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2013 DIGILAW 345 (CAL)

Md. Usman v. Coal India Limited

2013-06-18

SAMBUDDHA CHAKRABARTI

body2013
Judgment : The Court: By the present writ petition the petitioner has inter alia prayed for a directing commanding the respondents to withdraw and cancel the service excerpts records dated May 5, 1987 and to allow him to work till the year 2016. The petitioner joined the service of the Eastern Coal Fields Limited. He says that at the time of his entry into the service he had declared his date of birth as December 15, 1956 which was recorded in his service book and other relevant documents. In the year 1987 when the excerpts from his service records were given to him he found that the year of birth was recorded as 1953 and he returned the same with his observation that the date of birth has been wrongly recorded and his actual date of birth would be December 15, 1956. He also enclosed the photocopy of the certificate issued by the Headmaster of the school where he studied up to Class VII. Since the petitioner did not hear anything from the respondents for a long time, in the year 2005 he made an application for correction of the wrong date of birth in the service excerpts. In the year 2011 he made another representation for the same purpose. He is aggrieved that in spite of these the authorities have served upon him a notice of superannuation. The petitioner says that the authorities had themselves erroneously recorded his date of birth and then had issued the notice of superannuation on the basis thereof. The respondents have contested this application by filing an affidavit-in-opposition. The principal contention of the respondents was that since the petitioner had declared his year of birth as 1953 there is no question of any change in the said date as claimed by the petitioner in any record. According to the petitioner’s own declaration his year of birth had been recorded as 1953 in all the statutory records. According to the Implementation Instruction-76 the date of birth in case of existing employee should be Matriculation or Higher Secondary certificate or any statutory certified issued prior to the appointment. The school leaving certificate has been issued long after the petitioner’s appointment. The respondents further submitted that in the present case there is no question of any variation in any record. The school leaving certificate has been issued long after the petitioner’s appointment. The respondents further submitted that in the present case there is no question of any variation in any record. The petitioner has no legal right to raise the age dispute at the fag end of his career. Thus the bone of contention between the parties is which of the two dates of birth is to be accepted. The petitioner al-through maintains that he mentioned the year 1956 in his application. But the respondents claimed that he had declared 1953 in his application. Therefore, they did not correct the date of birth of the petitioner even when the mistake in the service excerpts were pointed out by him. In the affidavit-in-opposition the respondents have strangely enough not touched the very specific allegation of the petitioner. Instead they insisted that the petitioner had himself declared 1953 at the time of his entry into the service. W hatever might be the stand of the respective parties that when the respondents were relying on a certain document it was only necessary and proper for them to annex the relevant documents from which their claims can be substantiated. On the contrary the respondents without annexing any document had in fact not effectively countered the allegation of the petitioner that he had pointed out the mistake appearing in the service excerpts. It is true that the petitioner also waited for about two decades to make a representation but this cannot be solely described as the negligence on his part as after pointing out the mistake in the excerpts of the service records as early as in 1987 it was incumbent upon the respondents to take appropriate action. It cannot be lost sight of that the whole purpose of circulating the said service record excerpts to the respective employees is to give them an opportunity to go through the same and to invite these observation, in respect of any entry which, they consider, needs any alteration. The petitioner having sent his observations in 1987 the respondents now cannot take the plea of delay on his part in making an application for correction of date of birth. This is not a case where the respondents can brush aside the contention of the petitioner on the ground that he had raised it at the fag end of his career. This is not a case where the respondents can brush aside the contention of the petitioner on the ground that he had raised it at the fag end of his career. The other stand taken by the respondents is also not very clear. According to them in terms of Implementation Instrucdtion-76 for the date of birth in the case of existing employees the Matriculation or the Higher Secondary certificate or any certificate from a statutory body would be treated as authentic provided it is issued prior to the appointment. Based on this they have argued that the school certificate having been issued long after the petitioner had joined the service is clearly inadmissible for the purpose. While advancing this stand what is overlooked in the process is that the petitioner was not relying on any Matriculation or Higher Secondary certificate. He had just given the certificate of the Headmaster of the School where he had once read as a student. The Headmaster had merely certified what is recorded in the school register. The petitioner had annexed this in support of his case that he had corrected the service records and in spite of it they have not corrected it. The respondents have relied on two decisions in support of their contentions. In Burn Standard Co. Ltd. and Others –Vs.-Dinabandhu Majumdar and Another, reported in (1995) 4 SCC 172 the date of birth as entered in the service record was not objected to by the petitioners till before the fag end of his career. It was in this context that the Supreme Court declined to entertain the writ petition for the correction of date of birth. Factually the present case is very different. I have already seen that the petitioner had drawn the attention of the authorities regarding the wrong recording of date of birth many years ago. Again in Coal India Ltd. and Another –Vs.- Brdhendu Bikas Bhattacharjee and Others, reported in (2005) 12 SCC 201, the date of birth was sought to be corrected at the fag end of his service career. The factual foundation of two cases being different they cannot be made applicable to the present one. Thus I find dereliction of duty on the part of the respondents. The factual foundation of two cases being different they cannot be made applicable to the present one. Thus I find dereliction of duty on the part of the respondents. The respondents were required to look into it long before when the petitioner had taken the point in the service records excerpts when here turned the same to the authority with his comments. I, therefore, direct the respondent no. 2 to constitute a medical board for the assessment of the age of the petitioner within four weeks from the date of the communication of the order. The respondents shall communicate the date of the examination to the petitioner. The Medical Board shall give their reasoned opinion based on their findings. It is, however, made clear that this order shall not be treated as any expression of the court on the claim of the petitioner which shall be independently decided by the medical board. The writ petition is disposed of. There shall, however, be order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.