Md Jahangir Khan vs Ms Central Coalfields Limited Through ... on 8 July, 2015

[Cites 2, Cited by 0]

Jharkhand High Court

Md Jahangir Khan vs Ms Central Coalfields Limited Through ... on 8 July, 2015

2. Petitioner herein is in the second round of litigation relating to a claim of correction of his date of birth, being aggrieved by the reasoned order dated 28.02.2014 (Annexure-14) passed by the Director (Personnel), Central Coalfields Limited pursuant to the direction passed in the earlier writ petition being WPS No. 1780/2013 by judgment dated 19.02.2014 (Annexure-12).

3. In order to cut short the maze of relevant material facts, the judgment passed in the petitioner's case in the previous round of litigation, is being quoted hereunder, as it records the respective stands of the rival parties advanced on the issue on the previous occasion.

"The petitioner has assailed the letter no. 825 dated 05.03.2013, Annexure-3 whereunder he would retire on28.02.2014 treating his date of birth 11.02.1954.

According to the petitioner, he was appointed on compassionate ground on 07.03.1973 and thereafter, he passed matriculation examination in the year 1976. In his matriculation certificate, his date of birth is clearly mentioned 09.01.1959.

The affidavit filed on behalf of the respondents as also by the petitioner himself, enclosing documents maintained by the respondents themselves, however, portray that there is at least some confusion in the office of the respondents themselves with respect to correct date of birth of the petitioner. The duplicate service book, which has been annexed by the respondents as Annexure-E, shows that date of birth of the petitioner is 11.12.1954 by which reckoning he would reach the age of 60 years on 11.12.2014. The gradation list, which has been enclosed as Annexure-5 to the affidavit of the petitioner also shows date of birth of the petitioner has been treated to be 11.12.1954 and the said documents is of year 2010. Apart from that the letter at Annexure-10 issued by the Project Officer, Bokaro Colliery dated 18.05.2000 refers the chronology of facts 2. inter alia that the petitioner had submitted an affidavit in the year 1980 and also referred at para-5 in the said letter that the Educational Qualification of the petitioner was inquired into. He was also granted promotion from time to time. Annexure-11, 12 and 12/1 annexed to the said supplementary affidavit also relate to verification of the father's name of the petitioner and also relating to the matriculation certificate, which has been sought for from the Principal, R. B. High School, Bermo, district-Bokaro and further the report of the Principal of the R.B. High School, Bermo issued on 20.05.1994.

The plea that the respondents have taken in their counter affidavit is that reckoning the age of the petitioner as 1959, as claimed by him, he would have only 14 years and few months only which could not be countenanced for the purpose of employment under the respondent-Company in mines.

The petitioner in this regard referred to the amendment introduced on 31.05.1984 in Section 40 of the Mines Act 1952 stating that before that date there was no minimum age prescribed for employment in the mines. By that amendment, the minimum age of 18 years was introduced. The petitioner has also referred the documents at Annexure-4 which contains tentative seniority list of office superintendent Gr. A employees of B & K Area in which he has referred the name of Md. Arif at serial no. 2, K. L. Sharma at serial no. 5, Binod Kr. Verma at serial no. 16 and, Ramdeo Singh at serial no. 30, to submit that the date of birth and date of appointment of these persons show that they were below 18 years of age at the time of their appointment in the respective years in 1970.

In the wake of such documents, it is obvious that the respondents are also not certain about the date, they are reckoning in respect of date of retirement of the petitioner. Guided by the duplicate service book as also gradation list published in the year 2010, the date of birth would be 11.12.1954 by which he would retire in the end of December, 2014. Therefore, the stand of the respondents does not appear to be well thought out and without proper application of mind. In such circumstances, the respondents are directed to reconsider the matter relating to date of birth of the petitioner, which has been treated to be 11.02.1954 whereunder he ought to be retired on 28.02.2014.

In that view of the matter, the impugned notice dated 05.03.2013, Annexure-3, so far it concerns the petitioner, is quashed. The matter is remitted to the respondent no. 3, Director(Personnel) M/s Central Coalfields Ltd., Ranchi to reconsider the case once again within a period of 10 weeks from the date of receipt of a copy of this order.

It would be open to the petitioner to make a representation duly supported with necessary facts and documents.

Accordingly, this writ petition is allowed in the aforesaid terms."

