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2017 DIGILAW 844 (CAL)

Panpati Debi Lohar v. Coal India Limited

2017-11-03

SAMBUDDHA CHAKRABARTI

body2017
JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. The petitioner is an employee of the Eastern Coalfields Limited at Haripur Colliery. 2. In the year 2015, the Coal India Limited introduced a retirement scheme known as “Coal India Special Female Voluntary Retirement Scheme (the Scheme, for short) to fulfil the objective of Mission-2020 for meeting the requirement of statutory/technical manpower by imparting training to the nominated sons of the VRS optees in different trades. It contained certain conditions to be fulfilled in order to get advantage of the same. 3. The petitioner applied for retirement under the said Scheme and nominated her son Shantanu Kumar in accordance with the Scheme through the application dated February 25, 2014. The grievance of the petitioner is that she had acted as per the provisions of the Scheme with the expectation that the respondents would consider her case regarding the nomination of her son in future employment. It is the case of the petitioner that on or about July 21, 2016, the nominated son of the petitioner addressed a letter to the authorities intimating them that there were some mistakes in filling up the nomination form. The mistake referred to was with regard to his date of birth. According to him, due to certain mistake in the Matriculation certificate, the authorities had initially printed June 3, 1985 as the date of birth of the nominated son of the petitioner. However, it was manually corrected by the authorities as December 31, 1985. A fresh copy of the mark-sheet was forwarded to the respondents where the date of birth of the nominated son was recorded as December 31, 1985. 4. Since the respondents did not take any step to consider the case of the petitioner, she had to serve a laywer’s notice requesting the authorities to consider the case along with copies of the documents submitted by her. Since even that was not replied, the petitioner had filed this writ petition on August 17, 2016 challenging the inaction of the respondent authorities. Since even that was not replied, the petitioner had filed this writ petition on August 17, 2016 challenging the inaction of the respondent authorities. Subsequently, on October 3, 2016, a supplementary affidavit was affirmed by the petitioner, inter alia, recording that during the pendency of the writ petition, the authorities had sent a notice dated August 17, 2016 to the petitioner intimating her that her application had been rejected due to mis-match of the date of birth of the nominated son between her service records and the testimonials of her nominated son. The said rejection letter was annexed to the supplementary affidavit as ‘Annexure-A’. 5. In the affidavit-in-opposition, the respondents have taken the same point of mis-match of the service records of the petitioner with the testimonials filed by her son. According to that she filed the bio-data for service excerpts declaring her son to be 10 years on May 29, 1992. Thus, the year of birth of the son of the petitioner should be 1982. In various documents also the same declaration was made by the petitioner which shows that the nominated son was born in the year 1982. 6. The respondents contend that the voluntary Scheme contained three conditions which had to be satisfied by the optee. The petitioner undoubtedly fulfilled the first two conditions. It was only with regard to the 3rd condition with reference to the age of her son that there was a scope of serious dispute. According to the Scheme, the son to be nominated by the female employee should be between 18 and 30 years on the date of notification of the Scheme and he should be a matriculate. The very specific case of the respondents is that the Matriculation certificate of the son of the petitioner was a manipulated one as there was an overwriting on the date of birth. This was thus a disputed fact and required enquiry how subsequently the authorities had arrived at December 31, 1985 as the date of birth of the son of the petitioner when all the contemporaneous documents recording the declaration given by the employee at the relevant time showed 1982 to be the year of birth of the petitioner’s son. From this the respondents concluded that it was evident that changes were effected to bring the age of the son within the conditions of the Scheme. From this the respondents concluded that it was evident that changes were effected to bring the age of the son within the conditions of the Scheme. A point of suspicion for the respondents is that if the Matriculation Examination had taken place in the year 2000, the correction was made more than a decade after that. It was specifically alleged by the respondents that considering the date of birth of the petitioner’s son as June 3, 1985, his age came to more than 30 years on the date of notification which made him ineligible for employment under the Scheme. As such, “the Competent Authority rejected the case of Smt. Lohar”. 