Calcutta High Court
Bhola Prasad Mali vs Coal India Limited & Ors on 6 August, 2013
Author: Aniruddha Bose
Bench: Aniruddha Bose
FORM NO. J(2)
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURIDICTION
ORIGINAL SIDE
Present:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
W.P. No. 90 of 2008
Bhola Prasad Mali
Vs.
Coal India Limited & Ors.
Advocate for the petitioner: Mr. Subrata Ganguly
Advocate for the Respondent: Mrs. S. Barman Roy
Judgment on: 6th August, 2013. ANIRUDDHA BOSE, J.:-
1. The controversy in this writ petition is over the age of superannuation of the petitioner, who was working as a pump operator with the respondent no. 2, Eastern Coalfields Limited (the employer). His complaint is against his superannuation in the year 2007, which, according to him, was effected much before his reaching the age of superannuation. Case of the employer, however, is that he had attained the superannuation age of 60 years on 19th February, 2005, but he was permitted to continue with his duties as there were certain discrepancies in respect of his date of birth in the official records. By a communication dated 8/9th June, 2007, the petitioner was informed that the recordal of his date of birth as 40 years as on 19th February, 1985, ought to stand as final. This communication in reality contains the decision of the company, but the letter was issued by the Agent, Kottadih Project of the employer, where the petitioner was engaged.
2. It has been argued on behalf of the petitioner that his date of birth is 21st March, 1963, and on that basis he still has 10 more years of service left. It is contended that he was struck off from the rolls illegally with effect from 1st July, 2005. In support of his case, he has referred to his identity card issued by the company, where his date of birth is recorded as 21st March, 1963. His further submission is that his actual age was determined by an age assessment committee on 19th May, 1987. According to him, this assessment was made when a similar exercise was undertaken in respect of other employees of the company as well, and such age assessment committee had confirmed his date of birth to be 24 years as on 21st March, 1987. Photocopy of a memorandum bearing no. AGT/KH/SPO/MB/87/1987 purported to have been signed by the Agent of kottadih colliery on 13th August, 1987 has been made annexure P3 to the writ petition in support of this contention. This memorandum records:-
"Dear Sir/Madam, The Medical Board constituted for the age assessment of the employees of this colliery has assessed your age as mentioned below. The age assessed by the Medical Board is being recorded is form 'B' Register/Identity Card & other records. Please note that retirement letter will be served on attaining the age of 60 years.
Sl.No. Name. Designation. Age recorded as on
13.12.86 21.3.87
4. Bhola Prasad Mali Pump Khalasi 24(Twenty four) years.
This reference of letter No.0664/11607 dt.5/1/87 06/Personnel/dated 19.5.87 issued from Dy C.P.M., Pand. Area."
3. In another document issued on 1st April, 2007, which directs payment of advance sum to him, it is recorded:-
"Kottadih Colliery Pandaveswar Area
Department Personnel
File No. AG T/KH/ P ERS/ADV/07/5630 Sheet No. I
Date 01.04.07
Dealing Asst. Name of Officer
Subject : Advance against sslary/wages.
The undernoted employee of Kottadih Project has been flagged off from active pay roll of System Deptt., ECL HQ. Since his date of birth in Form "B" of colliery has been recorded otherwise he has been continuing his duty as usual. His case for correction of date of birth has also been processed to Area./HQ. authority. But no bill/wages sheet has been prepared in his name for the month of Feb.'07. Concern employee has applied for payment of wages for work done during the month However, advance mentioned against him may be sanctioned subject to adjustment in final bill.
Sl. U.M.No. Name/Designation Date of Flagged off Amount
No. Birth as from of
Per active Advance
Form 'B' pay
Reg. roll
w.e.f.
1. 727326 Bhola Pd. Mali, H/Optr. 21.03.63 01.03.05 Rs. 5000/-
Put up to the competent authority for approval please.
