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2009 DIGILAW 1576 (JHR)

Chhota Birsa Uranw v. Bharat Coking Coal Ltd.

2009-12-11

D.G.R.PATNAIK

body2009
Order Heard the learned counsel for the parties. 2. The petitioner, in this writ application, has prayed for quashing the order dated 2.8.2006 (Annexure-6), passed by the Project Officer, Jamunia O.C.P. Area of the B.C.C.L. (Respondent No.5), whereby the petitioner was communicated that he would superannuate with effect from 28.2.2007, on the basis of his date of birth entered in his service records as 15.2.1947. 3. The facts of the petitioner's case in brief are as follows:- The petitioner was appointed in service in the Jamunia Open Cast Project of the Respondent-B.C.C.L., on 31.1 .1973 on the post of Miner Loader. At the time of his appointment, his service records were opened, mentioning the details of his personal information including the date of birth, which was recorded as 15.2.1947. The petitioner in the year 1986, passed the Mining Sardarship and was given a Mining Sardar Certificate in which his date of birth was recorded as 6.2.1950. This, date of birth was in accordance with the recordings in the School Transfer Certificate, recorded on 12.10.1979. In the year 1987, pursuant to the Implementation Instruction No. 76 as contained in the National Coal Wage Agreement-III, and in order to stabilize the service records of its employees, the employees. were given Nominee Forms containing the details of their service records. The petitioner was also given his Nominee Form and on perusal of the same, he found that the particulars in respect of his Father's name, Permanent Address, and date of appointment as recorded in the Form-B Register, was incorrect. He raised his grievance over the wrong recordings in the Form-B Register and prayed for making the necessary corrections. The petitioner, had besides the other corrections, specifically stated that his date of birth, as recorded in the Mining Sardar Certificate, is 6.2.1950 and the erroneous entry made in the service records should be corrected, accordingly. On receipt of the petitioner's objection, the Project Officer, Jamunia Open Cast Project (Respondent No.5), forwarded the petitioner's objections to the concerned authorities for making the necessary corrections of the personal details of the petitioner in the service records. The petitioner learnt later, that though his Father's name and permanent address was corrected in the Form-B Register, but his date of birth and date of appointment were not corrected. The petitioner learnt later, that though his Father's name and permanent address was corrected in the Form-B Register, but his date of birth and date of appointment were not corrected. He submitted a fresh representation before his Project Officer (Respondent No.5), and when his grievance was not redressed, he raised a dispute through his Union, which had also pressed before the concerned authorities to correct the entry of the petitioner's date of birth on the basis of the Mining Sardar Certificate. In spite of repeated persuasions, the Respondents did not correct the purported erroneous entry of his date of birth in his service records and instead, proceeded to serve an impugned notice of superannuation with effect from 28.2.2007, although according to the petitioner, he would have attained the age of superannuation only on 28.2.2010. 4. Assailing the impugned order, learned counsel for the petitioner would submit that as per the terms of the Joint Bipartite Agreement recorded under the National Coal Wage Agreement-III, the School Leaving Certificate and the Mining Sardar Certificate have to be treated by the Respondents as authentic documents in proof of the date of birth of the employee, unless the same was disputed as a non-genuine Certificate. The Respondents have not disputed the genuineness of the Certificates and therefore, they are bound to accept the same and to correct the entry of the date of birth of the petitioner in his service records. Learned counsel adds further that it is not a case where the petitioner has raised the dispute at the fag end of his service. Rather, even at the time when he was given his Nomination Form in the year 1987, from which he found that the entries were incorrect, he lodged his protest, raising objections to the erroneous entries and demanding corrections of the same but though corrections have been made in respect of the Father's name and permanent address of the petitioner, but corrections were not carried out in respect of the date of birth and date of joining of the petitioner's service and no reason have been assigned for refusing such corrections. 