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2014 DIGILAW 605 (AP)

K. Narasimha Chary v. General Manager (Personnel)

2014-04-29

DAMA SESHADRI NAIDU

body2014
JUDGMENT The petitioner is a workman without much of educational background; respondent, a Colliery Company. In this litigious combination, the leitmotif is the dispute of date of birth. This problem is a proverbial phoenix that always rises from the adjudicatory residuae ashes, notwithstanding numerous judicial pronouncements on this aspect. The petitioner, a Sub-Station Attendant, initially secured his employment on 24.04.1977 as a Badili Filler in the respondent company. Having secured promotions as Coal Filler in 1979 and as General Mazdhoor in 1985, later eventually as Sub-Station Attendant, the petitioner is said to be presently working in the said position. The grievance of the petitioner is that his date of birth was not recorded in the service records in accordance with what has been reflected in his school certificates even prior to his joining the service-15.06.1958. Without the petitioner’s knowledge, it was recorded as 23 years as on 23.04.1977 in all the records of the respondent’s company, such as Service Book, B-Register and I.D.Card etc., which is without any basis. After making initial representations, having come to know of the discrepancy, the petitioner once again made a representation on 31.08.2012 to the authorities concerned seeking rectification of the date of birth in the service records in tune with the school records, which have already been submitted to the respondent company. Despite the petitioner’s representations, the respondents seem to have intimated the petitioner through letter dated 15.05.2013 that he would be attaining the age of superannuation by 24.04.2014 i.e., 60 years, and that he would be retired from service on 30.04.2013. Aggrieved thereby, the petitioner approached this Court by filing the present Writ Petition. Sri V. Sree Ranga Rao, the learned counsel for the petitioner, has underlined his submissions with an initial exhortation that the issue raised in this Writ Petition may be viewed in the backdrop of inadequate education of the petitioner. He has submitted that most of the workmen with illiteracy or semi-literacy in the company are always at the mercy of the respondent officials even to have any statutory forms filled at the time of their entry into service or even subsequently. In their eagerness to secure the service benefits, statutory or otherwise, the workmen, when required to submit many forms, depend on the officials of the Company to have them filled up. In their eagerness to secure the service benefits, statutory or otherwise, the workmen, when required to submit many forms, depend on the officials of the Company to have them filled up. Most of the times, submits the learned counsel, they must be signing on the dotted lines and in the blank forms, which are later filled up by those officials. It is, therefore, not always correct to rely on those forms and hold that there has been an admission on the part of the workmen as to the correctness of what was written in those forms. Expatiating further, the learned counsel has stated that the petitioner had the minimal qualification of 7th class when he entered into the service. According to the learned counsel, the petitioner had appeared for 7th class in the year 1972 i.e., 5 years prior to his securing the employment, and at the very inception, he produced before the authorities the certificate issued by the District Educational Officer, Karimnagar. He has further submitted that the petitioner has passed SSC in October, 1997 and in the said Secondary School Certificate, issued along with the Marks Memorandum by the Board of Secondary Education, as has been reflected in 7th class Certificate, the date of birth was recorded as 15.06.1958. Placing reliance on Clause (i) of the Implementation Instruction No.76 of the Joint Bipartite Committee for Coal Industry (JBCCI), which is said to be governing the service conditions of the workman of the respondent company, the learned counsel would contend that the date of birth recorded in the certificate issued after passing the matriculation or equivalent examination shall be treated as correct date of birth and it shall not be altered under any circumstances. Accordingly, the learned counsel urged this Court to direct the respondent company to alter the date of birth in the service records in tune with what has been recorded in the petitioner’s certificates, which have already been produced before the authorities. In support of his submissions, the learned counsel has placed reliance on a judgment of this Court in A. Rajamurali Vs. M/s Company Limited ( 2013 (5) ALT 691 ) and an unreported Judgment of a learned Division Bench of this Court in W.A.No.1621 of 2008. Per contra, Sri Nandigam Krishna Rao, the learned Standing Counsel for the respondent company, has vehemently opposed the claim of the petitioner. M/s Company Limited ( 2013 (5) ALT 691 ) and an unreported Judgment of a learned Division Bench of this Court in W.A.No.1621 of 2008. Per contra, Sri Nandigam Krishna Rao, the learned Standing Counsel for the respondent company, has vehemently opposed the claim of the petitioner. Drawing the attention of this Court to Implementation Instruction No.76, on which even the learned counsel for the petitioner has placed much reliance, the learned Standing Counsel, too, has stated that regarding the nonmatriculationists with basic education, the date of birth in the school certificates shall be treated as correct date of birth and it shall not be altered under any circumstances. Dilating further on this issue, the learned Standing Counsel has stated that in case of appointees, who are illiterates, the date of birth will be determined by the colliery Medical Board keeping in view any documentary and other relevant evidence as produced by the appointee. According to the learned Standing Counsel, the date of birth as determined by the said Medical Board shall be final. Taking