Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 986 (JHR)

Shakunti Devi v. Bharat Coking Coal Limited

2009-07-17

D.G.R.PATNAIK

body2009
Judgment Heard Sri Shailesh, learned counsel for the petitioner and Sri Anoop Kumar Mehta, learned counsel for the respondents. 2. The petitioner in this writ application has prayed for issuance of a direction upon the respondent B.C.C.L. to correct the entry in respect of the date of birth of her husband, who was an employee under the respondent B.C.C.L., and upon making such correction, to direct the respondents to pay compensation to her for the pecuniary loss caused to her family on account of the forcible premature retirement of her husband. 3. The facts of the petitioner’s case in brief are as follows : The petitioner’s husband Late Brahmdeo Ravidas was inducted in the employment of the respondent B.C.C.L. as a Trip Munshi on 24.12.1973. At the time of his appointment, his date of birth was recorded in the statutory Form-B Register of his service records as 30 years on 24.12.1973. The Form-B Register contains the L.T.I. of the deceased husband of the petitioner. However, in the statutory Form-A Register maintained under the C.M.P.F. Scheme, the petitioner’s husband had declared his date of birth as 04.07.1944. The concerned authorities of the respondents accepted the employee’s self-declared date of birth 04.07.1944 to be correct and accordingly, the employee was to superannuate on the last day of July, 2004 on attaining the age of 60 years. Though no controversy was raised by the employee in respect of the entry concerning his date of birth in the service records, a Medical Board was constituted in the year 1989 and the petitioner’s husband was directed to appear before the Medical Board on 10.04.1989. The Medical Board, after examining him, had assessed his age on 10.04.1989 as 40 years. The result of the examination of the employee conducted by the Medical Board was published on 01.06.1989 in which the name of the petitioner’s husband had appeared at Sl. No. 18. The petitioner claims that on the basis of the age assessment made by the Medical Board, necessary corrections were carried out in the service records of the petitioner’s husband including the Form-B Register. The petitioner’s contention is that such corrections were permissible and were made by way of Implementation Instruction No. 76 of N.C.W.A.-3 of the respondent company. No. 18. The petitioner claims that on the basis of the age assessment made by the Medical Board, necessary corrections were carried out in the service records of the petitioner’s husband including the Form-B Register. The petitioner’s contention is that such corrections were permissible and were made by way of Implementation Instruction No. 76 of N.C.W.A.-3 of the respondent company. Yet, despite such corrections being made in the Form-B Register, the respondent authorities by serving a notice dated 01.04.2004, informed that the petitioner’s husband would retire on 31.07.2004, treating his date of birth as 04.07.1944, as recorded in the E.D.P. records. Upon receipt of the notice, the petitioner’s husband submitted his letter of protest praying for making necessary corrections in the E.D.P. records in accordance with the corrected entry made in the Form-B Register and not to force him to retire on 31.07.2004. The case of the petitioner’s husband was thereafter forwarded by the Personnel Manager of the respondent company on 06.05.2004 to the “Age Determination Committee” for correction of his date of birth. Inspite of all these efforts seeking correction of the entry of the date of birth, the petitioner’s husband was made to retire from service on 31.07.2004. Even after retirement, he pursued his claim by filing his representations before the concerned authorities of the respondents. The Deputy Chief Personnel Manager Area-IX and the General Manager Area-IX, being convinced of the genuineness of the claim of the employee, had recommended the employee’s case for the necessary correction in the entry concerning his date of birth on 17.01.2005 to the higher authorities. The petitioner’s husband also moved the Mazdoor Union and the Union also took up his case for redressal of his grievance before the concerned authorities of the respondents. While the matter was pending at the level of the labour union, the petitioner’s husband died on 29.10.2005. After the death of her husband, the petitioner’s son submitted an application before the respondents seeking his compassionate appointment and when his prayer was not considered by the respondents, he filed a writ application before this Court on 30.11.2006 vide W.P.(S) No. 7123 of 2006. The writ application was disposed of on 11.12.2006 with a direction to the concerned authorities of the respondents to consider the petitioner’s claim for compassionate appointment and to pass appropriate orders in accordance with law. The writ application was disposed of on 11.12.2006 with a direction to the concerned authorities of the respondents to consider the petitioner’s claim for compassionate appointment and to pass appropriate orders in accordance with law. Pursuant to the order, the petitioner’s son filed a representation before the Respondent No. 2 on 23.01.2007 for compassionate appointment but his claim was dismissed by the respondents by order dated 17.03.2007. Being aggrieved by the order, the petitioner's son again moved this Court by filing a writ application vide W.P.(S) No. 2668 of 2007 on 04.05.2007. However, the writ petition was dismissed by a Bench of this Court on 18.12.2007. The appeal against the order of the Single Judge, preferred by the petitioner's son, vide L.P.A. No. 24 of 2008 was dismissed by the Division Bench vide order dated 06.02.2008. 4. Learned counsel for the petitioner would explain that though in the earlier writ applications, the prayer made by the petitioner’s son was in respect of his grievance for not granting him compassionate appointment and also his grievance against the non-correction of the date of birth of his father, but no decision on the issue relating to claim for correction of the entry relating to date of birth was passed by this Court. The second writ application was considered only on the issue of the writ petitioner’s claim for compassionate appointment and the same was dismissed on the ground that such claim was made after about ten months of the retirement of the employee. It is further explained that though the appeal against the Single Bench judgement of this Court was dismissed, but with an observation that the writ petitioner, if aggrieved over the date of retirement of his father, may seek his remedy elsewhere. Learned counsel explains that the petitioner’s claim for seeking the relief for correction in the entries in respect of the date of birth of her deceased husband in the service records, has therefore not been foreclosed by any of the orders passed by this Court in the aforementioned writ applications and in the present writ application the petitioner’s prayer essentially is for payment of compensation for the loss and detriment suffered by the family of the deceased employee on account of his premature retirement. 