7. The respondents have further alleged that after the rejection of the application, the petitioner somehow managed to obtain a fresh Matriculation certificate on June 16, 2016 which was re-submitted with the authorities. The certificate does not contain the title of the candidate so as to enable the respondents to ascertain whether it was properly rectified or otherwise obtained. Even if it is accepted that the concerned Board had rightly corrected the date of birth, there was no reason for issuing a fresh certificate thereafter. Therefore, the whole thing was stage-managed. 8. There was undoubtedly a correction made in the Matriculation certificate as submitted initially by the son of the petitioner. From the original certificate, as submitted to the authorities, it appears that the printed date of birth was June 3, 1985 which was subsequently corrected as December 31, 1985 by the Bihar School Examination Board which had issued the certificate. Such corrections at both the places were properly initialed with stamp of the authorities. Subsequently, the petitioner submitted a fresh certificate of the Bihar School Examination Board wherein December 31, 1985 had been printed as the date of birth of the son of the petitioner. 9. The respondents have made this a point of disputing the veracity and genuineness of the certificate issued. According to them, it was a very serious matter requiring an enquiry. If the matter was really very serious, which I also understand, one wonders why the authorities did not make an enquiry about it. After all, the petitioner was and is their employee. According to them, it was a very serious matter requiring an enquiry. If the matter was really very serious, which I also understand, one wonders why the authorities did not make an enquiry about it. After all, the petitioner was and is their employee. If she had filed a wrong document which they believe to be wrong, it was incumbent upon them to make a thorough enquiry about it by at least referring the matter to the Bihar School Examination Board. Not that this was an entirely unknown procedure or practice for an authority or a public sector undertaking. It has now become a standard practice with almost all the public sector undertakings that whenever an application is made along with testimonials or mark-sheets, the authorities more often than not refer the matter to the issuing authority for verification. The respondents have not done any such exercise. It was expected of them as they themselves stated that the matter required enquiry. If it required enquiry, it was incumbent upon them so to do. A public sector undertaking cannot really project a suspecticism indulged by them about the authenticity of a document and then to sit idle over it and thereby allowing the application of one of their employees to be rendered infructuous. 10. Mr. Sen, the learned advocate for the petitioner, made a grievance that even after the lawyer’s notice was served upon the respondents, they did not care to give any reply. It was only after the notice of the writ petition served upon them, the reason for rejection of the application of the petitioner was communicated by a letter which coincided with the date of filing of the writ petition. 11. Mr. Kumar, the learned advocate for the respondents, sought to justify the conduct of the respondents with reference to the office records from which, as submitted by him, it would appear that the rejection had taken place long before. 12. If such a decision had taken place long before by the respondents, they should have informed the petitioner about the rejection of it in time, or at least after they have been served with a notice of the learned advocate. The stoic silence is significant and eloquent. 13. 12. If such a decision had taken place long before by the respondents, they should have informed the petitioner about the rejection of it in time, or at least after they have been served with a notice of the learned advocate. The stoic silence is significant and eloquent. 13. It appears from the order of rejection that glaring variation in age which mis-match the date of birth of the nominated son between the service records of the petitioner and the testimonials of the son had been observed. Therefore, the Competent Authority did not agree to dispense with the service of the petitioner in lieu of employment to her son. 14. Thus, the reason mentioned for the rejection in the official communication is the mis-match between the service record of the petitioner and the certificate produced by her son. However, if one reads the affidavit of the respondents, one has to conclude that notwithstanding the reference to the certificate referred, the real reason for the rejection of the application of the petitioner, as appearing from paragraph 3(vii) of the affidavit, was the correction of the date of birth in the Matriculation certificate. In paragraph 3(vii) of the affidavit, it has been specifically mentioned “considering the DOB of Shri Kumar as 03.06.1985, the age of Shri Kumar comes to more than 30 years on the date of the notification and thus, he was not eligible for employment as the per the Scheme. As such, the Competent Authority rejected the case of Smt. Lohar”. 