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2009 DIGILAW 856 (JHR)

Lal Mohan Singh v. Bharat Cooking Coal Limited

2009-05-28

AJIT KUMAR SINHA

body2009
ORDER The present writ petition has been preferred for following reliefs: (I) For quashing the notice of retirement dated 10.8.07 issued under the signature of respondent no.2, whereby and whereunder the petitioner has been sought to be retired w.e.f. 31.12.07 afternoon, which is illegal & arbitrary amounting to unauthorized curtailment of five years service in as much he would be attaining the actual age of retirement in June, 2003, in terms with date of Birth recorded in Bihar School Examination Board (BSEB) certificate as the 10th June 1953. (II) Further to declare and hold that since the legal & actual date of birth as recorded in the BSEB certificate is 10th June, 1953 and since the age of retirement prescribed in the respondent’s institution is 60 years, the petitioner is entitled to continue in service up to June, 2003 and therefore, subjecting the petitioner to retire w.e.f. 31.12.07 vide impugned order dated 10.8.07 treating his imaginary date of birth as 1.1.1948, is illegal, arbitrary, much less punitive and thereby unconstitutional being violative of Articles 14,19, 21 and 311(2) of the Constitution of India, besides in express violation of Instrument No.76 of NCWA-III and authoritative judicial pronouncement of this Hon’ble Court. 2.The facts, in brief, are set out as under: The petitioner claims that his Date of Birth is 10th June, 1953 as per the certificate granted by the Bihar School Examination Board for Class VIIth, dated st February, 1966 which is annexed as Annexure-1 to the writ petition. The petitioner was selected and appointed as Fitter in B.C.C.L. on 1.4.1972. In the form B register the Date of Birth was recorded as 1.1.1948 to which the petitioner has given thumb impression. According to the petitioner he was not provided with any document to that effect and in the year 1987 a document known as “Seva Abhilekh” was issued on 9.6.1987 wherein it was found that his Date of Birth was recorded as 1.1.1948 and in the adjacent column of the record it was recorded as 22 years as on 1.4.1972 which according to him was not only illegal but self contradictory because even if his age was taken 22 years as on 1.4.1972 then the actual Date of Birth as per mathematical calculation comes to 1.4.1950. The petitioner raised his objection and he was given a bonafide impression that the issue in controversy has been resolved in terms of the mandatory provision of Instruction No.76 of the NCWA-III. 3. The petitioner came to know about the aforesaid fact in the year 2002 upon enquiry that in the service record his Date of Birth was wrongly recorded as 1.1.1948 and the same was not corrected. He again gave a written representation on 29.8.2002 with a request to make necessary correction in terms with the Middle Board Certificate which was granted by the Bihar School Examination Board. Thereafter respondent no.2 wrote a letter to the Secretary, Bihar School Examination Board, respondent no.3 herein, who in turn after verifying the record gave a letter dated 26.11.2007 confirming the Petitioner’s Date of Birth as 10.06.53 and in this regard an affidavit has also been filed by respondent no.3. The middle board certificate issued by the Bihar School Examination Board vide certificate no. 7194 dated 1st February, 1966 is an authentic document. When nothing happened the petitioner again wrote a letter to respondent no.2 enclosing the certificate for correction of his Date of Birth but to his utter surprise he received a notice on 10.8.07 regarding his superannuation with effect from 31.12.2007 based on the incorrect recording of his Date of Birth as 1.1.1948. Petitioner being constrained has preferred this writ petition challenging the aforesaid notice of retirement dated 10.8.07 and has also prayed that he is entitled to continue in service up to June 2013 as per his correct Date of Birth. 4. The main contention raised by the learned counsel for the petitioner is that the impugned action of the respondents in seeking retirement before the due date of superannuation in terms with the date of birth recorded in the Middle School Board Certificate was highly arbitrary and illegal. It was also in gross violation of the Instruction No.76 of NCWA-III and thereby unsustainable and fit to be quashed. His further submission is that the impugned action of the respondents is also in gross violation of the principle of natural justice and fair play since the same is imaginary based on no evidence and therefore, amounts to punishment and for which no proceeding whatsoever has been conducted, giving opportunity to the petitioner. His further submission is that the impugned action of the respondents is also in gross violation of the principle of natural justice and fair play since the same is imaginary based on no evidence and therefore, amounts to punishment and for which no proceeding whatsoever has been conducted, giving opportunity to the petitioner. His further contention is that the petitioner has raised the age dispute much prior to the notice of retirement but the respondents did not take any bonafide steps or action for redressal of the grievance of the petitioner. The respondent wrote a letter to the respondent no.3 seeking clarification/verification of the certificate produced by the petitioner, which was never doubted/questioned by the concerned respondents, rather detail particular were sought way back in the