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2014 DIGILAW 244 (CHH)

Kulwant Ram v. South Eastern Coalfields Limited

2014-07-02

PRASHANT KUMAR MISHRA

body2014
ORDER (OPEN COURT) Heard learned counsel for the parties. 1) Petitioner has preferred this writ petition seeking quashment of the order dated 12-10-2010 (Annexure – P/1) whereby the respondent SECL has refused to correct the entry in the service book concerning his date of birth. 2) Indisputably, the petitioner joined the service as Electric Fitter in the year 1981 in SECL. In the service book, the date of birth of the petitioner was mentioned as 7-1-1951. In the year 1987 the petitioner came to know that his date of birth has wrongly been recorded as 7-1-1951 whereas his actual date of birth as per matriculation certificate is 28-5-1956. The petitioner moved an application for correction of his date of birth in the service book, however, when no decision was taken by the authorities, he preferred a petition, being WP (S) No.2687 of 2009, which was disposed of by this Court vide order dated 23-7-2010 holding thus : (6) From the return of the respondents, it is found that in fact, no consideration has been made on the petitioner's representation of year 2002 in the light of the aforesaid circular i.e. Implementation Instruction No.76 (Annexure R-3). In a similar situation dealing with the case of an employee of S.E.C.L., this Court has passed an order on 28-6-2010 in WP (S) No.6697/2008 (Dauram Chandra versus South Eastern Coalfields Ltd. and Others) and taking into consideration the scheme contained in Implementation Instruction No.76, this Court held : 4. Upon being inquired, as to whether the cases of the petitioner was considered on his representation, under the policy (Annexure P/6), learned counsel for the respondents submitted that there is no material on record to show that his case was considered. A perusal of implementation instruction No.76 (Annexure P/6) shows that there is a policy of review of determination of date of birth contained in 'clause B' of the said policy. Once the policy has been laid down, it has to be uniformly followed. Once a representation is made seeking correction Indisputably, the petitioner joined the service as Electric Fitter in the year 1981 in SECL. In the service book, the date of birth of the petitioner was mentioned as 7-1-1951. In the year 1987 the petitioner came to know that his date of birth has wrongly been recorded as 7-1-1951 whereas his actual date of birth as per matriculation certificate is 28-5-1956. In the service book, the date of birth of the petitioner was mentioned as 7-1-1951. In the year 1987 the petitioner came to know that his date of birth has wrongly been recorded as 7-1-1951 whereas his actual date of birth as per matriculation certificate is 28-5-1956. The petitioner moved an application for correction of his date of birth in the service book, however, when no decision was taken by the authorities, he preferred a petition, being WP (S) No.2687 of 2009, which was disposed of by this Court vide order dated 23-7-2010 holding thus : of date of birth, the same is required to be considered in accordance with the policy (Annexure P/6) and the respondents are obliged to take decision one way or the other. It would be open for respondents to reject the claim it if is found upon inquiry that no case for correction is made out. Nevertheless, the petitioner is entitled to due consideration in accordance with implementation instruction No.76 (Annexure P/6). Delay in seeking correction, date of birth declared in statutory Form-B register and entries in service records etc. would be matters for consideration to take decision one way or the other for respondents, while considering the case of the petitioner according to Annexure P/6. (7) Therefore, in the present case also, taking into consideration the submission made and the facts and circumstances available on record, I am inclined to direct the respondents to consider the case of the petitioner in accordance with the policy/implementation Instruction No.76 (Annexure – R/3) and take decision in accordance with law.” 3) The issue concerning correction of date of birth is governed under the Implementation Instruction No.76 (for short 'I.I.No.76'), which evolves the procedure for determination/verification of age of employees. 4) Under clause (B) of I.I.No.76, which deals with review determination of date of birth in respect of existing employees, it is directed that in the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised Universities or Board of Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct, provided they were issued by the said Universities/Boards/Institutions prior to the date of employment. 5) Learned counsel appearing for the petitioner would submit that despite the said clear instruction and despite the fact that the petitioner produced matriculation certificate issued by the Board of Secondary Education, Madhya Pradesh, Bhopal, in the year 1974 wherein the date of birth of the petitioner is mentioned as 28-5-1956, the respondent SECL has rejected the petitioner's prayer for correction of date of birth. Learned counsel would further submit that on the strength of law laid down by the Supreme Court in M/s Bharat Coking Coal Ltd. and others v. Chhota Birsa Uranw, 2014 AIR SCW 2634, the writ petition deserves to be allowed. 