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2016 DIGILAW 481 (JHR)

Amarnath Palit v. Bharat Coking Coal Limited

2016-03-16

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application the petitioner has inter alia prayed for quashing of order dated 08.07.2009 (Annexure 8) passed by Project Officer, Sendra Bansjora Colliery-respondent no.6 communicating the petitioner to superannuate w.e.f. 01.08.2009 and for quashing order dated 27/29.01.2009 (Annexure 7) passed by respondent no. 6 pertaining to dispute of date of birth and also for direction upon the respondents to allow the petitioner to resume the duty of Mining Sirdar in concerned Colliery and for all consequential benefits. 2. The brief facts, as disclosed in the writ application, is that the petitioner was initially appointed on 17.10.1971 as per company entry and prior to that the petitioner was working as a Pump Khalasi in private colliery and after taking over by respondent no. 1 became the employee of the said Management. It has been submitted in the writ application that the petitioner being non-matric had passed Class-VII examination from the then Bihar School Examination Board, Patna wherein date of birth of the petitioner has been mentioned as 20.09.1952. During course of employment, the petitioner appeared in the Mining Sirdar examination conducted by the Board of Mining and passed the same in the year 1978, wherein also the date of birth of the petitioner has been mentioned as 20.09.1952. It has been submitted that there was wrong entry of date of birth of the petitioner in the service excerpts and on the request of petitioner the same was corrected as 20.09.1952 instead of 13.07.1949 on the basis of Sirdar Certificate of 1978. Learned counsel for the petitioner further submitted that the Identity Card of Mining Sirdar and PAN Card also reveal the date of birth of the petitioner as 20.09.1952. Learned counsel for the petitioner further submitted that as Implementation Instruction No.76 of the NCWA-III, it is decided that in case of non-matric employee, Mining Sirdar Certificate is an authentic document for date of birth. But to the utter dismay of the petitioner on 06.12.2008 the petitioner was directed by respondent no. 5 to submit Admit Card, Matriculation Certificate as such the petitioner produced the Board Certificate of Class-VII and Admit Card of Board Examination alongwith Mining Sirdar Certificate. It has been submitted that without giving any opportunity of hearing, the respondent no.5 passed a non-reasoned and non-speaking order on 27/29.01.2009 rejecting the claim of the petitioner for his genuine date of birth. It has been submitted that without giving any opportunity of hearing, the respondent no.5 passed a non-reasoned and non-speaking order on 27/29.01.2009 rejecting the claim of the petitioner for his genuine date of birth. Thereafter, all of a sudden on 08.07.2009 the respondent no.6 issued general office order regarding last information for superannuation, in which, petitioner's name stands at Sl. No. 3 taking into consideration his date of birth as 13.07.1949. 3. Being aggrieved by the impugned order dated 08.07.2009 (Annexure-8) passed by Project Officer, Sendra Bansjora Colliery-respondent no.6 and order dated 27/29.01.2009, the petitioner left with no alternative, efficacious and speedy remedy has approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Per contra, counter affidavit has been filed by the respondents repelling the contentions raised in the writ applications. Apart from raising the issue of maintainability, learned counsel for the respondents submitted that the petitioner is a workman within a meaning of Section 2(s) of the I.D. Act and as such he has an alternative remedy of raising an Industrial Dispute and disputed questions of fact can be decided by the Industrial Tribunal upon a reference made to it by the appropriate Government. It has been submitted that order dated 08.07.2009 has been passed in the light of the date of birth recorded in the statutory Form-B register of Sendra Bansjora Colliery wherein the name of the petitioner has been shown at serial number 1165 while his date of birth has been shown as 13.07.1949. It has further been submitted that at the time of taking over and preparation of Form-B register at the colliery, the date of birth of the petitioner has been recorded as 13.07.1949 and the same has also been acknowledged by the petitioner by putting his signature against column no. 8 of Form-B register. 5. Heard Mr. Birendra Kumar, learned counsel for the petitioner and Mr. Amit Kumar Sinha, learned counsel for the respondents and perused the documents available on record. 6. Learned counsel for the petitioner submitted that the respondents have acted arbitrarily and passed the non-speaking order dated 27/29.01.2009 inspite of the fact that the petitioner has submitted the required relevant certificates for resolving the dispute of date of birth. Amit Kumar Sinha, learned counsel for the respondents and perused the documents available on record. 6. Learned counsel for the petitioner submitted that the respondents have acted arbitrarily and passed the non-speaking order dated 27/29.01.2009 inspite of the fact that the petitioner has submitted the required relevant certificates for resolving the dispute of date of birth. Learned counsel further submits that the respondents have not considered the genuineness of the documents, which shows that actual date of birth. Learned counsel for the petitioner further submitted that even as per the Implementation Instruction No. 76 of NCWA-III the petitioner submitted his Mining Sirdar Certificate, which has not been considered by the respondents. In support of his argument, learned counsel for the petitioner referred to a decision rendered in the case of M/s Bharat Coking Coal Ltd. & Ors. Vs. Chhota Birsa Uranw as reported in 2014 (3) JLJR 182 (SC). 7. Learned counsel for the respondents on the other hand submitted that the issue of raising dispute with regard to date of birth has been raised at the fag end of service career by the petitioner, so the judgment referred by learned counsel for the petitioner is of no assistance. Moreover, all the retiral benefits have also been extended to the petitioner on attaining the age of superannuation. 8. After having heard learned counsel for the respective parties at length and on close scrutiny of the relevant documents on record, I am of the opinion that the petitioner has not been able to demonstrate any legally tenable point to warrant interference by this Court, due to following facts, reasons and judicial pronouncement :- (i). On perusal of copy of Form 'B' register, it is crystal clear that the name of the petitioner has been shown at page no. 1165, where the date of birth of the petitioner has been recorded as 13.07.1949 and the same has been acknowledged by the petitioner by putting his signature in column no. 8 in the concerned register, which is an unimpeachable piece of evidence, which goes to show that the correct date of birth of the petitioner as 13.07.1949. (ii). Apart from that, the petitioner was of know of the things and was cognizant of the fact that his date of birth was recorded as 13.07.1949 in the Form 'B' register. 8 in the concerned register, which is an unimpeachable piece of evidence, which goes to show that the correct date of birth of the petitioner as 13.07.1949. (ii). Apart from that, the petitioner was of know of the things and was cognizant of the fact that his date of birth was recorded as 13.07.1949 in the Form 'B' register. Therefore, as soon as it came to the knowledge of the petitioner that his date of birth has been recorded as 13.07.1949, he should have raised the dispute at the relevant time but in the instant case after retirement from services on 01.08.2009, this writ petition has been filed in the year 2010. (iii). Another point, which militates against the contention of the petitioner is that as per Annexure 7 of the writ petition, the petitioner's representation for correction of date of birth has been rejected on 27/29.01.2009, much prior to retirement i.e. 01.08.2009 but no satisfactory explanation has been made or justifiable reason has been shown as to why the petitioner waited till his retirement, which makes the case of the petitioner doubtful. (iv). Furthermore, the case laws cited by learned counsel for the petitioner is not applicable in the case at hand where the dispute was raised at the fag end of service career. (v). Moreover, it is no more res integra that the disputed question of facts pertaining to date of birth cannot be effectually adjudicated by the Writ Court. Therefore, the reliefs sought for in the writ application is thoroughly misconceived, illegal and unsustainable. 9. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements and logical sequitur to the discussions made in foregoing paragraphs, the impugned order at Annexure 7 and 8 to the writ petition do not warrant any interference and accordingly, the writ petition, is dismissed being devoid of any merit.