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2018 DIGILAW 997 (JHR)

Deo Narayan Upadhyay v. Bharat Coking Coal Ltd.

2018-05-02

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. - In the accompanied writ application, the petitioner has sought for issuance of writ of mandamus to correct the date of birth of the petitioner on the basis of the matriculation certificate issued to the petitioner prior to the employment in which the date of birth of the petitioner is 07.01.1957 whereas the date of birth has been wrongly recorded as 04.10.1949 in Form B register. The petitioner has further prayed for quashing of the notice dated 30.09.2009 by which petitioner is being made to retire on the basis of wrong date of birth without taking any decision on the representation of the petitioner. 2. Shorn of unnecessary details, the facts, as has been described in the writ application is that the petitioner being a Matriculate having done his matriculation in the year 1971 was appointed by the private employer K. Worha and company on 04.10.1971 in Bundadih Colliery on surface works and in the year 1973 the petitioner was taken as a permanent employee in BCCL. It has been submitted that in the year 1997 the petitioner came to learn from the service excerpts that the date of birth has been recorded as 04.10.1949 which is at variance with the matriculation certificate. Being aggrieved by the incorrect recording of the date of birth, the petitioner submitted his representation for correction of the date of birth, vide Annexure-3 to the writ application. It has further been submitted that on the representation certain queries were asked from the petitioner and the petitioner met such queries. Though the petitioner has been consistently making representation but the said representation fell on the deaf ears and a notice of retirement dated 30.09.2009 has been issued to the petitioner. Being aggrieved by the issuance of such notice and non-correction of the date of birth in accordance with Implementation Instruction-76, which is a bipartite policy decision of the Coal India Ltd., the petitioner left with no alternative has been constrained to approach this Court, under Article 226 of the Constitution of India for redressal of his grievances. 3. Learned counsel for the petitioner submitted that respondent ought to have corrected the date of birth of the petitioner as per his matriculation certificate in accordance with Implementation Instruction-76 which is a policy decision of the respondent company. 3. Learned counsel for the petitioner submitted that respondent ought to have corrected the date of birth of the petitioner as per his matriculation certificate in accordance with Implementation Instruction-76 which is a policy decision of the respondent company. Because of the inaction on the part of the respondents in correcting the date of birth of the petitioner, interest of the petitioner has been jeopardized and therefore the action of the respondents is violative of Articles 14 and 16 of the Constitution of India. 4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents wherein it has been submitted that no workman is permitted to raise dispute regarding correction of his date of birth at the fag end of service or after issuance of notice of retirement from services. It has further been submitted that the petitioner was served with a notice of retirement date 07.04.2009 that he was going to superannuate on 30.09.2009 from services on attaining the age of superannuation i.e. 60 years and he has already superannuated from service, therefore, the petitioner could not have raised the dispute regarding correction of date of birth in terms of Implementation Instruction-76. It has further been submitted that petitioner being a workman retired from service of the respondent company, having alternative remedy to raise industrial dispute under the provisions of Industrial Disputes Act. Further it has been submitted that as per the service record, the initial date of appointment of the petitioner is 04.10.1971 and as per the statutory service record, the date of birth of the petitioner was 04.10.1949, whereas the petitioner is claiming his date of birth as 07.01.1957 on the basis of matriculation certificate, from which it is crystal clear that at the time of entering into service, the age of the petitioner was only 14 years and hence, the petitioner could not have entered in the service being under age. 5. Learned counsel for the respondent-BCCL has strenuously urged that the writ petition is not maintainable in view of the catena of decisions of the Hon''ble Apex Court. Learned counsel for the respondent-BCCL further submits that since the petitioner was aware of the date of birth recorded in the service excerpts i.e. Form-B Register as 04.10.1949, petitioner ought to have challenged the same at that point of time in the year 1997. Learned counsel for the respondent-BCCL further submits that since the petitioner was aware of the date of birth recorded in the service excerpts i.e. Form-B Register as 04.10.1949, petitioner ought to have challenged the same at that point of time in the year 1997. The petitioner being conscious and cognizant of the fact that his date of birth has been recorded as 04.10.1949 continued in service till his retirement, and after retirement, he rose from deep slumber that the notice of retirement has been given. It is settled position of law that person who sleeps over his right, cannot claim the same after inordinate and inexplicable delay. 6. Having bestowed my anxious consideration to the rivalized submission and on perusal of the record, this Court does not accede to the prayer of the petitioner, in view of the following facts, reasons and judicial pronouncements: (I) The petitioner raised the disputed question of facts relating to his date of birth at the fag end of service, which cannot be adjudicated in view of the decision rendered in the case of Burn Standard Co. Ltd. & Ors. vs. Dinabandhu Majumdar & Anr. as reported in AIR 1995 SC 1499 , wherein the Hon''ble Apex Court in unequivocal terms has enunciated that writ petition for correction of date of birth at the fag end of service with object of continuing in service ordinarily should not be entertained. 7. In view of the reasons stated in the foregoing paragraphs, this Court is not inclined to accede to the prayer of the petitioner. Accordingly, the writ petition is hereby dismissed.