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2014 DIGILAW 590 (MP)

Western Coalfields Ltd. v. Faggulal

2014-05-15

R.S.JHA, S.K.GUPTA

body2014
Judgment: R.S. Jha, J. 1. The appellants have filed this appeal being aggrieved by the order dated 7.5.2013 passed by the learned Single Judge in W.P. No. 10609/2012 whereby the petition filed by the respondent/petitioner for treating his date of birth to be 1.2.1955 instead of 1.9.1952 has been allowed on the ground that the impugned order has been passed without considering the mandatory Implementation Instruction No. 76. It is submitted that the impugned order has been passed allowing the petition simply on the basis of a report submitted by the Directorate General of Mines Safety, dated 16.1.2013. 2. The learned counsel appearing for the appellants/respondents submits that at the time of inducting the petitioner/respondent in the employment in the year 1975, the date of birth of the petitioner/respondent in the service records of the appellants/respondents was recorded as 1.9.1952. However, subsequently the petitioner/respondent filed its matriculation certificate as well as in the Sirdar's certificate in the year 1984, in which his date of birth was mentioned as 1.2.1955. The respondent thereafter filed a representation for change of his date of birth and during its pendency, the petitioner has filed this writ petition after his superannuation from service on 31.8.2012. 3. It is submitted that the learned single Judge on the basis of a report of the Directorate General of Mines Safety wherein it has been stated that as per their records, the date of birth of the respondent was 1.2.1955, has allowed the petition treating the same to be binding in view of the Implementation Instruction No. 76. It is submitted that the learned single Judge has failed to take note of the fact that Clause (B) (ii) of the Implementation Instruction No. 76 clearly stipulates that the Mining Sirdarship, Winding Engine or similar other statutory certificates would be treated authentic where the Manager has certified the date of birth. It is submitted that a perusal of the Mining Sirdarship certificate submitted by the respondent/petitioner Annexure P/4 alongwith the petition clearly establishes that the certificate was not certified by the Manager and therefore, the same could not have been treated as authentic under Clause (B) (ii) of Implementation Instruction No. 76. 4. It is further submitted that under clause B(i) of the Implementation Instruction No. 76, matriculation certificate or Higher Secondary Certificate issued by the recognized universities or Board etc. 4. It is further submitted that under clause B(i) of the Implementation Instruction No. 76, matriculation certificate or Higher Secondary Certificate issued by the recognized universities or Board etc. would be treated authentic, provided they are issued prior to the date of employment, whereas in the instant case the certificate of matriculation relied upon by the respondent/petitioner has been issued subsequent to his employment. It is submitted that in such circumstances, the matter should have been referred for adjudication before the Age Determination Committee as there were no admitted facts or binding statutory certificate on record. It is submitted that the learned single while allowing the petition has failed to take into consideration the aforesaid two clauses of the Implementation Instruction No. 76 and therefore, the impugned order be set aside. 5. The learned counsel appearing for the respondent/petitioner, per contra submits that in view of the dispute regarding the date of birth of the respondent/petitioner, the learned single Judge by order dated 18.12.2012 had directed the respondents to conduct an inquiry, pursuant to which the Directorate General of Mines Safety had submitted its report on 16.1.2013 which clearly states that as per their records the date of birth of the respondent/petitioner was 1.2.1955. It is submitted that the learned single Judge, on the basis of the aforesaid record, has held that the authenticity of the Sirdar's certificate cannot be doubted and therefore, under Implementation Instruction No. 76 it is binding on the respondents. It is further submitted that in the aforesaid circumstances, no fault can be found in the impugned order passed by the learned single Judge. 6. Having heard the learned counsel for the parties, it is observed that Clause (B) of the Implementation Instruction No. 76 indicates as follows:- (B) Review/determination of date of birth in respect of existing employee i) (a) In the case of the existing employees matriculation certificate or Higher Secondary Certificate issued by the recognized universities or Board or Middle Pass Certificate Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Boards, 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 Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic. i) (b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates 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 rerecorded in (i) (a) will be treated as authentic. ii) Wherever there is no variation in records, such cases will no 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 appropriate action for correction for Age Determination Committee/Medical Board. 7. A perusal of the aforesaid clause makes it apparently clear that matriculation certificate or Higher Secondary Certificate issued by the recognized universities or Board or Middle Pass Certificate issued by the Board of Education or Department of Public Instruction and admit cards issued by the aforesaid Boards, would be treated as valid, provided they are issued by the said Universities/Boards/Institutions prior to the date of employment. Clause (B) (i) (b) further provides that Mining Sirdarship, Winding Engine or similar certificate would be treated as authentic only where the Manager has certified the date of birth. 8. From a perusal of document Annexure P/4 filed by the respondent/petitioner alongwith the petition, which is the Sirdar's certificate issued by the Board of Mining Examination, it is clear that the said certified has not been certified by the Manager. It is further clear that the marksheet and certificate Annexure P/3 with the petitioner have been issued by the Board in the year 1984 after the respondent/petitioner was employed and therefore, the same cannot be treated to be binding under Clause B(i) of the Implementation Instruction No. 76. It is also apparent from a perusal of the record that on the directions issued by this Court, a report has been submitted by the Directorate General of Mines Safety and in this report also it has not been stated that the Sirdar certificate issued by them has been certified by the Manager. The report simply states that the date of birth of the respondent/petitioner that is mentioned in their records is 1.2.1955. 9. The report simply states that the date of birth of the respondent/petitioner that is mentioned in their records is 1.2.1955. 9. In view of the aforesaid, we are of the considered opinion that the matter should have been referred to the Age Determination Committee as there was no admitted fact on record and the aforesaid certificates cannot be held to be authentic and binding for the reasons stated above and the same were required to be examined in view of the above quoted clauses of Implementation Instruction No. 76. It is also apparent that in view of the facts stated above, the question of determination of date of birth is a seriously disputed question of fact and could not have been decided in writ proceedings. 10. In the circumstances, the appeal filed by the appellants/respondents is allowed to the extent that while the impugned direction for reinstating the petitioner/respondent is set aside, the matter is directed to be remanded back to the Age Determination Committee for adjudication in accordance with law. 11. The learned counsel for the appellants submits that the Age Determination Committee shall conclude the proceedings within a period of one month from 25.5.2014 after giving due opportunity of hearing to the respondent/petitioner. 12. In view of the aforesaid undertaking, the appeal filed by the appellants/respondents is disposed of with a direction to the Age Determination Committee to decide the matter after giving due opportunity of hearing to the respondent/petitioner within one month from 25.5.2014. It is made clear that in case the Age Determination Committee finds substance in the claim of the respondent, it shall take immediate steps to grant all benefits to the respondent/petitioner by reinstating him and in case the respondent/petitioner is reinstated he would be entitled to full benefits as if he had continued in service without any break. 13. With the aforesaid observations the appeal stands allowed.