Illegible Illegible Illegible
Agent, Manager F.M.,
Kottadih Project. Kottadih Project Kottadih Project"
4. The provision relating to recordal of date of birth is contained in Section 48 of The Mines Act, 1952, which requires every mine to maintain in a prescribed form and place a register of all persons employed in the mine. Such register is to include the age and sex of the employee. The prescribed form is referred to as the "B" form, and there is a dispute in this matter in relation to the entry in the "B" form in respect of the petitioner. Stand of the respondents is that in the "B" form which appears to have been updated in the year 1987, age of the petitioner has been recorded as 40 years as on 15th February, 1985. The petitioner's case on the other hand is that he had raised objection over recordal of his age in the objection form, a copy of which has been made Annexure 'P2' of the writ petition. In this document, against the column "remarks", two entries appear to have been recorded. The first one is "Date of birth as on 19th February, 1985 is 22 years". The second entry relates to date of appointment, and the recordal is "Date of apptt. Is 15.9.1981". The employer claims to have undertaken the task of updating the service excerpts of their employees in the year 1987, and three copies containing relevant details were prepared as per this exercise. The management retained one copy whereas two copies were forwarded to the employees. As per the procedure followed at that point of time, the employee was to retain one copy thereof, while the other was returned to the management after incorporating objections/remarks. The employee was to countersign or give his thumb impression in the copy returned to the employer. Specific case made out by the employer is that in the copy of the service excerpt the petitioner's age had been recorded as 40 years as on 19th February, 1985. In their affidavit, the respondents have denied that the petitioner had raised any objection at the time of updating of service excerpts. A photocopy of the same, being the "B" form, has been made Annexure "R1" to the affidavit-in-opposition of the respondents. The petitioner's date of appointment has been recorded as 15th September, 1981 in that document. No correction, however, is reflected in respect of his age. In annexure "P2" of the writ petition, which the petitioner contends carries his objection, his date of appointment was originally recorded as "5.9.81" and in the same document, date of birth is recorded as "40 yrs as on 19.2.85". The respondents, however, dispute the authenticity of this document.
5. The procedure for determination/verification of age of employees is contained in an instruction captioned "Procedure for determination/verification of age of employees," and learned counsel for the petitioner has referred to a memorandum issued by the Western Coalfields Ltd. (No. WCL/IR/NCWA - II/3212 dated 9th June, 1981), pertaining to National Coal Wage Agreement - II. It has been submitted on behalf of the petitioner that the employer in this case was also guided by the same provisions. This Instruction contemplates providing opportunity to the employees for review of dates of birth in cases where there were different dates of birth in different records. Clause 3.9 of this Instruction stipulates:-
"3.9 In the cases where the age is challenged or protested within the stipulated period of 90 days, the employee concerned will have to produce reliable proof in support of age claimed by him alongwith the application containing the objection. As stated above, the Welfare Officer of the colliery/Unit will receive the objections and documentary evidence given by the employees who will examine and compare them with the entries in the Form B Register and RF records. In Cases where it is found that there is no variation in the records and there is no glaring and apparent mistake, such cases will not be re-opened and the employees concerned will be informed accordingly. In cases where there is no variation but very glaring and apparent wrong has been brought to the notice of the management with definite documentary proof and also where there is variation in the age recorded in Form B Register and PF records, a reference to the Age Determination Committee/Medical Board as envisaged in Clause B-1 (a) of the said Implementation Instructions should be made by the General Manager/Head of Department in the circumstances stipulated in the clause."
6. Similar Instruction pertaining to National Coal Wage Agreement III dated 25th April, 1988, has been produced before this Court by the learned counsel for the petitioner. This Instruction originates from the Joint Bipartite Committee for the Coal Industry, Coal India Limited bearing no. CIL/NCW-III/I.I. No. 76/88/185 Clause B of such Implementation Instruction provides:-
"Review/determination of date of birth in respect of existing employee
(i) (a) In the case of 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/Board/Institutions prior to the date of employment.
(b) Similarly, Mining Sirdarship, Mining 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 respect, 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 Age Determination Committee/Medical Board.
(C) Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employee whose date of birth cannot be determined in accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) above, the date of birth recorded in the records of the company, namely, Form B Register, CMPF Records and Identity Cards (untampared) will be treated as final. Provided that where there is a variation in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for determination of date.
(D) For determination of the age, the Committee/Medical Board referred to above may consider the evidences, available with the Colliery Management and/or adduced before it by the employee concerned.
(E) Medical Board constituted for determination of age will be required to assess the age in accordance with the requirement of "Medical Jurisprudent" and age the Medical Board will as far as possible indicate the accurate age assessed and not approximately.
