Jharkhand High Court
Dipak Mandal @ Dipak Kumar Mandal vs Steel Authority Of India Limited ... on 7 March, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3977 of 2017
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Dipak Mandal @ Dipak Kumar Mandal, son of Kristo Pada
Mandal, resident of Qr. No.FG/1, South Colony, P.O.
Pathardih, P.S. Pathardih, District - Dhanbad
... ... Petitioner
Versus
1. Steel Authority of India Limited through its Chairman
having Corporate Office at Ispath Bhawan, Lodhi Road,
P.O. Lodhi Colony, P.S. Lodhi Colony, New Delhi (NCR)
110001.
2. General Manager of Steel Authority India Limited,
Chasnala Colony, P.O. Dhanbad, P.S. Dhanbad, District
Dhanbad 828135
3. Assistant General Manager, Steel Authority of India
Limited, Chasnala Colony, P.O. Pathardih, P.S.
Pathardih, District Dhanbad 828135.
4. Deputy General Manager of Steel Authority of India
Limited, Chasnala Colliery, P.O. Pathardih, P.S.
Pathardih, District Dhanbad 828135.
5. Sr. Manager (PL), (CNG), SAIL-ISP, Chasnala Colliery,
P.O. Pathardih, P.S. Pathardih, District Dhanbad
828119.
6. Deputy Manager (PL), (CNG), SAIL-ISP, Chasnala
Colliery, P.O. Pathardih, P.S. Pathardih, District
Dhanbad 828119.
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Suraj Singh, Advocate
For the Respondents : Mr. Vijay Kant Dubey, Advocate
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ORAL JUDGMENT
Order No. 07 : Dated 7th March, 2022 I.A. No.1197 of 2020 The instant interlocutory application has been filed for amendment in the pleading as well as in the prayer portion of the writ petition.
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2. Learned counsel appearing for the petitioner has submitted that the instant writ petition has been filed for quashing the order dated 17.05.2017 passed by Central Administrative Tribunal, Circuit Bench at Ranchi in O.A. No.051/00047/2016 and for direction upon the respondents to correct the date of birth of the petitioner as per the matriculation certificate i.e., 05.06.1962.
Learned counsel further submitted that during the pendency of the instant writ petition, certain developments have taken place to the effect that one order contained in Memo No.P.D./R.T.R./18/362 dated 09.05.2018 issued by the Manager (Personnel), Chasnala has been served upon the petitioner by which it has been informed that the petitioner has completed his service and will be superannuated from service on 30.06.2018 in view of Memo P.D/R.T.R/18/04 dated 03.02.2018, which are required to be brought to the notice of this Court.
It has been submitted that the amendment, which is sought to be incorporated in the prayer portion is by way of subsequent development, which arose in course of pendency of the writ application which is having direct bearing on the writ petitioner, the Interlocutory Application may be allowed.
3. Mr. Vijay Kant Dubey, learned counsel appearing for the respondents, objecting to the prayer of the learned counsel for the petitioner for allowing the instant interlocutory -3- application, has submitted that since the petitioner has already superannuated, there is no need to challenge the aforesaid order in the instant writ petition.
He has further submitted that if the petitioner wants to challenge the order dated 09.05.2018, he may file original application before the Central Administrative tribunal.
He lastly submitted that though the writ petition has been filed in the year 2017 and the order informing the writ petitioner that he will superannuate on 30.06.2018 was served upon him on 09.05.2018, but the present interlocutory application has been filed on 05.02.2020 for amendment in prayer portion annexing the aforesaid order, i.e., after his superannuation, therefore, the instant interlocutory application may be dismissed.
4. Taking into consideration the submission advanced by learned counsel for the parties, this Court is of the view that the amendment, which is sought to be incorporated, both in the pleadings of the writ petition and in the prayer portion of the writ petition, is a subsequent development and in course of pendency of the writ petition, order contained in Memo No.P.D./R.T.R./18/362 dated 09.05.2018 has been served upon the writ petitioner, as such if the proposed amendment is not allowed it will lead to multiplicity of proceedings and, therefore, this Court is of the view that instant Interlocutory Application is fit to be allowed.
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5. In view thereof, I.A. No. 1197 of 2020 is allowed.
6. I.A. No. 1197 of 2020 shall form part of the main writ petition.
W.P.(S) No.3977 of 2017
7. The instant writ petition is under Article 226 of the Constitution of India, wherein the order passed by Central Administrative Tribunal, Circuit Bench at Ranchi dated 17.05.2017 in O.A. No.051/00047/2016 has been sought to be quashed by which the prayer of the writ petitioner for modification of his date of birth from 08.06.1958 to 05.06.1962, has been refused to be granted on the ground that such dispute cannot be allowed to be agitated at the fag end of service career.
Further, vide amendment petition, prayer with regard to quashing of order contained in Memo No.P.D./R.T.R./18/362 dated 09.05.2018 issued by the Manager (Personnel), Chasnala by which it has been informed to the writ petitioner that he will be superannuated from service on 30.06.2018, has also been added.
