JUDGMENT : Shree Chandrashekhar, J I.A No. 10599 of 2023 This interlocutory application has been filed for condonation of the delay of 82 days in preferring the present Letters Patent Appeal. 2. After hearing the learned counsel for the appellant and considering the facts and circumstances of this case and also after going through the cause shown in this interlocutory application seeking condonation of delay, we find sufficient grounds to condone the delay of 82 days and, accordingly, I.A No. 10599 of 2023 is allowed. L.P.A No. 25 of 2023 3. Jhagru Das who was employed as a Miner Loader under M/s Bharat Coking Coal Limited (in short, the BCCL) approached the writ Court to challenge the order dated 23rd/27th February 2021 by which the Project Officer, Godhar Colliery declined to change his date of birth in the service records. 4. The writ Court by referring to the judgments in “Tamil Nadu v. T. V. Venugopalan” (1994) 6 SCC 302 , “State of Maharashtra v. Gorakhnath Sitaram Kamble” (2010) 14 SCC 423 , “State of Madhya Pradesh & Ors. v. Premlal Shrivas” (2011) 9 SCC 664 and “Factory Manager, Kirloskar Brothers Limited v. Laxman” (2020) 3 SCC 419 dismissed the writ petition on the ground that the date of birth recorded in the service records of a government employee cannot be altered on the basis of the matriculation certificate at the fag end of his service. 5. The appellant who was the writ petitioner challenged the writ Court’s order dated 6th December 2022 on the ground that the employer which accepted his date of birth as recorded in the matriculation certificate in the subsequent years of his service cannot fall back to the date of birth erroneously recorded at the time of appointment and force him to superannuate more than 3 years before he was due to retire from service. Mr. Nipun Bakshi, the learned counsel for the appellant submits that the correct date of birth of the appellant was recorded in the orders granting promotions to the appellant and also in the seniority list prepared by the BCCL and, therefore, the appellant had no reason to approach the Court before he was intimated that he would retire in November 2021. 6. 6. The appellant who was appointed as Miner Loader under the BCCL on 5th November 1986 claims that he passed the matriculation examination in the year 1981, before his entering in service under the BCCL. He was regularized in service on 12th August 1987 and his age was recorded in the statutory Form-B register as 25 years as on 12th August 1987. However, in the matriculation certificate, his date of birth is recorded as 6th April 1965. He was promoted to General Mazdoor Category-I based on the qualification of matriculation; and was given further promotions in the rank of General Mazdoor Category-I, Fitter (H) Category-II and Electrician Category-IV because he has the qualification of matriculation. On the other hand, the BCCL pleaded that the appellant never produced his matriculation certificate at the time of entry into the service, maybe because at that time no educational qualification was required for appointment as Miner Loader. The BCCL seeks support from the statutory Form-B, service excerpts and medical examination report wherein the age of the appellant was recorded as 25 years as of 5th November 1986. 7. The writ Court dealt with the rival contentions in paragraph no. 9 of the order dated 6th December 2022, as under: “9. In the instant case from the record, I find that it is an admitted case that petitioner has entered in service in the year 1986. At the time of his entering in service, he was subjected to medical test wherein his age was assessed as 25 years as on 4.11.1986. The petitioner accepted the said recording and has put his signature which is evident from Anneuxre-1. Consequently thereafter a statutory Form-B register was opened wherein his date was mentioned as 5.11.1961 which commensurate with the medical examination report. The petitioner has also put his signature therein acknowledging his date of birth as 5.11.1961. Subsequent Form-B register was also opened wherein he put his signature therein and acknowledged the entry therein. In 1987 service excerpts were issued to this petitioner wherein his age was recorded as 25 years, the petitioner also did not object, rather he put his signature acknowledging the same. This clearly suggest that from the very inception, he has acknowledged and admitted his date of birth to be 5.11.1961 which is recorded in the service records.” 8. In 1987 service excerpts were issued to this petitioner wherein his age was recorded as 25 years, the petitioner also did not object, rather he put his signature acknowledging the same. This clearly suggest that from the very inception, he has acknowledged and admitted his date of birth to be 5.11.1961 which is recorded in the service records.” 8. In a catena of judgments, the Hon’ble Supreme Court has held that the inordinate delay in seeking correction in the date of birth is a sufficient reason not to entertain the writ petition and, that, in the matters of correction in the date of birth the writ Court must start with a presumption regarding the correctness of the date of birth recorded in the service records of the employee. In “Home Deptt. V. R. Kirubakaran” 1994 Supp (1) SCC 155 the Hon'ble Supreme Court held that the application seeking correction in the date of birth should be made within the time fixed by the rule/circular/notification of the employer and in the absence of any rule or order it should be made within a reasonable time. Therefore, a writ Court exercising powers under Article 226 of the Constitution of India shall not enter into the dispute as regards the age of an employee and, that too, when the controversy is sought to be raised at the fag end of the service. The logic behind not entering into