this Court through the Regulations and Settlements governing the service conditions of the workman of the respondent company, including the petitioner, the learned Standing Counsel has submitted that there is a definite course of action to review or to re-determine the age in respect of existing employees. The learned Standing Counsel has hastened to add that this review or re-determination shall be taken recourse to only in the event of any variation in the records. Even the said variation should be very glaring and apparent on the face of the record, having been brought to the notice of the Management at the earliest point of time to enable it to refer the issue to the Age Determination Committee or Medical Board. The learned Standing Counsel has contended that at the time of his initial appointment, the petitioner did not produce any documentary evidence; as such, in terms of Implementation Instruction No.76, the petitioner’s age was determined by the Medical Officer as 23 years as on 24.04.1977 and the same was recorded in authenticated service records, such as Identity Card and Service Book. In support of his submissions, the learned Standing Counsel has placed reliance in BURN STANDAR COMPANY LIMITED AND OTHERS V. DINABANDHU MAJUMDAR AND ANOTHER (1995) 4 SCC 172 ), and also an unreported judgment dated 29.06.2012 of a learned Single Judge of this Court in W.P.No.02 of 2011. The learned Standing Counsel has accordingly urged this Court to dismiss the Writ Petition as being without any merits. Obvious as of scope of Writ Petition is, the singular issue that is to be determined is what should be the basis for determining the age or the date of birth of the petitioner, a workman. The petitioner on one hand relies on a certificate said to have been issued by the District Educational Officer, Karimnagar, dt. 04.04.1972, i.e., 5 years prior to petitioner’s entry into service, and also the Marks Memorandum/Secondary School Certificate issued by the Board of Secondary Education on 13-12-1987, a decade subsequent to his appointment. Though the learned counsel for the petitioner has placed heavy reliance on Implementation Instruction No. 76 of J.B.C.C.I to the effect that the date of birth recorded in the certificate of Matriculation or any other equivalent examination shall be treated as correct date of birth and it shall not be altered under any circumstances, we must not lose sight of the fact that the SSC certificate was obtained by the petitioner a decade after his entry into service. There is certainly force in the contention of the learned counsel for the petitioner that the 7th class Certificate, i.e., the certificate of Common Board Examination for Class-VII of Karim Nagar District, has been issued by the Chairman of the said Common Board, who is also the District Educational Officer, Karimnagar. A perusal of the record reveals that the said Certificate was issued on 04.04.1972. Since the petitioner is not illiterate, it can be safely presumed that he ought to have produced the certificate at the time of his initial entry into service. The respondent company, however, contends that at the time of his initial appointment, the petitioner did not produce any certificate showing his educational qualification including that of his 7th class. Since the petitioner is not illiterate, it can be safely presumed that he ought to have produced the certificate at the time of his initial entry into service. The respondent company, however, contends that at the time of his initial appointment, the petitioner did not produce any certificate showing his educational qualification including that of his 7th class. It is the further contention of the respondent company that owing to the absence of any acceptable proof as to the date of birth of the petitioner, he had been subjected to medical examination, at the time of his recruitment, by its medical officer to determine his age, which is said to have been recorded as 23 years on the date of petitioner’s entry into service, i.e., 24.04.1977. The contention of the respondent company, as has been forcibly put forward by the learned Standing Counsel, could have carried conviction had the authorities chosen to produce any proceedings or the certificate, which ought to have been issued by the colliery Medical Officer way back in 1977. The pleadings in the Counter Affidavit as well as submissions of the learned Standing Counsel across the bar clearly reveal that the said certificate is not traceable. As I have observed earlier, keeping aside the S.S.C Certificate for a while, we may have to weigh the remaining two other options – (1) the 7th class Certificate issued by the Chairman of the Common Board Examination Class Seven, Karimnagar District, i.e., the District Educational Officer, Karimnagar District on one hand, and (2) on the other, the ipsi dixit of the respondent Company that the petitioner was subjected to age determination test by the company’s own medical officer, though the said certificate is not available. As a matter of preponderance of probabilities, so to say, this issue may not detain us for long. We may have to address another issue before proceeding further with the principal issue. The learned Standing Counsel has repeatedly stated that all the records have consistently reflected the age of the petitioner as 23 years as on 24.04.1977 or in other words the date of birth as 24.04.1954 notionally, based on the age determination rendered by the company’s competent medical officer. The learned Standing Counsel has repeatedly stated that all the records have consistently reflected the age of the petitioner as 23 years as on 24.04.1977 or in other words the date of birth as 24.04.1954 notionally, based on the age determination rendered by the company’s competent medical officer. At this juncture, it may be appropriate to recall the submissions of the learned counsel for the petitioner that the petitioner is semi-literate and for all purposes, statutory or otherwise, the petitioner and other similarly placed workmen could be, as a matter of