Jharkhand High Court
Ram Nandan Thakur vs Bharat Coking Coal Ltd. & Ors on 21 August, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3296 of 2008
Ram Nandan Thakur, S/o Late Ayodhya Thakur, R/o Bhuli Block-D,
Sector-10/B, Qr. No.15, P.O. & P.S.Bhuli, District-Dhanbad.... Petitioner
Versus
1.The Bharat Coking Coal Ltd. through its Chairman-cum-Managing
Director, Koyla Bhawan, P.O. & P.S. Koyla Nagar,District-Dhanbad.
2.The General Manager, Personnel, Bharat Coking Coal Ltd., Koyla
Bhawan, P.O. & P.S,.Koyla Nagar, District-Dhanbad.
3.The Chief Personnel Manager, Kustore Area, Bharat Coking Coal Ltd.,
P.O., P.S. & District-Dhanbad.
4.The Senior Personnel Officer, Kustore Area, Bharat Coking Coal Ltd.
P.O., P.S. & District-Dhanbad.
5.The Area Personnel Manager, Kustore Area, Bharat Coking Coal Ltd.
P.O., P.S. & District-Dhanbad.
6.The Project Officer, Rajapur, CCP/South Jharia, Kustore Area, P.O.,
P.S. & District-Dhanbad. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Chanchal Jain, Advocate
For the Respondent : Mr. Vijay Kant Dubey, Advocate
07/21.08.2017In the accompanied writ petition, the petitioner has prayed for issuance of orders/direction in the nature of certiorari for quashing the letter issued by respondent no.6 vide Annexure-5 pertaining to issuance of notice of superannuation to the petitioner, treating his date of birth as 24.10.1948 instead of 07.08.1955. The petitioner has further prayed for quashing the letter dated 5.7.2006 issued by respondent no.6, whereby the respondents have unilaterally assessed the age of petitioner as 57 years 6 months as on 24.04.2006, instead of original entry of date of birth assessed by the competent Medical Board i.e. 31 years on 07.08.1986 which was validly entered in the service records of the petitioner.
2. The brief fact, as disclosed in the writ petition, is that the petitioner was initially appointed as Fitter on 08.01.1972 at Kustore Area Office of respondent-Bharat Coking Coal Limited(BCCL for short). At the time of his appointment, the petitioner had disclosed his year of birth as 1955, which was recorded in his service excerpts at the time of joining in the service. The Implementation Instructions no.76, which is a part of N.C.W.A. Agreement, provides, inter alia, for a detailed procedure for determination of the date of birth of the existing employees working in the Coal Companies including M/s.BCCL. The Medical Board of the respondents upon scientific examination of the petitioner assessed/determined the age of petitioner as 31 years on 07.08.1986 meaning thereby the date of birth of the petitioner was assessed as 07.08.1955. Accordingly, the date of birth of the petitioner was entered as .2.
07.08.1955 in the service excerpts/Identity Card. In the Identity Card, the date of birth of the petitioner has been mentioned as 07.08.1956. In the Statutory Service Records of the petitioner, such as Form-B Register and the CMPF accounts etc., the date of birth has been mentioned as 07.08.1955. The photo copy of the Service Excerpt dated 10.12.1987 annexed as Annexure-3 to the writ petition indicates that the date of birth of the petitioner was 31 years on 07.08.1986, but to the utter surprise without any enquiry or opportunity to the petitioner, the respondents in a most arbitrary and illegal manner, re-referred the matter of date of birth of the petitioner to the Apex Medical Board for assessment of age and the respondent no.6 vide letter dated 05.07.2006 communicated to the petitioner that his date of birth has been assessed as 57 years 6 months as on 24.04.2006 meaning thereby the date of birth of the petitioner has been re-assessed as 24.10.1948 instead of 07.08.1955, as is evident from Annexure-4 to the writ petition and basing the aforesaid letter of M/s. BCCL vide letter dated 04.05.2008 issued under the signature of respondent no.6 served upon the petitioner the notice of superannuation vide Annexures- 4 & 5 dated 05.07.2006 and 4.5.2008, which are impugned in the writ petition.
