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2012 DIGILAW 1207 (JHR)

Chakradhar Kumhar v. BCCL

2012-08-09

D.N.PATEL

body2012
Judgment 1. The present writ petition has been preferred for change of date of birth in the service record maintained by the respondents. 2. Counsel for the petitioner submitted that the petitioner was compelled to retire by the respondents on 31st December, 2011 and therefore, the present writ petition has been preferred on 22nd November, 2011 for change of the date of birth of the petitioner. 3. Counsel for the petitioner submitted that the correct date of birth of the petitioner is 16th December, 1961 whereas, the respondents have wrongly considered the date of birth of the petitioner as 16th December, 1951. As per the petitioner, his correct date of retirement is 31st December, 2021 whereas, the respondents have compelled him to retire on 31st December, 2011 as per the order at Annexure5 to the memo of the present writ petition and, therefore, the same is under challenge. 4. Counsel for the petitioner is also relying upon Annexure1, 2 and 3 to the memo of the present petition which are service excerpts, payslips and the health card, issued by the respondents, in which correct date of birth is reflected as 16th December, 1961. Counsel for the petitioner is also relying upon Annexure8 to the supplementary affidavit, filed by the petitioner, which is a School Leaving Certificate, which also reflects the date of birth as 16th December, 1961 and therefore, the correct date of retirement of the petitioner is 31st December, 2021. 5. Counsel for the respondents submitted that the petitioner was employed by the respondents on November, 1991. In the counter affidavit several documents have been annexed at Annexure-A series and Annexure-B. Annexure-A series is Form-B Register of Employees, maintained under Rules 48, 51, 77 and 77(A)(2) of the Mines Rules. As per said Form-B, the date of birth is 16th December, 1951. There is an overwriting in the year of the date of birth of the petitioner in this Form-B. It is submitted by the counsel for the respondents that this was known to the petitioner much earlier, but, he never submitted any documentary evidence in support of his date of birth. The petitioner was examined by the medical board of the respondents and the age of the petitioner as per the medical board as on 16th December, 1991 was 40 years. The petitioner was examined by the medical board of the respondents and the age of the petitioner as per the medical board as on 16th December, 1991 was 40 years. There is a thumb impression of the petitioner upon said document which is at Annexure-B to the memo of the counter affidavit. 6. It is also submitted by the counsel for the respondents that the certificate which is annexed as Annexure8 in supplementary affidavit, filed by the petitioner, is absolutely an afterthought because he was never a student of 8th standard and therefore, thumb impression is there on Annexure-B. It is further submitted that as per the report dated 16th December, 1991 of the medical board, which is a contemporary document, he was at about 40 years of age on the date of his examination and thus, his date of birth is 16th December, 1951. It is also alternatively submitted by the counsel for the respondents that even otherwise also, highly disputed question is involved in this petition. If this overwriting, which is Annexure-A series, is taken to be true, then also this Court should not enter into this disputed question of fact, which has been raised just before a couple of days before his retirement and therefore, this writ petition may not be entertained by this Court in exercise of powers under Article 226 of the Constitution of India. 7. Having heard counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts and reasons: (i) The present petitioner was appointed as a Worker on November, 1991 with the respondents. (ii) It appears that at that time no documentary evidence was given to support his date of birth and therefore, he was sent to medical board and the report given by the medical board upon examination of the present petitioner on 16th December, 1991 demonstrates his age as 40 years on the date of examination. This document is at Annexure-B to the counter affidavit filed by the respondents. This is a contemporary document available as on that date and therefore, his date of birth is 16th December, 1951 and consequently, his date of retirement is 31st December, 2011 because reaching the age of 60 years is the age of superannuation of an employee with the respondent company. This is a contemporary document available as on that date and therefore, his date of birth is 16th December, 1951 and consequently, his date of retirement is 31st December, 2011 because reaching the age of 60 years is the age of superannuation of an employee with the respondent company. (iii) It also appears from the facts of the case that the petitioner has relied upon pay slips, health card, service excerpts. These documents are not the proof of date of birth. Services excerpts are to be filled up by the petitioner. Pay slips is merely a document relating to payment of the salary and not relating with the date of birth. So far as the document at Annexure8, annexed with supplementary affidavit, is concerned, it is fairly submitted by the counsel for the petitioner that this document was never submitted at the time of entering into the service with the respondents. There is one more document, annexed by the respondents, which is known as Form-A at the time of filling up the Coal Mines Provident Fund form, which is a nominee form of Coal Mines Provident Fund (page 9 of the counter affidavit filed by the respondents). In this document also date of birth of the petitioner is 16th December, 1951. Similarly, at page no. 11 of the counter affidavit, there is a document at Annexure-C, filled up by the petitioner under the Coal Mines Family Pension Scheme, 1971. There also, the date of birth of the petitioner is reflected as 16th December, 1951. Thus, both these documents, which are at page 9 and 11 of the counter affidavit filed by the respondents, signed by the petitioner, reflect the date of birth of the petitioner as 16th December, 1951. Both these Forms are statutory Forms to be maintained under the relevant Act. One is for Provident Fund and another is for Family Pension Scheme. (iv) So far as the school leaving certificate which has been heavily relied upon is concerned, the same is also not helpful to the petitioner because there are other supporting documents, as stated hereinabove at page nos. 9 and 11 to the counter affidavit which are explicitly clear, and this Court has also compared the signature of the petitioner on these two documents alongwith other documents which are annexed by the petitioner alongwith memo of this petition. 9 and 11 to the counter affidavit which are explicitly clear, and this Court has also compared the signature of the petitioner on these two documents alongwith other documents which are annexed by the petitioner alongwith memo of this petition. At the fag end of the service, the date of birth of the petitioner in the facts and circumstances of the case, cannot be changed and that too for 10 years i.e. from 1951 to 1961. 8. In view of these facts, reasons and the documents stated hereinabove, I see no reason to entertain this writ petition for the change of date of birth of the petitioner and, thus, no error has been committed by the respondents in superannuating the present petitioner on 31st December, 2011. There is no substance in this writ petition. Hence, the same is hereby, dismissed.