st May, 2007 issued by the Assistant General Manager (Personnel). The petitioner was informed that his service would be terminated w. e. f. 30th November, 2007 and this was consequent upon his attaining the age of superannuation (60 years) on 16th november, 2007. The petitioner was asked to make suitable arrangement for handing over the companys quarter and settle all outstanding dues. (4.) THE petitioner upon receipt of the impugned letter approached the respondent No. 2 on 5th June, 2007 seeking correction of the date of birth. The authority concerned was requested to withdraw the impugned letter to avoid future complication. This was followed by another letter dated 26th June, 2007 addressed to respondent No. 2. The petitioner brought it to the notice of the concerned authorities that such controversy relating to age of the petitioner was focussed as far back as in 1993. The petitioner took further steps for redressal of his grievances. (5.) ON 14th March, 1991, the General Secretary of a registered Trade Union wrote to the chief Personnel Manager of IISCO, thereby seeking correction of the date of birth on the strength of the Affidavit dated 11th March, 1991. The petitioner took further steps for redressal of his grievances. (5.) ON 14th March, 1991, the General Secretary of a registered Trade Union wrote to the chief Personnel Manager of IISCO, thereby seeking correction of the date of birth on the strength of the Affidavit dated 11th March, 1991. On 7th May, 1991, the petitioner wrote to the General Secretary of the Union pointing out that on 14th March, 1991, he submitted certain documents which, inter alia, included the Affidavit, admit card of school final examination and copy of the certificate of the school final examination, which were transmitted to the Chief Personnel Manager for necessary correction or rectification of the petitioners date of birth. The General Secretary of the said Union on the following day i. e. 8th May, 1991 wrote to the Chief Personnel Manager. (6.) SUCH issuance of notice on the basis of wrong recording of the date of birth of the writ petitioner was an act of bias and was largely guided by malafide intention. The respondent authorities for the reasons, as mentioned earlier, were keen to get rid of the writ petitioner by compelling him to retire on the basis of the said superannuation notice. (7.) AS against this, the respondent authority contested the case by filing Affidavit-in-Opposition. The petitioner filed reply thereto. The stand of the respondent authorities, as reflected from the Affidavit-in-Opposition, is as follows:-The writ petitioner declared his date of birth as 15th November, 1947 before joining the services of IISCO on February 16, 1973 in the interview slip. He could not produce school final certificate and undertook to leave the matter relating to determination of age to examining Medical Officer. The Medical Officer accepted his age as declared by him and the service card was prepared accordingly recording his age as 25 years 3 months on february 16, 1973. Due to detection of misconduct and corruption as well as forgery prima facie committed by the petitioner, this Court in connection with the writ application directed Central Bureau of Investigation to enquire and submit a report. After due enquiry, a report was submitted by the Superintendent of Police, CBI, Anti Corruption Branch, wherein it was contended that several office orders presented by Sri Nanda Kisor Ray are not genuine and the same had not been issued by the concerned Officer at all. After due enquiry, a report was submitted by the Superintendent of Police, CBI, Anti Corruption Branch, wherein it was contended that several office orders presented by Sri Nanda Kisor Ray are not genuine and the same had not been issued by the concerned Officer at all. The Hon"ble justice Altamas Kabir while disposing of the writ application by order dated 17. 1. 2003 referred to the serious allegations made regarding fabrication of documents. This prompted the learned Judge to refer the matter to Central Bureau of Investigation for enquiry and report. Certain reports were filed in the Court. Since those did not relate to the subject matter of controversy raised in the writ application, the same were left with the company for future course of action. (8.) THOUGH the Advocates letter dated 26th June, 2007 mentioned about the petitioners submitting some applications for correction of his age, no such application could be traced out and the petitioner does not appear to have submitted any such application. The certificate sought to have been relied upon by the writ petitioner requires to be investigated " more so, having regard to the track record of the writ petitioner. On the basis of the petitioners own declaration in the interview slip, the acceptance thereof by the companys Medical Officer as well as his own endorsement in his service record card, the respondent recorded his date of birth as on November 15, 1947. The claim of producing the age proof by letter dated 20th August, 1998 had been denied since no such letter was ever submitted by the petitioner. There could be no explanation for the petitioner to remain quiet for more than 25 years to produce his age proof and thereby, to establish an alleged fact contrary to his own declaration at the time of joining. His application for renewal of photo gate pass was merely countersigned by the respondent No. 4 on 27th November, 2006 to facilitate the issuance of the gate pass by the Central Industrial Security Force. The records maintained by the respondents in the regular course of business do not show that the petitioner had submitted any letter together with certain original documents regarding his age to the Chief Personnel Manager in 1998. There is nothing to show that the petitioner took any follow up action in that regard during this protracted period of nine years. The records maintained by the respondents in the regular course of business do not show that the petitioner had submitted any letter together with certain original documents regarding his age to the Chief Personnel Manager in 1998. There is nothing to show that the petitioner took any follow up action in that regard during this protracted period of nine years. The petitioner had already retired on November 30, 2007 on attaining the age of superannuation. The petitioner