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2017 DIGILAW 7 (GAU)

Union of India v. Prabhat Chandra Das

2017-01-02

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER Manojit Bhuyan, J. The sole respondent Sri Prabhat Chandra Das claims that his date of birth is 14.11.1964 and not 17.01.1954 on the basis of the school certificate dated 16.10.1982 of Kamalpur High Madrassa, where he read upto Class VIII. As per the said Certificate he left school on 31.12.1980 and his age at that point of time was 16 years 1 month 17 days. 2. He was engaged as a Casual Labour under the Railways on 16.10.1982 and thereafter granted temporary status of Class-IV category by order dated 06.08.1986 with effect from 01.01.1986, having completed 360 days of continuous service on or before 01.4.84. In the said order dated 06.08.1986 his date of birth was recorded as 14.11.1964. 3. Controversy arose when in March 2012 he came to learn that his date of birth was incorrectly recorded in the Service Book as 17.01.1954 instead of 14.11.1964, as a result of which he will be forced to retire on 31.01.2014 instead of 30.11.2024. He made verbal requests and also submitted Representations dated 10.04.2012 and 15.05.2013 for correction of the wrong entry. Not having received favourable response, the sole respondent approached the Central Administrative Tribunal, Guwahati Bench in O.A. No. 288 of 2013. Grounds assigned is that in an earlier medical examination as well as in the order conferring temporary status, the date of birth is recorded as 14.11.1964. As regards the Service Book, contention advanced was that the same was prepared by the Railway authorities after taking the signature of the respondent in a blank Service Book and thereafter filled up the columns. As such, he was not aware of the wrong entry in the Service Book at an earlier point of time. Also, that correction is imperative in view of his educational documents which constitutes the basis and sufficient proof substantiating his date of birth as 14.11.1964. It was also urged that delay, if any, in seeking correction of the date of birth cannot be attributed to him as he moved the authorities immediately upon knowledge of the wrong entry. 4. The stand of the Railway authorities before the Tribunal was that Prabhat Chandra Das was initially engaged as Casual Labour on 16.10.1980. It was also urged that delay, if any, in seeking correction of the date of birth cannot be attributed to him as he moved the authorities immediately upon knowledge of the wrong entry. 4. The stand of the Railway authorities before the Tribunal was that Prabhat Chandra Das was initially engaged as Casual Labour on 16.10.1980. Assuming that his date of birth is 14.11.1964, in that case he was a minor at the time of initial engagement because Rules postulate that a person can be appointed in government service only on attaining the age of 18 years. Further contention was that the claim is an after-thought as, prior to the representation dated 10.04.2012, the Railway authorities were never apprised that he had studied in Kamalpur High Madrassa. It was stated that the belated claim on the verge of retirement was not acceptable. Further, that the date of birth recorded in the order dated 06.08.1986 as 14.11.1964 had been inadvertently made. His actual date of birth is 17.01.1954 which is recorded in the Service Book as per declaration made by Prabhat Chandra Das, duly accepted and acknowledged with his signature in English in the service record. As regards the representation dated 10.04.2012, the stand taken is that the same had been disposed of vide order dated 09.10.2013 indicating that in view of the Railway Board's letter dated 03.12.1971, Item No. 2 (iii) read with Rule 145 (3)(iii), no alteration of date of birth can be allowed either after completion of the probation period or after three years of joining in the service. 5. In the re-joinder affidavit filed by Prabhat Chandra Das before the Tribunal, it was contended that when he initially got engaged as Casual Labour he had declared his age as 17 years 11 months 2 days and such employment at a tender age was necessitated due to poverty and in order to maintain his poor family. Also, the engagement as Casual Labour cannot be construed as an appointment against any post under the Government or the Railways. At the time of conferment of temporary status he had produced the School Certificate dated 16.10.1982 and it was on that basis his date of birth was recorded as 14.11.1964 in the said order. Also, that his actual date of birth is 14.11.1964 is reflected on various pay-slips upto the year 2011. At the time of conferment of temporary status he had produced the School Certificate dated 16.10.1982 and it was on that basis his date of birth was recorded as 14.11.1964 in the said order. Also, that his actual date of birth is 14.11.1964 is reflected on various pay-slips upto the year 2011. However, alteration was made by the authorities without any intimation. As and when he learnt about it, the representation dated 10.04.2012 was submitted. Reference was also made to Rule 225 of the Indian Railway Establishment Code (Vol. 1) (in short IREC) to show that he being a literate staff, the date of birth is required to be entered in the service record in his own handwriting, which was not done in the present case. As regards the order dated 09.10.2013 disposing of the representation dated 10.04.2012, the stand taken is that the same was done after filing the Original Application before the Tribunal. Also, the Railway Board's letter dated 03.12.1971 is without application because until 2011 his date of birth was reflected as 14.11.1964 in the service documents. Reference was made that his first medical examination was done on 02.07.1986 and thereafter on 04.06.1992 where his date of birth is shown as 14.11.1964. 