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2012 DIGILAW 1274 (MP)

Bhailal Burma v. Food Corporation of India

2012-12-10

K.K.TRIVEDI

body2012
JUDGMENT : By this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 3-9-2009 by which it is held that the actual date of birth of the petitioner is 18-12-1952 and not 18-12-1 1962, as claimed by the petitioner. It is contended that in fact the petitioner is an illiterate person. He was inducted in the services of the respondents No. 1 and 2 on temporary basis on 21-10-1989. He was working as Handling Labour. Certain proformas were prepared and submitted by the petitioner for the purposes of preparing his service record in which specifically the date of birth was recorded to be 18-12-1962. In fact on the date of appointment the petitioner had hardly attained the age of 27 years and that is why he was inducted in service. However, certain manipulation in the said proformas was done by some of the officials of | the respondents No. 1 and 2 and instead of mentioning the age on the date of I recruitment as 27 years, the same was made to be 37 years. Similarly, the manipulations were done in this proforma and the year of birth of the petitioner was changed from 1962 to 1952. This overwriting was done for preparing the service record of the petitioner and now the petitioner is to be retired on the basis of such date of birth. The grievance was raised by the petitioner that since he was informed that he was to retire on attaining the age of superannuation in the month of December, 2012, the dispute was raised by him immediately and representation was made on 27-7-2009, after obtaining a medical report from the Medical Board with respect to the date of birth. The representation made by the petitioner was returned with a direction to submit the same with the relevant original documents. Such documents were produced by the petitioner but by the impugned order the representation of the petitioner is rejected, therefore, he is required to file this writ petition. It is contended that because of manipulation in the record, since the date of birth of the petitioner is changed, the burden heavily lies on the respondents No. 1 and 2 to indicate how they have ascertained the date of birth of the petitioner. 2. It is contended that because of manipulation in the record, since the date of birth of the petitioner is changed, the burden heavily lies on the respondents No. 1 and 2 to indicate how they have ascertained the date of birth of the petitioner. 2. Notices of this writ petition were issued to the respondents and they have filed the returns. The respondents No. 1 and 2 in their return have categorically denied the allegations made by the petitioner and have contended that date of birth of the petitioner was not recorded only in one document. The date of birth of the petitioner was mentioned in the list of Handling and Ancillary Labour identified in terms of the Circular dated 11 -6-1991 in the Godown of the respondents No. 1 and 2 at Satna. In fact the persons like the petitioner were engaged as contract Labours prior to 1989. There were certain claims by one Union for regularization of these contract Labours under the Contract Labour Abolition Act. At that time certain proformas were to be supplied by the said contract Labours and this is how the document (Annexure P-l) was made available to the respondents No. 1 and 2. It is contended that no manipulation in the record has been done. The age as was reflected in the document Annexure R-1/1 was categorically recorded with respect to the petitioner and that being so, he sought to be retired on attaining the age of superannuation. Nothing wrong is committed by the respondents. It is further contended by the respondents No. 1 and 2 in their return that on certain occasion the petitioner was required to submit the proforma duly filled in and certified by the petitioner giving details of his family members so as to claim certain service benefits. In the said proforma also the date of birth of the petitioner was duly recorded to be 18-12-1952 and the said document was signed by him without any objection. At no point of time the petitioner has raised the dispute with respect to the date of birth recorded in his service record throughout the service but only when he was intimated about the date of retirement, the petitioner started saying that there was error committed in recording of the date of birth. At no point of time the petitioner has raised the dispute with respect to the date of birth recorded in his service record throughout the service but only when he was intimated about the date of retirement, the petitioner started saying that there was error committed in recording of the date of birth. It is contended that in view of these facts, the petitioner cannot be allowed to raise such a dispute at the time of his retirement. The medical certificate so produced by the petitioner is of no consequence. Such claim of the petitioner cannot be accepted nor granted, therefore, the writ petition is liable to be dismissed. 