8. The brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated herein, read as under :-
The writ petitioner claims to be appointed as Piece Rated Worker at Chasnala Colliery of Steel Authority of India -5- Limited (in shore "SAIL") in the erstwhile Indian Iron and Steel Company Limited vide order dated 12.02.1979.
It is the case of the writ petitioner that prior to his appointment, he passed Secondary School Examination from West Bengal in the year 1978 in which his date of birth has been recorded as 05.06.1962. The writ petitioner had furnished all the documents including certificates to the Management at the time of his appointment. He was promoted from time to time to the higher posts and finally was promoted to the post of Master Office Staff S-10 vide order dated 10.08.2010.
It is the grievance of the writ petitioner that all of a sudden, he came to know that his date of birth has wrongly been recorded as 08.06.1958 in the records of the Company although his actual date of birth is 05.06.1962. Therefore, a representation was submitted on 10.10.2009 for correction of his date of birth on the basis of the date of birth recorded in the Matriculation certificate, but nothing was done by the respondents.
The applicant, had moved to this Court by filing writ petition being W.P.(S) No.4339 of 2015 but was dismissed as withdrawn on the ground of maintainability with a liberty to move before the Central Administrative Tribunal vide order dated 05.02.2016.-6-
Thereafter, the writ petitioner moved before the Central Administrative Tribunal, Circuit Bench at Ranchi by filing original application being O.A. No.OA/051/00047/16.
The respondents appeared before the Tribunal and filed written statement by taking the plea that the applicant joined the Company on 14.02.1979 at Chasnala Colliery as a part of land acquired and as per initial medical examination report, at the time of appointment his age was assessed as 20 years as on 08.06.1978 by the Company's Medical Officer.
The further plea of the respondents before the learned Tribunal was that, at the time of appointment, the writ petitioner himself declared as Matriculate of the year 1977 but he did not produce any certificate to corroborate the same. However, he declared his date of birth as 14.02.1958.
The respondents further pleaded that as per bio-data filled up by the applicant on 08.06.1987, he declared himself as Matriculate but no documentary proof was produced at that time even though he had filled up his date of birth as 05.06.1958 in his bio-data.
The learned Tribunal adjudicated the said dispute by answering against the writ petitioner by holding therein that at the fag end of his service career, it is not available with the writ petitioner to raise the dispute about date of birth, which is the subject matter of the present writ petition.
9. Mr. Suraj Kumar Singh, learned counsel appearing for -7- the writ petitioner, has submitted that the learned Tribunal has failed to appreciate by not considering the date of birth recorded in the Matriculation certificate wherein the date of birth of the writ petitioner is recorded as 05.06.1962.
He further submits that even though the Matriculation Certificate was not produced at the time of appointment, then also, the date of birth recorded in the Matriculation Certificate, is the conclusive proof of age of one or the other person. The writ petitioner produced the Matriculation Certificate before the concerned respondent for making necessary correction in the service record, but having not done so, the respondents have acted with arbitrariness and unreasonableness.
10. Per contra, Mr. Vijay Kant Dubey, learned counsel appearing for the respondent - SAIL, has submitted that there is no infirmity in the order passed by the learned Tribunal, reason being that the writ petitioner, even though claims to be a Matriculate, which he has done prior to entry in service i.e., in the year 1977, then the question is that who had prevented him from producing the Matriculation Certificate.
He further submits that the writ petitioner has raised such claim after accepting his date of birth on his own declaration to be 14.02.1958 and as such, it is not available to the writ petitioner to raise such dispute at the fag end of -8- his service.
He further submits that the learned Tribunal, after taking into consideration this aspect of the matter, if refused to pass any positive direction in favour of the writ petitioner, the same cannot be said to suffer from an error.
11. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Tribunal in the impugned order.
12. The fact which is not in dispute in this case is that the writ petitioner claims to be appointed as Piece Rated Worker on 12.02.1979.
Admittedly, the respondent authorities, on the date of appointment of the writ petitioner, assessed his age as 20 years as on 08.06.1978 and basis upon the aforesaid date, he was offered with the offer of appointment and accordingly, he joined on 14.02.1979.
The writ petitioner, after having accepted the offer of appointment and after giving his joining, has raised objection about his date of birth by filing representation for the first time in the year 2009 i.e., by filing representation on 10.10.2009.
The writ petitioner, even after filing of representation on 10.10.2009 and even accepting that no decision has been taken by the concerned respondents on the representation -9- dated 10.10.2009, sat idle fairly for a period of almost six years and only in the year 2015, he invoked the jurisdiction of this Court conferred under Article 226 of the Constitution of India by filing writ petition being W.P.(S) No.4339 of 2015. However, the aforesaid writ petition was dismissed as withdrawn vide order dated 05.02.2016 on the ground of availability of alternative remedy.
The writ petitioner, thereafter, approached to the Central Administrative Tribunal taking the plea about arbitrariness and unreasonableness committed on the part of the respondent authorities in not modifying the age of the writ petitioner by changing it from 08.06.1958 to 05.06.1962, as recorded in the Matriculation Certificate, as claimed by the writ petitioner.