4. Petitioner is aggrieved by the reasoned order passed thereafter on the ground that the respondent Director (Personnel) on the one hand, has believed the entry of date of birth recorded in the Form-B, alleged to have been 3. prepared at the time of entry of service i.e. 11.02.1954, while there were no basis for justifying such entry even in that Form-B. On the contrary, other official records including duplicate service book of the petitioner and the gradation list as also the revised gradation list which contain different date of birth i.e. 11.02.1954, is not being believed. Moreover, the petitioner has been granted promotion on the basis of Matriculation qualification, obtained of course after his employment, in the year 1976 the details whereof have been verified way back in 1980 itself.

5. It is submitted that findings recorded in the impugned order therefore are not based on weighing the credibility of documents relied upon, on the one hand, by the petitioner and on the other hand, by the Management. The reasons contained in the impugned order are reflective of one sided view of the Management not to change the date of birth of the petitioner recorded in the said Form-B. Petitioner in support of his contention has enclosed Annexures-7 & 8 which refers to the ingredients of Form-B supposed to be maintained in terms of the provisions of Section 48 of the Mines Act, 1952, Rule-77 of the Mines Rules, 1955 as also the formate of such Form-B. It is submitted by reference to Annexure-H to the counter affidavit that the same is a purported Form-B relied upon by the respondents which does not contain any signature or thumb impression either of the employee or the Management which is mandatory requirement as per the prescription of Section 48 read with Rule 77. Learned counsel for the petitioner submits that the reasoned order therefore is not in accordance with law after proper appreciation of materials on record. Petitioner's date of birth 09.01.1959 as reflected in the Matriculation Certificate, issued in 1976 itself, should have been duly considered for the purposes of coming to a conclusion in the matter of correction of his date of birth, as the said document would be easily verified once again not only about the date of birth entry therein, but all other relevant details also relating to the entry of the petitioner in school in 4. question. It is submitted that therefore the impugned order needs to be set aside.

6. Learned counsel for the respondent however has argued in support of the reasoned order. It is his contention that the Matriculation Certificate relied upon by the petitioner, is not to be acted upon as it has been issued after three years of his entry in service on 08.02.1973. If the Matriculation Certificate is accepted, that would mean that he was only 14 years and 27 days at the relevant point of time and could not be entitled for employment. It is his further case that in the Matriculation Certificate, his father's name is recorded as Md. Jamil Khan, while in the LTC record, it is shown as Md. Yakub Khan as he was appointed on compassionate ground in the place of late Yakub Khan. It is also stated by the respondents that late Yakub Khan had only one son namely, Md. Imtiyaz Ahmad and that Jamil Khan had six sons including Md. Jahangir Khan, petitioner herein, as per police verification report dated 08.08.1995. Therefore, Matriculation Certificate or the Mining Sirdar Certificate which contains the same date of birth entry, would not be a reliable document to make any correction in his date of birth maintained at the time of joining service. He has referred to Para-B of Implementation Instruction No. 76 issued by JBCCI, as per which, the Matriculation Certificate can be taken into account if it was issued prior to the date of employment for consideration for the purpose of correction in date of birth. According to the learned counsel for the respondents, the reasoned order also did not find any basis for entry of 11.12.1954 as the petitioner's date of birth. Therefore, the impugned order does not suffer from any non-application of mind or non-consideration of relevant material which were germane to arrive at a considered decision in the matter after the issue was remanded to the respondent by this Court on the previous occasion.

7. Learned counsel for the petitioner, in response, has referred to the judgment passed in his case earlier where the contention of the petitioner has been taken into account that the minimum age for employment of 18 years in the 5. mines was introduced by amendment on 31.05.1984 in section 40 of the Mines Act, 1952. He has also made reference to the said judgment where instances of certain other persons were also noticed who had entered service before the age of 18 years sometimes during 1970s under the same respondent. Learned counsel for the petitioner further submits that due consideration has not been accorded to the petitioner's claim in any manner while deciding the issue. Therefore, impugned order should be quashed.

8. As has been noticed hereinabove, the present lis arises out in the second round of litigation after this Court had directed the concerned respondent authorities of the CCL to reconsider the matter relating to the date of birth of the petitioner as it was found that the respondents were also not certain about the date they were reckoning in respect of his date of retirement. The judgment passed in the petitioner's case, quoted hereinabove, which has noticed the rival stands of the parties brought-forth through their counter affidavit, itself shows that while the respondent-Management have been relying upon the date of birth entered as 11.02.1954 said to have been entered in Form-B, but their own record such as duplicate service book and gradation list showed a different date of birth i.e. 11.12.1954. Petitioner had a third case that his date of birth is 09.01.1959 based upon the Matriculation Certificate which have been verified sometime in the year 1980. What appears from perusal of the reasoned order is that though the contention of the petitioner for correction of his date of birth entry has not been accepted, but Director (Personnel) has also not found any basis for the date of birth entry of 11.02.1954 shown in the Form-B Register relied upon by the respondents enclosed as Annexure-H. Ordinarily, Form-B or the relevant records at the time of entry in service, do contain an endorsement that the date of birth or the age of the employee is being entered either on his own saying or on the determination by a Medical Board.