5. In 1heir counter affidavit, the Respondents have denied and disputed the entire claim of the petitioner. The basic stand taken by the Respondents is that the statutory Form-B Register containing the petitioner's date of birth, as 15.2.1947 is the conclusive proof of his date of birth. 5. In 1heir counter affidavit, the Respondents have denied and disputed the entire claim of the petitioner. The basic stand taken by the Respondents is that the statutory Form-B Register containing the petitioner's date of birth, as 15.2.1947 is the conclusive proof of his date of birth. The Mining Sardar Certificate has nothing to do in respect of the determination of the date of birth of an employee. The Form-B Register contains not only the photograph of the petitioner but his signature also, which would confirm that the petitioner had knowingly accepted the entry of his date of birth as correct without raising any dispute and had appended his signature thereon. The petitioner, therefore, cannot raise any dispute after 20 years and that too at the fag end of his service. 6. Mr. Ananda Sen, learned counsel for the Respondents would argue that the Implementation Instruction No. 76 of the N.C.W.A.-III has no application in the case of the petitioner, since there is no discrepancy in his date of birth and the petitioner having already superannuated from service, after receiving the superannuation notice. This belated writ application, is therefore, not maintainable. Furthermore, the petitioner, if he was aggrieved, has an alternative remedy for redressal of his claim by way of raising an industrial dispute under the Industrial Disputes Act. 7. By way of a supplementary counter affidavit, the Respondents have sought to explain that the petitioner was transferred from Madhuban Colliery to Jamunia Open Cast Project and his service extracts were transferred from Madhuban to Barora Area No. 1 on 10.12.1983 and thereafter, the Form-B Register was opened in presence of the petitioner, recording his date of birth as 15.2.1947 and the same having been acknowledged by the petitioner, who had appended his signature thereto, the same cannot be disputed by him nor can it be altered. In support of his arguments, learned counsel would refer to and rely upon a Division Bench judgment of this Court, passed in the case of M/s Central Coalfields Ltd. vs. Jamunuwali Mian and Others, passed in L. P.A. No. 18 of 2000. 8. After hearing the arguments and perusing the records, I find that the petitioner was initially appointed in service. on 1.5.1973, on the post of Mining Sardar in the Madhuban Colliery of the B.C.C.L. and 10 years' later, he was transferred to Jamunia Open Cast Project. 8. After hearing the arguments and perusing the records, I find that the petitioner was initially appointed in service. on 1.5.1973, on the post of Mining Sardar in the Madhuban Colliery of the B.C.C.L. and 10 years' later, he was transferred to Jamunia Open Cast Project. He obtained the Mining Sardar Certificate in the year 1986, wherein, his date of birth was recorded as 6.2.1950 on the basis of the School Transfer Certificate, issued on 12.10.1979. Now, this fact informs that the petitioner was not altogether an illiterate person. As declared by the Respondents, the service record including the Form-B Register was opened in December, 1973 at the time when he had joined at the Jamunia Open Cast Project on his transfer. The Form-B Register, recording his date of birth as 15.2.1947, contains undisputedly the petitioner's signature. Thus, the Form-B Register constitutes one set of record, indicating the petitioner's date of birth. On the other hand, the petitioner has come up with another two set of records, namely, the Mining Sardar Certificate and his School Leaving Certificate, both of which indicate that his date of birth is 6.2.1950. 9. The petitioner had occasion to avail opportunity to dispute the correctness of the entry in his service records in recording his date of birth and other particulars in the year 1987 when he was given his Nomination Form for verification and for supplying any information, which need be. As indicated above, the Nominee Forms were given to its employees by the Respondents-B.C.C.L. by way of an application under the terms of the N.C.W.A.-III and the Implementation Instruction No. 76, contained therein. This exercise was carried out by the employer to set address the many controversies raised by the employees in respect of the entries in respective service records and to stabilize the service records of its employees. The Implementation Instruction No. 76 specifies the procedure for determination/verification of the date of birth of its employees and lays down that in case of non-Matriculates as in the case of the present petitioner, the date of birth recorded in the School Leaving Certificate shall be treated as correct date of birth. Laying equal emphasis on the statutory Mining Sardar Certificates and Winding Engineer Certificates, the procedure mandates that the entries of the date of birth as recorded in such statutory Certificates shall be treated as authentic. Laying equal emphasis on the statutory Mining Sardar Certificates and Winding Engineer Certificates, the procedure mandates that the entries of the date of birth as recorded in such statutory Certificates shall be treated as authentic. The reference to these Certificates is obviously in the context of disputes raised by the employees regarding their entries of date of birth in their service records and provides guidance as to how the dispute should be addressed. 