such a dispute is that it may affect a large number of employees in service if a correction in the date of birth of a peer employee is permitted at the fag end of service. But, at the same time, the writ Court should also keep in mind that if there is irrefutable proof relating to the date of birth of the aggrieved person the Court should not refuse the prayer for correction in the date of birth even after the lapse of some time. As it is apparent from the materials on record, there was no delay on the part of the appellant in the raising of an objection to the wrong recording of his age/date of birth in the service records. As it is apparent from the materials on record, there was no delay on the part of the appellant in the raising of an objection to the wrong recording of his age/date of birth in the service records. There is abundance of materials including the office orders issued by the BCCL which carry the correct date of birth of the appellant and, therefore, for a considerable time the appellant carried this impression that the BCCL has accepted his representation and corrected the entry in his service records. 9. The materials on record establish that the appellant had produced the matriculation certificate at an earlier point in time and, notwithstanding the recording of the age of the appellant in the service records as 25 years as on 12th August 1987, the subsequent office orders issued by the BCCL reflected his correct date of birth, that is, 6th April 1965. By an office order dated 3rd November 1986, 73 candidates who were given temporary appointments as Minor Loaders were directed to report to the Group Training Officer at Murlidih 20/21 Pits Colliery. These candidates were required to produce a medical fitness certificate, character certificate, verification roll, certificate of date of birth/age, passport-size photographs, attestation form and declaration form regarding plural marriage. The name of the appellant figured at serial no. 34 in the list of such Minor Loaders appended with the office order dated 3rd November 1986. This is the case set up by the appellant that immediately when he came to know about the preparation of his service excerpts on 12th August 1987 wherein his age was recorded as 25 years as 6th November 1986, he submitted his representation on 19th August 1987 to the Deputy Chief Mining Engineer/Agent at Lohapati Colliery. In the said representation, the appellant specifically stated that at the time of his appointment he had produced a matriculation certificate wherein his date of birth is recorded as 6th April 1965. It further appears that on his selection as General Mazdoor Category-I the appellant was directed to produce his educational certificate through an office order dated 4th September 1990 and after due verification regarding his possessing the qualification of matriculation he was appointed on the said post. It further appears that on his selection as General Mazdoor Category-I the appellant was directed to produce his educational certificate through an office order dated 4th September 1990 and after due verification regarding his possessing the qualification of matriculation he was appointed on the said post. This is also quite relevant to note that the service-sheet of the appellant prepared on 12th August 1987 does not bear the date on which the appellant put his signature thereon; this is also not disclosed when the statutory Form-B was prepared in which the age of the appellant is recorded as 25 years. 10. This is also a matter of record that the appellant was regularized on the post of Fitter (H) Category-II vide office order dated 23rd July 1997. The appellant was later promoted to the post of Electrician Category-4 along with five other Electrical Helper Category-II and the office order dated 29th January 2003 was issued in this regard. It further appears that vide office order dated 24th October 2008, the appellant was promoted to the next higher grade/category in Electrician Category-4. This is also not in dispute that for appointment on or promotion to the aforementioned posts/categories the minimum education qualification is matriculation. However, by a letter dated 9th April 2011, the appellant was issued a show-cause notice requiring him to clarify as to why he did not produce his matriculation certificate at the time of joining and, in response thereof, the appellant reiterated that he had furnished his matriculation certificate at that time. The appellant has produced a note-sheet dated 7th September 2011 appended as Annexure-9 to the Memo of Appeal to fortify his stand that the BCCL accepted his explanation and the matter was referred to the Area Office. Thereafter, on 21st December 2013, the appellant was promoted in Electrician Category-V on the recommendation of the Departmental Promotion Committee at Godhar Colliery and in the final seniority list of Assistant Foreman (Electrician) T&S Grade-C issued on 16th December 2016 the appellant was placed at serial no. 11 and his date of birth mentioned therein is 6th April 1965. Later on, another final seniority list was issued on 7th December 2017 in which the appellant was placed at serial no. 10 and his date of birth recorded therein was 6th April 1965, which according to him is his correct date of birth. 11. 11 and his date of birth mentioned therein is 6th April 1965. Later on, another final seniority list was issued on 7th December 2017 in which the appellant was placed at serial no. 10 and his date of birth recorded therein was 6th April 1965, which according to him is his correct date of birth. 