The claim of the writ petitioner that his date of birth is required to be treated as 05.06.1962 as recorded in the Matriculation Certificate.
13. This Court, on the basis of the material available on record and taking into consideration the date of appointment which is 12.02.1979, has gathered therefrom that the writ petitioner is claiming his date of birth as 05.06.1962, as recorded in the Matriculation Certificate and if that age will be treated to be the correct age of the writ petitioner, then the question arises that what would be the age of the writ petitioner on the date of appointment i.e., on 12.02.1979 by
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taking it from 05.06.1962, as recorded in the Matriculation Certificate.
On simple calculation of the age of the writ petitioner, taking it from 05.06.1962 as per Matriculation Certificate, it will be less than 18 years. Now the question arises that how the writ petitioner got appointment if he was of the age below 18 years.
14. This Court, on the basis of such calculation, is not hesitant in coming to the conclusion that the writ petitioner, who is claiming to have passed Matriculation in the year 1977, even though he was appointed on 12.02.1979, but the aforesaid Matriculation Certificate was not produced before the employer, reason being that if the aforesaid Matriculation Certificate would have been produced at the time of appointment of the writ petitioner, he would not have been appointed, since he would have been found to be less than 18 years of age and that is the reason the writ petitioner did not produce the Matriculation Certificate at the time of appointment.
Further, in the bio-data furnished by the writ petitioner on 08.06.1987, appended as Annexure-C to the counter affidavit, he has accepted his date of birth as 05.06.1958.
15. Thus, it is evident that right from the date of appointment i.e., from 12.02.1979 till making of representation on 10.10.2009, the writ petitioner accepted
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his date of birth as 05.06.1958. It is for the first time in the year 2009 by making representation on 10.10.2009, he claims to have taken birth on 05.06.1962, based upon the Matriculation Certificate.
The writ petitioner, right from the date of appointment i.e., on 12.02.1979 till 2009 remained silent and only in the year 2009 objected about wrong entry of his date of birth.
The writ petitioner, even after filing of representation on 10.10.2009, has not approached the court of law immediately and filed writ petition in the year 2015 being W.P.(S) No.4339 of 2015 and thereafter the Tribunal has been approached.
16. This Court, on the basis of the aforesaid fact, considered it of raising the issue of date of birth at the fag end of service.
It is settled position of law that the issue pertaining to date of birth cannot be allowed to be agitated at the fag end of service, as has been decided by the Hon'ble Apex Court in the case of Bharat Coking Coal Limited and Ors. vs. Shyam Kishore Singh [(2020) 3 SCC 411], wherein the Hon'ble Apex Court has been pleased to hold that at the fag end of service, the issue of date of birth cannot be allowed to be raised.
Further judgment of the Hon'ble Apex Court in Factory Manager, Kirloskar Brothers Limited vs. Laxman [(2020) 3 SCC 419] wherein the prayer for correction in the date of birth at the fag end has declared impermissible.
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The learned Tribunal has considered this aspect of the matter and putting reliance upon the judgment rendered by Hon'ble Apex Court in Union of India v. Harnam Singh, 1993 SCC [L & S] 375 and State of Tamil Nadu v. V.Venugopalan, 1994 SCC [L & S] 1385, has come to the conclusive finding that the date of birth, on the one hand, has been accepted by the writ petitioner fairly for a long period and after lapse of about 30 years, for the first time by making representation on 10.10.2009, such dispute has been raised.
17. This Court also scrutinized the finding of the learned Tribunal in exercise of power conferred under Article 226 of the Constitution of India for its consideration as to whether the order impugned can be interfered with by issuing writ of certiorari.
It is settled position of law that the writ of certiorari can only be exercised in a situation where the order passed by the quasi-judicial authority or the administrative authority is required to be interfered with if suffers from the perversity or if there is any jurisdictional error, as has been held in Syed Yakoob Vrs. K.S. Radhakrishnan and Others [A.I.R. 1964 SC 477] wherein at paragraph 7, it has been observed:-
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by
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inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised."
In another judgment rendered by Hon'ble Apex Court in Sawarn Singh and Another Vrs. State of Punjab and
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Others [(1976) 2 SCC 868], it has been held at paragraph nos.12 and 13 which read as under:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
Thus, it is evident that the ratio has been propounded by the Hon'ble Apex Court in the judgments referred hereinabove that the finding recorded by a Tribunal is least to be interfered with. However, if there is erroneous finding on the face of record, then certainly the High Court, under Article 226 of the Constitution of India, can interfere with the Award or Judgment by issuing writ of certiorari but no such ground has been found by this Court.
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18. This Court is of the view that no such case has been made out by the writ petitioner requiring interference into the order passed by the Tribunal by issuance of writ of certiorari in exercise of power conferred under Article 226 of the Constitution of India.
19. In view of the entirety of facts and circumstances, this Court is of the view that the learned Tribunal has not committed any error in passing the impugned order.
20. Accordingly, the instant writ petition fails and is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.