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2012 DIGILAW 1008 (JHR)

Nizamuddin @ Nizamuddin Ansari v. Bharat Coking Coal Ltd. , Dhanbad through its C. M. D.

2012-07-18

ALOK SINGH

body2012
ORDER By the Court.-Petitioner has filed this writ petition assailing the order dated 27.6.2006 (Annexure 4), whereby Management had decided to retire the petitioner w.e.f. 28.6.2006. 2. Brief fact of the present case inter alia are that petitioner had joined Bharat Coking coal Limited on 23.8.1962. In Form B, at the time of joining his duties, his date of birth was recorded as 13.7.1947. In the Matriculation Certificate, too, his date of birth is 13.7. 1947. Petitioner was having educational qualification of Intermediate as shown in Form B. As per the date of birth of the petitioner on Form B (Annexure 2). petitioner would have retired on 12.7.2007 afternoon, Since. Management has decided to retire the petitioner w.e.f. 28.6.2006 prior to the date of retirement i.e. 12.7.2007, petitioner has approached this Court. 3. Learned counsel appearing for the petitioner has vehemently argued that entries made in the Form B (Annexure 2) are final and cannot be disputed. While, relying on Annexure 1 (Matriculation Certificate), learned counsel for the petitioner has submitted that even in the Matriculation Certificate, date of birth of the petitioner is written as 13.07.1947. He has further argued that respondents have absolutely no jurisdiction to get the age of the petitioner verified from the Medical Board and retire him on the basis of age assessed by the Medical Board. 4. On the other hand, learned counsel for the respondents, while placing reliance on the judgment of the Division Bench of this Court in the case of Bhim Lal Barhi and others v. Bharat Coking Coal Limited and others, copy of which is filed as Annexure 1 of the counter-affidavit, contends that Division Bench of this Court has approved the scheme of the Management, whereby, Management can refer the employee for the medical opinion for the determination of age by Medical Board in case there is any doubt about the actual date of birth of the employee. 5. I have heard learned counsel for the parties and perused the- record carefully. 6. 5. I have heard learned counsel for the parties and perused the- record carefully. 6. Hon’ble Apex Court in the case of G.M., Bharat Coking Coal Limited, West Bengal v. Shib Kumar Dushad and others, AIR 2001 SC 72 , has held that in case of dispute over the date of birth of an existing employee, who has got neither a Matriculation Certificate/Secondary School Certificate nor any statutory certificate, in which the Manager has certified the entry regarding the date of birth to be authentic, the employer is competent to, refer the matter to the Medical Board for determination of the age. 7. Placing reliance on the judgment of Hon'ble Apex Court in the case of G.M., Bharat Coking Coal Limited, West Bengal (supra), the Division Bench of this Court has, taken the same view. 8. There is no material on record to show that Matriculation Certificate filed by the petitioner is forged or is not genuine. Moreover, date of birth of the petitioner in the Matriculation Certificate as well as in the Form B are same. In the present case, without disputing date of birth for more than three decades action of the management to refer the petitioner for Medical Boards opinion seems to be totally unjustified and arbitrary. Management is not disputing Matriculation Certificate. Simply because petitioner was given appointment when he was less than 18 years and as such has worked for more than 42 years is no ground to seek Medical Board's opinion to retire him before the actual age of superannuation, as per the Matriculation Certificate and. record of the Management. Moreover, opinion of the Medical Board pertaining to the age of the employed cannot be said to be conclusive as there may be a chance of two years variation. 9. In view of the discussion made herein above, impugned order dated 27.6.2006 (Annexure - 4) is totally without jurisdiction and cannot be sustained in the eyes of law. 10. In the present case, petitioner is not claiming any consequential relief of monetary benefit for the period petitioner was not allowed to work for no fault of him. Present petition was filed on 3.1.2007 after impugned order was given effect to w.e.f. 28.6.2006. Petitioner could have sought relief of payment of wages, for the period petitioner would have on duty to say w.e.f. 28.6.2006 to 12.7.2007. Present petition was filed on 3.1.2007 after impugned order was given effect to w.e.f. 28.6.2006. Petitioner could have sought relief of payment of wages, for the period petitioner would have on duty to say w.e.f. 28.6.2006 to 12.7.2007. Till day, no amendment application is moved Moreover amendment to add relief of monetary benefit should have been moved within reasonable time, limitation to recover wages as per Article 2 of the Limitation Act. 1963 is three years. Although provisions of Limitation Act. 1963 may not be strictly applicable in the writ petition. However, keeping in mind broad principles of public policy and Limitation Act, claim of wages, which has otherwise become time barred should not be allowed to be claim by invoking Article 226 of the Constitution of India. 11. Otherwise also there is nothing on record to suggest that petitioner sat idle and was not engaged anywhere else. Therefore this Court without any such material would not be justified to direct the respondents to pay wages to the petitioner, which he otherwise would have been paid if allowed to work till the actual date of superannuation. Therefore, no substantive relief can be granted to the petitioner. 12. Petition stands disposed of accordingly. Petition disposed of