6. Judgment by the Tribunal was rendered on 31.01.2014. The Tribunal held that it was not in dispute that in the order dated 6.8.1986 conferring temporary status, the date of birth is shown as 14.11.1964. Also, in the salary slips from March 2008 to November 2010, the date of retirement is shown as 30.11.2024. Further, the representation dated 10.04.2012 was made enclosing therewith the School Certificate showing the age of Prabhat Chandra Das as 16 years 1 month 17 days as on 31.12.1980, which on calculation determines his date of birth as 14.11.1964. The receipt of the representation was duly acknowledged by the railway authority. According to the Tribunal, the relevant records disclosed that the applicant Prabhat Chandra Das had put his signature only on the first page of the Service Book and the remaining columns were filled up in different hand-writing and is not of the applicant's. Even if it be regarded that the applicant was illiterate, the date of birth ought to have been recorded by a senior Railway servant and witnessed by another Railway servant. The records did not demonstrate compliance of any of the two procedural aspects envisaged under the Rule 225(1) of the IREC. In this respect, the Tribunal placed reliance in the Division Bench judgment of this Court in WP(C) 4258 of 2009 (Syed Moktabor Rahman v. Union of India & Ors. Reliance was also placed in Mohd. Yunus Khan v. U.P. Power Corpn. Ltd., reported in (2009) 1 SCC 80 and in WP(C) 3403 of 2012 (Mantu Ram Talukdar v. Union of India & Ors.) for the proposition that even if there is a statutory rule fixing a time-frame for making an application for correction of date of birth, such provision would not have much significance if the authorities are unable to show that the mistake in the service record was made known to the employee at any earlier point of time. If otherwise, there can be no cause of delay in making representation after the employee came to learn of the mistake. On the above aspects, the Tribunal allowed the Original Application with direction to the Railway authority to treat the date of birth of the applicant as 14.11.64. 7. Aggrieved, the present writ petition is presented by the Railway authorities on the following grounds : (i) that the date of birth i.e. 17.01.1954, as recorded in the Service Book, was confirmed by the sole respondent by putting his signature in English and the same was verified and found to be in order by the respondent himself by endorsing his signature in English on 10.09.2002. As such, it was not open to the respondent to seek any alteration at the threshold of retirement; (ii) that no alteration of the date of birth is permissible in view of Rule 225(4)(iii) of IREC which postulates demonstrating satisfactory explanation by the railway servant concerned, with the rider that the same would not be entertained after completion of the probation period or three years service, whichever is earlier. As such, the concerned Railway authority is without power to entertain the request; (iii) that at no point of time prior to 10.4.2012 the respondent had informed the authority that he had studied in Kamalpur High Madrassa. As such, the concerned Railway authority is without power to entertain the request; (iii) that at no point of time prior to 10.4.2012 the respondent had informed the authority that he had studied in Kamalpur High Madrassa. Claim made on such basis is not acceptable on the verge of retirement; (iv) that the issue involved mixed questions of both law and facts and, therefore, the Civil Court was the appropriate forum for deciding the dispute; (v) that the Tribunal reached a perverse finding without discussing the primary points above in its true perspective, causing prejudice to the petitioner Railways. 