5. 5. Learned counsel for the petitioner argues further that even as provided under Implementation Instruction No. 76 of the N.C.W.A.-3 of the respondent company, in case of dispute regarding the entries of the date of birth of the employee, the age of the employee concerned has to be assessed by the Medical Board and the assessment made by the Medical Board should be accepted as correct and final for the purposes of making necessary corrections in the original entries in the service records. Learned counsel explains that the examination of the petitioner’s husband by the Medical Board was in compliance with the Implementation Instruction No 76 and accordingly the entries regarding the age was corrected in the statutory Form-B Register. Merely because the corresponding correction was not made in the E.D.P. records, the employee could not have been retired prematurely since the failure to make the necessary corrections in the E.D.P. records was the lapse of the concerned authorities who were authorized to maintain such records. Learned counsel submits that the corrected entries in the statutory Form-B Register is binding upon the employer and employee and according to the corrected entry, the petitioner’s husband would have retired in April, 2009. The respondents have illegally and arbitrarily caused premature retirement of the petitioner’s husband by more than five years, thereby causing pecuniary loss to the employee and to the dependent members of his family and for which the respondents are liable to pay adequate compensation. 6. A counter affidavit has been filed on behalf of the respondents. Denying and disputing and entire claim of the petitioner, the preliminary stand taken by the respondents, as explained by Sri Anoop Kumar Mehta, learned counsel for the respondents, is that in the earlier writ applications filed by the petitioner’s son, the same grievance as raised in the present writ application was raised, basically for correction of the entry regarding date of birth and both the earlier writ applications were dismissed. As such, the present writ application filed by the widow of the deceased employee for the same relief, is not maintainable. Explaining the facts of the case, learned counsel submits that the husband of the petitioner was inducted in the employment of the respondent B.C.C.L. on 24.12.1973 and his age on the date of his appointment was assessed and entered as 30 years. Explaining the facts of the case, learned counsel submits that the husband of the petitioner was inducted in the employment of the respondent B.C.C.L. on 24.12.1973 and his age on the date of his appointment was assessed and entered as 30 years. In token of acceptance of the correctness of the entry, the workman had put his L.T.I. in the Form-B Register. It was noticed that in the declaration given by the workman in the Form-A under the C.M.P.F. Scheme containing his L.T.I. thereof, the petitioner had declared his date of birth as 04.07.1944. This date was accepted by the respondents and accordingly the date of his retirement was assessed as 31st July, 2004. Learned counsel adds that after having retired from service on 31.07.2004, the employee continued to live for about 15 months thereafter and during his life time, he never raised any dispute and therefore the petitioner cannot be allowed to dispute the correctness of the date of birth or the date of retirement of the deceased husband. As regards the assessment of age by the Medical Board, learned counsel would explain that no administrative approval regarding the assessment of age by the Medical Board was given by the competent authority and in absence of any administratively authenticated approval by the competent authority, the assessment of age by the Medical Board, if any, would not be binding upon the respondents. 7. From the rival submission, the facts which emerge are - (i) That the petitioner’s husband was inducted in the service of the respondent B.C.C.L. on 24.12.1973 and on that date, his age was recorded as 30 years. (ii) In the Form-A under the C.M.P.F. Scheme, the date of birth of the employee was recorded as 04.07.1944. (iii) By letter issued by the concerned authorities of the respondents, the employee was referred to the constituted Medical Board for assessment of his age. This, as per the letter issued by the General Manage, Area-IX (Annexure-11) addressed to the concerned authorities of the Department of Personnel, was occasioned on account of discrepancy in the date of birth recorded in the Form-B Register and Form-A of the C.M.P.F. records which had necessitated determination of age by the Age Determination Committee/Medical Board under Implementation Instruction No. 76 of the N.C.W.A.-3 of the respondent company. (iv) The Medical Board examined the employee on 10.04.1989 and assessed his age on that date as 40 years. The age as assessed by the Medical Board was communicated to the Personnel Department and an entry by way of correction in the Form-B Register in respect of the employee’s date of birth, was made accordingly. The fact that such correction was made in the Form-B Register is apparent from the copy of the Form-B Register annexed to the writ application. (v) The employee, did lodge his protest even during the tenure of his service, seeking correction of the entries in respect of his date of birth in the E.D.P. records. As per claim of the petitioner, her husband had pursued his demand for correction of the entries even after he was made to retire in July, 2004. 