Arjun Prasad Shoundik, Son of Late Ram Prasad Saw v. Chairman-cum-Managing Director, Bharat Refractories Ltd.
2017-08-11
PRAMATH PATNAIK
body2017
DigiLaw.ai
JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents to correct the date of birth of the petitioner as 31.12.1952 and further restrain the respondents from retiring the petitioner from his services till the date of birth of the petitioner is corrected. 2. The facts, in brief, is that petitioner after completing two years of training from 10.03.1970 to 11.03.1972 was appointed as Motor Mechanic-cum-Compressor Operator since January, 1973 at India Firebricks & Insulation Co. Ltd. It has been averred that on the basis of documents produced by the petitioner, the date of birth of the petitioner was recorded as 31.12.1952 in P.F document, Declaration Form of Employees State Insurance Policy, Medical Book issued to the petitioner and in other records of the company. But, all of a sudden the original date of birth of the petitioner was struck off and in place of 1952, 1950 was written in Medical Book as date of birth of the petitioner and immediately after coming to know the change in date of birth the petitioner represented before the authorities but it did not evoke any response. Thereafter, the petitioner represented before Deputy Labour Commissioner, Hazaribagh, who disposed of the representation of the petitioner vide memo dated 27.05.2008 directing the Secretary-cum-Managing Director, Bharat Refractories Ltd., Bokaro Steel City, Bokaro to enquire into the matter and take a final decision regarding the date of birth of the petitioner but it is alleged that no action has been taken till date. On the Contrary, petitioner was informed vide letter dated 28.05.2008 issued by Junior Manager, Employment & Administration Department, IFICO Ltd. that he shall attain the age of 58 on 30.06.2008 as such he would retire from service on 30.06.2008 considering his date of birth in the year 1950. 3. In support of his submission, learned counsel for the petitioner referred to a decision rendered in the case of Kamta Pandey Vs. M/s BCCL & Ors as reported in (2007) 3 JLJR 726 (FB) (HC), wherein the Hon'ble Court has been pleased to hold that “the date of birth recorded in the matriculation certificate duly authenticated by the Education Board is a conclusive proof of age and no other record, including service records ….”. 4.
M/s BCCL & Ors as reported in (2007) 3 JLJR 726 (FB) (HC), wherein the Hon'ble Court has been pleased to hold that “the date of birth recorded in the matriculation certificate duly authenticated by the Education Board is a conclusive proof of age and no other record, including service records ….”. 4. Being aggrieved, the petitioner having 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. 5. Learned counsel for the petitioner submitted that it is the respondent-company itself who on the basis of documents produced by the petitioner recorded his date of birth as 31.12.1952. Learned counsel for the petitioner further submitted that alleged correction/manipulation of date of birth was done in the year 2002 after striking off the original date of birth and a totally new imaginary date was inserted without any knowledge of the present petitioner and behind the back of the petitioner. Referring to Annexure-1 series, learned counsel for the petitioner submitted that in the matriculation certificate, the date of birth of the petitioner has been recorded as 31.12.1952, which is clinching piece of evidence to determine the date of birth, even if there is any dispute with regard to date of birth of the employee and further the respondents-authorities at no point of time has disputed the said matriculation certificate and it is the respondents, who did not choose to enquire into the matter even after the direction made by Labour Commissioner to decide the issue. 6. Learned counsel appearing for the respondents submitted that the petitioner superannuated on 30.06.2008 on attaining the age of 58 years taking his date of birth as 1950 as mentioned by him in the first declaration made on 24.06.1976 in the records of Employee State Insurance Corporation. Learned counsel for the respondents further submits that copy of Declaration Form annexed as Annexure 3 to the writ application is forged and fabricated document and authenticated copy of first declaration made by petitioner clearly shows his year of birth as 1950 and actual age as 26 years as on 24.06.1976. Hence, on the ground of forgery, the writ petition is liable to be dismissed in limine.