8. The affidavit-in-opposition of the respondent is a reiteration of his pleaded stand and, therefore, not gone into again to avoid repetition. In the affidavit-in-reply of the petitioner/Railway authority, it is stated that wrong printing in the online pay-slip by the Bill Clerk cannot confer any right on the respondent to claim alteration of his date of birth. Further, the pay-slips do not bear the signature of the issuing authority and the same are computer generated. There is no malafide alleged and there cannot be a situation of tampering with the Service Book and/or taking the signature of the respondent in a blank Service Book and subsequently filling up the columns. It is also stated that the administrative authority had issued letter dated 5.11.14, pursuant to which an enquiry was initiated and Report was submitted on 21.11.2014 by the Inquiring Officer. The views of the Superintendent, in-charge of Kamalpur High Madrassa was recorded in the Report who stated that the old records of the School had been damaged/missing and no records pertaining to the genuineness of the School Certificate dated 16.10.1982 was available in the school. On this exercise, stand taken is that the Certificate as well as the subsequent Transfer Certificate dated 29.07.2013 are manufactured documents. An additional issue urged is that in the year 2011 the respondent had submitted his Family Declaration for the purpose of availing benefit under Leave Encashment Scheme where he categorically declared his date of birth as 17.01.1954. 9. We have heard Ms. B. Devi, learned counsel for the petitioners as well as Mr. I.H. Saikia, learned counsel representing the sole respondent Prabhat Chandra Das. 9. We have heard Ms. B. Devi, learned counsel for the petitioners as well as Mr. I.H. Saikia, learned counsel representing the sole respondent Prabhat Chandra Das. At the outset it is observed that the Family Declaration for the year 2011 is not entertained as the same is not part of the records, as produced by the Counsel for the Railways.. 10. The issue boils down to the fact whether the School Certificate dated 16.10.1982 provides satisfactory explanation for correction of the date of birth and, taken on its face value, whether correction is permitted in view of the provisions under Rule 225(4) (iii) of IREC. 11. The decisions pressed into service by the respondent and looked into by the Tribunal may first be noticed. In the case of Syed Moktabor Rahman (supra), the petitioner therein was appointed as a Casual Labour on 20.01.1977 and his date of birth was recorded as 01.09.1952 in his Service Book. Subsequently, he was appointed as a substitute Khalashi on 19.05.1980 and then as a regular Khalashi w.e.f. 13.06.1981. At that time his date of birth which was originally recorded as 01.09.1952 was altered to 1.9.49 without any reference to him. The knowledge of the alteration was in 1983, pursuant to which representations were made on 1.12.83 and 09.09.1987. It was in this fact scenario that the Division Bench held that the Service Book of the petitioner had not been prepared in terms of Rule 225 of the IREC. As regards the Admit Card that had been produced by the petitioner therein where the age was recorded, the Court held that the authenticity of the Admit Card stood proved by the letter dated 10.10.2006 of the Registrar, SEBA. On the basis of the documents, the Court observed that the date of birth as 01.09.1952 stood overwhelmingly preponderant. In the instant case, the facts are quite different. It is nobody's case that the date of birth of the respondent originally stood as 14.11.1964 and subsequently changed to 17.01.1954. The authenticity of the School Certificate dated 16.10.1982 is not proved by any competent school authority, in as much as, the Railway authority, albeit belatedly, had undertaken an exercise to ascertain the genuineness of the Certificate which proved futile on the admission of the school authority that records were not available in the school being damaged/missing. The authenticity of the School Certificate dated 16.10.1982 is not proved by any competent school authority, in as much as, the Railway authority, albeit belatedly, had undertaken an exercise to ascertain the genuineness of the Certificate which proved futile on the admission of the school authority that records were not available in the school being damaged/missing. In our considered opinion, reliance placed in Syed Moktabor Rahman (supra) do not come to the aid of the respondent. 12. In the case of Mantu Ram Talukdar (supra), the Division Bench of this Court was seized with a situation where at the time of entry into service the petitioner had declared his date of birth as 31.07.1962 and had produced documents in support thereof including the School Certificate dated 07.11.1979. He was assured that his correct date of birth would be recorded in the Service Book and, on good faith, he subscribed his signature at the place pointed out to him. About 4 (four) years later from the date of appointment he learnt that his date of birth had been wrongly recorded as 31.07.1952 in the Service Book. Representations followed suit. The stand of the Railway authorities was similar as taken in the present case, which was endorsed by the Tribunal. The Division Bench observed that admittedly the petitioner had crossed the ceiling limit of 3 (three) years on the date of submission of the first representation in terms of the Railway Board's letter dated 3.12.71, which is but an excerpt of Rule 225 of the IREC. The legal proposition as laid down in Mohd. Yunus Khan (supra) with regard to time-frame statutorily fixed and the exception to it, was duly noticed vis-a-vis Rule 225 of the IREC. The Court found that no endeavour had been made by the