8. From the above facts and even as admitted by the respondents, there were two different dates appearing in the service records of the employee. In the Form-B Register, the date of birth was recorded as 30 years on 24.12.1973 and in Form-A of the C.M.P.F. records, it was recorded as 04.07.1944. The Implementation Instruction No. 76 of the respondent Company lays down the procedure for determination/ verification of the age of employees. Clause (C) of the Implementation Instruction No. 76 specifies that where there is variation in the age recorded in the Form-B Register and the C.M.P.F. records and Identity Cards, the matter should be referred to the Age Determination Committee/Medical Board constituted by the Management for determination of age. Clause (H) lays down that after assessment of age by the Age Determination Committee/Medical board, the same will be computerized and print out of the same will be given to the employee concerned and the Units from where the reference can be received, within a month. 9. It is apparent from the above instructions that correction of the entry regarding the age of the employee can be made at any time when the employee is in service. 10. In the instant case, admittedly the petitioner’s husband was referred to the Medical Board for determination of age on account of variations in the entries of his date of birth recorded in the Form-B Register and in the C.M.P.F. records. 10. In the instant case, admittedly the petitioner’s husband was referred to the Medical Board for determination of age on account of variations in the entries of his date of birth recorded in the Form-B Register and in the C.M.P.F. records. The medical examination was recommended by the General Manager, Area-IX under whom the petitioner’s husband was directly employed and recommended by the Deputy Chief Personnel Manager of the Area and other concerned authorities. The assessment of the employee’s age by the Medical Board was accepted and the same was duly entered in the service records of the employees including the Form-B Register. The respondents cannot deny the correction of the entry pursuant to the assessment by the Medical Board on the ground that the determination of age by the Medical Board was not authorized or authenticated by any competent authority. As indicated above, the General Manager and Personnel Manager of the Area where the petitioner’s husband was employed, had considered the need for re-assessment of the employee’s age by the Medical Board in view of the variations appearing in the service records of the employee and their competence cannot be disputed by the respondents. The reference to the Medical Board cannot therefore be said to be irregular or improper. 11. Considering the admitted fact that the correction of the entry regarding the employee’s date of birth was made in the statutory Form-B Register, the presumption is that, in accordance with the laid down procedures, the employee was informed about the corrected entry in his service records and there could be no occasion for him to raise any dispute regarding the entry of his date of birth in his service records thereafter. It also appears from the facts stated that immediately on receiving the notice regarding his premature superannuation, he had lodged his protest seeking the necessary corrections to be made in the E.D.P. records but for reasons unexplained, the concerned authorities of the respondents sat tight over the matter and on the other hand, had forced the employee to retire in July, 2004 although according to the corrected entry of his date of birth, he would have retired in April, 2009. As regards the dispute raised by the respondents regarding the maintainability of this writ application on the ground of earlier writ applications having been dismissed, it appears that though the petitioner’s son had earlier raised a dispute demanding correction of date of birth in the service records of his father and also demanding compassionate appointment, no decision on the merits of the case was passed by this Court in the first writ application which was disposed of with a direction to the respondents to consider the writ petitioner’s claim afresh. Likewise in the second writ application, the only issue which was considered and dismissed was the claim of the petitioner’s son for his compassionate appointment on the ground that such claim was belated. The appeal filed against the judgement of the Single Bench of this Court, was though dismissed but with a liberty to the writ petitioner to seek redressal of his grievance elsewhere. It is apparent that on the petitioner’s claim for correction of the entry in the service records of her deceased husband, no decision was taken on merits of the case by this Court in any of the former writ applications. The petitioner’s present writ application, for the relief claimed, cannot therefore be said to be barred by the principles of res-judicata. 12. From the entire facts and circumstances of the case, the legitimate inference which can easily be drawn is that the concerned authorities of the respondents had arbitrarily and illegally denied the benefit of the date of birth recorded in the Form-B Register after correction even though such correction as made, was in accordance with the rules of procedure and in accordance with the Implementation Instruction No. 76 of the N.C.W.A.-3 as applicable to the employer and employee. By such denial of the benefits, the respondents have subjected the employee to suffer financial loss and detriment which would have accrued to the employee and his family at least till the date of his death. The respondents are therefore, liable to compensate the financial loss caused to the employee and his dependents. 13. Accordingly, I direct the respondents to assess the amount of financial loss on the basis of the salary and other monetary benefits which the petitioner’s husband would have earned if he was allowed to continue in service during his life time. The respondents are therefore, liable to compensate the financial loss caused to the employee and his dependents. 13. Accordingly, I direct the respondents to assess the amount of financial loss on the basis of the salary and other monetary benefits which the petitioner’s husband would have earned if he was allowed to continue in service during his life time. This exercise must be carried out by the concerned authorities of the respondents within three months from the date of this order and the amount so assessed, shall be paid to the petitioner together with statutory interest within the period stipulated above. With these observations, this writ application is disposed of. Let a copy of this order be given to the learned counsel for the respondent B.C.C.L.