9. In the instant case, Annexure-H does not show any such endorsement. This 6. document is being made the only basis for retirement of the petitioner on 28th February 2014. Comparing this document with other documents officially maintained i.e. duplicate service book as also the gradation list, it appears that there are contrary date of birth entry recorded therein i.e. 11.12.1954. Though, much substance cannot be attached to the contention of the petitioner for seeking the date of birth correction as 09.01.1959 as it was based upon Matriculation Certificate issued after his entry in service, but the glaring difference in the date of birth entry recorded by the respondent in different official records, as noticed hereinabove, did require due consideration as is provided under the Implementation Instruction No. 76. Such instruction provides for procedure for determination or verification of age of the employee. B(ii) thereof is in relation to review determination of date of birth in respect of existing employees. The same is quoted hereunder as it is relevant to decide the present controversy.

"(B) Review determination of date of birth in respect of existing employees

i)(a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle Pass certificate issued by the Board of Education and / or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities / Boards / Institutions prior to the date of employment.

i) (b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic Provided that where both documents mentioned in (i)

(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.

ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through Determination Committee / Medical Board."

10. Clause (i)(a) thereof relates to certificate of Matriculation, Higher Secondary or Middle Pass which were obtained by the employee prior to the date of his employment and in such circumstances, were to be treated as correct for the 7. purposes of date of birth entry. Clause-(i)(b) relates to the Mining Sirdarship and Winding Engine and similar other statutory certificates where Manager had to certify the date of birth as authentic. The contention of the respondents to some extent has substance that the date of birth entry in the Mining Sirdarship is also based upon the Matriculation Certificate of the petitioner which itself was issued three years after his employment. However, sub-clause-(ii) of the aforesaid Instruction appears to apply to the petitioner's case. It stipulates that in case where there is no variation in records, such cases will not be reopened unless, there is a very glaring and apparent wrong entry brought to the notice of the Management. Here is a case where there is variation in record and it is also glaring. The Director (Personnel) took a view based upon one of the documents alone in the face of such variation in the date of birth entry in the records maintained by the Employer. The recourse provided under the said clause is that the Management should take appropriate action on being satisfied on the merits of the case for correction through Determination Committee / Medical Board. This course should have settled any doubt in the mind of the Management or the petitioner as that would be through proper scientific determination by expert Medical Board. Therefore, the impugned reasoned order passed by the Director (Personnel) is liable to be interfered with as it has not chosen to adopt the most appropriate lawful recourse in circumstances when there were variation in the date of birth entry of the petitioner in the official record. The impugned order therefore cannot be sustained on this count, as the respondent-Director (Personnel) has relied only upon Form-B entry which also does not have any support of endorsement made about the age of the petitioner at the time it was entered; whether at the time of entry in service or thereafter. It is also apparent that the said Form-B contains the petitioner's date of birth i.e. 11.02.1954 and also 11.02.1959, which has been cut and later on again corrected as 11.02.1954. It also further appears that neither the said Form-B, nor the said correction bear the signature of any competent authority 8. or the employee. If that was so, the best course for the respondents was to refer the matter for such correction through Determination Committee / Medical Board.

11. Therefore, the impugned order is quashed. Respondent-CCL would now refer the case of the petitioner for taking a decision on correction of his date of birth entry through appropriate Determination Committee / Medical Board. In any such determination, the Determination Committee would also have the opinion of the Medical Board where obviously the petitioner would get a chance to appear and examined. Let such exercise be concluded within a period of eight weeks from the date of receipt of a copy of this order.

Needless to say, upon such exercise if any correction in the entry of date of birth is made in favour of the petitioner, which results in enhancement of his age of superannuation, he would be entitled to consequential benefits arising therefrom.

12. The writ petition is allowed in the aforesaid terms.

(Aparesh Kumar Singh, J) Ranjeet/

Unlock Advanced Research with PRISMAI

Jharkhand High Court