Railway authorities to ascertain the authenticity or otherwise of the school Certificate dated 07.11.1979, which disclosed the petitioner's age as on a certain date and which on plain arithmetic disclosed the date of birth to be 31.07.1962, if the Certificate proved to be authentic. To obviate any kind of injustice, a direction was made to the Railway authorities to cause an inquiry to ascertain the petitioner's claim of his date of birth to be 31.07.1952 on the basis of the school Certificate dated 07.11.1979 and to take consequential steps if the petitioner's claim was found to be established. To obviate any kind of injustice, a direction was made to the Railway authorities to cause an inquiry to ascertain the petitioner's claim of his date of birth to be 31.07.1952 on the basis of the school Certificate dated 07.11.1979 and to take consequential steps if the petitioner's claim was found to be established. In the instant case, it is not the case of the respondent that he had produced any school Certificate at the time of entry into service. Unlike Mantu Ram Talukdar's case where he was appointed in the year 1982 and representations came to be filed immediately upon learning of the wrong entry in the year 1986, the respondent herein preferred to wait for 10 (ten) years to seek remedial measures. Fact remains that the respondent was full well aware of the date of the birth recorded in his Service Book when he had verified the same on 10.09.2002 and found the entries in order. Further, as on date there is no occasion to undertake any exercise to ascertain the authenticity of the school Certificate dated 16.10.1982 as all scope is hindered and rendered impossible by the admission of the school authorities that records are not available in the school as the same have been damaged and/or missing. 13. As each case is only an authority for what it actually decides and difference in facts makes a lot of difference in the precedential value of decision, we hold that the case of Syed Moktabor Rahman (supra) and Montu Ram Talukdar (supra) are wholly distinct and cannot be made applicable in the present case situation. 14. In Mohd. Yunus Khan (supra), the appellant therein joined service on 1.7.1968 and although his date of birth was 01.07.1948 as per school leaving certificate but by mistake it was recorded as 27.02.1934. He learnt about it in April 1988 and immediately filed representation. The Apex Court observed that there was ample evidence to show that the mistake was the outcome of the documents of two persons with same names getting mixed up, due to which the other person's date of birth was recorded in the appellant's Service Book. He learnt about it in April 1988 and immediately filed representation. The Apex Court observed that there was ample evidence to show that the mistake was the outcome of the documents of two persons with same names getting mixed up, due to which the other person's date of birth was recorded in the appellant's Service Book. Apart from the distinguishing facts, the proposition of law laid down, for the purpose of the present case, is that even if there be a statutory rule fixing a time-frame for filing an application for correction of the date of birth in the service record, the same would not be of much significance if the mistake was not known to the person concerned at any earlier point of time. In that case, the question of any delay in making the application would stand obviated. Whether the ratio laid down in Mohd. Yunus Khan would have applicability in the fact situation of the present case, is the issue. Apparently, there is an unexplained delay of about 10 (ten) years in making representation by the respondent. Whereas he verified and found the entries in his Service Book to be in order on 10.9.2002 by endorsing his signature, he made his first representation on 10.04.2012. He also made an incorrect statement that it was only in March 2012 that he learnt about the wrong entry in his Service Book. For the unexplained delay and suppression of material facts, the respondent cannot claim equity. Reliance in the case of Mohd. Yunus Khan, on facts, is unfounded. 15. In G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad, reported in (2002) 8 SCC 696, the Apex Court held that the date of birth of an employee is not only important for the employee but for the employer too. When a dispute as regards date of birth arises, Courts should bear in mind that a change thereof long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records. Therefore, the claim should not be generally accepted. Burden lies heavy on the employee who approaches the Court to urge that the date of birth in the service record maintained by the employer is untrue and incorrect. This burden can be discharged only by producing unimpeachable and acceptable evidence. Therefore, the claim should not be generally accepted. Burden lies heavy on the employee who approaches the Court to urge that the date of birth in the service record maintained by the employer is untrue and incorrect. This burden can be discharged only by producing unimpeachable and acceptable evidence. Further, in case of a controversy raised long after joining service with the matter having engaged the attention of the authority concerned and it is not the case of the employee that there has been any arithmetic or typographical error patent on the face of the record, the High Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution should not interfere with the decision of the employer. 