3. The respondent No. 3 is the Medical Board authority, who has issued the certificate to the petitioner after his medical examination and a return is filed by the respondent No. 3. It is contended that the petitioner approached the Board, made an application with an affidavit that he is having no proof of his date of birth, therefore, his age may be determined. It is contended in the return that accepting the application of the petitioner, he was referred to the District Medical Board, Satna, for the purposes of age determination and the Radiology reports were obtained and after examining the said reports, the certificate was issued in favour of the petitioner, which has been placed on record as Annexure P-3 with the writ petition. It is contended that if this is done on the request of the petitioner, it cannot be said that any error was committed by the said respondent in determination of the age of the petitioner. However, nothing more is required to be done by the said respondent, therefore, no relief can be grated against respondent No. 3. Similarly, respondent No. 4 has filed a short return stating that certificate of birth was issued to the petitioner only on making an application by him before the authorities. The registration of his birth as per his declaration has been done and, therefore, no relief against the respondent No. 4 can be granted. 4. A rejoinder has been filed by the petitioner categorically stating that certain documents were submitted by the petitioner indicating his age on the date when the document was submitted. The registration of his birth as per his declaration has been done and, therefore, no relief against the respondent No. 4 can be granted. 4. A rejoinder has been filed by the petitioner categorically stating that certain documents were submitted by the petitioner indicating his age on the date when the document was submitted. It is stated that the date of birth of the wife of the petitioner is declared in the declaration submitted by the petitioner and the age difference between the husband and wife is so much that if the date of birth of the petitioner as recorded by the respondents No. 1 and 2 is accepted, the same would not be believable. It is submitted that in the information, the age of the petitioner on the date when the said document was issued on 10-10-2012 is 49 years and since this has been done by the respondents themselves, it cannot be said that the date of birth of the petitioner, as recorded by them, is correct. 5. Heard learned Counsel for the parties at length, perused the record and the service book of the petitioner. 6. As has been referred hereinabove, in fact it was required to be ascertained as to how the date of birth of the petitioner was recorded in any such document by the respondents No. 1 and 2 and how the said date of birth was reflected in the service book of the petitioner to be 18-12-1952. 7. The respondents No. 1 and 2 were duty bound to prepare a service book of the petitioner after his regularization. The service book is said to be prepared sometime in the year 1992 as is clear from the office order appended with the service book. The said order was issued pursuant to an agreement executed between the F.C.I. Management and F.C.I. Workers Union on 12-4-1991 and a verification was conducted by the Committee with respect to the employment of the Labours. The petitioner was said to be found one, who was engaged as a contract Labour and thus was regularized. However, the details of the petitioner were recorded only on the basis of some proforma submitted by the Union and it is nowhere stated that such details were verified either by the Committee or by the respondents No. 1 and 2 before entering the same in the service record. However, the details of the petitioner were recorded only on the basis of some proforma submitted by the Union and it is nowhere stated that such details were verified either by the Committee or by the respondents No. 1 and 2 before entering the same in the service record. Part-I of the service book contains only such information as have been referred in the office order. There is nothing indicated in the said document as to how the date of birth of the petitioner was ascertained. There is no signature of the petitioner on the said document indicating that the petitioner has accepted the correctness of the said entry made in the service book. The entries are made only by an authority of the respondents No. 1 and 2 on 20-7-1992. All other entries have been made only on the basis of certain proforma, which was got signed from the petitioner but the entries which were made by the officials of the respondents No. 1 and 2. It appears that such an information that the date of birth of the petitioner is recorded to be 18-12-1952 was never communicated or explained to him. There is nothing in the entire service record of the petitioner except the proforma, which was submitted on 21-10-1989 in the Food Corporation Office at Calcutta, on the basis of which the entries were made in the service record. Thus, it is clear that the information mentioned in the document Annexure P-l only was the basis of making entry in the service record. 8. A perusal of the said document will make it clear that there was manipulation in the age of the petitioner and there was attempt to make manipulation in the year of birth of the petitioner. Even at the later stage when the petitioner came to know about action of his superannuation if a representation was made, it was necessary on the part of the respondents No. 1 and 2 to conduct a detailed enquiry in that respect. It is not in dispute that the petitioner made an application on 27-7-2009 for making change in the date of birth of the petitioner, In fact the petitioner was seeking correction in the year of birth. It is not in dispute that the petitioner made an application on 27-7-2009 for making change in the date of birth of the petitioner, In fact the petitioner was seeking correction in the year of birth. The document placed on record indicates that the said application of the petitioner was returned with a direction to submit the application along with certain proof of the date of birth. The another application when was made by the petitioner, was not forwarded, but the same was rejected at the stage when the same was submitted before the immediate superior officer of the Corporation by the petitioner. Thereafter, the petitioner obtained a copy of the entry made in the service book and filed the writ petition before this Court. There is nothing indicated in the return that any sort of enquiry was conducted by the respondents No. 1 and 2 with respect to the verification of the date of birth of the petitioner. 