practice, signing on the dotted lines, usually blank papers or applications, so that the officials could fill them later. During the course of employment, it is not far to visualise that now and then the workmen would be asked to submit various forms to entitle themselves to certain statutory benefits. In their eagerness to have the benefits obtained without any delay, the workmen would be at the mercy of the officials to have those applications processed expeditiously, for which purpose, the workmen would be seeking the help of the very officers to fill up the forms and applications etc. Accordingly, the factum of a particular date of birth getting reflected in certain records, especially in relation to illiterate or semi-literate workmen may not assume any importance, in the absence of either school certificates or medical opinion. The issue may be viewed from another angle. The 7th Class certificate issued by the District Educational Officer, Karimnagar, is a public document, having presumption attached to it in terms of Section 114 of the Evidence Act. Further, the respondent company has definite methodology of determining the date of birth dispute concerning any workman in terms of Implementation Instruction No. 76. In case of non-matriculates, but educated, the said instruction reads as follows: “In the case of appointees who have pursued studies in a recognised educational institution, the date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances”. For illiterates: “In the case of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Officer keeping in view any documentary and other relevant evidence as produced by the appointee. For illiterates: “In the case of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Officer keeping in view any documentary and other relevant evidence as produced by the appointee. Date of birth as determined shall be treated as correct date of birth and the same will not be altered under any circumstances”. Clause-B of the said Instructions provides for review/determination of date of birth in respect of the existing employees. Sub Clause (1) of (b) reads as follows: “In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or 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”. It has further been provided in the same Clause-B by way of a proviso that wherever there is a variation in the records, such cases will not be re-opened unless there is a glaring or apparent error on record brought to the Management, which, after being satisfied on the merits of the case, will take appropriate action for correction through age determination committee/medical board. The said instruction further reveals that once the Management decides that the variation is substantial or that a genuine dispute concerning the correctness of the date of birth, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for the determination of the age. In this case, it can be seen that the petitioner studied up to 7th class and he could as well be expected to have submitted his certificate concerning his basic qualification to the respondent company. On the other hand, the respondent company pleads that no certificate was produced at the time of his entry into service. In this case, it can be seen that the petitioner studied up to 7th class and he could as well be expected to have submitted his certificate concerning his basic qualification to the respondent company. On the other hand, the respondent company pleads that no certificate was produced at the time of his entry into service. It bears repetition to state that in the absence of the original medical record obtaining from the management concerning the age of the petitioner, more particularly, in the face of the certificate submitted by the petitioner, in my considered view, the respondent company ought to have taken recourse to either of these two alternatives: (1) to refer the petitioner to further medical examination to determine the age; or (2) to enquire with the Educational Authorities, who have issued the qualification Certificates, especially with the District Educational Officer, Karimnagar, concerning the 7th class Certificate. Thus the issue could have been resolved. As per the petitioner’s version, the petitioner would attain the age of superannuation on 31.04.2018; whereas, as per the respondent Company, it would be 30.04.2014, the variation being four long years-substantial in terms of duration of service of a workman. Unfortunately, the respondent company has taken recourse to neither of the alternatives. At this juncture, it is apposite to examine the judicial pronouncements placed reliance on by either party. In BURN STANDARD COMPANY LIMITED AND OTHERS V. DINABANDHU MAJUMDAR AND ANOTHER, it was held in para No.8 as follows: “Theimportance of the date of birth of an employee given to his employer and accepted as correct by the latter and entered in the 'Service and Leave Record' of the former, cannot be underestimated. That is so for the reason that the employee's service with the employer has to be necessarily regulated according to such date of birth. Therefore, when a person is taken into service on appointment, he would be required by his employer to declare his correct date of birth and support the same by production of appropriate certificates or documents, if any. Even where the persons so appointed fail to produce the certificates or documents in proof of their date of birth, they would be required to affix their thumb impression or signature in authentication of their declared ages or dates of birth. Even where the persons so appointed fail to produce the certificates or documents in proof of their date of birth, they would be required to affix their thumb impression or signature in authentication of their declared ages or dates of birth. When on the basis of such declaration made or certificates produced by the employee an entry is made of his date of birth in his 'Service and Leave Record' to be opened, that will amount to acceptance by the employer of such date of birth, as correct, be it the Government