Jharkhand High Court
Shyam Kishore Singh vs Ms Bharat Coking Coal Limited Through ... on 13 October, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6172 of 2014
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Shyam Kishore Singh, son of late Ganesh Prasad Singh, resident of village Bhataulia,
P.O. Khutia, P.S. Paru, District Muzaffarpur (Bihar).
... ... Petitioner
VERSUS
1. M/s. Bharat Coking Coal Limited, a Company registered under the Companies Act,
having its registered office at Koyla Bhawan, Koyla Nagar, P.O. & P.S. Seraidhela,
District Dhanbad through its Chairman-cum-Managing Director.
2. The Chairman-cum-Managing Director, M/s. Bharat Coking Coal Limited, having its
registered office at Koyla Bhawan, Koyla Nagar, P.O. & P.S. Seraidhela, District
Dhanbad.
3. The Director (Personnel), M/s. Bharat Coking Coal Limited, having its registered
office at Koyla Bhawan, Koyla Nagar, P.O. & P.S. Seraidhela, District Dhanbad.
4. The General Manager (Personnel and Industrial Relation), M/s. Bharat Coking Coal
Limited, having its registered office at Koyla Bhawan, Koyla Nagar, P.O. & P.S.
Seraidhela, District Dhanbad.
5. The General Manager, M/s. Bharat Coking Coal Limited, Sijua Area, P.O. & P.S.
Sijua, District Dhanbad.
6. The Personnel Manager, M/s. Bharat Coking Coal Limited, Sijua Area, P.O. & P.S.
Sijua, District Dhanbad.
7. The Deputy Chief Mining Engineer/ Agent, Tetulmari Colliery, M/s. Bharat Coking
Coal Limited, P.O. & P.S. Tetulmari, District Dhanbad.
... ... Respondents.
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For Petitioner : Mr. Mahesh Tewari, Advocate
For Respondents : Mr. Amit Kumar Sinha, Advocate
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
C.A.V. on 16.08.2017 Pronounced on 13/10/2017
Dr. S.N. Pathak, J. Heard learned counsel for the petitioner and learned counsel for the
respondents.
2. The petitioner has approached this Court with a prayer for directing
the respondents, particularly, respondent Nos. 5, 6 and 7 to produce before this
Hon'ble Court all records appertaining to his illegal retirement from the
services of the respondents on consideration of an interpolated date of birth i.e.
04.03.1950in place of his actual date of birth as recorded in his matriculation 2 certificate i.e. 20.01.1955 and thereby snatching away his service for a period of five years from his actual date of retirement.
Further prayer has been made to quash the illegal retirement order of the petitioner by which the petitioner has been made to retire five years prior to his actual date of retirement and to direct the respondents to pay all his consequential benefits which he may be entitled if he was in service and to reinstate him in his original post.
A further prayer has also been made to pay interest @ 18% per annum on the amount which may be paid to the petitioner as his consequential benefits after his retirement.