had already accepted his provident fund money on December 19, 2007 and had applied for gratuity and SESDF in the prescribed form. For all such reasons, the respondent authority sought for dismissal of the writ application. (9.) BY filing an Affidavit-in-Reply, the writ petitioner further challenged the action taken by the respondent authority by way of compelling him to retire. He sought for necessary order so as to permit him to continue in service or in the alternative, a direction upon the respondent authority to pay his terminal benefits. It was claimed that he was an apprentice with respondent No. 1 and from his certificate of apprenticeship dated 6th november, 1970, it would appear that his actual date of birth is 15th November, 1951. He passed school final examination in 1967 and it would be reflected from the admit card as well as the certificate issued by the Board. (10.) IN course of hearing, reference was made to an earlier writ application filed by the present petitioner being C. O. No. 9954 (W) of 1991. The grievance of the petitioner raised in the said application related to alleged belated selection of the petitioner by way of promotion on 25. 12. 1989 instead of 1. 3. 1989 along with others, to the post of senior mechanic. It appears that serious allegations were made by the respondent authority regarding fabrication of certain documents. This was referred to the Central Bureau of investigation and certain reports were received. Learned Single Bench of this Court while disposing of the writ application by order dated 17. 1. 2003 did not choose to take any step in that regard and it was left to the company to decide as to what steps it would like to take on the basis of such reports of enquiry submitted by CBI. Learned Single Bench of this Court while disposing of the writ application by order dated 17. 1. 2003 did not choose to take any step in that regard and it was left to the company to decide as to what steps it would like to take on the basis of such reports of enquiry submitted by CBI. Learned Single Bench, however, in connection with the said writ application directed the respondent authorities to give effect to the petitioners promotion on and from 1st March, 1989 and to maintain his seniority along with five other candidates on that date. The present case essentially relates to the dispute regarding recording of date of birth/age of the writ petitioner. Such application seeking correction of date of birth and the benefits arising there from was seriously resisted by the respondent authority. (11.) IN course of hearing, reference was made to the decision in the case of Secretary and commissioner, Home Department and Ors. Vs. R. Kirubakaran, as reported in AIR 1993 SC 2647 . The Apex Court in the said case observed that Court or Tribunal should be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced. It was held that "correction of the date of birth of public servant is permissible, but that should not be done in a casual manner. Any such order must be passed on materials produced by the public servant from which the irresistible conclusion follows that the date of birth recorded in the service book was incorrect. "in the factual backdrop of the said case, the Apex Court further observed that if an application is made for correction of the date of birth mentioned in the service records at an early date or within the time prescribed, the authorities are in much better position to verify the same. It was further observed that whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute, without explaining as to why this question was not raised earlier. " Learned Division Bench of this Court in the case of M/s. Eastern Coalfields Ltd. Vs. Abhinash Mondal and Ors. " Learned Division Bench of this Court in the case of M/s. Eastern Coalfields Ltd. Vs. Abhinash Mondal and Ors. , as reported in 2008 (1) CLJ (Cal) 436 dismissed the appeal, thereby affirming the judgment of the learned Single Bench whereby a writ petition was allowed considering the decision of the Civil Court regarding the date of birth. (12.) IN response to this, Mr. Lakshmi Gupta, appearing as learned Counsel for the respondent authority, first invited attention of the Court to the standing orders. So far the verification and recording of age is concerned, the relevant provision is as follows:-"verification and recording of age : (a)At the time of appointment, every employee shall declare his/her age/date of birth in the form which shall be prescribed for the purpose by the management. If the employee will produce any of the under-mentioned documents in proof of his/her age/date of birth, in order of priority, namely:-(i)Matriculation/s. S. C./high School or Higher Secondary School Leaving certificate or any equivalent certificate. Or certificate of Board of Examination recognized by the Government, provided he/she had appeared in the examination concerned prior to the date of his/her appointment; (ii)Military Discharge Certificate, where date of birth is indicated, in case of ex-defence personnel only; (iii)Baptismal Certificate; (iv)Birth Certificate issued by the Companys Hospital or by Asansol Mines board of Health on the basis of relevant information furnished by the companys Hospital; (v)Certificate issued by any Central School; (vi)Certificate issued by Schools run by the Company at Burnpur or Kulti; and (vii)Admit Card issued by any recognized University/board issued before the employee joined the Companys services; the age/date of birth so verified on the basis of any of these documents shall be recorded in the Service Record of the employee concerned by the Personnel department of the Company. Provided that if an employee is unable to produce any of the above mentioned documents, he/she may produce any other document in support of his/her age/date of birth, which may be accepted at the discretion of the management, as the authentic proof of his/her age/date of birth and the same shall be recorded in the Service record of the employee concerned by the Personnel Department of the Company. Provided further that in any case where the employee concerned is not satisfied with the decision of the management in this regard, or in a case where the employee concerned is not in a position to produce any document in support of his/her age/date of birth, his/her age shall be determined by a Medical Board to