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Madhya Pradesh High Court · body

2013 DIGILAW 18 (MP)

Chandra Bhusan v. South Eastern Coal Fields Ltd.

2013-01-02

K.K.TRIVEDI

body2013
JUDGMENT : The petitioner has approached this Court ventilating his grievance against the action of respondent No. 1 of not recording the correct date of birth of the petitioner in his service roll and making the petitioner to retire on the basis of wrong date of birth recorded in the service record of the petitioner. It is contended that the original mark-sheet produced by the petitioner specifically contains the right date of birth of the petitioner to be 11-4-1956. Such a document was made available at the initial time of recruitment. This fact is clear from the endorsement made on the document itself by the Employment Exchange and, therefore, it was necessary for the respondent No. 1 to act on the representation of the petitioner and to direct correction in the date of birth of the petitioner. It was found by the petitioner when a Pan Card was issued to the petitioner that his wrong date of birth was recorded in the service record and that being so, the representation was made by the petitioner. It was specifically pointed out by the petitioner that there is some sort of manipulation done in the service record of the petitioner and, therefore, the correction of the date of birth of the petitioner was necessary in terms of the conditions mentioned in the statutory agreement. However, since such a prayer of the petitioner has been rejected by the respondents, he is required to approach this Court. 2. The contention of the petitioner is that he was appointed as Piece Rated Badli Loader in the establishment of South Eastern Coal Fields Limited in the year 1978. He was posted in Bijuri Sub Area, Hasdeo. The petitioner had completed 22 years of age on the date of his initial appointment. The relevant documents, such as mark-sheet of the examination of Higher Secondary School Certificate, were produced by the petitioner at that time. On 1-1-1985 the petitioner was promoted on the post of Explosive Carrier and subsequently on the post of Lamp Cleaner on 3-9-1996. Later on he was promoted as Lamp Charger category on 1-1-1999 and subsequently on the post of Lamp Fitter on 1-1-2006. At no point of time the petitioner was informed about correction in his date of birth. On 1-1-1985 the petitioner was promoted on the post of Explosive Carrier and subsequently on the post of Lamp Cleaner on 3-9-1996. Later on he was promoted as Lamp Charger category on 1-1-1999 and subsequently on the post of Lamp Fitter on 1-1-2006. At no point of time the petitioner was informed about correction in his date of birth. Even when he came to know about such mistake committed in recording the date of birth and made an application before the Personnel Manager of the respondent No. 1 on 9-4-1998, nothing was done by the respondent No. 1. The reminder was submitted by the petitioner on 12-9-2002 and he insisted for redressal of grievance but nothing was done. Since on the basis of wrong date of birth the petitioner is sought to be retired now, he is required to file the present writ petition. 3. Notices of the writ petition were issued. Under the order of the Court, respondent No. 2, the Board of Secondary Education, Bhopal, was impleaded as a party. The respondents have filed their returns. Respondent No. 1 has mainly relied on a document said to be prepared under Rule 48 of the Mines Rules, 1955. It is contended that in the said document the date of birth of the petitioner was not recorded but only the age of the petitioner was written, it was said that at the time of initial appointment the petitioner was aged 27 years. The initial date of appointment of the petitioner is 22-11-1978. However, nothing has been placed on record to indicate as to how this age was ascertained and whether any declaration was made by the petitioner in that respect or not. The return of respondent No. 2 is only this much that the mark-sheet produced by the petitioner was got verified from the records of the Board and it is found that the correct entries in the date of birth of the petitioner are made in the said certificate. The respondent No. 1 was called upon to produce the original document Annexure R-l relied by the respondent No. 1, which has been produced and shown to the Court. However, even in the original record, there is no reference as to how age of the petitioner was mentioned in the statutory document. 4. The petitioner has filed certain application for taking documents on record. However, even in the original record, there is no reference as to how age of the petitioner was mentioned in the statutory document. 4. The petitioner has filed certain application for taking documents on record. Such application has been considered and documents have been taken on record. A perusal of those documents will indicate that on certain occasion the petitioner was required to submit certain forms in which the details of his family were given. However, in some of the documents, manipulations have been found. 5. Heard learned Counsel for the parties at length and perused the records minutely. 