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2015 DIGILAW 727 (JHR)

Dhaneshwar Barhi v. Eastern Coalfields Ltd.

2015-06-30

APARESH KUMAR SINGH

body2015
ORDER : Heard learned counsel for the parties. 2. The grievance of the petitioner herein is that he is to retire w.e.f. 01.07.2015 on incorrect assessment of his date of birth i.e. 01.07.1955, though as per the School Leaving Certificate, Annexure-1, issued by the Principal of the Middle School Munger on 12.02.1971, his date of birth is shown as 16.01.1959. Such request for correction of date of birth in his service records has been declined by the impugned letter dated 23.07.2013, Annexure-4. Implementation Instruction No. 76 which is agreed mode for determination of age of the employee entering coal company provides at para(A) (ii) that in the case of appointees who have pursued studies in a recognized 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. Despite such laid down procedure, the respondents have not ventured to make correction of his date of birth entry or referred the matter to the Apex Medical Board, if there is any dispute about his age. Representations have been consistently made before the respondent earlier which they have failed to respond and only the last representation made on 30.04.2013 has been considered by them to refuse such correction on the ground that purported age dispute was raised at the fag end of the service. 3. Learned counsel for the petitioner submits that the Implementation Instruction No. 76 provides the course to carry out such correction. He has relied upon the decision of the Full Bench of this Court in the case of Kamta Pandey Vs. M/s BCCL through its Chairman-cum-Managing Director, Koyla Bhawan, Koyla Nagar, Dhanbad & Ors. reported in 2007(3) JLJR 726 , which categorically held that though the employee will not normally be permitted to apply for change of his date of birth at the fag end of his service career, but if the Court is fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and when a clear case relating to the date of birth is made out on the basis of clinching materials, then necessary direction to make a declaration of the said date of birth can be given. He has also relied upon the judgment rendered by the Hon'ble Supreme Court in the case of M/s Bharat Coking Coal Ltd. & Ors. Vs. Chhota Birsa Uranw reported in 2014 (3) JBCJ 28 (SC) : 2014 (3) JLJR (SC) 182 in support of his submission that in the said case, the Hon'ble Supreme Court was pleased to uphold the judgment rendered by the learned Single Bench and the Learned Division Bench of this Court, which directed the same appellant company to conduct an enquiry on the basis of the certificates produced by the employee and to take a decision within stipulated period on the question of his date of birth as he was being made to retire prematurely. Therefore, ends of justice requires that reconsideration be made and the respondent should undertake an exercise for such correction of date of birth as per the procedure laid down in terms of Implementation Instructions No. 76. 4. The respondents have appeared and filed their counter affidavit. They have resisted the claim of the petitioner on the ground that the petitioner never produced his school leaving certificate at the time of his appointment to seek correction of his date of birth. It is submitted on their behalf that the date of birth has been correctly recorded as 01.07.1955 in Form-B Register, which is statutory document under the Mines Act at the time of his appointment in the colliery under the Mugma Area of M/s Eastern Coalfields Ltd.. The said date of birth recorded in the service records as per the declaration given by the writ petitioner at the time of his appointment was duly authenticated by him putting his endorsement therein. Thus the said entries which have been duly authenticated by him at the relevant point of time putting his endorsement, should be accepted as required under the provisions of Mines Act and Rules. It is their further case that such question of facts, which are being disputed, should not be redressed by the Court in the writ jurisdiction as there is an alternative remedy under Industrial Dispute Act. Therefore, it is submitted that representation made by him has been rightly rejected by the impugned order. 5. It is their further case that such question of facts, which are being disputed, should not be redressed by the Court in the writ jurisdiction as there is an alternative remedy under Industrial Dispute Act. Therefore, it is submitted that representation made by him has been rightly rejected by the impugned order. 5. Learned counsel for the petitioner submits from reading para-11 of the counter affidavit that the petitioner had made representation after 23 years of service that would be some time in 2005 and not at the fag end of service, which is shown to be rejected by the company vide impugned letter dated 22.07.2013. 