Patna High Court
Dilip Kumar Mukherjee vs Union Of India (Uoi) And Ors. on 21 March, 2002
Equivalent citations: 2002(2)BLJR929
Author: Aftab Alam
Bench: Aftab Alam
JUDGMENT Aftab Alam, J.
1. Employment in a private jute mill, which in course of nationalization, was taken over by the Central Government and was later transferred to the National Jute Manufacturers Corporation Limited (hereafter referred to as 'the Corporation') proved to be highly profitable to the petitioner. It was only his last bluff, that did not succeed and he was, therefore, unable to have his tenure of service extended by two years and to derive further monetary benefit from the scheme of voluntary retirement introduced by the Corporation. He now seeks to realise, through the intervention of the writ Court, what he was unable to achieve on his own.
2. For a brief period from 15.7.98 to 21.3.2001, the age of superannuation for the employees Of the Corporation was raised from 58 to 60 years. It was during this period that the Corporation also introduced a scheme of voluntary retirement for its employees. On 22.2.99 the petitioner made an application for grant of voluntary retirement A copy of the petitioner's application is not on the record but if was evidently represented therein that his contract of Service was subsisting and he was yet to retire from the service of the Corporation. In response to his application, the petitioner received a communication, dated 7.7.99 issued by the Deputy Manager (Personnel) intimating that the competent authority in the Corporation had acceded to his request for retirement under the voluntary retirement scheme with effect from 15.7.99. It appears that later on in course of computation of his terminal benefits under the scheme, it transpired that at the time of entry into service the petitioner had given his date of birth as 10.1.39 which was entered in the relevant records. On that basis, he attired the age of 58 years in January, 1997, that is to say, long before the enhancement of the age of retirement with effect from 15.7.98 and the Introduction of the scheme of voluntary retirement. It was due to oversight that he was allowed to continue in service till the age of retirement was enhanced with effect from 15.7.99 and the scheme of voluntary retirement was introduced. According to the case of the respondent-authorities, it was after the enhancement of the age of retirement and the introduction of the V.R. scheme that an interpolation was made in the relevant records at the instance of the petitioner and he tried to take the benefit of the scheme on the basis of that interpolation.
3. In order to appreciate the respective stands of the parties, it would be necessary to take a brief look at the relevant facts of this case which may be stated as follows. The petitioner was appointed as a Clerk in the Store Department in Katihar Jute Mills on 28.12.57 when it was under private ownership. At that time, the management of the mill did not follow the practice of maintaining separate service books of its individual employees. What was, however, maintained was a register of adult workers as required under Rule 80 of the Bihar Factories Rules, 1950. It is undeniable that in column 10 of this register, relating to the worker's age at the time of 1st employment, 10.1.1939 was recorded as the petitioner's date of birth.
4. It may be noted here that the petitioner on his own showing had passed the matriculation examination held in March 1956 and in the matriculation certificate his date of birth was shown as 22.1.1941, a photostat copy of the matriculation certificate is at Annexure-4A to this writ petition. The date of issuance of the certificate is not clear and it is quite faint but the earned Counsel for the petitioner suggested that it was 1.12.1956. Even assuming that the matriculation certificate was issued after 28.12.57, there were certainly other documents relating to that examination such as the admit card, school leaving certificate, etc. in which the petitioner's age was shown on 22.1.41 and which were undeniably in his possession at the time of his appointment. At the time of his appointment, however, the petitioner did not produce the papers relating to the matriculation examination in support of his age and on the other hand, a fictitious date being 10.1.39 was shown as his date of birth in the adult register maintained under Rule 80 of the Bihar Factories Rules. The reason appears to be obvious. On the basis of 22.1.1941 being the date of birth the petitioner would be under 18 years on 28.12.57 and would therefore, face difficulties in his appointment in a jute mill.
5. In 1979, Katihar Jute Mills was taken over by the Central Government under the Nationalization Act and later on, it was transferred to the Corporation which was set up for the purpose on 21.12.80. Even before the jute mill came under the Corporation, the petitioner was dismissed from service on 3.4.80 on the charge of theft. It appears that a criminal case was also instituted against the petitioner on substantially the same charges. The criminal case ended in his acquittal by the trial Court and thereupon the petitioner raised an industrial dispute in connection with his dismissal from service. The dispute was referred to the industrial tribunal which in its award held and found that the petitioner's dismissal from service was bad and directed for his re-instatement with all consequential benefits. On the basis of the tribunal's award, the petitioner was re-instated in service on 21.3.96. It may be noted here that both his dismissal and his re-instatement in service were duly entered in column 20 of the adult register.
