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2015 DIGILAW 903 (JHR)

Ram Das v. Bharat Coking Coal Limited

2015-08-03

RONGON MUKHOPADHYAY

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JUDGMENT RONGON MUKHOPADHYAY, J. 1. In this writ application, the petitioner has prayed for quashing of the letter dated 24.02.2005 whereby and whereunder the petitioner had been intimated that he is to superannuate on 31.07.2005. 2. The averments made in the writ application goes to show that the petitioner was initially appointed on the post of Electrician on 31.01.1973 and that at the time of entering into service the age of the petitioner was entered in the statutory form B register as 25 years in 1976 which in effect means that the date of birth of the petitioner was construed as 01.07.1950. A letter dated 24.02.2005 was issued by the respondent No. 5 wherein it was intimated that the petitioner is to superannuate on and from 31.07.2005 on account of his reaching of age of 60 years on 15.07.2005. Representation was submitted by the petitioner to the authorities claiming the date of birth as 01.07.1950 but since the respondents did not take pains in correcting the date of birth of the petitioner, the present writ application has been filed. 3. Heard Mr. B.K. Jha, learned counsel for the petitioner and Mr. A.K. Mehta, learned counsel for the respondents. 4. Mr. B.K. Jha, learned counsel appearing for the petitioner has submitted that in the statutory form B register the date of birth of the petitioner recorded at the time of entering into the service was 01.07.1950 but subsequently on the basis of an imaginary date of birth the petitioner has been made to retire on and from 31.07.2005. It has further been submitted that on being served with a copy of superannuation notice the petitioner has represented the authorities about the discrepancies in his date of birth and although his claim was initially being considered in right earnest but ultimately the respondents could not come to a conclusion as regards the dispute raised by the petitioner. It has further been submitted that records which are being maintained by the respondents have thrown up a dispute with respect to the discrepancies in the date of birth of the petitioner. It has further been submitted that records which are being maintained by the respondents have thrown up a dispute with respect to the discrepancies in the date of birth of the petitioner. In such circumstance, therefore, it has been submitted that the statutory form B register being the focal point to conclusively prove that the date of birth of the petitioner is 01.07.1950 the respondents cannot be allowed to dither on the same and on consideration of such date of birth the petitioner is eligible to be paid all consequential benefits including the salary for the period of five years from his date of retirement i.e. 31.07.2005 to his actual date of superannuation considering his date of birth to be 01.07.1950. 5. Mr. A.K. Mehta, learned counsel for the respondents, on the other hand, has submitted that although the petitioner has produced a photocopy of the form B register maintained at Madhuban Colliery but the petitioner has failed to produce or bring on record the form B register maintained in his initial place of posting which is Muraidih Colliery. It has further been submitted that the form B which has been annexed to the writ application does reveal interpolation in the date of birth column of the petitioner which creates a doubt on the veracity or otherwise with respect to the claim of the petitioner with respect to his date of birth to be treated 01.07.1950. 6. Mr. Mehta, learned counsel for the respondents further submits that although the impugned notice of superannuation was issued on 24.02.2005 but the petitioner kept quiet and has challenged the said superannuation notice after more than four years of its issuance and the superannuation of the petitioner. The writ application according to the learned counsel for the respondents is, therefore, fit to be dismissed on the ground of delay and latches. 7. A cursory glance at the photocopy of the form B annexed by the writ petitioner itself creates a doubt as to the date of birth as there seems to be an interpolation in recording the date of birth as 01.07.1950. From the note sheet dated 12.12.2008 it appears that the original form B register is not available in the Muraidih Colliery which is the initial place of appointment of the petitioner. From the note sheet dated 12.12.2008 it appears that the original form B register is not available in the Muraidih Colliery which is the initial place of appointment of the petitioner. The check list for submission of date of birth cases reflects in column 7(a) that there has been a cutting in the name as well as in the column showing the name of the father of the petitioner. If he was indeed aggrieved by the wrong entry of the date of birth the petitioner could have approached this Court earlier. Even on receiving the superannuation notice dated 24.02.2005 the petitioner merely represented the authorities and, thereafter, on attaining the age of superannuation on 31.07.2005 the petitioner kept silent and did not raise his grievance before any forum. Thus there appears to be apparent delay and latches on the part of the petitioner in raising his grievance after a lapse of considerable period of time. 8. In this context reference may be made to the case of Karnataka Power Corporation Ltd. vs. K. Thangappan and Another, (2006) 4 SCC 322 it was held as follows:- “9. It was stated in State of M.P. vs. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. 10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty vs. State of Mysore. This was reiterated in Rabindranath Bose case by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa vs. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (State of Orissa vs. Arun Kumar Patnaik also).” 9. While considering the question of raising a dispute with respect to the date of birth of an employee at the fag end of his service and which has become a very common practice now-a-days it was held by the Hon'ble Supreme Court in the case of State of U.P. and Others vs. Smt. Gulaichi, (2003) 6 SCC 483 and the relevant is quoted herein below:- “An application for correction of the date of birth should not be dealt with by the courts, Tribunals or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inascuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time may officers who are below him in seniority waiting for their promotion, may lose the promotion forever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of the date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service-book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service-books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the Tribunal must, therefore, be slow in granting an interim relief or coninuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior.” 10. Mr. B.K. Jha, learned counsel for the petitioner has referred to the case of Md. Nizamuddin vs. M/s. Bharat Coking Coal Ltd. & Others, 2011 (3) JCR 373 (Jhr). Since the entry in the form B register was found to be clearly legible the respondents in the said case was directed to treat the petitioner to be in continuation of service till attaining the age of superannuation. The case under reference is clearly distinguishable from the fact of the present case inasmuch as in the form B register itself and as has been indicated above there is clear interpolation and in such circumstance the petitioner cannot avail any benefit from the case under reference. 11. Therefore, what would fall from the facts of the case is that although the petitioner was served with the superannuation notice dated 24.02.2005 but the present writ application has been filed after more than four years from the receipt of such notice as well as after superannuating from the service and no plausible explanation has been brought forward by the petitioner to suggest that the petitioner had ever agitated his grievance before the authorities prior to issuance of the superannuation notice. Moreover the date of birth which has been claimed by the petitioner has been disputed by the authorities and the petitioner having been unable to put forward any document by way of unimpeachable evidence to suggest his date of birth as 01.07.1950 and since there appears to be an interpolation in the date of birth column of the Form B, the entire aspect being a disputed question of fact cannot be looked into by this Court while exercising its writ jurisdiction. 12. As a cumulative effect of the discussions made hereinabove this writ application being devoid of any merit is hereby dismissed.