3. Being aggrieved by the aforesaid impugned letters, the petitioner left with no other alternative and efficacious remedy, has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances.
4. Learned counsel for the petitioner has vehemently submitted that once the age of the petitioner has been assessed by the Medical Board and has been duly entered into the service excerpts having attained its finality and the action of the respondents in again referring for re- assessment of age without any glaring variations in their own records is not only illegal but also breach of provisions of Instruction-76 of NCWA Agreement. Letter of superannuation of the petitioner could not have been issued without affording opportunity to the petitioner to furnish the relevant documentary evidence in support of the date of birth and, therefore, the later action of the respondents in changing/altering the date of birth amounts to highhanded action and thereby amounts to violation of Articles 14 & 15 of the Constitution of India.
5 In order to buttress his submission, learned counsel for the petitioner has referred to the decision of this Court in the case of 'Sri Narayan Das Vrs. Jharkhand State Electricity Board & Ors.', reported in 2005(3) JCR 82(Jhr.).
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6. Controverting the averments made in the writ petition, a counter affidavit has been filed on behalf of respondents, wherein it has been submitted that the writ petition is misconceived one and as a matter of fact, the petitioner is estopped to raise the aforesaid dispute in the writ petition because he has already participated in the age assessment examination by the Apex Medical Board of respondent no.1-Company and the same has not been challenged before superannuation despite his knowledge of the result of such Medical Examination duly informed to him by respondent no.6 vide letter under reference dated 06.07.2006(Annexure-A to the counter affidavit). It has been further submitted that the petitioner did not object to his age assessment examination by the Apex Medical Board and as a matter of fact duly participated in such age assessment by the Apex Medical Board and the present writ petition has been filed on erroneous suppression of fact. Since the petitioner was conscious of age assessment examination by the Apex Medical Board, this writ petition is not maintainable. In this respect, learned counsel for the respondents has referred to the decision of the Apex Court in the case of 'State of Maharashtra & Anr. Vrs. Gorakhnath Sitaram Kamble & Ors.' reported in 2010(14) SCC 423. Learned counsel for the respondents, apart from reiterating the submission made in the counter affidavit, has submitted that correction of date of birth at the fag end of service career is not permissible.
7 After hearing learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference by this Court due to the following facts and reasons:
Admittedly, the date of birth of the petitioner was assessed by the Medical Board of the respondent-Company upon scientific examination as 31 years on 07.08.1986, meaning thereby the date of birth of the petitioner was assessed as 07.08.1955. The date of birth was recorded as 07.08.1955 in the Service Excerpts. Once the date of birth was recorded basing on the finding of the Medical Board, there was no occasion on the part of the respondents to go for re-assessment of age by re-referring the matter to the Apex Medical Board in absence of glaring/apparent variation in the entry of the date of birth.
There is no gainsay that the petitioner has never been informed of any allegation of manipulation, alteration or interpolation in the service excerpts and also no cogent reason has been mentioned in the counter affidavit as to why the case of the petitioner was referred to Apex .4.
Medical Board for re-assessment of age of the petitioner. Moreover, at the verge of retirement and at the fag end of service of the petitioner, the unilateral decision by the respondents could not be taken for changing the date of birth of the petitioner after more than two decades, which is illegal, unjust and arbitrary.
8. In view of reasons stated in the forgoing paragraphs, the impugned letters dated 05.07.2006 vide Annexure-4 and letter vide Annexure-5 to the writ petition being wholly illegal and not sustainable in law are hereby quashed and the respondents are directed to treat the date of birth of the petitioner as 07.08.1955 instead of 24.10.1948. Since more than nine years have elapsed from the date of filing of the writ petition and the petitioner would have retired by now and, thus, taking into account his date of birth as 07.08.1955, the respondents are directed to extend all the consequential service benefits to him.
9. With the aforesaid direction, this writ petition stands disposed of.
(Pramath Patnaik, J.) s.b.