Hazari Thakur v. Steel Authority of India Ltd. through its Chief Managing Director, New Delhi
2017-09-22
S.N.PATHAK
body2017
DigiLaw.ai
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the parties. 2. Petitioner is aggrieved by the letter dated 05.05.2005, issued by respondent no. 4 whereby he has been forced to superannuate with effect from 30.06.2005 considering his date of birth as 20.06.1945 though his correct date of birth is 08.11.1948 and therefore has knocked door of this Court for a direction upon the respondents to allow him to continue in service till attaining age of superannuation as per original date of birth and further to direct the respondents to pay salary etc. for the period he has not been allowed to work. 3. Petitioner was appointed as an Electrician on 30.11.1973 and his date of birth was recorded as 08.11.1948 in service records. It is submitted that after 30 years of service, petitioner was served superannuation notice dated 05.05.2005 directing him to superannuate with effect from 30.06.2005 on the basis of erroneous entry in the date of birth column. Petitioner approached before the concerned authorities but no heed has been paid to his request to allow him to continue in service and therefore, has caused loss of three valuable years of his service, hence this writ petition. 4. Mr. K.P. Deo, learned counsel appearing for the petitioner submits that impugned order has been passed without verifying the entries made in the service excerpts. At the time of his joining and at subsequent event, petitioner had disclosed his date of birth as 08.11.1948 on the basis of documents and nowhere his date of birth has been disclosed as 20.06.1945 and as such, illegally and arbitrarily petitioner has been made to retire prematurely. The order impugned has been passed in a very hurried and mechanical manner without giving any opportunity to the petitioner. Learned counsel has drawn attention towards notings made by the respondents in the letter dated 14.08.2006 (Annexure-3) of the petitioner wherein respondents themselves have admitted premature superannuation of the petitioner as a ground to allow him to retain company's quarter. Learned counsel further submits that due to such discrepancy made by the respondents in service records, even pension of the petitioner could not be finalised.
Learned counsel further submits that due to such discrepancy made by the respondents in service records, even pension of the petitioner could not be finalised. Learned counsel further submits that even the Personal Date enclosed as Annexure-A to the counter affidavit filed by the respondents also clearly mention petitioner's date of birth as 08.11.1948 and as such, any further change in the record should have been brought to the notice of the petitioner. Any action without any medical examination or giving opportunity to the petitioner is not sustainable in the eyes of law and fit to be quashed. Respondents cannot raise such disputes at the fag end of service of an employee. Learned counsel further draws attention towards Annexure-6 Series which is an information obtained under Right to Information from the office of Regional Provident Fund Commissioner which clearly mentions petitioner's date of birth as 08.11.1948. Learned counsel submits that now petitioner has already crossed his age and as such he is entitled for salary and other consequential benefits for the period he has not been allowed to work. 5. Counter affidavit has been filed by the respondents. Mr. Indrajeet Sinha, learned counsel appearing for Bokaro Steel Plant submits that disputed question of fact has been raised in the instant writ petition which cannot be decided by this Court under Article 226 of Constitution of India. Petitioner should approach proper forum for deciding the disputed question of facts. Learned counsel submits that after his retirement on 30.06.2005, petitioner made application for payment of Provident Fund, Gratuity etc. and as such, he has duly accepted his date of retirement and later on is trying to make out a case by filing instant writ petition in the year 2007. Learned counsel further submits that on 25.10.2007, correct date of birth has already been sent to Assistant Commissioner, Provident Fund. Learned counsel submits that petitioner has been made to retire on the basis of valid records with the Company and as such, after the retirement, petitioner cannot be allowed to question the same. Even before his joining, the Medical Board had assessed his age as 28 years on 19.11.1973 and he never recorded his date of birth as 08.11.1948 at the time of joining. Learned counsel for the respondents draws attention of this Court towards paragraph-7 of the counter affidavit and argues that documents itself are contradictory to each other and are conflicting.
Even before his joining, the Medical Board had assessed his age as 28 years on 19.11.1973 and he never recorded his date of birth as 08.11.1948 at the time of joining. Learned counsel for the respondents draws attention of this Court towards paragraph-7 of the counter affidavit and argues that documents itself are contradictory to each other and are conflicting. In alternative, learned counsel further argues that as the petitioner has already retired long back, he is entitled for the monetary benefits and if the Court so wishes, the matter may be referred before Apex Medical Board specially constituted for the purpose and after decision of the Medical Board if petitioner is found entitled, then monetary benefits can be extended to him. 6. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that neither the employer nor the employee can be allowed to raise issue of correction of date of birth at the fag end of service. In the instant case, admittedly without any notice to the petitioner, his date of birth has been changed and petitioner has been suddenly made to retire. Interpolation at the hands of the respondents cannot be rooted out. The date of birth mentioned in Annexure-1 which is Personal Data Form of the petitioner clearly shows his date of birth as 08.11.1948 duly attested by the respondents. The Medical Record at Annexure-1 also shows his date of birth as 08.11.1948. All of a sudden date of birth of the petitioner has been changed and letter of superannuation dated 05.05.2005 has been issued resulting premature retirement of the petitioner. Vide order dated 19.12.2013, this Court had passed an order directing the respondents to produce original service records of the petitioner including the Forms which were filled up by him at the time of employment, as mentioned in paragraph-7 of the counter affidavit dated 13.09.2007, but the same has not yet been produced. Even the records of Regional Provident Fund Commissioner clearly mentions petitioner's date of birth as 08.11.1948. 7. As a cumulative effect of the aforesaid observations, rules, guidelines and settled principles of law, I am of the considered view that no case is made out by the respondents for correction/ shifting date of birth of the petitioner from 08.11.1948 to 20.06.1945 as the same has been done without any basis and justification.
7. As a cumulative effect of the aforesaid observations, rules, guidelines and settled principles of law, I am of the considered view that no case is made out by the respondents for correction/ shifting date of birth of the petitioner from 08.11.1948 to 20.06.1945 as the same has been done without any basis and justification. After perusal of the documents, it is clear that everywhere date of birth is recorded as 08.11.1948. Under what circumstances said entry has been shifted to 20.06.1945, has not been explained by the respondents. In spite of repeated orders of this Court, respondents have failed to produce original documents justifying their stand. As the petitioner has already crossed his age, no direction can be issued for reinstating him into service. There is a difference of three long years and as petitioner has already superannuated long back, I hereby direct respondent nos. 2 and 3 to constitute an Apex Medical Board for determination of correct age of the petitioner. If petitioner is found to be nearer to the age, as claimed for, the monetary benefits and other benefits for which he is entitled for the period he was forced to remain out of service, be extended to him. Needless to say that as the petitioner has already superannuated, entire exercise must be completed within a period of two months from the date of receipt/ production of a copy of this order. 8. Consequently, this writ petition is allowed.