11. Notwithstanding the aforesaid office orders, a decision was taken by the Project Officer, Godhar Colliery that in view of the judgment of the Hon’ble Supreme Court it is not possible to consider the dispute as to his date of birth. Interestingly, in the letter dated 23rd February 2021 issued by the Project Officer, it is recorded that the appellant whose age is recorded in the service excerpts as 25 years never raised any dispute regarding the same. In the first place, there were a series of representations made by the appellant seeking correction in the date of birth recorded in the service records but, contrary to the materials on record, the Project Officer has recorded in the letter dated 23rd February 2021 that the appellant did not raise any objection to the wrong recording of his age in the service records. Furthermore, the stand taken by the appellant to the notice dated 7th September 2011 was a clear objection raised by him to the wrong recording of his date of birth in the services records. About a decade after that, the appellant superannuated from service and while so it cannot be said that he raised an objection regarding his date of birth at the fag end of the service. Evidently, the reliance on the judgments of Hon’ble Supreme Court for rejecting the representation of the appellant for correction in the date of birth was completely misplaced. 12. Even assuming that the appellant’s age was recorded as 25 years in his service records because he failed to produce the matriculation certificate at that time, the subsequent acts of the BCCL in granting promotions to the appellant to the posts for which matriculation is an essential qualification must be construed as an acceptance by the BCCL of the matriculation certificate in which date of birth of the appellant is recorded as 6th April 1965. The series of office orders issued by the BCCL must be presumed to be issued in the ordinary course and after due verification of facts. The series of office orders issued by the BCCL must be presumed to be issued in the ordinary course and after due verification of facts. This is not a case where the appellant is trying to take benefit of an isolated mistake committed by the employer. In a circumstance like the present one, it shall be lawful for the Court to draw an inference from the proven facts that the BCCL had accepted the matriculation certificate of the appellant and based on that qualification granted promotions to him. Every person in service under the government or a public body, company, corporation etc. has a statutory right to continue in service till he attains the age of superannuation, subject to the incapacity or termination from service or any other situation provided under the rules. The writ Court clearly overlooked the office orders issued by the BCCL over a period of about three decades. The writ Court could not also bestow its consideration to the representations of the appellant – at least to the reply to the notice dated 7th September 2011; and held that it was at the fag end of his service that the appellant had raised a dispute as regards his date of birth. 13. For the aforesaid reasons, the writ Court’s order dated 6th December 2022 is set aside and, consequently, the order dated 23rd/27th February 2021 passed by Project Officer is quashed. The appellant shall be deemed to continue in service as per his date of birth as 6th April 1965 and he shall be paid back wages – the quantum of back wages we shall discuss now. 14. The issue whether or not to grant full back wages was considered exhaustively in “M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors.” (1979) 2 SCC 80 wherein the Hon'ble Supreme Court held as under: “9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal and a Division Bench of the Allahabad High Court in Postal Seals Industrial Cooperative Society Ltd. v. Labour Court II, Lucknow have taken this view and we are of the opinion that the view taken therein is correct. 10. The view taken by us gets support from the decision of this Court in Workmen v. Calcutta Dock Labour Board. In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was for their reinstatement. The Tribunal directed reinstatement of five out of seven workmen and this part of the award was challenged before this Court. The Tribunal directed reinstatement of five out of seven workmen and this part of the award was challenged before this Court. This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief, and set aside the order of the Tribunal. It was observed that there was no justification for not awarding full back wages from the day they offered to resume work till their reinstatement. Almost an identical view was taken in Management of Panitole Tea Estate v. Workmen. 11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield).” 15. The law on the subject has been further elucidated by the Hon'ble Supreme Court in “U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain Pandey” (2006) 1 SCC 479 wherein the Supreme Court observed as under: “27. In Hindustan Tin Works (P) Ltd. v. Employees this Court merely held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.” 16. In “U.P. State Brassware Corpn. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.” 16. In “U.P. State Brassware Corpn. Ltd.” the Hon'ble Supreme Court referred to several other judgments of the Court including “Hindustan Tin Works Private Limited” and held that payment of full back wages cannot be the natural consequence. The Hon'ble Supreme Court has held as under: “42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. 43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident. 44. In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya this Court noticed Raj Kumar and Hindustan Tin Works but held: (SCC p. 45, para 16) “16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement.” 17. Having regard to the facts and circumstances in the case, we are of the opinion that the appellant shall be paid 50% back wages. 18. L.P.A No. 25 of 2023 is allowed in the above terms.