or its instrumentality. When such entry is made in Service Record of the employer the only way in which the employer, Government or its instrumentality can get over such entry, because of subsequent disclosures as to its incorrectness, is to hold inquiry into the matter by affording an opportunity to the employee concerned to have his say in the matter. But when once the employer, the Government or the instrumentality concerned accepts the date of birth of an employee as declared by him and supported by certificates or documents produced by him and allows him to enter into its service and continue on such basis, is it open to such employee to claim that the date of birth declared and authenticated by him was incorrect and, there- fore, the employer, be it the Government or its instrumentality, should correct his date of birth in his 'Service and Leave Record' according to what he claims to be true and if the Government or its instrumentality concerned refuses to accept such claim, can the High Court in exercise of its discretionary extraordinary writ jurisdiction entertain a writ application, to consider the merit of such claim?”. It is pertinent to observe that in the very next paragraph their Lordships have provided judicial imprimatur to the fact that the recorded date of birth is neither inviolable nor immutable; it is essentially based on the service regulations governing the issue and the nature of the dispute. It is pertinent to observe that in the very next paragraph their Lordships have provided judicial imprimatur to the fact that the recorded date of birth is neither inviolable nor immutable; it is essentially based on the service regulations governing the issue and the nature of the dispute. It is profitable to extract the observations made by their Lordships in that regard: “No doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality, as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee if forbids correction of such date of birth of employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee, becomes impermissible. However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the Government or its instrumentality, as the case may be, would be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction. If that be the legal position, can it be said that it is open to a High Court in exercise of its extraordinary writ jurisdiction to entertain a writ application of an employee of the Government or its instrumentality, as the case may be, for correction of his date of birth entered in his 'Service and Leave Record' at the time of his appointment and direct the Government or its instrumentality concerned to correct such date of his birth in his 'Service and Leave Record' and continue him in service beyond the date of his normal retirement, is the question. It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed questions of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the concerned party. It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed questions of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the concerned party. But, the question is that if an employee of the Government or its instrumentality, who is at the fag end of his service and due for retirement from his service shortly, according to his date of birth found in his 'Service and Leave Record' files a writ application before the High Court and invokes its writ jurisdiction for correction of such date of birth with a view to continue in service beyond the normal period of his retirement, will it be appropriate for the High Court to entertain such application to enquire into disputed facts pertaining to his date of birth for correcting it and extend his period of service?”. Not only in Burn Standards Limited but also in a catena of Judgments, the Hon’ble Supreme Court has reiterated, by now what can be said to be too well settled a principle of law to admit of any trifling with, that at the fag end of one’s career the request for change of date of birth shall not be entertained as it will have serious ramification not only vis-‘a-vis the employer but also involving co-workers or co-employees, whose career prospects would be otherwise upset on the ground of indulgence shown to the indolent employee. In the respondent company, given the illiteracy or semi-literacy of the workforce, the very Management has been careful and considerate in providing for a regulatory mechanism for determining the age of date of birth without reference to time as to when it is raised. The instructions which have been referred to above provide for redetermination of age under certain circumstances. I am of the considered view that the ratio laid in Burn Standard Limited may not be applicable to the facts of the present case. In DesiniVenkataiah v. The Singareni Collieries Company Limited & Others, an unreported judgment dated 29.06.2012 in W.P.No.02 of 2012, a learned Single Judge of this Court has referred to the undertaking given by the employee accepting the decision of the age determination committee. In DesiniVenkataiah v. The Singareni Collieries Company Limited & Others, an unreported judgment dated 29.06.2012 in W.P.No.02 of 2012, a learned Single Judge of this Court has referred to the undertaking given by the employee accepting the decision of the age determination committee. On such acceptance, the employee therein solemnly declared that he will not be raising any issue/dispute concerning the age determined by the Age Determination Committee. Essentially based on such a declaration as made by the petitioner therein, the learned Single Judge dismissed the Writ Petition filed by the workman holding that the workman ought to have taken appropriate measures immediately or soon thereafter and that despite advance intimation of his retirement having been given to him, the workman remained quiet for many years. Under those circumstances, the learned single judge has held that the Court would not entertain pleas from employees to extend their services at the fag end of their career. Though this matter was taken