6. The sole question would be whether the petitioner was knowing about the recording of his date of birth in his service rolls or the statutory document prepared at the initial time of engagement of the petitioner in service or not. It is not in dispute that the offer was given to the petitioner by respondent No. 1 for appointment on 15-11-1978. The said offer produced as Annexure P-1 indicates that the petitioner was called upon to furnish certain certificates, such as certificate of domicile, certificate of caste and certificate in proof of age. As far as the certificate in proof of age is concerned, a note was appended to this column wherein it was categorically said that in case the petitioner fails to produce certificate in proof of the age, the same shall be assessed by the Medical Board of the area. Soon after the offer extended to the petitioner, it appears that the document Annexure R-l was prepared in which the name of the petitioner was mentioned. However, all other things were mentioned in accordance to the declaration made by the petitioner, except the age. Nothing was said with respect to the age whether any certificate in proof of the same was produced by the petitioner or not and whether the same was recorded on the basis of medical report after ascertainment of the age of the petitioner. Thus, it cannot be said that such fact relating to age of the petitioner on the date of initial appointment was recorded in terms of the instructions issued under the offer letter of the respondent No. 1. Thus, it cannot be said that such fact relating to age of the petitioner on the date of initial appointment was recorded in terms of the instructions issued under the offer letter of the respondent No. 1. Now if that was the situation and if any dispute was raised by the petitioner soon after coming into know about such discrepancy, it was necessary on the part of the respondents to get an enquiry conducted in that respect. The transfer certificate issued by the school authorities further reflects the date of birth of the petitioner. The same is tallying with the date of birth mentioned in the Matriculation Certificate. In some of the records of the respondent No. 1 subsequently prepared, the date of birth of the petitioner was written to be 22-11-1951 but there is nothing available on record to indicate that any such declaration was made by the petitioner or any document in that respect was produced by him. Though it is a fact that the petitioner has signed such forms but it cannot be said that the forms were filled by the petitioner in his own handwriting. 7. There is an agreement with respect to the correction in the date of birth. However, it is true that only if apparent error has been pointed out then only the matters are required to be referred to the Age Determination Committee but it is also clear that under the instructions so issued, the certificate of Matriculation has to be treated as the conclusive proof of date of birth. The document, as produced by the petitioner, indicates that he had already passed the matriculation on the date when initially he was offered the employment and the said document was produced before the Employment Exchange. The said document was duly endorsed by the Employment Exchange. Therefore, it cannot be accepted that such a document was never brought to the notice of respondent No. 1. That being so, an enquiry in this respect was required to be conducted by the respondent No. 1 to ascertain as to how a particular date of birth of the petitioner is mentioned in the statutory document when specially there was nothing placed on record to show that such a date of birth was declared by the petitioner. That being so, an enquiry in this respect was required to be conducted by the respondent No. 1 to ascertain as to how a particular date of birth of the petitioner is mentioned in the statutory document when specially there was nothing placed on record to show that such a date of birth was declared by the petitioner. From where date of birth of the petitioner to be 22-11-1951 had come to the notice of respondent No. 1, is not clear. Thus, it was imperative on the part of the respondents to look into such request made by the petitioner in the year 1998. 8. In the return of the respondent No. 1, this particular document, making of the application, has not been denied. On the other hand, they have mentioned the said document, for the purpose that about the dispute of date of birth, for the first time after 20 years of service, the petitioner has made the representation. If such a representation was made, it was necessary for the respondent No. 1 to get an enquiry conducted in that respect and to pass the appropriate orders. Learned Counsel for the petitioner has drawn attention of this Court to the order passed by the Division Bench of this Court in W.A. No. 270/2009, Rajendra Kumar Mehta vs. South Eastern Coal Fields Ltd. and others, decided on 3-9-2009. It is contended by learned Counsel appearing for the petitioner that the dispute with respect to the date of birth, vis-a-vis making reference of the said dispute in terms of the Implementation Instruction No. 76 was considered by the Division Bench of this Court and it has been categorically held by this Court that the date of birth is required to be treated as has been mentioned in the Matriculation Certificate in terms of the aforesaid Instruction No. 76. Again relying in the case of Sheikh Mumtaz vs. South Eastern Coal Fields Ltd. and others, W. A. No. 584/2009, decided on 7-8-2009, learned Counsel for the