Hence, on the ground of forgery, the writ petition is liable to be dismissed in limine. Learned counsel for the respondents further submitted that consequent upon merger of Bharat Refractories Ltd and its Refractory Unit with Steel Authority of India, as per scheme of merger, the age of superannuation enhanced to 60 years, hence, the petitioner retired w.e.f 30.06.2010. Learned counsel for the respondents further submitted as per 'Certified Standing Order' of IFICO, for determining the age of the employee, the matriculation certificate is treated to be genuine and in case it is not available, the Birth Certificate and if the employee is unable to produce those documents in proof of date of birth, then the written declaration made by him will be treated to be his date of birth/age. Admittedly, at the time of obtaining employment, the petitioner did not produce any such documents, hence, the declaration made by him is treated to true and the educational certificate produced by the petitioner showing his date of birth as 31.12.1952 in the year 2002 cannot be taken as his date of birth as the same was produced at the fag end of service and contrary to the self-declaration made by the petitioner and de hors the standing order of the company. It has further been submitted that medical card system was introduced in the company during 1996 to ensure identity of the employees and their dependents for availing medical facilities, in which initially wrongly his date of birth was recorded as 31.12.1952 which was subsequently corrected on the basis of declaration made by petitioner in ESI declaration form, which was duly authenticated by officer concerned and petitioner only wants to take advantage that piece of evidence, which was only a clerical mistake and the same was later on rectified. Learned counsel for the respondents further submitted that any document including matriculation certificate produced at the belated stage after more than two decades of getting employment cannot accrue a right to the petitioner for correction of date of birth. Furthermore, since the petitioner at the relevant time had approached the District Labour Commissioner, hence, the petitioner ought to have availed the recourse under the provisions of Industrial Disputes Act, 1947. 7.
Furthermore, since the petitioner at the relevant time had approached the District Labour Commissioner, hence, the petitioner ought to have availed the recourse under the provisions of Industrial Disputes Act, 1947. 7. Having gone through the records and after hearing the parties at length, I am of the considered view that the petitioner has not been able to make out a case for interference, due to following facts, reasons and judicial pronouncements: (i).On perusal of record, in particular Annexure A to the counter affidavit filed by respondent no. 1 and 2, it appears that the in the first declaration form submitted by the petitioner on 24.06.1976, his date of birth has been mentioned as 1950 and age as 26 years for ESI Registration and the authenticated copy of the said declaration was duly signed by the petitioner. However, the petitioner has laid emphasis on declaration form at Annexure 3 to the writ application, which the respondents have denied and disputed and stated that it is a forged documents, in which, there are so many discrepancies including different insurance number. (ii).Be that as it may, even if both the statements are taken into account, this Court cannot go into such disputed question of fact. Moreover, it is no more res integra that the disputed question of facts regarding veracity or genuineness of the certificate 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 and unsustainable. View of this Court gets fortified by the decision of Hon'ble Apex Court rendered in the case of G.M. Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad & Ors as reported in (2000) 8 SCC 696 , wherein the Hon'ble Court has held that the High Court in writ petition cannot make an enquiry into such disputed questions of fact. (ii).From perusal of record, it further appears that till the year 2002, the issue of date of birth was not agitated by the petitioner and for the first time annexing the matriculation certificate, the petitioner submitted representation for correction in date of birth on the basis of date mentioned in the matriculation certificate.
(ii).From perusal of record, it further appears that till the year 2002, the issue of date of birth was not agitated by the petitioner and for the first time annexing the matriculation certificate, the petitioner submitted representation for correction in date of birth on the basis of date mentioned in the matriculation certificate. There is no denial of the fact that for determination of age, the matriculation certificate has time and again been said to be conclusive proof of evidence, but, in the case at hand, the petitioner has not come with a case that why at the time of appointment he did not submit the matriculation certificate for assessing his age and at the fag end of service he seeks correction in date of birth, which is not permissible as per law laid down by Hon'ble Apex Court in catena of judgments. (iii).The decisions cited by the petitioner is of no assistance to the petitioner since the factual aspect of the petitioner is quite different from the facts in issue in the said decisions and in the case of Kamta Pandey (Supra) matriculation certificate got verified by the authorities. (iv). Apart from the factual assertions made by the respondents, documentary evidences lean in favour of the respondents so as to negative the claim of the petitioner. 8. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements and logical sequitur to the discussions made in foregoing paragraphs, the writ petition, is dismissed being devoid of any merit.