be constituted by the company for the purpose. The age of the employee concerned so determined by the medical Board shall be recorded in the Service Record of the employee concerned by the Personnel Department of the Company. Provided further that in each case the relevant entry of age/date of birth in the service Record shall be attested by the employee concerned. (b)As regard the existing employees, in case where age/date of birth is either not recorded in the Service Record of the employees concerned or the same is disputed, the provisions as laid down in paragraph (a) of this Standing Orders shall be followed mutatis mutandis for final verification and recording of age/date of birth of the employees concerned. Provided that, for this purpose, the age/date of birth recorded in the Insurance Policy taken before July 19, 1950 would be accepted by the management as authentic proof of age/date of birth of the employees concerned. " (13.) MR. Gupta inviting attention of the Court to the Division Bench decision of this court in the case of Smt. Puspa Rani Chakraborty and Ors. Vs. Allahabad Bank and Ors. , as reported in 2000 (1) CLJ 259 submitted that "the right to get the date of birth corrected either on the basis of Matriculation Certificate or otherwise is not a legal right, far less a constitutional right. " It was observed in the said case that "even if such a right was a legal the same could be waived and, in fact, has been waived as the same was not in public interest." (14.) DERIVING inspiration from the decision in the case of Burn Standard Co. Ltd. and ors. Vs. Dinabandhu Majumdar and Anr., as reported in (1995) 4 SCC 172 , Mr. Gupta submitted that the writ petitions seeking correction of the date of birth filed at a belated stage i. e. on the verge of retirement, are ordinarily not entertainable. Question also arose as to what should be considered as a proper and valid document regarding date of birth. Gupta submitted that the writ petitions seeking correction of the date of birth filed at a belated stage i. e. on the verge of retirement, are ordinarily not entertainable. Question also arose as to what should be considered as a proper and valid document regarding date of birth. (15.) DERIVING inspiration from the decision in the case of Birad Mal Singhvi Vs. Anand purohit, as reported in AIR 1988 SC 1796 , it was submitted by Mr. Gupta that an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. The Apex Court in the said case held that "to render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. " It was further observed in the said case that "if the entry in the school register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents such as extract of School Register, mark sheet or certificate of Education Board etc. are proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. " (16.) MR. Gupta submitted that there is another significant aspect requiring consideration. Age of entry in a service is extremely important. Sometimes it gives an advantage in service. Mere proof of such documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. " (16.) MR. Gupta submitted that there is another significant aspect requiring consideration. Age of entry in a service is extremely important. Sometimes it gives an advantage in service. The date of birth declared by the candidate while entering into service is naturally taken into consideration by the authorities who largely proceed on that basis. Where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. Referring to the decision in the case of union of India Vs. C. Rama Swamy and Ors. , as reported in (1997) 4 SCC 647 , it was submitted that it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. The Apex Court in the said case observed that it would be against public policy to permit such a change to enable longer benefit to the person concerned. The Apex Court further held """". we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability. " (17.) IN the present case, it is difficult to ignore the petitioners own declaration in the interview slip and his own endorsement in the service record card where the date of birth is recorded as November 15, 1947. Even assuming that a dispute alleging wrong recording of such date of birth was raised in 1998 that can hardly be considered as a satisfactory explanation. The respondent authority denied that such a dispute was at all raised by letter dated 20th August, 1998. The petitioner had since retired w. e. f. 30th November, 2007 on attaining the age of superannuation. It had been emphatically mentioned that the petitioner had also received the provident fund amount as well certain other retiral benefit. There is no such material before this Court, which can lend any effective support or strength to the petitioners claim. As discussed earlier, the respondent authority is required to function in terms of the standing orders. It had been emphatically mentioned that the petitioner had also received the provident fund amount as well certain other retiral benefit. There is no such material before this Court, which can lend any effective support or strength to the petitioners claim. As discussed earlier, the respondent authority is required to function in terms of the standing orders. The relevant provision regarding verification of age has been mentioned earlier. The petitioner had the choice of raising a dispute regarding alleged wrong recording of his age in the service record following such standing orders. The belated response on the part of the petitioner fails to inspire confidence of the Court. The petitioner referred to a copy of admit card as well as the copy of school final certificate in support of the claim that his actual date of birth is 15th November, 1951. Such documents fail to pass the test of scrutiny in terms of the standing orders, as referred to earlier. (18.) CONSIDERING all these aspects, I find it difficult to appreciate the grievances ventilated on behalf of the petitioner in this writ application and the stand taken by the writ petitioner relying upon certain documents which certainly do not deserve to be categorized or classified as documents of unimpeachable credibility. (19.) ACCORDINGLY, the present application being W. P. No. 22632 (W) of 2007 fails and be dismissed. There is no order as to costs. Urgent xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.