6. According to the respondents, even at the time of his re-instatement no alteration or change was made in the entry regarding his date of birth. The alteration in the petitioner's date of birth was made unauthorisedly and much after on, 14.2.99. The petitioner seeks to dispute this position. He does not deny that the alteration in the date of birth was not made the time of his re-instatement. He also does not deny that the change in the date of birth had not been introduced till August 1996 when the petitioner was considered for promotion to the next higher rank. It is, however, stated that the change in the date of birth as recorded in the adult register was made on the petitioner's request supported by his matriculation certificate. The petitioner is unable to disclose when exactly did he make such a request, though it was admittedly after August 1996. The petitioner is also unable to produce a copy of his application making such a request before the authorities concerned. A photo copy of the relevant extract from the adult register is at Annexure-A to the counter affidavit. From the photo copy, it appears that the original entry of 10.1.39 was penned through and above it 22.1.41 was written with the following endorsement:
As per Certificate No. 43308 of BSSEB.
7. Below the endorsement the writer put his initials and gave the date.
8. As noted above, according to the respondents this date is 14.2.99. Counsel for the petitioner, however, reads this date as 14.2.97. It is true that the date does not appear to be very clear but I too would read it as 14.2.99. Not much, however, depends on this date and the main question is whether or not the alteration in the petitioner's date of birth as shown in the adult register was made validly and in the normal course of administration or it was a case of unauthorized interpolation.
9. On a consideration of all the material facts and circumstances brought before this Court and on hearing Counsel for the parties, I am clearly of the view that it was a case of unauthorised alteration in the service records at the instance of the petitioner and I may enumerate my reasons for taking this view as follows:
(i) Though the petitioner was in possession of his matriculation certificate or in any event other documents relating to that examination in which his date of birth was shown, he withheld the certificate/documents and did not produce them in support of his date of birth at the time of his appointment in 1957. No attempt was made for correction of the date of birth at the time of his re-instatement in April, 1996 or when he was being considered for promotion in August, 1996 and the matriculation certificate was taken out for the purpose of correction of the date of birth fully after 40 years of his appointment even if the date of correction is to be read as 14.2.97, as suggested by the Counsel for the petitioner.
(ii) No copy of the petitioner's application for correction of his date of birth, much less any order passed in that regard by the competent authority is brought before the Court. The petitioner is not even in a position to give the exact date or month in which he might have made such a request.
(iii) In case the date of alteration is read as 14.2.99, as it appears to me, then it would appear that after somehow continuing in service after attaining the age of 58 years the alteration was made only after the enhancement of the age of retirement and the introduction of the scheme of voluntary retirement by the Corporation.
(iv) The Corporation has taken this alteration as an interpolation in the service records and against one Shri Amrendra Kumar, Assistant Manager Materials who made the correction in question under initials has been subjected to a disciplinary action.
10. Once it is held that the petitioner's date of birth was originally recorded in the adult register as 10.1.39 and on that basis he was due to retire on 31.1.97, on attaining the age of superannuation long before the enhancement of the age of retirement and the introduction of the voluntary retirement scheme in the Corporation not much remains in the case and the legal augments so strenuously advanced by earned Counsel for the petitioner lose all their force but in fairness to the Counsel, it is necessary to note the submissions made on behalf of the petitioner.
11. Mr. Amit Prakash, earned Counsel for the petitioner submitted that the issue of the petitioner's voluntary retirement from service had attained finality with the issuance of the letter, dated 7.7.99 by which he was intimated that the competent authority had acceded to his request and he was being allowed to retire under the voluntary retirement scheme with effect from 15.7.99. This decision was not amenable to be recalled and any action taken after 5.7.99 was a nullity in the eyes of law. In terms of the decision of the competent authority the contract of service between the petitioner and the Corporation stood terminated on 15.7.99 and the petitioner was thereafter no longer subject to any order or direction recalling the earlier decision by the Corporation. All that was left to do by the Corporation was to make payment of his terminal dues under the scheme of voluntary retirement.