6. I have considered the rival submissions of the parties. On the basis of aforesaid factual outline of the case pleaded, the documents on record do not make out a case that the petitioner had at any point of time earlier approached the respondents for seeking correction of his date of birth. The representation at Annexure-2 has no date and no representation previous to this representation for seeking such correction is evidenced. Annexure-3 series are of April, 2013 where the requests of the petitioner has been forwarded by the Ex-MLA & President of Labour Union and also by the OSD to the Hon'ble Member of Coal. These forwarding letter of course are also all of the year 2013. The petitioner has not raised his grievances at the time of recording of Form-B or the service excerpts or at the time of entry in service in the year 1981 or in 1987. Though learned counsel for the petitioner has relied upon the contents of the para-11 of the counter affidavit to show that the representations were made in 2005 but the order of rejection at Annexure-4 dated 22.07.2013 of such representation itself shows that the representation/letter was bearing no. 119/2013 dated 30.04.2013. That would mean that such letter or representation was made after 33 years of his entry in service and mistakenly recorded as 23 years at para-11 of the counter affidavit. 119/2013 dated 30.04.2013. That would mean that such letter or representation was made after 33 years of his entry in service and mistakenly recorded as 23 years at para-11 of the counter affidavit. In the case of Kamta Pandey (Supra) in a matter relating to correction of date of birth, the learned Division Bench of this Court dealing with the plea of the employee based upon matriculation certificate was conscious enough to clarify at both concluding paragraph-27 and 28 that the normally employee will not be permitted to change his date of birth at the fag end of service. However it was held that if the court is fully satisfied that there has been real injustice to the person concerned, Court can issue necessary direction to make a declaration of the said date of birth on the basis of clinching material. It appears that in the instant case, since his entry in service, at no point of time the petitioner did pursue any claim for correction of his date of birth based upon the school leaving certificate, Annexure-4 where his date of birth was recorded as 16.01.1959. The attempt to make his date of birth corrected is obvious at the fag end of his service. His case, therefore, does not fall within the four squares of the ratio laid down by the learned Division Bench of this Court in judgment rendered in the case of Kamta Pandey (Supra). In the judgment rendered by the Hon'ble Supreme in the case of M/s Bharat Coking Coal Ltd. & Ors. Vs. Chhota Birsa Uranw(supra), it was found that the appellant company was conscious of the anomaly in the date of birth in Form-B prepared in 1987 as it carried out correction in the name of father and permanent address of the said employee. However, the date of birth and the date of appointment which also suffered from discrepancies were not corrected. It was also noticed that in other contemporaneous documents of the employees such as the Mining Sardar certificate his different date of birth was shown. The Hon'ble Supreme court, therefore, was persuaded to hold that the employer was at fault in not undertaking the exercise for correction of date of birth despite being conscious of the anomaly raised by the employee at the time entries were made in Form-B Register. The Hon'ble Supreme court, therefore, was persuaded to hold that the employer was at fault in not undertaking the exercise for correction of date of birth despite being conscious of the anomaly raised by the employee at the time entries were made in Form-B Register. Therefore, the employer could not be given latitude to refuse to carry out the correction in date of birth and at the same time retire the employee on the incorrect date of birth, prematurely. In the instant case as noticed hereinabove, at no point of time, the petitioner has been able to show that he has made his request for correction of his date of birth after it was alleged to be wrongly recorded at the time of appointment and preparation of the Form-B in the year 1987. Moreover, the petitioner made endorsement of date of birth entry recorded as 01.07.1955 on the official record at the relevant point of time. The judgment relied upon by the petitioner are, therefore, distinguishable on facts. Therefore, no case for interference is made out. Accordingly, the writ petition is dismissed. 7. Pending Interlocutory Application stands closed.