petitioner has pointed out that where the reliefs were refused by the Single Bench of this Court, the writ appellate Court has granted the relief in terms of Implementation Instruction No. 76. Again relying in the case of Sheikh Mumtaz vs. South Eastern Coal Fields Ltd. and others, W. A. No. 584/2009, decided on 7-8-2009, learned Counsel for the petitioner has pointed out that where the reliefs were refused by the Single Bench of this Court, the writ appellate Court has granted the relief in terms of Implementation Instruction No. 76. St is contended that in view of the law laid down by this Court, it would be appropriate to command the respondent No. 1 to treat the petitioner in service till he attains the age of superannuation in accordance to the date of birth recorded in his Matriculation Certificate. 9. Per contra, it is contended by learned Counsel appearing for respondent No. 1 that these instructions have been considered by this Court in various cases. Relying in the decisions rendered by the Apex Court as also by this Court in several other cases, the Single Bench of this Court has refused to entertain such a claim. It is pointed out that at the best the matter can be referred to the Age Determination Committee and no relief could be granted to the petitioner. Further placing reliance in the case of State of M. P. and others vs. Bhailal Bhai, AIR 1964 SC 1006 , it is; contended that because of the delay caused by the petitioner in raising the dispute with respect to the date of birth, he is not entitled to any relief and the writ petition deserves to be dismissed. 10. The submissions made by learned Counsel for the parties are considered. It is not the case that the petitioner was not vigilant about the discrepancies committed in mentioning the date of birth of the petitioner in the record. As has been pointed out hereinabove, the first representation was made by the petitioner in the year 1993. No attempt whatsoever was made by the respondent No. 1 to get the said-representation decided, after verifying the date of birth of the petitioner from the records of the respondent No. 2, Board. It is also not proved by the respondent No. 1 that petitioner was fully aware of the date of birth recorded in his service record from day one. Thus, it cannot be said that the petitioner was not vigilant about his rights. Such a stand taken by the respondent No. 1, thus, cannot be accepted. It is also not proved by the respondent No. 1 that petitioner was fully aware of the date of birth recorded in his service record from day one. Thus, it cannot be said that the petitioner was not vigilant about his rights. Such a stand taken by the respondent No. 1, thus, cannot be accepted. Now the fact remains that the statutory provisions have been made for verifying the date of birth of an employee. For the said purpose, even in the offer letter the note was made by the respondent No. 1 itself. It is not acceptable as to why the petitioner would not have produced the Matriculation Certificate before the respondent No. 1 in proof of his date of birth. It is also not clear as to why such a document was not available in the record of the respondent No. 1 even when it was produced before the Hmployment Exchange from where reference was made with respect to employment of the petitioner. It is also not clear as to how a particular date as has been mentioned in subsequent forms, has been ascertained by the respondent No. 1, especially when there was no such declaration made by the petitioner. Lastly, the petitioner was never put for medical examination for the purposes of ascertainment of his age on the initial date of appointment even in accordance to the note made in the offer letter issued to the petitioner. Therefore, in fact it has to be held that the petitioner has produced the certificate of Matriculation, which was to be accepted as proof of the date of birth but the same was never taken note of by the respondent No. 1. In view of this, the petitioner is entitled to the relief as was granted by the Division Bench of this Court in the case of Rajendm Kumar Mehta (supra) and Sheikh Mumtaj (supra). The law laid down by the Apex Court as also by this Court in different cases is not applicable in view of the basic difference in the facts and circumstances of the present case from the cases decided by the Apex Court and this Court. 11. Consequently, this writ petition is allowed. The law laid down by the Apex Court as also by this Court in different cases is not applicable in view of the basic difference in the facts and circumstances of the present case from the cases decided by the Apex Court and this Court. 11. Consequently, this writ petition is allowed. The respondents are directed to treat the date of birth of the petitioner as has been mentioned in the Matriculation Certificate in terms of the Implementation Instruction No. 76 and to permit him to continue in the employment till he attains the age of superannuation according to the said date of birth. The petitioner be reinstated in service and the period of absence from service be regularized by making the payment of arrears of salary to the petitioner. The aforesaid exercise be completed within a period of one month from the date of the order. 12. The writ petition is allowed to the extent indicated hereinabove. However, there shall be no order as to costs. Petition allowed.