12. In support of his submission, Mr. Prakash relied upon two Supreme Court decisions in B.J. Shelat v. State of Gujarat , and Union of India and Ors. v. Syed Muzaffar Mir 1995 Supp (1) SCC 76. In the decisions relied upon by Mr. Prakash, the Government employees concerned had made application for voluntary retirement. In both the cases the competent authority did not pass any order either granting or withholding permission for voluntary retirement and it was after the expiry of the statutory period that some penal measures/disciplinary action were taken against the concerned employees. The Supreme Court held that the-failure of the competent authority to pass an order, within the statutory period withholding permission for voluntary retirement had put the matter beyond his hands and after the expiry of the statutory period it was no longer open to pass a punishment order or to initiate a disciplinary action against the employees concerned.
13. In my view, the decisions relied upon by Mr. Prakash have no application to the facts of this case. In the first place, in the decisions in question the requests for voluntary retirement were not based on any manipulation of official records through interpolation. Secondly, on the basis of the findings recorded above, it is evident that the petitioner had attained the age of 58 years that being the age of superannuation at that time on 31.1.97 and the enhancement in the age of retirement from a later date and the scheme of voluntary retirement did not apply to his case. He was not entitled to take advantage of the scheme of voluntary retirement simply because he had continued in service beyond the age of superannuation due to oversight.
14. Mr. Prakash next submitted that the date of birth as recorded in the matriculation certificate must have precedence over any other date being suggested as the date of birth of a Government employee and in case the date of birth was incorrectly recorded at the time of entry into service, that could be corrected on the basis of matriculation certificate at any time. In support of the submission he relied upon a decision of this Court in Dr. (Capt) Janardan Prasad v. State of Bihar and Ors. 1993 (1) PUR 773. In the facts of this case, I am once again unable to see any application of this decision.
15. It is seen above that though the matriculation certificate or in any event the documents relating to the matriculation examination were available to the petitioner at the time of his appointment, those were with held deliberately and by design and instead of the date shown in those documents, a fictitious date of birth was recorded in the adult register at the time of the petitioner's appointment Moreover, even at the time of the alteration of the date of birth, as recorded in the adult register, there is nothing to show that the change was made in a horn fide manner and in the normal course of administration. No copy of a formal application for correcting the date of birth was produced before the Court, much less, any order allowing such a request being made by the petitioner. I its also seen above that the alteration was made after the petitioner had already attained the age of 58 years on the basis of 10.1.39 being his date of birth and in those circumstances, it was impossible for him to make a forma) request for correction of his date of birth.
16. Mr. Amit Prakash also relied upon two decisions of this Court one in the case of Chandra Kant Jha v. Bihar Sanskrit Shiksha Board 1991 (2) PLJR 22, and the other in the case Mokhtar Ahmad v. Bihar State Road Transport Corporation and Ors. 1995 (1) PLJR 183. I am satisfied that in the facts and circumstances of this case, these two decisions too have no application.
17. As against the above, Mr. Ahjan Chakravorty, learned Counsel appearing for the respondent-Corporation submitted that the Courts have consistently deprecated the practice of altering the date of birth originally entered in the service records at the fag end of the service career. In support of his submission, he relied upon a number of Supreme Court decisions and a decision of this Court. Some of the Supreme Court decisions relied upon by Mr. Chakravorty are (i) Union of India v. C. Rama Swamy , (ii) GM Bharat Coking Coal Limited v. Shib Kumar Dushad 2001 (1) PLJR (SC) 211 and a decision of this Court in Randhir Singh v. Central Coal Fields Limited 2001 (1) PLJR 87.
18. Mr. Chakravorty also submitted that as the petitioner had attained the age of 58 years on 31.1.97 which was the age of the retirement at that time, he could not take advantage of enhancement of the age of superannuation with effect from 15.7.98. In support of his submission, he relied upon a decision of the Supreme Court in Ramswaroop Masawan v. Municipal Corporation and Anr. . The submissions of Mr. Chakravorty are well, founded and are fit to be accepted.
19. For the reasons discussed above, I find that the petitioner is not entitled to any relief by this Court and there is no merit in the writ petition. It is accordingly dismissed but with no order as to costs.