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2023 DIGILAW 42 (JHR)

Suleman Mia v. Bharat Coking Coal Limited (BCCL)

2023-01-11

S.N.PATHAK

body2023
JUDGMENT : The petitioner has approached this Court with a prayer for quashing the notice of retirement dated 05/7.9.2011 issued by the Project Officer, Kooridih Colliery, Govindpur Area, BCCL, Dhanbad, whereby, petitioner was made to retire from the services of Company on 01.02.2011 on attaining the age of 60 years treating the date of birth as per record as 22.01.1951. The petitioner has further prayed for a direction upon the respondents to correct the date of birth of the petitioner as 01.01.1958 on the basis of his school leaving certificate and to allow him to continue in service till he attains 60 years of age. 2. Shorts facts of the case are that the petitioner joined the service of respondent-BCCL on 22.1.1979 and at the time of joining, he submitted his school leaving certificate. It is the specific case of the petitioner that date of birth of the petitioner is recorded as 01.01.1958 in the school leaving certificate and on that basis, PAN card was also issued to him. In the year 1987, it was detected that in service excerpts, his date of birth was wrongly mentioned as 22.01.1951. Thereafter the petitioner made several representations requesting to correct the date of birth right from the date, it came to knowledge of this petitioner till 20.8.2009. However, a notice was issued on 7.9.2011 informing the petitioner that as per Company’s record, he will attain 60 years of age on 31.1.2011 and he shall retire with effect from 01.02.2011. Thereafter, again the petitioner represented vide his representations dated 14.10.2011 and 7.4.2012 to correct his date of birth, but no heed was paid. Aggrieved thereby, the petitioner has been constrained to knock the door of this Court. 3. No one appears on behalf of the petitioner, as the lawyers are on strike in view of call of Jharkhand State Bar Council. As per averments made in the writ petition, the petitioner has assailed the impugned notice of retirement on the ground that the respondents cannot make the petitioner to retire prior to attaining the age of 60 years on the basis of wrong entry of his date of birth in the service excerpts. As per averments made in the writ petition, the petitioner has assailed the impugned notice of retirement on the ground that the respondents cannot make the petitioner to retire prior to attaining the age of 60 years on the basis of wrong entry of his date of birth in the service excerpts. The respondents are bound to consider the date of birth as mentioned in the school leaving certificate and other documents, which were produced at the time of appointment, wherein his date of birth is mentioned as 01.01.1958 and the same has been accepted by the respondent on pointing out by the petitioner himself during the service tenure. It was also contended that the respondents had never communicated the petitioner about the date of birth entered in the service record and no confirmation was done by the petitioner in terms of Clause 35 & 36 of the Certified Standing Order of M/s. BCCL, which is mandatory provisions for employer. It was further contended that the petitioner has illegally made to retire prematurely on 01.02.2011, which is illegal and arbitrary and as such, impugned Notice of retirement dated 7.9.2011 is liable to be quashed and set aside and the petitioner is entitled for continuity of his service without any break and since the petitioner has already superannuated, he is entitled for salary and other allowances for that period. To strengthen these averments, judgment of this Court in the case of Kamta Pandey Vs. M/s BCCL, reported in 2007 (3) 681 Jhr (FB) has been referred to. 4. Contrary to that, counter affidavit has been filed by the respondents. Ms. Anjali Sinha, learned counsel representing the respondent-BCCL submits that the writ petition is not maintainable since the petitioner is a workman, within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947 and as such, remedy available with the petitioner is first to invoke the provisions of the ID Act, 1947. However, on merits, she submitted that in Statutory form-B Register, the date of birth of the petitioner is recorded as 22.1.1951 and the petitioner has acknowledged the said entry in the Form B Register by putting his signature in the relevant column of the said Form-B and as such, rightly he was superannuated on 31.1.2011. In the service book also, the date of birth of the petitioner was recorded as 22.1.1951, which was also acknowledged by the petitioner. In the service book also, the date of birth of the petitioner was recorded as 22.1.1951, which was also acknowledged by the petitioner. In view of the above, the