(F) Where the Management (i.e.) Area Age Assessment Committee consisting of General Manager, Personnel Manner and Medical Office-in-charge of the Area is satisfied that there is a glaring disparity between the date of birth recorded in the company records and the apparent age of the employee, the cases may be referred to the Apex Medical Board located at Headquarters of the company for determination of age.
(G) After the assessment of the age by the Age Determination Committee/Medical Board, the same will be computerized and print out the same will be given to the employee concerned and the unit from where the reference was received with a month. If age is not, however, computerized, still the same will be intimated to the employee concerned and the Unit within a month.
(H) It was agreed that in cases where instead of date of birth, year has been recorded, 1st July of the year will be deemed to be the date of birth.
7. Learned counsel appearing for the petitioner argued that on the basis of his client's objection contained in the remark column, the medical board was constituted and he has referred to the finding of the said medical board dated 19th August, 1987. A document purporting to be the original memorandum bearing no. AGT/KH/SPO/MB/87/985 dated 4/19th August, 1987, bearing the signature of the Agent, Kottadih Colliery containing the opinion of the medical board was produced before this Court by the learned counsel for the petitioner, and a photocopy of the same was kept with the records. In the affidavit-in-opposition, however, it has been denied that any such assessment was made by the age assessment committee or the medical board. It has been stated that the communication of 19th August, 1987, on which the petitioner placed reliance on, does not form part of records of the employer.
8. Learned counsel for the respondents has strongly resisted this writ petition, arguing that at the fag end of the career, an employee cannot raise dispute on his recorded age to postpone his superannuation. On this point, he has referred to the judgments of the Supreme Court in the case of Burn Standard Company Limited Vs. Dinabandha Majudhar (AIR 1995 SC 1499), G.M. Bharat Coking Coal Ltd. Vs. Shib Kumar Dushad & Ors. [(2000)8 SCC 696] Hindustan Lever Limited Vs. S. M. Jadav & Anr. (AIR 2001 SC 1666) and also a Bench decision of this Court in the case of Sri. Umananda Roy Vs. A & N Administration & Ors. [(2007)2 Cal. 80 316 HC]. It has also been argued that the question involved in this petition requires adjudication on highly disputed factual issues, which cannot be determined in this proceeding. Learned counsel for the petitioner, on the other hand, has relied on a judgment for the Supreme Court in the case of Jiwan Kishore Vs. Delhi Transport Corpn. (AIR 1980 SC 1251). This judgment was cited to establish that the report of a medical board or age assessment committee of the employer ought to be ordinarily adhered to or accepted if a question was raised in a proceeding as regards the age of an employee.
9. The petitioner seeks his reinstatement with back wages and primary thrust of submissions of the petitioner is that the petitioner was not approaching the employer at the fag end of his career, but he had raised objection at the time of preparation of the 'B' form in the year 1987 and on his objection only his case was referred to the medical board. It has been alleged on his behalf that it was the company who was deviating in this case, ignoring the opinion of their own medical board. As proposition of law, I accept the submission of the respondents on both counts. The authorities of the Supreme Court deprecate belated raising of dispute on the age of retirement, and a disputed question of fact also cannot be ordinarily adjudicated in a writ proceeding. But this is not a case where the petitioner has admittedly questioned correctness of his recorded age at the fag end of his career. Contention of the petitioner is that he had raised objection at the time of finalization of service records at the time of preparation of the "B" form. His further case is that as a result of such objection, his case was referred to the Medical board, which assessed his age as 24 years as on 21st March, 1987. In there affidavit-in-opposition, the respondents have not come out with a positive case that report of the Medical board is fake or forged, but their stand, as reflected in paragraph 11 of the affidavit-in- opposition, is:-
"11.With reference to the allegations made in paragraph 6 to 9 of the said petition, it is denied that the authorities immediately upon receipt of any alleged objection in the petitioner's case referred his age to the Age Assessment Committee or the Medical board as alleged or at all. It is denied that the Medical Board or the Age Assessment Committee assessed the age of the petitioner or declared his age as 24 years as on 20th January, 1987 as alleged or at all. I state that on the writ petitioner's own showing the petitioner had raised objection in July, 2007. As such the authorities were in no position to make any such assessment in January, 1987 as regards the petitioner's age. Consequently no reliance can be placed on the statement made on behalf of the petitioner. The allegation made by the petitioner in the aforesaid paragraph under reference are false and false to the knowledge of the petitioner. The purported communication on 19th August, 1987 does not form part of the records of the respondent Coal Company. There is no records relating to any purported assessment of the petitioner's age which has taken place on 13th December, 1986 or 21st March, 1987 as alleged or at all."