year 2004 itself, upon which, though the concerned BCCL respondent should have immediately taken follow up action quickly but only in the year 2007 they wrote a letter seeking details from the petitioner to which, he replied and thereafter the matter was not even considered in accordance with law. His further contention is that in any case the certificate produced by the petitioner has not been declared illegal or doubtful by any authority and therefore the same is a valid and admissible document in the eyes of law and thereby binding upon the respondents in terms with certified Standing Instruction no.76. He further submits that it is an undisputed position that the petitioner appeared in the Bihar School Middle Board Examination in the year 1965 as a regular student of the Middle School, Poldih and was declared successful after passing the same and a certificate was issued to him bearing the Date of Birth as the 10th of June, 1953 which is fully legal and genuine and the same is admissible in terms with Instruction No. 76 of NCWA-III and thus, the entire action of the respondents are violative of well settled principle of natural justice and in violation of Articles 14, 16, 19, 21 of the Constitution of India and fit to be set aside. 5. Mr. Anoop Kumar Mehta, learned counsel for the respondents in reply submits that in view of the fact that the Date of Birth recorded in the Form-B register is 1.1.1948, which is a statutory document and thus the same is binding more so when he has put his thumb impression. 5. Mr. Anoop Kumar Mehta, learned counsel for the respondents in reply submits that in view of the fact that the Date of Birth recorded in the Form-B register is 1.1.1948, which is a statutory document and thus the same is binding more so when he has put his thumb impression. The petitioner’s claim to extend the date of birth cannot be allowed and the writ petition is liable to be dismissed. He has further submitted that the petitioner has preferred this writ petition at a belated stage and in view of the settled law it is not maintainable at the fag end of service tenure. 6. I have considered the rival submissions and pleadings and the case law on the subject. The admitted fact remains that the Instruction No. 76 is enforceable and binding and that the petitioner did raise his age dispute in 1987 itself and again in 2002 and it was on these background that the respondent themself wrote a letter to the Secretary, Bihar School Examination Board, Patna for verifying the credential of the certificate produced by the petitioner which was issued by the Board itself. The same was also proved to be correct and genuine and the Date of Birth of the petitioner as per the certificate issued by the Board is 1st June, 1953. It is also a fact that the petitioner has been agitating the issue and the certificate proved his case beyond doubt and even in the affidavit filed on behalf of Bihar School Examination Board, Patna this fact has been admitted. 7. The learned counsel for the respondents has relied upon 2009(1) JCR pg 697 to support his contention whereas the learned counsel for the petitioner has relied upon a Full Bench Judgment of this Court reported in 2007 (3) JCR 68 (Kamta Pandey Vrs. M/s B.C.C.L.). 8. 2009 (1) JCR page 697 (Jhr), (Phoolchand Tripathi vs. Steel Authority of India Ltd. & Ors.) as referred to and relied upon by the learned counsel for the respondent, does not apply to the facts of the present case. M/s B.C.C.L.). 8. 2009 (1) JCR page 697 (Jhr), (Phoolchand Tripathi vs. Steel Authority of India Ltd. & Ors.) as referred to and relied upon by the learned counsel for the respondent, does not apply to the facts of the present case. In this case the issue was raised at the fag end i.e. on receipt of the notice for superannuation and the petitioner was medically examined by the Medical Board and his age was assessed and accordingly his date of birth was recorded in the Form-B register which bears the signature of the petitioner therein and the same was not denied by him. 9. The admitted position remains that the Instruction No.76 of National Coal Wage Agreement III is applicable and binding upon the respondent Company as well as to the petitioner. This issue is no more res-integra and has been conclusively held by a Full Bench Judgement reported in 2007(3) JCR P. 68 (Kamta Pandey Vs. M/s. B.C.C.L.). The Instruction No.76 of the National Coal Wage Agreement III dated 24.5.1988 is a bilateral agreement between the Company and the Union and this deals with the procedure for verification of the age of the employee, which is reproduced below:- 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 circumstances. 10. The Full Bench Judgment (Supra) while considering an identical issue in the matter of B.C.C.L itself at para 15 and 16 held as under:- “15. As per this instruction as agreed upon by the parties, the determination of the age shall be based upon Matriculation Certificate and the date of birth recorded in the said certificate alone shall be treated as the correct date of birth. As per this instruction as agreed upon by the parties, the determination of the age shall be based upon Matriculation Certificate and the date of birth recorded in the said certificate alone shall be treated as the correct date of birth. Clause (B) of Instruction No.76 which provides for the review of determination of date of birth in respect of existing employees, is reproduced below:- (B) Review determination of date of birth in respect of existing employees (i)(a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized University or Board or Middle pass certificate issued by Board of Education and/or Department of Public Instruction and admit cards issued by the above Boards should be treated as correct provided they were issued by the said universities/Board/Instructions prior to the date of employment. 