15. The relevant portion of the affidavit unmistakably brings out that the reason for rejection was that the authorities had accepted June 3, 1985 as the date of birth as mentioned in the original Matriculation certificate and if the age of the son is computed from that date, on the date the notification was issued, he had crossed 30 years. It is all the more buttressed by the use of the words “as such” necessarily linking the statement made before those two words with the conclusion of the Competent Authority in a causal co-relationship. A plain reading of the affidavit leaves no manner of doubt that the reason for rejecting the case of the petitioner was the date of birth as mentioned in the Matriculation certificate. A plain reading of the affidavit leaves no manner of doubt that the reason for rejecting the case of the petitioner was the date of birth as mentioned in the Matriculation certificate. Thus, the reason for rejection with reference to the alleged anomalies in the service records had not been projected as the real cause of rejection by the respondents in their affidavit. 16. If we consider to the documents filed by both the parties the projected anomaly does not appear to be a convincing embargo restraining the respondents from considering the application of the petitioner from a proper perspective. I am afraid, the respondents did not appreciate the service records from the point of view of probability which is a relevant factor while disposing of the application of the petitioner. If they conclude about the alleged fraudulent nature of the documents filed by the petitioner merely on the basis of suspicion, they should have considered the service records from the proper angle. The service book that is annexed to the affidavit of the respondents clearly brings out that the petitioner did not fill it up. She was an unlettered lady and at most of the places she had put her LTI and the form had been filled up in English which was not in her writing. It appears from the endorsement of the service book that the respective ages were calculated from the bio-data of the service excerpts which was signed by the then Personnel Officer of Haripur Colliery. 17. I for one would never suggest, nor is it the law that merely because the executant of a document is a unlettered person or almost so, the document executed by him has no probative value or one will be entitled to resile very easily from the same after putting the LTI. But in order to bind with the signatory of the document to the statements contained in it, it is essential that it should have been read over and explained to the petitioner and a corresponding note to that effect should have appeared in the service book itself. If the defence of Mr. Kumar is that such is not the practice in the Eastern Coalfields Limited which has to deal with thousands of such employees, a more acceptable explanation for Mr. If the defence of Mr. Kumar is that such is not the practice in the Eastern Coalfields Limited which has to deal with thousands of such employees, a more acceptable explanation for Mr. Sen is that the petitioner, as per prevailing practice had put her LTI on the document at the relevant place when she was asked so to do. From the document it does not appear that the contents of the service books was ever read over and explained to her. Moreover, if it had been from the bio-data of the petitioner, one fails to understand why the bio-data itself was not produced instead of service book or along with service book. 18. A careful reading of the records annexed to the affidavit-in-opposition brings out the age of the son of the petitioner had been variously recorded at various places. These again were filled up by somebody other than the petitioner which the petitioner had put her L.T.I. In the nomination form at page 19 of the affidavit the age of the petitioner had been recorded as 9 years and at other places it had been recorded as 10 years. Given the fact that an almost unlettered lady seeking to join as a Gardener after the death of her husband is very unlikely to mention the exact age of her son with pinpoint accuracy. Regard being had to the shared experience of all of us this does not appear to be wholly unusual. 19. But, as it appears from the affidavit, the reason for rejecting the claim of the petitioner was the doubts entertained by the authority about the genuineness of the matriculation certificate. If the respondents wanted to proceed on the basis of the declaration made in the service record they could have rejected the claim of the petitioner than and there without being required to examine the matriculation certificate. This they did not. If they had done it, it would have taken into them no time to intimate the petitioner that her son was not qualified as per the conditions stipulated. They waited for the petitioner to file the corrected copy of the matriculation certificate and it was with reference to the date mentioned in the matriculation certificate that the petitioner’s son had been found to be ineligible. 20. They waited for the petitioner to file the corrected copy of the matriculation certificate and it was with reference to the date mentioned in the matriculation certificate that the petitioner’s son had been found to be ineligible. 