Board of Trustees, Assam Tea Plantations Provident Fund and Pension Fund Scheme v. Mihir Kr. Dey
2010-06-24
AMITAVA ROY, H.BARUAH
body2010
DigiLaw.ai
JUDGMENT H. Baruah, J. 1. The core issue involved in this writ appeal is whether the correction of age in the service book of the Respondent made by the Appellant authorities basing on materials supplied by the Respondent can be interfered with upon discovery of mistake(s) after a decade at least. 2. The aforesaid issue was settled by the Hon'ble Single Judge of this High Court by his judgment and order dated 24.07.2006 passed in WP(C) No. 8025 of 2004 filed by the Respondent herein. Hon'ble Single Judge allowed the writ petition on the ground that a settled position cannot be unsettled after a considerable lapse of time. 3. Before adverting to the merits of this appeal, for better appreciation and understanding, we propose to place the facts involved in this appeal as under: The Respondent herein was initially appointed as Peon under the Board of Trustees of the Assam Tea Plantations Provident Fund and Pension Fund Scheme, hereinafter referred to as the Board on 9.11.1997. The Board as aforesaid is constituted under the provision of ATPPF Scheme Act, 1955. The Respondent was confirmed in the post in the year 1977. He was promoted to the post of Typist in the year 1980 and then to the post of L.D. Assistant in the year 1981. In the year 1996 the Petitioner was promoted to the post of Upper Division Assistant. The date of birth of the Petitioner on his appointment as Peon, a Grade-TV post in the year 1967 was recorded in his service book is 13.11.1945. It would be appropriate to mention that on the date of appointment of the Respondent as Peon in the year 1967 under the Board, he did not pass matriculation examination. However, he was fortunate to have passed the matriculation examination in the year 1978. The Respondent, on the basis of the age recorded in the matriculation certificate and the birth certificate issued by the Registrar of Births and Deaths in the year 1985, approached the Appellant authorities for correction of his date of birth as per matriculation certificate and the birth certificate to 8.10.1949. The Appellants authorities accordingly corrected the date of birth of the Respondent in his service book as 8.10.1949 instead of 13.11.1945. Such correction was communicated to the Respondent by the Appellant authorities vide communication dated 1.2.1992.
The Appellants authorities accordingly corrected the date of birth of the Respondent in his service book as 8.10.1949 instead of 13.11.1945. Such correction was communicated to the Respondent by the Appellant authorities vide communication dated 1.2.1992. The Respondent continued in the service on the basis of his altered date of birth but in the year 2003 by a communication dated 18.10.2003, the Respondent was asked to submit his High School Leaving Certificate as well as the school certificate for proof of his age which accordingly gave rise the impugned notification dated 8.4.2004 which had been challenged by the Respondent by filing WP(C) No. 8025 of 2005. 4. It would appear to us that on filing of the writ petition challenging the office memorandum dated 8.4.2004, the Appellants resisted the petition by filing counter affidavit contended inter alia that the date of birth of the Respondent in his service book as 13.11.1945 was recorded on the basis of the materials placed by him at the time of joining in his service in the year 1967. The Respondent herein accepted the said date of birth by counter signing relevant part of the service book in the year 1984. However, the Respondent's date of birth was altered from 13.11.1945 to 8.10.1949 without due inquiry in to the matter. Three different dates of birth have emerged from the service book, the matriculation certificate and the birth certificate issued by Registrar of Births and Deaths. This mistake later having been discovered, the Respondent was asked to submit the high school leaving certificate as well as the school certificate for proof of his age and to correct it accordingly. In respect of surfacing of three different date of births, the Appellants took the stand that the date of birth as shown in the birth certificate that recorded by the Registrar, Births and Deaths and the entries therefore in the Register of Births and Deaths was at the instance of the Respondent without due verification. In respect of the matriculation certificate the stand taken by the Appellants that such certificate was not available rather not in existence when the Petitioner joined in the service in the year 1967.