16. The above instruction, which is, admittedly binding upon the respondent company, would clearly indicate that in the case of the existing employees, date of birth mentioned in the Matriculation Certificate alone shall be treated as authentic and correct date of birth. If it is found that the said certificate, which is genuine, containing the date of birth, has been issued by the recognized University or recognized Board of Education, it cannot be altered under any circumstances. When the instruction found in the agreement reflecting the scheme provided for implementation envisaging the specific procedure for determination of date of birth conclusively, it cannot be said that entries made in the service register alleged to have been acknowledged by the employee would nullify the effect or the object with which the Instruction No.76 has been introduced.” 11. Clause-B(i)(a) of Instruction No. 76 also includes Middle Pass Certificate issued by the Board of Education. The Hon’ble Full Bench has categorically held and laid down the law that the date of birth mentioned in the Matriculation Certificate alone shall be treated as an authentic and correct date of birth and the same is conclusive proof of age and no other records including service record can prevail over it. 12. The Hon’ble Full Bench has categorically held and laid down the law that the date of birth mentioned in the Matriculation Certificate alone shall be treated as an authentic and correct date of birth and the same is conclusive proof of age and no other records including service record can prevail over it. 12. As regards the issue that the dispute with regard to Date of Birth cannot be raised at the fag end of career is well settled but at the same time those Judgment cannot apply in the facts of the present case for the sole reason that in the instant case the age dispute has been raised since 1987 and followed it in 2002 and 2004 and upon verification it was found that the contention of the petitioner was correct. 13. The Hon'ble Full Bench (Supra) while considering the issue and the settled law that dispute with regard to Date of Birth cannot be raised at fag end of service which is well settled in the following judgments; (i) 1994 Supp (1) SCC 155 (Secretary & Commissioner, Home Department & Ors, Vs. R. Kirubakaran.) (ii) (1995) 4 SCC 172 (Burn Standard Co.Ltd. Vs. Dinabandhu Majumdar) (iii) (1995) Supp. (2) SCC 598 (Bharat Coking Coal Ltd. Vs. Presiding officer and Anr.) (iv) (2001) 4 SCC 52 : 2001 (1) JCR 99 (SC) Hindustan lever Ltd. Vs. S.M. Jadav and another. (v) AIR 2001 SC 72 : 2001 (2) JCR 251 (SC) G.M. Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushand And others. (vi) (2003) 6 SCC 483 State of U.P. and others V. Gulaichi (vii) (2005) 12 SCC 201 Coal India Ltd. Vs. Ardhendu Bikas Bhattacharjee and others. (viii) (2005) 6 SCC 49 State of U.P. Vs. Shiv Narain Upadhyay, finally held at para 27 and 29 as under:- “27. Shib Kumar Dushand And others. (vi) (2003) 6 SCC 483 State of U.P. and others V. Gulaichi (vii) (2005) 12 SCC 201 Coal India Ltd. Vs. Ardhendu Bikas Bhattacharjee and others. (viii) (2005) 6 SCC 49 State of U.P. Vs. Shiv Narain Upadhyay, finally held at para 27 and 29 as under:- “27. In these decisions, though it is observed that the employee will not normally be permitted to apply for change of his date of birth at the fag end of his service career, the Supreme Court clearly held 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. 29. In view of the above discussion, our answer to the question raised in this case is as follows:- “The date of birth recorded in the Matriculation Certificate duly authenticated 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.” 14. In (2009) 1 SCC Pg 80 the Hon’ble Supreme Court while considering a similar issue at para 14, held as under: “14. No material has been placed before us in regard to existence of a statutory rule fixing a time-frame for filing an application for correction of the date of birth in the service record. Even if there was such a provision, the same, in our opinion, would not be of much significance as the respondents had not shown that the mistake in the matter of recording of date of birth in the service record was known to the appellant at any earlier point of time. If the appellant’s contention is correct that he came to learn about it only in April 1988 whereafter he filed a representation, it must be held that there was no delay on his part in this behalf. An employee may take action as is permissible in law only after coming to know that a mistake has been committed by the employer.” 15. An employee may take action as is permissible in law only after coming to know that a mistake has been committed by the employer.” 15. Considering the aforesaid facts and circumstances of the case and in particular the Full Bench judgment (Supra) on an identical issue this writ petition is allowed and the matter is remitted back to the respondent authorities to reconsider and correct the date of birth in the light of the aforesaid observation and settled law and take a decision within a period of three months from the date of receipt of a copy of this order and communicate the same to the petitioner.