petitioner superannuated on 31.1.2011 on attaining the age of 60 years. Learned counsel further submitted that this writ petition was filed after superannuation and it is settled principles of law that dispute relating to date of birth cannot be raised at the fag end of service. She further submitted that Implementation Instruction No.76 of NCWA-III is not applicable in the instant case as the petitioner has duly acknowledged his date of birth mentioned in statutory form, by putting his signature. Learned counsel places heavy reliance on the judgments in the cases of Bharat Coking Coal Limited Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411 and Steel Authority of India Ltd. Vs. Raghbendra Singh & Ors., reported in 2020 SCC Online 1063. 5. Having heard the learned counsel for the respondents and having gone through the records, this Court finds that admittedly, the date of birth entered in Statutory Form B Register is 22.01.1951 and same was duly acknowledged by the petitioner, by putting his signature. Thereafter, in the entire service career, the petitioner never raised grievance, rather accepted the same. The petitioner has approached this Court in the year 2012 i.e. after superannuation on 31.1.2011 by filing this writ petition. 6. The law is well settled that if a particular date of birth is entered into the service record, the request for change of date of birth cannot be entertained at the fag end of service. 7. In the instant case, the date of birth entered in the Statutory Form B Register is 22.1.1951 which was also reflected in NEIS and other office records. If the petitioner was aware of the date of birth mentioned in the School Leaving Certificate, he would have not put his signature in the Statutory Form B Register if a wrong entry was made in the Statutory Form B, which is binding upon the employee as well as employer. A person putting his signature in the Form B Register is fully aware of the details, which is prepared and communicated to him. It is not the case of the petitioner that in a plain paper, his signature was taken by the respondents and thereafter details were filled. 8. A person putting his signature in the Form B Register is fully aware of the details, which is prepared and communicated to him. It is not the case of the petitioner that in a plain paper, his signature was taken by the respondents and thereafter details were filled. 8. The Implementation Instruction No.76 of NCWA is not attracted in the instant case as the petitioner has duly acknowledged his date of birth mentioned in the Statutory Form ‘B’, by putting his signature. 9. Similar issue fell for consideration before the Hon’ble Apex Court in case of Union of India Vs. Harnam Singh [ (1993) 2 SCC 162 ], the Hon’ble Apex Court has held that, “No Court or the Tribunal can come to the aid of those who sleep over their rights”. 10. Further, in case of U.P., Madhyamik Shiksha Parshad Vs. Raj Kumar Agnihotri, reported in (2005) 11 SCC 465 , the Hon’ble Apex Court considering a number of judgments observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of service career. 11. Further, in case of State of Uttaranchal Vs. Pitamber Dutt Semwal, reported in (2005) 11 SCC 477 , wherein a relief was denied to the Government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, the Hon’ble Apex Court observed that the High Court ought not to have interfered with the decision after almost three decades. 12. Further, in case of State of Maharashtra Vs. Gorakhnath Sitaram Kamble, reported in (2010) 14 SCC 423 , it was held that ‘ the request for change of the date of birth in the service records at the fag end of service is not sustainable. 13. The Hon’ble Apex Court in case of State of M.P. Vs. Premlal Shrivas, reported in (2011) 9 SCC 664 , clearly observed that if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. 14. This Court also in case of Ajit Singh Vs. M/s. Tata Iron & Steel Co. Premlal Shrivas, reported in (2011) 9 SCC 664 , clearly observed that if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. 14. This Court also in case of Ajit Singh Vs. M/s. Tata Iron & Steel Co. Ltd., Jamshedpur vide its order dated 05.10.2020, considering the catena of judgments of Hon’ble Apex Court has expressed his view that no interference can be made in the date of birth at the fag end of service. 15. Recently, the Hon’ble Apex Court in case of Bharat coking Coal Limited & Ors. Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411 after taking into consideration the several judgments rendered by the Hon’ble Apex Court, has clearly held that no interference is warranted regarding correction in date of birth at the fag end of service. 16. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, writ petition having no merit fails and is hereby dismissed.