Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 491 (MP)

Diksha Nagesh v. Western Coalfields Limited

2015-04-24

J.K.MAHESHWARI

body2015
JUDGMENT : J.K. Maheshwari, J. 1. Being aggrieved by the order Annexure-P/9 superannuating the petitioner w.e.f. 01.08.2014 this petition has been filed. The facts which relevant for the purpose of the present case are that petitioner was appointed on compassionate ground in place of her husband in Western Coalfields Ltd. Prior to submitting the application for compassionate appointment, documents of matriculation were submitted as per Annexure-P/2, wherein the date of birth of the petitioner was shown as 15.10.1960, however, she would retire after attaining the age of 60 years as per the said date of birth but in the service book the incorrect date of birth i.e. 01.08.1954 has been recorded thereby the petitioner has wrongly retired in 18.09.2014. It is submitted that after coming into employment National Coal-Wage Agreement, Instruction No. 76 came into existence. As per the said clause, the mark-sheet of matriculation would be the conclusive proof to record the same. As per Clause B/1 it is the duty of the management to review/determine the date of birth in respect of the existing employees but without considering the representation petitioner has been retired w.e.f. 01.08.2014, however, this petition has been preferred. 2. Seeking relief to quash the order Annexure-P/9 with a further prayer to continue the job of the petitioner till attaining the age of 60 years. Respondents have filed their reply inter alia contending that he has filed the transfer certificate of the Class X which cannot be a proof of correction of the date of birth. It is undisputed by them that the dispute, in the present case, shall be resolved as per Instruction No. 76 which is a bi-partite agreement. It is further submitted in the reply that the representation Annexure-P/2 is of no help to them, it is also stated that Form O whereby the age of the petitioner was mentioned through medical practitioner cannot be treated to be the exact date of birth. As the petitioner has never submitted the document regarding date of birth and as the declaration in the service book regarding her date of birth, the order of superannuation has rightly been passed. In furtherance to the said contention, learned counsel for the petitioner has placed reliance on a judgment of Apex Court in the case of State of T.N. Vs. In furtherance to the said contention, learned counsel for the petitioner has placed reliance on a judgment of Apex Court in the case of State of T.N. Vs. T.V. Venugopalan reported in 1994(6) S.C.C. 302 , however, it is urged that the petition filed by the petitioner devoid of any merit, hence, it may be dismissed. 3. After hearing learned counsel for the petitioner and on consideration of the undisputed factual position it is apparent that the correction of the date of birth of the petitioner shall govern by Instruction No. 76. The said instruction is binding on the Western Coalfields Ltd. being a bi-partite agreement. As per Clauses A-1 & B-1 the date of birth recorded in matriculation or equivalent examination would be treated as correct and in case of existing employees the correction of the date of birth can be made by review or determination of the birth by the management, the relevant are reproduced as under:- "In the case of appointees who have passed Matriculation or equivalent examination, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board 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." 4. In the present case, looking to the factual aspect the date of birth of the petitioner has been recorded in service book as 01.08.1954. As the time of submission of the applicant seeking employment on compassionate ground as per Annexure-P/2, the mark-sheet of Class X has been attached indicating the date of birth as 15.10.1960. The correction in the date of birth was sought by an application Annexure-P/4 with a mark-sheet of Class VIII which is also indicating her date of birth as 10.10.1960 but the said representation was rejected on 15.06.2013 inter alia contending that the Instruction No. 76 do not attract. Again the application was submitted vide Annexures-P/6 & P/7 through Union that too was rejected reiterating the same thing vide Annexure-P/8 and the petitioner has superannuated as per the date of birth 01.08.1954 on attaining the age of 60 years on 01.08.2014. 5. Again the application was submitted vide Annexures-P/6 & P/7 through Union that too was rejected reiterating the same thing vide Annexure-P/8 and the petitioner has superannuated as per the date of birth 01.08.1954 on attaining the age of 60 years on 01.08.2014. 5. After hearing learned counsel for the petitioner and on perusal of the undisputed factual position, the Instruction No. 76 is having its application. As per instructions, if matriculation certificate or higher secondary school certificate issued by the recognized universities or board has been made available then the date of birth mentioned in the said certificate shall be treated to be a correct date of birth. 6. Accordingly, the correction of the existing employees ought to be done. 7. By filing a reply by respondent/Western Coalfields Ltd. it is not reiterated that during service tenure the correction was made as per the inquiry was conducted as per Instruction No. 76. It is a case wherein the petitioner possessing the qualification matriculation, prior to commencement in the employment, however, the said mark-sheet cannot be discarded in the manner in which the orders Annexures-P/5 & P/8 has been passed. 8. In view of the foregoing discussion having applicability of Instruction No. 76, Annexure-P/6, in the case of the petitioner and on having passed out of the matriculation but commencement of the employment the date of birth deserves to be correct as prayed for by the petitioner and she shall be allowed to continue in the employment till attaining the age of 60 years. 9. Let necessary orders be passed within a period of one month from the date of production of the certified copy of this order. The judgment relied upon by the counsel for the respondent in the case of State of T.N. Vs. T.V. Venugopalan (supra) is not applicable in the facts of this case whereas bi-partite agreement which is having binding effect on the employer and employee. 10. Accordingly, this petition is hereby allowed with a cost of Rs. 5,000/-.