In respect of the matriculation certificate the stand taken by the Appellants that such certificate was not available rather not in existence when the Petitioner joined in the service in the year 1967. In view of these facts the Appellants contended that the date of birth as recorded either in the matriculation certificate or birth certificate issued by the Registrar of Births and Deaths cannot take the place the date of birth as recorded in the service book at the time of entry into the service which was accepted by counter signing in the relevant entries in the service book. The claim made in the writ petition by the Respondent is that his death of birth was corrected by the Appellant authorities to 8.10.1949 on production of valid documents to wit matriculation certificate and birth certificate issued by the Registrar of Births and Deaths. Such correction having been communicated in the year 1992 by the Appellant authorities and on the basis of which different gradation lists were published by the authority and benefits given, re-opening of the matter after about a decade without any justifiable cause would prejudicially effect the Respondent. 5. The claim and the counter claim so raised by the Respondent and the Appellants in the writ petition was settled by the impugned judgment and order and thus allowed the writ petition filed by the Respondent. 6. The learned Single Judge while allowing the writ petition concentrated to the facts appearing in the face of the record and accepted the same in its true perspective. While rejecting the claim of the Appellants the learned Single Judge held that the alteration of age in respect of Respondent herein from 13.11.1945 to 8.10.1949 was made on production of valid documents such as the matriculation certificate and the birth certificate issued by Registrar of Births and Deaths. The Respondent continued in his service thereafter without any difficulty till the date of issuance of the impugned office memorandum dated 8.4.2004. Respondent passed the matriculation examination in the year 1978 when admittedly he was not a matriculate in the year 1967, the year in which he joined the service.
The Respondent continued in his service thereafter without any difficulty till the date of issuance of the impugned office memorandum dated 8.4.2004. Respondent passed the matriculation examination in the year 1978 when admittedly he was not a matriculate in the year 1967, the year in which he joined the service. Such alteration of age was made on the basis of representation made by the Respondent and the Appellant authorities without any difficulty whatsoever accepted his case and corrected the date of birth as 8.9.1949 on the basis of the documents placed before the Appellant authorities. Such correction was also communicated to the writ Petitioner in the year 1992. Therefore, a subsequent discovery of the mistake on the part of the Appellant authorities cannot entitle the Appellant authority to re-open the case after a lapse of considerable time. The learned Single Judge also held that the matriculation certificate which is also one of the documents placed before the Appellant authorities for correction of the age of the Respondent in his service book has not been challenged, though the birth certificate is challenged on the ground that it was obtained at the instance of the Respondent. It is not the case of the Appellant that the correction was made basing on the birth certificate alone and not matriculation certificate. The learned Single Judge, therefore, refused to act on the submission of the Appellant authorities that such alteration of the date of birth in the service book was made without verification. Responsibility is always on the authority(s) in such case (s) before taking any action to make an inquiry into the correctness of the claim made by anyone. The Appellant authorities, when the representation was made by the Respondent for correction of his age was obliged to make a verification of his claim before altering the date of birth from 13.11.1945 to 08.10.1949. Since on the basis of the representation the date of birth in respect of the Respondent has been altered in the service book, the natural presumption would be that the Appellant authority did verify the claim and accordingly altered the date of birth. The Hon'ble Single Judge, therefore, held that it would not be open for the Appellant authorities to unsettled the settled position claiming that such alteration was made without verification.