20. It is a settled principle of law that while determining the age of a candidate the school leaving certificate is of primary importance. Mr. Kumar has raised an issue that even the corrected matriculation certificate raises certain doubts about its authenticity. It has been issued by an authority who under normal circumstances was not expected to issue the same. The respondents have also argued that if correction was made in the original certificate there was no necessity for them to obtain the second certificate. 21. This argument is not appreciated by the Court. A candidate may get the correction endorsed on a certificate and thereafter on the basis of the correction in the relevant records he may definitely ask for a separate certificate from the authority. Merely because it was obtained several years after he had passed out from the school the document per se is not rendered a coloured one nor does it lose its character as an authentic document. This is also not to suggest that the document produced by the petitioner must be taken to be a genuine document, particularly when the respondents have entertained serious doubts about its authenticity. 22. Mr. Kumar has taken a point that the concerned scheme had been closed on June 15, 2016. Therefore, under no circumstances the son of the petitioner can be accommodated in the scheme. I do not find such submission to be very convincing, rather punitive in nature. The petitioner made the application within time, she was never intimated anything about the fate of the application, even after she has sent a lawyer’s notice. It was only during the pendency of the writ petition that the rejection of her application was long after the scheme had been closed. It is a settled principle of law based on the very sound principles of equity that a party responsible for any act cannot take its advantage. If the petitioner was not qualified to take advantage of the scheme it was incumbent upon the respondents to let her know at the appropriate time. It is because of the inaction of the respondents that the petitioner has been compelled to approach this Court. If the petitioner was not qualified to take advantage of the scheme it was incumbent upon the respondents to let her know at the appropriate time. It is because of the inaction of the respondents that the petitioner has been compelled to approach this Court. Now after intimating the rejection after the scheme had been closed the respondents cannot take any advantage of it. It is all the more so, because the respondents had mentioned in their affidavit that being a Public Sector Undertaking it had to follow the law and the rules. Mr. Kumar, however, failed to substantiate under which law, rule, the code of conduct or the equitable principle such a conduct is justifiable by the authorities of a Public Sector Undertaking. It was never disclosed to the petitioner that she had not been declared a surplus staff. That again is not a relevant consideration, as the reason for non-consideration of the application of the petitioner had been spelt out very clearly and unambiguously in the relevant portion of the affidavit referred to above. The reason for rejection cannot be expanded. Moreover, if she had not been declared a surplus staff why did not the respondents reject her application at the very outset? They ought not to have considered her application at all. 23. The same logic applies to the petitioner’s crossing the age bar of 58 years which is entirely ascribable to the inaction of the respondents. It should be born in mind that the petitioner has given an undertaking that in case her son is appointed she will refund the entire salary and all other related benefits to the authorities which can always be enforced against the petitioner. 24. In such view of it, I dispose of the writ petition by directing the Eastern Coalfields Limited to refer the matter to the Bihar School Examination Board seeking their clarification in respect of the genuineness of the corrections made in the certificate or about the authencity of the subsequent certificate. 24. In such view of it, I dispose of the writ petition by directing the Eastern Coalfields Limited to refer the matter to the Bihar School Examination Board seeking their clarification in respect of the genuineness of the corrections made in the certificate or about the authencity of the subsequent certificate. In case the board certifies that the corrections were made by it or the certificate was issued by it upon correction of the mistakes that crept in the first certificate, the respondents authorities shall take the same to be the correct age of the son of the petitioner an shall proceed to consider the application of the petitioner on the basis of the clarification that may be given by the concerned Board. The closure of the scheme, for the reasons mentioned above, shall not stand in the way. 25. With the direction as above the writ petition is disposed of. 26. There shall be no order as to costs. 27. Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.