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2011 DIGILAW 602 (CAL)

Gadadhar Konar v. UNION OF INDIA

2011-04-29

M.K.SINHA, PRANAB KUMAR CHATTOPADHYAY

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Judgment 1. THIS application has been filed in connection with the appeal preferred from the order dated 8th April, 2011 whereby and where under a learned Judge of this Court refused to pass any interim order. 2. THE learned Advocate representing the appellant/petitioner submits that the respondent authorities particularly the Manager Nabakajora Colliery issued notice of superannuation dated 24th January, 2011 without appreciating the actual date of birth recorded in the service records of the appellant/petitioner. Mr. Ashoke Chakraborty, learned Senior Counsel representing the appellant/petitioner invites our attention to the last pay certificate issued by the respondent Colliery wherein the date of birth of the appellant/petitioner has been specifically mentioned as 4th June, 1959. 3. MR. Chakraborty also relied on the school leaving certificate issued by the Headmaster, Gopalpur High School, Burdwan wherein the date of birth of the appellant/petitioner has been recorded as 4th June, 1959. The aforesaid school leaving certificate was issued by the Headmaster on 24th May, 1978 i.e. prior to the engagement of the appellant/petitioner in the employment of the Eastern Coal Fields Ltd. 4. MR. Chakraborty submits that the respondent authorities sought to change the recorded date of birth of the appellant/petitioner unilaterally and without granting any opportunity of hearing upon serving prior notice. Mr. Chakraborty specifically urged before this Court that the date of birth of the appellant/petitioner specifically mentioned in the service records cannot be unilaterally changed and the date of birth recorded in the school leaving certificate cannot be ignored by the respondent authorities under any circumstances. 5. MR. Bijoy Kumar, learned Counsel representing the respondent Coal Company, however, submits that the Age Determination Committee examined the appellant/petitioner and determined the age of the appellant/petitioner between 40 to 45 on 12th October, 1993 and on the basis of the aforesaid report of the Age Determination Committee, the date of birth the appellant/petitioner was mentioned in the 'B' Form Register as 12th April, 1951. 6. THE learned Counsel representing the appellant/petitioner, however, submits that there was no occasion to determine the age of the appellant/petitioner by the Medical Board specially when the date of birth of the appellant/petitioner has been specifically mentioned in the service records as 4th June, 1959. Furthermore, the same date of birth was recorded in the school leaving certificate issued by the Headmaster of the school concerned prior to the appointment of the appellant/ petitioner in service. Mr. Furthermore, the same date of birth was recorded in the school leaving certificate issued by the Headmaster of the school concerned prior to the appointment of the appellant/ petitioner in service. Mr. Chakraborty, learned Senior Counsel representing the appellant/petitioner referred to and relied on a Division Bench judgment of this Court in the case of Dilip Kumar Moitra v. M/s. Burn Standard Co. Ltd. and Ors., reported in 2007 (2) CLJ (Cal) 203, wherein this Court specifically observed:- "The respondent-Company while recording the date of birth of the appellant/writ petitioner should have followed the Standing Orders wherein specific provision has been made for evidence of age in Order No. 2 (v) (b). Following the aforesaid provisions of the Standing Order, the competent authority of the respondent-Company should have recorded the date of birth of the appellant/ writ petitioner on the basis of the School Leaving Certificate. In absence of any other valid documents the age recorded in the School Leaving Certificate should be and must be regarded as evidence of age as has been specifically mentioned in the Standing Order No. 2 (v) (b) of respondent-Company." 7. IN the present case, undisputedly, the date of birth of the appellant/petitioner was mentioned in the last pay certificate as 4th June, 1959 apart from the School Leaving Certificate issued by the Headmaster of the concerned school before the appointment of the appellant/petitioner in the service of the respondent Coal Company. 8. MR. Bijoy Kumar, learned Counsel representing the respondent Coal Company submits that the date of birth mentioned in the service records of the company cannot be altered at the fag end of the service career of the employee concerned. MR. Kumar referred to and relied on the following decisions of the Hon'ble Supreme Court in support of his aforesaid contentions:- 1. G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors., reported in 2000 (8) SCC 696 ; 2. Burn Standard Co. Ltd. and Ors. v. Dinabandhu Majumdar and Anr., reported in 1995 (4) SCC 172 ; 3. Coal India Ltd. and Anr. v. Ardhendu Bikas Bhattacharjee and Ors., reported in 2005 (12) SCC 201. We fail to understand how the aforesaid decisions can be of any help to the respondent Coal Company. As a matter of fact, the aforesaid decisions will support the claim of the appellant/petitioner. 9. Coal India Ltd. and Anr. v. Ardhendu Bikas Bhattacharjee and Ors., reported in 2005 (12) SCC 201. We fail to understand how the aforesaid decisions can be of any help to the respondent Coal Company. As a matter of fact, the aforesaid decisions will support the claim of the appellant/petitioner. 