10. The Respondents cannot claim that the petitioner had raised his dispute for the first time at the fag end of his service. The facts indicate on the contrary, that she had occasion to raise the dispute way back in the year 1987 itself on the basis of the Certificates in his possession. The Respondents were expected to respond to the dispute raised by the petitioner by obtaining guidance from the Implementation Instructions and even if not satisfied, thereupon to conduct any further enquiry as it would have deemed fit under the circumstances. It appears on the contrary that though the petitioner's claim for correction of the other particulars in his service records was acknowledged but his demand for correction of his date of birth, was not considered at all nor was any reason assigned as to why the correction was not made even on the basis of the statutory Mining Sardar Certificate and the School Leaving Certificate. 11. Having given the petitioner, like all other employees, the benefit of seeking correction of the entries contained in their respective service records including their date of birth, the petitioner's claim cannot be denied, merely because he had signed upon the Form-B Register at the time of its opening and containing the entry of date of birth as recorded therein. In the case of Gomati Bai vs. B.C.C.L. & Others (L.P.A. No. 296 of 2006), the Division Bench of this Court had occasion to consider an identical issue, where documents endorsed by the Department containing the entry of date of birth, were different from what was recorded in the service records of the employees. Such documents were prior to the year 1987, the Court had held that when the documents were available, the employer should have conducted the enquiry upon the disputes raised by the employee before calculating the actual date of birth. 12. Such documents were prior to the year 1987, the Court had held that when the documents were available, the employer should have conducted the enquiry upon the disputes raised by the employee before calculating the actual date of birth. 12. In the instant case also, the statutory Mining Sardar Certificate was obtained by the petitioner in the year 1986 and the date of birth recorded in the Certificate, was based on the School Leaving Certificate, issued to him in the year 1979. Both these documents alongwith the Protest Petition of the petitioner, were endorsed and forwarded by his superior in Office to the Department concerned and the same was available with the employer. The dispute ought to have been enquired into by the employer and thereafter, reasons assigned as to why the correction of the entries in the service records regarding his date of birth, was refused. 13. The facts of the case, referred to in the case of M/s Central Coalfields Ltd. vs. Junawali Mian & Others (supra), would not apply to the facts of the present case, since the dispute demanding correction of the date of entry of the date of birth, was raised on the basis of some entry made in the Identity-Card, issued to the employee in the year 1986 and such dispute was raised admittedly, at the fag end of his service. On the contrary, in the present case, the dispute has been raised on the basis of two relevant documents, namely, the statutory Mining Sardar Certificate and the School Leaving Certificate and further-' more, such dispute has been raised not at the fag end of service but almost more than ten years prior to the declared date of superannuation. 14. In the light of the above discussions and the facts and circumstances of the case, I find merit in this writ application. Accordingly, this writ application is allowed. The impugned order dated 2.8.2006 (Annexure-6), is hereby quashed. The Respondents shall within three months from the date of this order, conduct an enquiry on the basis of the Certificates produced by the petitioner, on his claim for correction of his entry regarding his date of birth as made in his service records, in accordance with the Implementation Instruction No. 76 of the N.C.WA-III and effectively communicate the decision taken together with the reasons assigned to the petitioner. 15. 15. Let a copy of this order be given to the Respondents.