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2017 DIGILAW 437 (JHR)

Bachu Singh v. Bharat Coking Coal Limited

2017-03-01

SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Claiming that his correct date of birth is recorded in the statutory Form 'B', the petitioner seeks to challenge the order dated 9/29.8.2002, by which his age has been assessed as 55 years as on 30.05.2002. 2. The petitioner was appointed on 22.07.1972 as a 'Night-Guard' under the respondent-M/s Bharat Coking Coal Limited (in short-BCCL). After his engagement was discontinued by Management of Ramkanali Colliery of M/s BCCL, an industrial dispute was raised which on failure of the conciliation proceeding was referred for adjudication before the Central Government Industrial Tribunal (No.2), Dhanbad by an order of the appropriate Government dated 21.05.1986. The 'Reference' was answered in favour of the workmen. It was held that the concerned workmen including, the petitioner should be allowed to resume duty. The Award dated 28.07.1987 was challenged successfully before the Writ Court, however, the issue was finally set at rest by an order of the Supreme Court in Civil Appeal No.5797 of 1998. Thereafter, by an order dated 9/29.8.2002 the petitioner was reinstated in service. A part of this order where under age of the petitioner has been assessed as 55 years as on 30.05.2002 is under challenge in the present proceeding. 3. In the writ petition the petitioner has taken a stand that his date of birth as recorded in Form 'B', that is, 05.05.1951 is his correct date of birth and in view of the binding force of statutory Form 'B' which is signed by both, the employer and employee, the date of birth recorded therein shall be taken as correct and conclusive. The learned counsel for the petitioner further submits that Form 'B' was before the Industrial Tribunal which passed the Award dated 28.07.1987, however, the date of birth of the petitioner as recorded therein was not challenged by the employer and while so, it shall bind the employer. 4. The learned counsel for the respondent-M/s BCCL, referring to various documents executed by the petitioner after his reinstatement in service, contends that the petitioner who has accepted his date of birth as 30.05.1947 must be held bound by his acquiescence. 5. Leaving aside the documents executed by the petitioner after his reinstatement in service, one thing which clinches the issue in respect of date of birth of the petitioner is the power of an employer to assess the correct date of birth of an employee. 5. Leaving aside the documents executed by the petitioner after his reinstatement in service, one thing which clinches the issue in respect of date of birth of the petitioner is the power of an employer to assess the correct date of birth of an employee. In the present proceeding, it is not the stand taken by the petitioner that after assessment by a Medical Board his date of birth was recorded in Form 'B'. In fact, no stand has been taken by the petitioner in respect of recording of his date of birth at the time of his appointment which is reflected in Form 'B'. In the above circumstance, if an employer has decided to assess the age of an employee, in my opinion, there is no legal impediment rather, it is in public interest. An employee in a public employment must not continue in service beyond the age of superannuation and in furtherance of this public policy if the employer gets the age of an employee assessed through a Medical Board, no exception can be taken to such step of the employer. The petitioner after accepting reinstatement in service by virtue of order dated 9/29.8.2002 has chosen to challenge the said order about 3 years thereafter. This writ petition was filed on 26.09.2006. Bona-fide of the petitioner in filing this writ petition is, thus, clouded by his conduct. In the aforesaid facts, I am not inclined to interfere with the order dated 9/29.8.2002, whereby the age of the petitioner has been assessed as 55 years as on 30.05.2002. 6. In the result, the writ petition fails and accordingly, it is dismissed.