in appeal, it was dismissed through Judgment dated 18.07.2012 in W.A.No.1862 of 2012 by a learned Division Bench. The learned Standing Counsel has also produced requisite material to show that when the matter was taken to the Hon’ble Supreme Court, even the S.L.P. was dismissed. On a perusal of the Judgment dated 29.06.2012 in DesiniVenkataiah, I am of the opinion that the factual matrix therein is entirely different from that of the present Writ Petition. There was definite finding as to the determination of age by Area Age Determination Committee and also the acceptance of findings of the said Committee by the workman many years ago. Coupled with that is the fact that there is an undertaking from the workman accepting its finality and also not to contest it in future. The absence of those circumstances in the present writ petition makes all the difference. In another instance, in A. Raja Murali v. M/s. Singareni Collieries Company Ltd., rep., by its Dy. General Manager, on a comprehensive survey of the case law obtaining as on that day, another learned Single Judge of this Court has observed as follows: “There cannot be any doubt to say that the age of the petitioner was shown as 25 years at the time of his initial appointment. It may be also a fact that the petitioner had affixed his thumb impression on the relevant documents at the time of his appointment. It may be also a fact that the petitioner had affixed his thumb impression on the relevant documents at the time of his appointment. However, the crucial aspect is whether the claim of the petitioner is genuine and whether his claim has to be thrown out merely because he had affixed his thumb impression on the relevant papers at the time of his appointment.” “When the respondent-Company receives such statutory certificates, before acting upon those certificates and before promoting an employee basing upon those certificates they must verify whether the date of birth mentioned in those certificates is in conformity with the date of birth mentioned at the time of initial appointment and if there is contradiction they must resolve the dispute before acting upon such statutory certificates. It has to be seen that each case has to be decided on its own facts and circumstances. It is clear from Instruction No.76 issued by the Joint Bipartite Committee referred above that Mining Sirdarship, Winding Engine or similar other Statutory Certificates where the Manager had to certify the date of birth will be treated as authentic. When the genuineness of those documents are not in dispute and when those documents have been acted upon by the respondent-Company without any dispute, those certificates have to be taken into consideration. Moreover in this case the petitioner has produced his primary school record in support of his claim. In the above circumstances, I am of the considered view that the claim of the petitioner cannot be denied”. It is to be further seen that in The Singareni Collieries Company Ltd., rep., by the Chairman-cum-Managing Director vs. B. Venkateswarlu, another unreported judgement, dt.11.06.2009 of a learned Division Bench of this Court in WA No.1621 of 2008, under identical circumstances, the same respondent company has taken an identical plea that the workman did not produce the school certificates at the time of his entry into service, and as such, they need not be taken into account to determine the date of birth. Repelling the said contention, the learned Division Bench has observed: “The certificate relied upon by the respondent-driver would show that he studied from 6th to 10th class during the years 19.6.1973 to 5.7.1978 in ZPSS, Gowthampur, Kothagudem, Khammam District. He is in a position to produce the study and conduct certificate as well as the transfer certificate issued by the said school. He is in a position to produce the study and conduct certificate as well as the transfer certificate issued by the said school. The respondent also filed the memorandum of marks for failed candidates issued by the Board of Secondary Education, Andhra Pradesh. The said certificate, however, does not contain the date of birth as reflected in the certificates issued by the ZPSS Gouthampur, Kothagudem, Khammam District. It is not open to the appellant-company to lightly brush away the certificates issued by ZPSS the mere fact that the respondent-driver did not produce the said certificates at the time of his entry into service cannot be treated as a ground to reject the said certificates for the purpose of. (Emphasis added) I am of the opinion that the above ratio applies to the present fatal matrix on all fours. In the above facts and circumstances of the case, this Court holds that there is no countervailing material placed on record by the respondent company to detract the 7th class certificate produced by the petitioner, it being a public document and more particularly, when the respondent authorities have not chosen to question its genuineness by enquiring with the education officers concerned. I have not taken account the S.S.C certificate as it was a post factum document – it was obtained after the petitioner’s entry into service. I hasten to add that it cannot be thereby presumed that such a certificate cannot be taken into account under all circumstances. The genuineness and relevance of documents, as well as the method and manner of proving one’s age depends on a host of variables. That is why after an abundance of adjudication, the issue remains elusive, if not enigmatic. Under those circumstances, especially in the light of the ratio laid down by a learned Division Bench of this Court in B. Venkateswarlu, the said certificate ought be given credence it deserves. Once the said document is accepted as true and genuine, ipso facto the date of birth of the petitioner shall be reckoned from the date that has been reflected in the said document i.e., 15.06.1958. Accordingly, for the aforesaid reasons, the Writ Petition is allowed as prayed for. No costs. The miscellaneous petitions, if any pending, shall stand closed.