3. The factual exposition as has been delineated in the writ petition is that the petitioner was appointed as a Trainee in the services of the respondents-M/s. Bharat Coking Coal Ltd. (for short "BCCL") and was allotted Personnel No. 00473470. It is the case of the petitioner that in his application form for the above post, he had explicitly declared his date of birth as 20.01.1955 as per his matriculation certificate and in support of that, he has also produced the copy of his matriculation certificate. Thereafter, he was offered employment as Trainee Dozer Operator vide letter dated 28/31.01.1982. As per condition laid down in para-10 of the said letter, he was asked to submit his matriculation and birth certificate in support of his date of birth, which he had duly submitted. On being declared medically fit and after verification of the copy of matriculation certificate submitted by the petitioner, from his original matriculation certificate, he was allowed to join his duty at Karmik Bhawan/ Vikash Bhawan from 27.02.1982. Thereafter, he was transferred to Nichitpur Colliery under Sijua Area of M/s. BCCL vide Office Order dated 01.03.1986. On receipt of such office order, the petitioner reported to his transferred place, wherein in Form 'B', also, he entered his date of birth as 20.01.1955. Again, he was transferred to Tetulmari Colliery, where he got information that his date of birth has wrongly been recorded in Form 'B' as 20.01.1950 by interpolation made by the Clerk of Nichitpur Colliery. On receipt of such information, he made complain before the respondents and requested for correction of his date of birth as per the date of birth mentioned in his matriculation certificate, which he had duly produced at the time of his initial appointment. On receipt of the representation of the petitioner, the respondents sent the matriculation certificate of the petitioner for verification to 'Bihar School Examination Board, Patna (B.S.E.B.)'. After receipt of the verification report from B.S.E.B., Patna, the Personnel Manager (IR), Sijua 3 Area recommended for correction of the date of birth of the petitioner as per Implementation Instruction No. 76 and all the concerned authorities sent the same to Koyla Bhawan for approval. After perusal of Form 'B' Register, it was found that somebody of Personnel Department of Nichitpur Colliery has made interpolation in the date of birth of the petitioner and caused his termination in the guise of retirement about 5 years prior to his actual date of retirement.
4. It is the further case of the petitioner that the respondent-authorities, inspite of clear-cut stipulation in Implementation Instruction No. 76, Certified Standing Orders No. 11 and even the rulings of Hon'ble High Court at Ranchi in case of Awadh Singh Vrs. BCCL & Others, reported in 2005 (2) JCR 474 Jhr. and several other cases and that of Hon'ble Supreme Court that date of birth recorded in unimpeachable document like matriculation certificate has to be accepted, kept mum and became instrumental in the illegal termination of the petitioner in the guise of his premature retirement. When no heed was paid by the respondents, the petitioner represented before the respondent-authorities and also before the Hon'ble Minister of Coal, Govt. of India but the same fell on the deaf ears of the respondents as no action whatsoever in any manner has been taken from the side of the respondent-authorities. Hence, the petitioner has preferred this writ petition for redressal of his grievances.
5. Mr. Mahesh Tewari, learned counsel appearing for the petitioner strenuously urges that the respondent-authorities cannot be allowed to retire/ superannuate the petitioner five years prior to his attainment of 60 years of age by interpolating his date of birth, which has been done by the respondents themselves only to snatch away the right of livelihood of the petitioner. The respondents are bound to consider the date of birth as mentioned in the matriculation certificate of the petitioner. Learned counsel for the petitioner submits that the respondent themselves appointed the petitioner in the year 1982 on the basis of his matriculation certificate, in which his date of birth was mentioned as 20.01.1955 but by interpolation, his date of birth was wrongly recorded in Form 'B' Register as 04.03.1950. Learned counsel further submits that the Implementation Instruction No. 76 of the NCWA is binding and the matriculation certificate of an employee has to be considered if there is any kind of dispute regarding date of birth and superannuating the petitioner five years prior to his actual date of retirement can be said to be a clear abuse and colourable exercise of power, which is liable to be rejected outrightly by this Court.
