Ragho Sharan Singh v. Bharat Coking Coal Limited through its Chairman cum Managing Director
2009-03-22
D.G.R.PATNAIK
body2009
DigiLaw.ai
ORDER The petitioner was appointed in the establishment of the respondent BCCL in the year 1974. At the time of his appointment, his service record was opened wherein his date of birth was recorded as 27.12.1957 and the same date of birth was entered in Form-B Register, Service Excerpt and NEIS Form. As per the aforesaid entry, the petitioner is expected to superannuate in December 2017. 2. The grievance of the petitioner is that he was unexpectedly served with the notice dated 27.5.2008 (Annexure-9) intimating that he would attain the age of superannuation i.e. 60 years on 30.11.2008, as per the entry recorded in respect of his date of birth in his service records. Petitioner’s claim in this writ application is for quashing the aforesaid notice (Annexure9) and also for directing the respondents to correct the entry regarding his date of birth and record the same as 27.12.1957 instead of 25.11.1948 and allow the petitioner to continue in service till he attains the age of 60 years as counted from 27.12.1957. Counter-affidavit has been filed on behalf of the respondent BCCL, wherein grounds advanced by the petitioner, has been denied and disputed. 4. Heard learned counsel for the petitioner and the learned counsel for the respondent BCCL. 5. Sri A.K.Sinha, learned counsel for the petitioner would submit that the petitioner was initially appointed on 27.12.1974 as a time rated worker. Subsequently, a new Form-B Register was prepared by the BCCL in which his date of birth was recorded as 27.12.1957. Learned counsel submits that after having accepted this entry as the correct entry of the petitioner’s date of birth, and continuing with the same for more than 25 years, the respondents are now wanting to change the entry by referring the petitioner’s case to the Date of Birth Committee (DOBC). Such action on the part of the respondents, according to the learned counsel, is totally arbitrary and illegal since the petitioner was neither served with any notice, nor was he informed that the respondents had contemplated to change the entry regarding his date of birth in his service records. Learned counsel adds further that by obtaining a misleading report from the DOB Committee, that too behind the back of the petitioner, the respondents have now arbitrarily and illegally proceeded to change the date of birth of the petitioner after more than 25 years. 6.
Learned counsel adds further that by obtaining a misleading report from the DOB Committee, that too behind the back of the petitioner, the respondents have now arbitrarily and illegally proceeded to change the date of birth of the petitioner after more than 25 years. 6. Shri A.K. Mehta, learned counsel for the respondents, submits on the other hand, that the present writ application is not maintainable since the petitioner has sought for change in the entry regarding his date of birth at the fag end of his service. Learned counsel explains that the petitioner was initially appointed under the erstwhile National Coal Development Corporation Limited (NCDC) at Sudamdih Shaft Mine. Prior to his appointment, he was medically examined on 25.12.1974 and upon such examination, the Civil Surgeon had recorded the petitioner’s age as 26 years. Learned counsel would explain that though subsequently, in the Form-B Register, the petitioner’s date of birth was recorded as 27.12.1957, but later on when the error was detected, the petitioner’s case was referred to the Date of Birth Committee, which on examination of the records of the petitioner, had concluded that the date of birth of the petitioner is 25.12.1948 and not 25.12.1957. Upon communication of the above conclusion of the DOB Committee, the respondents had made the correction of the entry of the petitioner’s date of birth in the Form-B Register and had also communicated the decision of the DOB Committee to the petitioner vide letter dated 18/21.02.2000 (Annexure-2). Learned counsel adds that even though, such communication was conveyed to the petitioner vide Annexure-2 dated 21.2.2000, but he had never raised any grievance against the correction of the entry of his date of birth and it is now at the belated stage and at the fag end of his service, that the petitioner has chosen to agitate the correction of the entry of his date of birth. Learned counsel would explain further that the petitioner’s claim that his date of birth is 27.12.1957, cannot be accepted in view of the fact that by counting his age, according to this date of birth, he would have been less than 17 years of age at the time of his induction in service in the year 1974, whereas the minimum prescribed age of appointment of workers under the Mines Act and Rules thereunder is 18 years.