16. Circumspection, caution and carefulness are the hall-marks while issuing direction for correction of date of birth, while unsettling a settled position. In a case involving correction of date of birth, particularly on the eve of superannuation or at the fag end of service career, the Court or the Tribunal must be fully satisfied on the basis of irrefutable proof that claim for correction is made in accordance with the procedure prescribed and that a real injustice has been caused to the person concerned. Time and again the Apex Court have held that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time from induction into service, particularly beyond the time fixed by the employer, he cannot claim, as a matter of right, correction of his date of birth. In this situation, the Apex Court in the case of State of M.P. v. Premlal Shrivas, reported in (2011) 9 SCC 664 , have held that even if the government servant has good evidence to establish that the recorded date of birth is erroneous, no Court or Tribunal can came to the aid of those who sleep over their rights. Generally, the consistent view expressed by the Apex Court is towards castigating the practise of raising dispute by public servants about incorrect recording of date of birth in their Service Book on the eve of retirement. 17. Viewed in the above perspective, the respondent herein was appointed on 16.10.82, with date of retirement on 31.1.14. He raised dispute on 10.04.2012, that is, touching almost 30 (thirty) years from the date of induction. 17. Viewed in the above perspective, the respondent herein was appointed on 16.10.82, with date of retirement on 31.1.14. He raised dispute on 10.04.2012, that is, touching almost 30 (thirty) years from the date of induction. Although an endeavour is made to show knowledge of the mistake only in March 2012, the records show otherwise, in that, he had knowledge of it on 10.09.2002 when he himself made an endorsement in the Service Book declaring that the entries thereof are in order. His Service Book, irrefutably, shows the date of birth as 17.01.1954. 18. The proof laid by the respondent, basically on the School Certificate dated 16.10.82 and the Transfer Certificate dated 29.7.13, are not unimpeachable evidence, as the authenticity of the same has been rendered an impossible task. No satisfactory explanation could be given by the respondent for correction of his date of birth, particularly within the time-frame under Rule 225(4) (iii) of the IREC. The submission made that the mistake/wrong entry in the Service Book came to his knowledge in March 2012, is not believable. Records clearly demonstrate that, at least, on 10.09.2002 the respondent was aware of the entries in the Service Book, having consciously put his signature declaring the entries to be in order. This is a clear case where the respondent sought correction of his recorded date of birth after a long lapse of time and at the fag end of his service career. Allegation of any procedural lapse in terms of Rule 225(1) of the IREC, at a great distance of time, cannot be answered in favour of the respondent. The respondent's conduct and utter absence of diligence disentitles him to seek equity before the law. 19. For all the discussions and findings above, we feel persuaded to hold that the Tribunal had fallen in gross error in upholding the claim of date of birth of the respondent as 14.11.1964. The date of birth as recorded in the Service Book i.e. 17.01.1954 is binding and no alteration thereof is called for. Also, none of the contingencies contemplated under Rule 225(4)(iii) of the IREC is existent in the attendant facts and circumstances to validly cause alteration of the date of birth, as insisted upon by the respondent. The date of birth as recorded in the Service Book i.e. 17.01.1954 is binding and no alteration thereof is called for. Also, none of the contingencies contemplated under Rule 225(4)(iii) of the IREC is existent in the attendant facts and circumstances to validly cause alteration of the date of birth, as insisted upon by the respondent. Apparently, the respondent has not pleaded bias or mala fide against any authority of the Railway establishment, so much so to Infer that his date of birth had been manipulated or wrongly recorded wilfully so as to arbitrarily, unreasonably and unjustifiably deny him the benefit of service until 30.11.2024. 20. In our considered opinion, the judgment and order dated 31.01.2014 passed by the Tribunal in O.A. No. 288 of 2013, is unsustainable in law and on facts. The present writ petition stands allowed and the judgment and order of the Tribunal is set aside. The parties are left to bear their own cost. Records produced by Ms. B. Devi is returned herewith.