46. Per contra, counter-affidavit has been filed by the respondents.
Learned counsel appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the instant writ application is not maintainable in the eyes of law and liable to be rejected on the ground of delay and laches. Learned counsel further submits that subsequent to his retirement, the petitioner also applied for release of his retiral benefits such as, Gratuity, Provident Fund and other legally dues payable to him and the retiral benefits have already been paid to the petitioner. A dispute relating to date of birth cannot be raised at the fag end of service but in the instant case, the dispute relating to date of birth has been raised not at the fag end of service but after four years of the retirement of petitioner and therefore, the writ petition is liable to be dismissed in limine. Learned counsel further argues that the petitioner has not submitted his matriculation certificate at the time of his appointment or even at the time of preparation of his service excerpts. It is further stated that date of birth of the petitioner was 04.03.1950 and the same has been recorded in his service excerpts and when the workmen were called upon to submit their objection with regard to entry made in the service excerpts the petitioner did not raise any objection with regard to his date of birth which was recorded as 04.03.1950 rather, in token of acceptance of the entries made in his service excerpts, the petitioner had put his signature
7. Learned counsel for the respondents argues that the petitioner was transferred from Kankanee Colliery to another colliery in Sijua Area and even in the Form 'B', the date of birth of the petitioner has been recorded as 04.03.1950 and this fact was acknowledged by the petitioner by putting his signature in the relevant column. Learned counsel further submits that qualification of Dozer Operator is not matriculation. It is stated that JBCCI has formulated cadre scheme for different cadres. As per the applicable cadre scheme for Excavation Personnel which consists of Dozer Operator (T) in Excavation Category - D, the qualification required is Class-VIII pass with HMV license and endorsement for Tractor driving. To buttress his argument, learned counsel draws the attention of the Court towards judgment rendered in case of Ram Pyare Singh Vs. BCCL & Ors., reported in 2014 (3) JCR 679, wherein it has been held that the entry of date of birth in Form 'B' would prevail over matriculation certificate and statutory documents and records of service shall be given priority over the matriculation certificate. It is further stated that in the year 1982, the petitioner never disclosed that he is a matriculate and has passed matriculation examination from any Board, as is 5 evident from Annexures-A to D of the counter-affidavit. From the documents annexed with the writ petition, it is crystal clear that petitioner approached the respondents for correction of his date of birth on 12.05.2009, that too when the petitioner was to retire on attaining the age of superannuation on 01.04.2010.
8. Learned counsel further submits that qualification and experience required against cadre posts are laid down in the respective implementation instructions issued from time to time in different NCWAs. It is stated that by Implementation Instruction No. 36 dated 02.02.1981, under NCWA-II, the grading job description etc. of excavation as agreed by the standardization committee had been finalized. Dozer Operators fall under Group-B and the qualification required under said Implementation Instruction-36 is as under:-
"2. Tractor/ Dozer Operator Grade. I: A skilled workman possessing not less than 5 years' of experience in the operations and handing of Crawler of wheel type dozers of not less than 150 hp. He should have general knowledge of the mechanism of the Tractor and undertakes minor running repairs. He should hold license of Tractor driving."
9. Learned counsel further argues that it has already been stated that the petitioner was appointed as Trainee Dozer Operator on 28.01.1982 and at that time there was no requirement of having matriculation qualification. It is only under NCWA-VII vide Implementation Instruction No. 21 dated 31.08.2007, cadre scheme for Excavation Personnel (Operation) has been formulated vide Annexure-XXVIII-1 to XXVIII-8 and in the said Implementation Instruction No. 21 of NCWA-VII, the educational qualification for new recruitees has been fixed as matriculation. However, as regards existing employees, qualification required is Class-VIII pass with HMV license and endorsement for Tractor Driving.
10. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that admittedly the petitioner for the first time raises his grievances regarding correction in the date of birth in the year 2009. On receipt of such objection, the respondent-authorities verified the date of birth as claimed by the petitioner from the Bihar School Examination Board, Patna and after verification, the BSEB vide its reference No. 8563 confirmed the date of birth as 20.01.1955. If the date of birth, as per the respondents, was 04.03.1950 as mentioned in the Form "B" Register then there was no occasion for verifying the same from Bihar School Examination Board. It is not a case that the petitioner has procured the matriculation certificate much after his appointment, rather, he had passed matriculation 6 prior to his coming into service. From perusal of Annexure-3, which is Form 'B', the document of the respondents themselves, it is apparent that interpolation has been done. After cutting the original date of birth mentioned in Form 'B' register as 20.01.1955, the wrong date of birth as 04.03.1950 has been written by interpolation. The reason of such interpolation has not been explained by the respondents. There is no occasion why the petitioner will indulge into such interpolation which is not in his favour and as such it is very much clear that interpolation, if any, has been done by the office of the respondents itself. In catena of decisions, the Hon'ble Apex Court has held that no correction can be made at the fag end of service career. In the case of Bharat Coking Coal Ltd. & Ors. Vs. Chhota Birsa Uranw, reported in 2014 (3) JLJR 182 (SC), it has been held that statutory documents like Form 'B' register is binding and School Leaving Certificate prevail over records and statutory documents of the company. The petitioner should have produced the matriculation certificate at the time of appointment since he has stated that he had passed matriculation examination in the year 1971 which was prior to joining of his service. The statutory Form 'B' relied upon by the respondents, which is at Annexure-3 of the writ petition, shows clear interpolation and as such, any date of birth entered by way of interpolation cannot be relied upon even if it is in the statutory Form 'B'. The judgments relied on by the respondents does not come to their rescue. The respondents heavily relied on the judgment passed in L.P.A. No. 327 of 2006 (Ram Praye Singh Vs. BCCL & Ors.), in which it was held that Form 'B' which was prepared at the time of joining of the petitioner, is a statutory document and record of service as the same has duly been signed and authenticated by the petitioner.