While it is true that objection of the petitioner as regards recordal of his date of birth was near to the time of his superannuation, treating his age to be 40 in the year 1985, the petitioner's stand is that he had reason to believe that after the age assessment was made by the medical board, as also his own objection to recordal in "B" form, he was not required to raise such dispute at an earlier date. There are two other documents, made Annexures "P4" and "P5" of the Writ Petition, from which it can be inferred that the different offices of the employer were concerned over the issue, and found reason to enquire into the matter further. First one is a note put up by the Agent, Kottadih Project, seeking approval for sanction for advance against salary/wages, dated 1st April, 2007. The second document is a note emanating from the same authority (i.e. Agent, Kottadih Project) dated 17th May, 2007, addressed to the Personnel Manager, Pandaveswar Area, in which it has been stated:-
" Kindly refer to to your letter No. 06/799 dated 9/14.5.2007 and this office letter No. AGT/KH/Age Dispute/07/6013 dated 12/14.5.2007 addressed to you and further discussion held with you on 16.5.2007 in connection with the age dispute of Sri Bhola Prasad Mali, Haulage Operator of Kottadih Project in presence of General Manager, Pandaveswar Area.
As directed, Sri U.K. Mukherjee, Personnel Manager, Kottadih P-roject was sent to ECL, HQ. on 17.5.2007 along with all relevant documents (including Form 'B' register) as available in the colliery. Personnel Manager, Kottadih Project met Sri. T.K. Mukherjee, P.M. (Empl. & IR), ECL, HQ. and shown him all the documents. It has been told that, Sri. T.K. Mukherjee, P.R. (Empl. & IR) will write to G.M. (system) regarding the basis of incorporation/correction of date of birth of the other employees viz., Sri Deonayayan Tanti and others whose name also appeared in the same letter No. 06/Personnel dated 19.5.1987 of Dy. CPM, Pandaveswar Area and he shall also check the S.R.E. of Sri Bhola Pd. Mali as deposited in System Deptt. ECL as to whether Sri B.P. Singh, the then Personnel Manager, Kottadih Project wrote the assessed date of birth i.e., 24 yrs. as on 21.03.87 in SRE. If so, what action was taken.
From the above, it seems that some serious steps have been taken at HQ. level to investigate into the matter. However, your pursuation will help to settle the issue at an early date.
This is for your kind information and necessary action please".
10. Thereafter the petitioner was informed by the Agent, Kottadih Project that the Headquarter had chosen not to reopen his case. The petitioner was informed:-
" Your case of discrepancy in date of birth was sent to ECL, HQ., where it has been examined and the decision but did not agreed to and decision communicated is as follows :
" As per decision of the competent authority since the Area has failed to submit any supporting document like, age assessment report etc., the case is not under considerable one and previous Date of Birth 40 (forty) years as on 19.02.1985 should stand as final."
This is for your information."
11. In the case of Jiwan Kishore Vs. Delhi Transport Corporation (AIR 1980 SC 1251), the Hon'ble Supreme Court had accepted the age assessed by the medical board appointed by the employer. In that case, however, both the parties had agreed that if the Court fixed the age as per the medical board's determination, they would agree. This court also, in an unreported judgment delivered on 20th June, 2012 (W.P. No. 200 of 2012) in the case of Tapan Kumar Mitra Vs. Bharat Coking Coal Ltd & Ors. broadly accepted the sanctity of the opinion of the medical board in a similar situation:-
"The petitioner in this case has not come with a case for refixing his age on the verge of retirement. The authorities themselves had constituted special medical board and the medical board was obviously guided by the mandate of the authorities. Medical board assessed the age of the petitioner to be 24th August, 1955. The manner in which such assessment was made however is not clear but what goes undisputed is that the authorities within the administrative hierarchy of the employer had in substance ratified date of birth of the petitioner independently in the aforesaid two documents. The writ petitioner has also annexed a copy of the certificate issued by the Headmaster, Asansol Ramakrishna Mission High School in which his date of birth as recorded in the admission register has been shown as 24th August, 1955. The records thus demonstrate his date of birth to be 24th August, 1955 barring the 'B'-Form register. Since the authorities themselves had undertaken the exercise of the reassessing the age of the petitioner, I am of opinion that the age as assessed after the special medical board was constituted should guide his year of superannuation. I accordingly quash the memorandum dated 23rd January 2012, a copy of which has been made Annexure- 'P-9' to the writ petition. I direct the authorities to make necessary corrections in their records showing the date of birth of the petitioner to be 24th August, 1955 in all subsisting records of the copy including records maintained in electronic medium. The petitioner shall not be made to superannuate on 30th June, 2012 but according to the date of birth arrived at subsequently by the authorities, being 24th August, 1955."