9. Learned Counsel for the petitioner has heavily placed his reliance in the case of Mahendra Kumar Soni vs. State of M. P. and others, 2003(5) MPLJ 383 = 2003(3) MPHT 22 . It is contended that the law is well settled in this respect. The Division Bench of this Court has considered the aspect that in case there is manipulation in the entries of date of birth, the power is still there with the employer to be exercised to make correction in the date of birth. It is contended that merely because of delay, such a fact cannot be ignored. True it is that the entries were made on the basis of some documents, which were not generated by the respondent Corporation but it is equally true that no enquiry whatsoever was conducted by the respondents No. 1 and 2 with respect to verification of the date of birth of the petitioner. In case a manipulation in the date of birth made at the initial stage is brought to the notice of an employee and a representation is made for conducting an enquiry or making correction in the date of birth, it would be necessary for the employer to conduct the enquiry in that respect in case there is no cogent proof available with the respondent employer to hold that even after manipulation the date of birth of the employee concerned would remain unchanged. Here in the case in hand there was difference of age of 10 years. Apparently, it is clear from the document available on record that the age of the petitioner was ascertained and not the exact date of birth. It is also clear from the documents that the year of birth of the petitioner was manipulated in the declaration so supplied to the respondents No. 1 and 2 by the Union. The petitioner would not have done it on his own as he is not going to be benefited by such a manipulation. Of course the employer would be benefited and, therefore, it has to be held that manipulation was not engineered by the petitioner. In such circumstances, it was the duty of the respondents No. 1 and 2 to get the age of the petitioner verified. Such aspect was considered by the Division Bench of this Court in the case of Premlal Shrivas vs. State ofM. P. and others, 2002(3) MPLJ 82 = 2002(2) JLJ131, wherein the aspect whether there was any proof of date of birth so recorded was available with the employer or not and whether only on the basis of some declaration the verification of the correct date of birth of the employee concerned was enough or not, was deeply considered by the Division Bench of this Court. This Court has considered that if any entry is made, there must be some attesting proof of the same available in the service record. Without there being any attesting proof, the correctness of the date of birth recorded in the service record is not acceptable. Thus, if on coming into know about such a discrepancy in the date of birth at a belated stage, the claim for correction is made, it cannot be said that such a prayer cannot be allowed. In these circumstances the employer is duty bound to conduct an enquiry. 10. If some material was collected by the petitioner even with the aid of medical examination with respect to his age in present, it was necessary for the respondents No. 1 and 2 to look into that piece of evidence. At least the record could have been verified by referring the petitioner to a Medical Board, if required so, constituted as per the choice of the respondent employer. At least the record could have been verified by referring the petitioner to a Medical Board, if required so, constituted as per the choice of the respondent employer. In any case, if doubt was there, the benefit of doubt would go to the weaker party, i.e. the employee and not to the mighty one, the employer. In view of this, the respondents should have directed a medical test of the petitioner for the purposes of ascertainment of the age of the petitioner. However, as has been referred to hereinabove, this was not done and straight way the representation of the petitioner was rejected, In view of this, the submissions made by the respondents No. 1 and 2 cannot be accepted that such a date of birth was duly certified by the petitioner to be correct and, therefore, no correction in the date of birth was necessary. 11. Resultantly, this writ petition succeeds and is hereby allowed. The respondents No. 1 and 2 are directed to get the petitioner medically examined in terms of the medical procedure for the purposes of verification of his age. The Medical Board be constituted in terms of the choice of the respondents No. 1 and 2. The said Medical Board will examine the petitioner, will take into consideration the earlier medical report furnished by the District Medical Board, Satna and will submit its report after due verification of the age of the petitioner. If it is found by the Medical Board that the petitioner has not attained the age of 60 years, he be allowed to remain in the employment by the respondents No. 1 and 2 by correcting entry in respect of his date of birth, treating the age verified by the Medical Board as correct age of the petitioner. Till this exercise is completed, the petitioner be not discontinued from the employment. 12. The writ petition is allowed to the extent indicted hereinabove. However, there shall be no order as to costs. Petition allowed.