The Hon'ble Single Judge, therefore, held that it would not be open for the Appellant authorities to unsettled the settled position claiming that such alteration was made without verification. The learned Single Judge further also held that since the Respondent was given benefit during his service life by the Appellant authorities by resorting to altered date of birth such benefits on his superannuation cannot be taken away only because of discovery of their mistake after a decade. The learned Single Judge further held that the Appellant authority in their counter affidavit has not provided any compelling ground(s) why re-opening of the matter necessitates. In absence of such factor in the counter affidavit it would not be open for the Appellant authorities to re-open the matter to the prejudice of the Respondent. In regard to surfacing of three different date of births per documents, the learned Single Judge held that the differences in two dates 17.10.1949 and 8.10.1949 is too trivial to reach a conclusion that there is yet another date of birth of the Respondent. The Appellant authority having not disputed the authenticity or veracity of the matriculation certificate of the Respondent, the date of birth so corrected in the service book of the Respondent basing the same, the Appellant authority therefore, cannot re-open the subject of correction after a decade. 7. Mr. N.C. Das, learned senior counsel appearing for the Appellants submitted before us that the alteration of the age in the service book in respect of the Respondent was made without verification. Such mistake subsequently came to the notice of the Appellant authorities and accordingly issued the memorandum impugned in the writ petition for correction of the age in the service book. It was also argued that the documents so supplied gave rise to different dates of birth one 7.10.1949 and the other 8.10.1949. A conflict having thus cropped up in respect of date of birth, neither of the documents placed by the Respondent can be accepted. He also argued further that the date of birth in the service book was recorded at the instance of the Respondent as 13.11.1945 on the basis of the materials provided by him. Such date of birth recorded in the service book was also counter signed by him in the appropriate place of the service book.
He also argued further that the date of birth in the service book was recorded at the instance of the Respondent as 13.11.1945 on the basis of the materials provided by him. Such date of birth recorded in the service book was also counter signed by him in the appropriate place of the service book. Therefore, date of birth 13.11.1945 is to be accepted as the correct date of birth of the Respondent. 8. During the course of argument Mr. N.C. Das, learned senior counsel for the Appellants brought our notice to the Annexure-IV to the writ appeal addressed to the Additional P.F. Commissioner, ATPPF & PF Scheme, Guwahati dated 20th August 1991 and submitted that when the Respondent herein admits a mistaken entry of his age in the HSLC certificate, it would not be open for him to claim his date of birth as 8.10.1949. This plea is nowhere found available in the counter affidavit filed by the Appellants resisting the writ petition of the Respondent and, thus, no opportunity was provided to the learned Single Judge to look into the merit of this application dated 20.08.1991. This plea in our considered view cannot be allowed to be taken in the appellate stage of the proceeding. Even however, such plea of the Appellants cannot also take a base since such information was supplied by the Respondent to the Appellant authorities prior to the receipt of the communication dated 1.2.1992. Before communication of alteration, the letter Annexure-IV was within the power and possession of the Appellant authorities, but despite such information so given, the Appellant authorities ignored it and altered the date of birth. Thus, the Annexure-IV in our considered view cannot play a role in favour of the Appellants. We find no sufficient force on this point. 9. Contrary to the submissions advanced by Mr. N.C. Das, learned senior counsel, Mr. GP. Bhowmik, learned Counsel appearing for the Respondent strenuously argued that since the Appellant authority altered the date of birth from 13.11.1945 to 8.10.1949 on the representation of the Respondent supported by valid documents such as matriculation certificate and birth certificate and subsequent follow up action by the Appellant authorities basing on such documents, it would not be justified on the part of the Appellants to place an argument that such alteration of date of birth was made without verification.
The Appellant authority cannot be allowed to argue that such correction was made mistakenly by the Appellant authorities. 10. From the facts appearing in the face of the record we also noticed that on the basis of the altered date of birth, the Respondent obtained various benefits while in service and such benefit cannot be allowed to be disturbed by accepting the case of the Appellants. 11. We have given our anxious consideration to the facts and the circumstances of the case and also the submissions advanced by the learned Counsel of the rival party. We have also given our thoughtful consideration to the findings arrived at by the learned Single Judge. The learned Single Judge appears to have committed no error in holding that the Appellant authorities cannot be allowed to pursue the matter in view of discovery of a mistake after about a decade when they allowed to settle the age that altered on the basis of genuine documents, matriculation certificate in particular. We, therefore, do not see any plausible reason to unsettle the impugned judgment and order. We refrain from making any interference thereto. 12. The impugned judgment and order passed by the learned Single Judge is accordingly affirmed. 13. Appeal stands dismissed. No costs. Appeal dismissed