12. So far as the present proceeding is concerned, opinion of the medical board annexed to the writ petition has been found to be not on records, and there is denial of its existence. The respondents, however, have not come with a clear case that no such medical assessment was made at all in relation to the age of the petitioner. This could have been done only by asserting that the memorandum of 19th August, 1987, was false or forged. The two highly factual disputes, on the basis of which the respondents have urged this Court not to interfere in this matter, are what is the correct age of the petitioner, and whether any medical assessment of petitioner's age was made or not. On the first question, the Writ Court, as per the prevailing position of law, ought not to embark on an enquiry. But as per the employer's own practise, there is a subsisting procedure for determining the correct age. In the case of Tapan Kumar Mitra (supra), this Court found that the opinion of the company's own medical board ought to be accepted. In this case, however, there is doubt as to whether there was any medical board constituted at all or not. In a situation like this, the company would have the best evidence to conclude the issue, but the stand of the respondents here is inconclusive. In the impugned memorandum of 8/9th June, 2007, (Annexure 'P-7') failure to submit any supporting document has been attributed to the "Area", implying the company's own agency. On the other hand, contemporaneous documents or conduct of the various departments of the employer in response to the claim of the petitioner raise a doubt on proper recordal of age of the petitioner.
13. The context of this proceeding does not dilute the character of the dispute from being a "highly factual" one to one of "admitted facts", but the petitioner's case is not altogether without any substance. If it was an interlocutory proceeding in a suit, I possibly would have characterized the quality or strength of the petitioner's case as one which is fit to go to trial, or a degree beyond that. But in a Writ petition, I am required to come to a finding. While in a Writ petition, there is no scope of running trial on evidence, in the factual background of this case, I am of opinion that the petitioner's claim merits a reexamination by a medical board, whose locus and authority to examine issues of this nature stand recognized in various wage agreements the coal companies have enter into with their trade unions. In this case, contention of the petitioner is that he is being sought to be superannuated almost eighteen years before he actually attains his age of superannuation. While established practise does not permit factual enquiry in a proceeding of this nature, I think, in a case like this, there is no bar in having the enquiry conducted by an expert body like a medical board. The technical competence of such a board stands recognized in the two coal wage agreements which have been referred to in the earlier part of this judgment.
14. On behalf of the respondents, allegations have been made of suppression of fact relating to certain disciplinary proceeding undertaken against the petitioner. For the purpose of adjudication of the points in issue, I do not consider such suppression to be of that degree, which would disentitle the petitioner from obtaining any relief in this proceeding. In the light of these facts, I am of opinion that the case of the petitioner ought to be referred to a medical board to be constituted by the company, and on the basis of the report of medical board, the superannuation age of the petitioner shall be finally determined. If as per the report or opinion of the board age of the petitioner is found to be below the specified superannuation age of the company, then service of the petitioner shall be restored and the petitioner shall be paid wages at the regular rate adjusting therefrom advance, if any, received by him already, till he attains the age of superannuation as per the decision of the medical board. In such a situation, the impugned memorandum bearing no.
AGT/MH/PERS/07/1910 dated 8/9th June, 2007, shall stand invalidated. Otherwise, the said memorandum shall stand confirmed. Decision may be taken by the authorities in terms of the directions issued in this judgment within a period of eight weeks from the date of communication of this order.
15. The writ petition stands disposed of in the above terms.
16. There shall be no order as to costs.
17. Urgent certified photocopy of this order be made available to the parties, if applied for, be furnished to the appearing parties on priority basis.
(ANIRUDDHA BOSE, J.)