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2017 DIGILAW 1046 (JHR)

Satya Narayan Singh v. Bharat Coking Coal Limited

2017-07-06

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER D.N. Patel, A.C.J. (Oral) - This Letters Patent Appeal has been preferred against the judgment and order passed by the learned Single Judge in W.P.(S) No. 2629 of 2016 dated 27th June, 2016, whereby, the petition preferred by this appellant was dismissed and, hence, the present Letters Patent Appeal has been preferred by the original petitioner. 2. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that as per the service records of the respondents, this appellant (original petitioner) was appointed as Class IV employee as on 5th April, 1987 and he has mentioned his date of birth as 27 years as on 1st April, 1987. Thus, the date of birth supplied by this appellant (original petitioner), at the time of joining of the services, comes to 1st April, 1960. 3. It further appears that as per Instruction no. 76 of National Coal Wage Agreement III, there is a procedure for determination/verification of the age of the employees. 4. It has been held by Hon''ble the Supreme Court in the case of G.M., Bharat Coking Coal Ltd. v. Shib Kumar Dushad, reported in (2000) 8 SCC 696 in paragraphs 18 and 19, which read as under: "18. At this stage we may take note of certain instructions which were issued by the appellant laying down the procedure for determination/modification of the date of birth of an employee. The document is styled as: "Implementation Instruction No. 76 Procedure for Determination Verification of Age of Employees." 19. Its authenticity is not disputed by the parties. Indeed the respondent employee has filed this document as Annexure-R7 to the counter affidavit filed in this Court. Under para ''A'' the manner of determination of age at the time of appointment is laid down. Under para ''B'' are laid down the procedures to be followed in cases of determination of date of birth in respect of existing employees. Under sub-para (i) of para ''B'' the case of the existing employee having a Matriculation Certificate or Higher Secondary Certificate issued by the recognised University or Board or Middle Form Certificate issued by the Board of Education and/or Department of Public Instruction should be treated as the correct date of birth provided the documents are issued by the University/Board prior to the date of the employment. Under sub-para (i)(b) of para ''B'' it is provided that mining sirdarship, windup engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic. Provided that where both the documents mentioned in (i) (a) and (i)(b) above are available the date of birth in (i)(a) will be treated as authentic. In clause (ii) of para ''B'' it is specifically stated that wherever there is no variation in records such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the management. The management, after being satisfied on the merit of the case will take appropriate steps for corrections through the Age Determination Committee/Medical Board. In ''C'', ''D'' and ''E'' the procedures to be followed by the Age Determination Committee/Medical Board for determination of age of an employee are laid down. The provisions read as follows: "(C) Age Determination Committee/Medical Board for the above will be constituted by the management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the Company, namely, Form ''B'' register, CMPF Record and Identity Cards (un-tampered) will be treated as final, provided that where there is a nomination in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the management for determination of age. (D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or (E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately." (emphasis supplied) 5. It also appears that the dispute has raised by this appellant about correction of his date of birth mainly on the ground that this appellant had appeared in matriculation examination which is cleared in the year 1990 and he had supplied another date of birth to Bihar School Examination Board as 24th October, 1965. Thus, on two different places viz. It also appears that the dispute has raised by this appellant about correction of his date of birth mainly on the ground that this appellant had appeared in matriculation examination which is cleared in the year 1990 and he had supplied another date of birth to Bihar School Examination Board as 24th October, 1965. Thus, on two different places viz. (a) While getting employment with the respondents; and (b) While appearing for the matriculation examination, two different birth dates have been given. Second birth date has been continued in the certificate, which is known as Mining Sirdar Certificate and Overman Certificate. 6. Thus, it appears that looking to Instruction no. 76 of National Coal Wage Agreement III and in view of the aforesaid decision rendered by Hon''ble the Supreme Court and also looking to the fact that the claim of this appellant of change of date of birth in the service records has not been finally decided by the respondents and also looking to the fact that out of two birth dates, no conclusion can be arrived at while exercising power under Article 226 of the Constitution of India without laying down any evidences. 7. We, therefore, direct the respondents to take a decision of the claim of this appellant about correction of the date of birth for the service records of this appellant. This exercise will be completed within a period of eight weeks from the date of receipt of a copy of the order of this Court. The observations made by the learned Single Judge will not come in the way of this appellant and independent decision will be arrived at by the respondents looking to Instruction no. 76 of National Coal Wage Agreement III. Thus, the order passed by the learned Single Judge in W.P. (S) No. 2629 of 2016 dated 27th June, 2016 is modified to the aforesaid extent. 8. With the aforesaid observations, this Letters Patent Appeal is, hereby, disposed of.