9. IN the present case, the actual date of birth of the appellant/ petitioner was specifically mentioned in the service records of the respondent Coal Company as 4th June, 1959 which would appear from the last pay certificate issued by the Nimcha Colliery. 10. THE respondent Coal Company sought to change the recorded date of birth of the appellant/petitioner on the basis of medical report submitted by the Age Determination Committee. Mr. Kumar, learned Counsel representing the respondent Coal Company submits that the Medical Board duly examined the appellant/ petitioner and thereafter determined his age. 11. THE learned Counsel representing the appellant/petitioner submits that there was no medical examination of the appellant/petitioner by the Medical Board at any point of time and, therefore, no reliance can be placed on the aforesaid report of the Age Determination Committee which has now been disclosed by the respondent Coal Company. 12. CONSIDERING the report of the Medical Board, we find that the said Medical Board was of the opinion that the age of the appellant/ petitioner was between 40 to 45 years on 12th October, 1993. Therefore, the Age Determination Committee was not definite in respect of the actual age of the appellant/petitioner. In any event, in the present case, the school leaving certificate issued by the Headmaster of the school concerned on the basis of the admission register cannot be ignored under any circumstances. The school leaving certificate issued by the Headmaster of the school on the basis of the admission register should have been considered as conclusive proof of age of the appellant/ petitioner apart from the other valid documents viz., the last pay certificate issued by the competent authority of the respondent Coal Company. The school leaving certificate issued by the Headmaster of the school on the basis of the admission register should have been considered as conclusive proof of age of the appellant/ petitioner apart from the other valid documents viz., the last pay certificate issued by the competent authority of the respondent Coal Company. For the aforementioned reasons, we are constrained to hold that the concerned authority of the respondent Coal Company had acted wrongfully and illegally by issuing the notice of superannuation dated 24th January, 2011 to the appellant/petitioner wherein it was specifically mentioned that the service of the appellant/petitioner shall be terminated with effect from 30th April, 2011 on attaining the age of superannuation ignoring the school leaving certificate of the said appellant/petitioner wherein the actual date of birth of the said appellant/petitioner has been mentioned as 4th June, 1959 and furthermore, the same date of birth was also recorded in the last pay certificate issued by the respondent Coal Company. 13. FOR the aforementioned reasons, the age of superannuation of the appellant/petitioner mentioned in the notice of superannuation dated 24th January, 2011 issued by the Manager, Nabakajora Colliery cannot be sustained as the said age of superannuation has not been fixed on the basis of the actual date of birth recorded in the School Leaving Certificate issued by the Headmaster of the concerned school before the joining of the appellant/petitioner in the employment of the respondent Coal Company and also on the basis of the service records specially the last pay certificate issued by the respondent Coal Company wherein the actual date of birth of the appellant/petitioner was mentioned as 4th June, 1959. 14. THE respondent authorities herein are, therefore, directed not to rely on the date of birth recorded in the 'B' Form Register on the basis of the report submitted by the Age Determination Committee ignoring the other relevant service records in respect of the appellant/petitioner specially the last pay certificate wherein the date of birth of the appellant/petitioner has been specifically mentioned as 4th June, 1959 apart from the school leaving certificate issued by the Headmaster of the concerned school prior to the joining of the appellant/petitioner in the employment of the respondent Coal Company wherein the identical date of birth was also recorded in respect of the appellant/petitioner. For the reasons discussed hereinabove, the notice of superannuation dated 24th January, 2011 stands quashed. For the reasons discussed hereinabove, the notice of superannuation dated 24th January, 2011 stands quashed. The respondent Coal Company is directed to allow the appellant/petitioner to remain in regular service of the Company till he attains the age of superannuation on the basis of the date of birth as recorded in the last pay certificate issued by the respondent Coal Company being Annexure-P-5 of this application as well as the School Leaving Certificate issued by the Headmaster of the concerned school being Annexure-P-4 of this application i.e. 4th June, 1959. 15. WITH the aforesaid directions, this application thus stands disposed of. 16. IN view of the aforesaid order, no purpose will be served in keeping the appeal pending. Therefore, the appeal is also treated as day's list and disposed of accordingly. Mr. Chakraborty, learned Senior Counsel representing the appellant/petitioner submits that in view of the aforesaid order, no purpose will also be served in keeping the writ petition pending. Therefore, the said writ petition is also treated as on day's list before this Bench and disposed of accordingly. 17. IN the facts of the present case, there will be no order as to costs.