11. The Form 'B' register relied upon by the respondents is a new Form 'B' which was not prepared at the time of appointment rather at a later stage. The Implementation Instruction No. 76 of NCWA-II provides for determination of age at the time of appointment where it has been clearly mentioned that in case of new appointees who have passed matriculation or equivalent examination, the date of birth recorded in the said Certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. On a plain reading of the said I.I. No. 76 it is clear that in case of such new appointees, who have passed matriculation or equivalent examination, the date of birth recorded in the matriculation certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. It is, therefore, not the entry made in Register Form 'B' or any 7 other records, but, the date of birth recorded in the matriculation certificate which has been accepted as a conclusive proof of date of birth. This also is of no help to the respondents as Form 'B' which is at Annexure-3 is itself interpolated and the essential Form 'B', which was prepared at the time of joining of the petitioner has not been brought on record and as such, this case is distinguished on that score itself. It is, therefore, not the entry made in register Form 'B' or any other records, rather the date of birth recorded in the matriculation certificate be accepted as a conclusive proof of date of birth. In that view, if there is service excerpts or Form 'B' register even signed by the employee mentioning the date of birth contrary to that recorded in matriculation certificate shall not be treated as correct date of birth. Similar issue fell for consideration before the Full Bench of this Court in Kamta Pandey Vrs. M/s. BCCL & Ors. [2007 (3) JLJR 726]. The Full Bench of this Court has answered the same by holding that the date of birth recorded in the matriculation certificate is a conclusive proof of age and has overriding effects on other records, including service records, as both the parties are governed by Implementation Instruction No. 76 of National Coal Wage Agreement-III. The same view was reiterated in W.P.(S). No. 2208 of 2008, which was affirmed by the Division Bench in LPA No. 276 of 2011.
12. The respondents have raised further objection that even if the date of birth of the petitioner is wrongly mentioned as 04.03.1950, it cannot be corrected as the dispute has been raised at the fag end of the service career and writ petition has been filed after more than three years of retirement. This issue has already been answered in Para-27 of the Full Bench judgments passed in case of Kamta Pandey Vs. BCCL & Ors. (supra), which reads as under:-
"27. In these decisions, though it is observed that the employee will not normally be permitted to apply for change of his date of birth at the fag end of service career, the Supreme Court clearly held that if the Court is fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and when a clear case, relating to the date of birth, is made out on the basis of clinching materials, then necessary direction to make a declaration of the said date of birth can be given."8
13. In Form 'B' at Annexure-3 of the writ petition it is very clear that date of birth is 20.01.1955, which has been interpolated and after cutting the same, an imaginary date of birth 04.03.1950 has been mentioned.
14. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I hereby direct respondent-BCCL to make necessary corrections in the date of birth of the petitioner in service records as per the matriculation certificates which is 20.01.1955 and pass consequential orders.
15. Resultantly, the writ petition stands allowed.
(Dr. S.N. Pathak, J.) kunal/-