6) Per contra, learned counsel appearing for the respondents would submit that the service book was provided to the petitioner in the year 1987 showing his date of birth as 7-1-1951, which was accepted by the petitioner, but did not raise any objection. He had also been issued Form 'B' register mentioning his date of birth as 7-1-1951 wherein the petitioner appended his signature without raising objection, therefore, the petitioner is precluded from seeking correction of his date of birth. 7) In M/s Bharat Coking Coal Ltd. (supra), the Supreme Court while dealing with the I.I. No.76 held thus : “11........Admittedly, the appellant as the employer in view of its own regulations being Implementation Instruction No. 76 contained in the National Coal Wage Agreement III, gave all its employees a chance to identify and rectify the discrepancies in the service records by providing them a nominee form containing details of their service records. This initiative of the appellants clearly indicated the existence of errors in service records of which the appellants were aware and were taking steps to rectify the same. Against this backdrop, the stance of the appellant that the records in the Form ‘B’ register must be relied upon does not hold good as it is admitted by the appellant that errors existed in the same. Even a perusal of the nominee form exhibits the ambiguity regarding the date of birth and date of joining. It was due to the discrepancies which subsisted that the appellants gave all its employees a chance to rectify the same. In such circumstances, the appellants are bound by their actions and their attempt to deny the claims of the respondent is incorrect. It was due to the discrepancies which subsisted that the appellants gave all its employees a chance to rectify the same. In such circumstances, the appellants are bound by their actions and their attempt to deny the claims of the respondent is incorrect. The respondent in this case duly followed the procedure available and the attempt of the appellant to deny the claim of the respondent on the basis of technicality is incorrect. We, therefore, feel that the learned Single Judge has correctly held that: '11. Having given the petitioner, like all employees, the benefit of seeking correction of the entries contained in their service records including their date of birth, the petitioner’s claim cannot be denied, merely because he had signed upon the Form ‘B’ Register at the time of its opening and containing the entry of date of birth as recorded therein.” (Emphasis supplied) 12. The appellant in the present case should have followed the procedure as laid down by Implementation Instruction No. 76 to determine the date of birth of an existing employee. The provisions of which read as follows: “(B) Review determination of date of birth in respect of existing employees. (i)(a) In the case of the existing employees Matriculation Certificate of (sic: or) Higher Secondary Certificate issued by the recognized Universities of Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards Institutions prior to the date of employment. (i)(b) Similarly, Mining Sardarship, winding engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic. (ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through determination committee/medical board. (C) Age Determination Committee/medical Board for the above will be constituted by the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through determination committee/medical board. (C) Age Determination Committee/medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) above, the date of birth recorded in the records of the company, namely, Form ‘B’ register, CMP Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for the determination of age. (D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or (E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately.” In another case, being G.M. Bharat Coking Coal Ltd. vs. Shib Kumar Dushad (supra) where the date of birth of an employee of the Bharat Coking Coal was in dispute and the same set of instructions were applicable, this court referring to the Implementation Instruction held that: “20. From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board.” (Emphasis supplied) 13. We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case, ( AIR 1993 SC 2647 : 1993 AIR SCW 3333) (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellant’s omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large. 14. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 clause (I) (a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words ‘were issued’ was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school. (Emphasis supplied) 8) On the basis of provisions contained in the I.I.No.76 and the judgment rendered in M/s Bharat Coking Coal Ltd. (supra), it is manifest that when the petitioner is seeking correction of date of birth on the strength of matriculation certificate, which was issued to him in the year 1974, much before his joining the services, the same ought to have been accepted and acted upon for making review of date of birth in terms of clause (B) (i) (a) of the I.I. No.76. By not doing so, the respondents have committed serious illegality. The respondents are directed to take steps to correct the date of birth of the petitioner on the strength of matriculation certificate and give him all the consequential benefits flowing therefrom. 9) In the result, the writ petition is allowed to the extent indicated above. There shall be no order as to costs.