7.Contradicting the contention of the learned counsel for the respondents, learned counsel for the petitioner would want to explain that the respondents cannot place any reliance upon the purported medical certificate (Annexure-A) since, firstly it is not a certificate of date of birth and secondly, the entry of the age is not based upon any authentic document or assessment. Rather, even as the entry declares, the age was assessed on the basis of physical appearance only. Learned counsel adds that the purported decision of the DOB Committee has not been produced by the respondents on the false plea that the same was seized by the D.G.M.S. and the same has now been lost. 8.From the rival submissions of the parties, the admitted facts which emerge are that the petitioner was appointed under the respondents in December 1974. A service book, known as Form-B Register was opened by the respondents for the petitioner in which his date of birth was recorded as 27.12.1957. After more than 25 years, respondents have sought to change the entry on the ground that the Date of Birth Committee had decided that the petitioner’s date of birth should have been recorded as 25.12.1948. Admittedly, while referring the petitioner’s case to the DOB Committee, no prior notice was given to the petitioner. Furthermore, even the Date of Birth Committee did not issue any notice to the petitioner to offer his explanation against the proposed change in the entry regarding his date of birth, as appearing in the Form-B Register. Furthermore, the respondents after having accepted the entry regarding his date of birth appearing in the Form-B Register as 25.12.1957 have continued to treat the same date of birth as correct for more than 26 years. It is apparent from the above that the respondents BCCL have unilaterally taken its decision to change the entry regarding the petitioner’s date of birth in the Form-B Register without giving any prior notice to him. It is for the respondents to explain as to how and on what basis, the petitioner’s date of birth as 25.12.1957 was entered in the Form-B Register even though, as contended by the respondents, the medical certificate (Annexure-A) was available with them. In this context, it is relevant to note that the purported medical certificate (Annexure-A) does not bear the signature or thumb impression of the petitioner, not does it appear to be an authentic document.
In this context, it is relevant to note that the purported medical certificate (Annexure-A) does not bear the signature or thumb impression of the petitioner, not does it appear to be an authentic document. It is also relevant to note that even by the counter-affidavit and the submission made on behalf of the respondents, the employer has not been able to show any genuine basis or justification or any occasion for reassessment of the petitioner’s age and for referring his case to the DOB Committee after more than 25 years of acceptance of the entry which was initially recorded in the Form-B Register. A similar issue came up for consideration before this court in the case of Baij Nath Mahato vs. M/s Bharat Coking Coal Ltd and others [ 2008(2) JLJR 308 ]. The court had observed that the fact that the date of birth of the writ petitioner was recorded in the statutory Form-B Register and in the identity card issued to him, continued undisputed for 29 years and there being no justification for making reassessment of the age of the employee, the act of forcibly superannuating the employee, that too without issuing any prior notice to him and without affording him any opportunity of being heard, was totally arbitrary and illegal. The same ratio applies to the facts of the present case also. 9.The contention of the learned counsel for the respondents that in the instant case, petitioner has raised a dispute of fact which cannot be addressed by this court in exercise of its writ jurisdiction is not tenable. In the case of State of Orissa vs. Dr. (Miss) Binapani Dei and others [AIR 1967 Supreme Court 1969], the Supreme Court has held that even administrative orders which involve civil consequences, have to be passed consistently with the rules of natural justice. The order of compulsory retirement based on a certain disputed date of birth, can certainly be judicially reviewed where such an order is violative of the principles of natural justice and passed without affording any opportunity to the employee of being heard. The same view was taken by this court in the case of Narayan Das Vs.
The order of compulsory retirement based on a certain disputed date of birth, can certainly be judicially reviewed where such an order is violative of the principles of natural justice and passed without affording any opportunity to the employee of being heard. The same view was taken by this court in the case of Narayan Das Vs. Jharkhand State Electricity Board, Ranchi and others [ 2005 (2) JLJR 488 ] and again in the case of Jagdish Paswan vs. Jharkhand State Electricity Board, Ranchi and others [ 2005(2) JLJR 518 ] and also by the Division Bench of this court in the case of Sunder Pandit vs. Jharkhand State Electricity Board, Ranchi and others [ 2006 (1) JLJR 326 ]. 10.In the light of the above discussions, I find merit in this application. Accordingly, this writ application is allowed in terms of the relief sought for by the petitioner. The impugned notice (Annexure-9), as issued by the respondent no. 6, is hereby quashed. Respondents are directed to restore the original entry of the petitioner’s date of birth made in the Form-B Register as 27.12.1957 and treat the same for the purpose of computing the date of his superannuation.