Jharkhand High Court
Rambilash Bharti vs The Bharat Coking Coal Ltd. And Ors. on 1 August, 2007
Equivalent citations: 2008 LAB. I. C. 431, 2008 (1) AIR JHAR R 142, (2008) 4 SERVLR 280, (2007) 4 JLJR 555, (2011) 1 JCR 597 (JHA)
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
1. In this writ petition, the petitioner has prayed for quashing the order dated 16th January, 2007 (Annexure-12) issued under the signature of the Respondent No. 6, whereby the petitioner has been sought to be superannuated prematurely from service with effect from 30th May, 2007, ignoring his date of birth the recorded in the Matriculation Certificate, Statutory Form 'B' Register, Service Identity Card and other service record of the petitioner.
2. It has been stated that the petitioner is a matriculate and in the Matriculation Certificate, his date of birth has been recorded as 10th June, 1951.
3. The petitioner was appointed as Mechanical Fitter on 23rd July, 1979 in Putki Colliery of BCCL. At the time of entry in the service, he had produced Matriculation Certificate in which his date of birth was recorded as 10th June, 1951. On the basis thereof, his said date of birth was also entered in his service record i.e. in the Identity Card issued (Annexure-2) to him and also in Form 'B' Register (Annexure-3), which is the statutory service record of the employees maintained by the respondents.
4. Suddenly, the petitioner received a letter dated 1st February, 2001 issued by the respondents, containing the 1st of retiring employees in the month of July, 2001, wherein the petitioner's name was included at Sl. No. 2404, showing his date of birth as 10th July, 1941.
5. The petitioner protested against inclusion of his name by filing a representation before the concerned authority. The petitioner's representation was referred to a Committee of the Officers of the Colliery. They, on consideration and scrutiny, found 10th June, 1951 as the correct date of birth of the petitioner. On the basis of the said report, the Project Officer of the concerned colliery cancelled his earlier order dated 6th July, 2001 and allowed the petitioner to continue in service.
6. It has been stated that Implementation Instruction 76 provides a procedure for determining the date of birth of the employee of the BCCL. in the case of appointees, who have passed matriculation or equivalent examination, the date of birth recorded in the said certificate is accepted as the correct basis for recording the same in the service record. According to the said Implementation Instruction 76, the date of birth entered in the Matriculation Certificate shall not be altered under any circumstance.
7. The petitioner's date of birth was accepted by the respondents in accordance with the said instruction. They allowed the petitioner to continue in service, after they realized their mistake in issuing the earlier order, giving the list of the employees to be superannuated in which the petitioner's name was included.
8. The petitioner was again served with a unilateral decision/order of the respondents dated 16th January, 2007, directing him to superannuate from service with effect from 31st May, 2007 as per the amended date of birth in service record. The said order has been challenged in the instant writ petition.
9. A counter affidavit has been filed on behalf of the respondents contesting the writ petition. The respondents have supported the impugned order on the following grounds:
i) The petitioner has already retired on 31st May, 2007 and as such, the writ petition is not maintainable.
(ii) Matriculation Certificate cannot to be judicially noticed since there was a discrepancy in the entry of date of birth in the Matriculation Certificate and other documents in which his date of birth was declared by his father at the time of the petitioner's appointment in 1979.
(iii) The petitioner was medically examined by the Area Medical Board at the time of his appointment and his age was found 32 years at that time.
(iv) Petitioner's date of birth was erroneously recorded as 10th July, 1941 in NEIS records of the respondent-company and he was due to retire on 31st July, 2001. But the Date of Birth Committee of the company with the approval of the competent authority amended the date of birth of the petitioner as 30th May, 1947. The petitioner also acknowledged the same by signing Form-H, which had to be signed before allowing him to join the duty.
(v) The petitioner is guilty of suppression of facts.
(vi) The petitioner has sought adjudication of disputed question of fact, which is beyond the scope of writ jurisdiction of this Court.
10. Mr. Ajit Kumar, learned Counsel, appearing on behalf of the petitioner made the following submissions:
The petitioner is a matriculate and his date of birth is recorded as 10th June, 1951 in the Matriculation Certificate. He passed Matriculation Examination from Bihar School Examination Board in the year 1968 i.e. prior to his appointment under the BCCL At the time of petitioner's appointment, his date of birth was entered in statutory Form 'B' Register, Identity Card and service excerpts were issued on the basis of the entry made in the Matriculation Certificate, showing his date of birth as 10th June, 1951. Implementation Instruction 76, which deals with the date of birth, is binding on the respondents. There was no occasion for altering the date of birth unilaterally by the employer at the fog end of the service of the petitioner. And that too without conducting any age assessment test/ ossification test to determine the petitioner's date of birth. The entry regarding the date of birth of the petitioner was erroneously made in NEIS records as 10th July, 1941 instead of 10th June, 1951 and as such, he has got right to remain in service till attaining the age of superannuation. Any signature on Form-H, which the petitioner was compelled to sign cannot be a ground for denying the petitioner's valuable right.
11. Learned Counsel for the petitioner relied on decisions of the Division Bench of this Court in Awadh Singh v. The Bharat Coking Coal Ltd. and Ramanand Tiwary v. Indian Iron and Steel Company Ltd. Chas and Ors. .
12. On the other hand, learned Counsel appearing on behalf of the respondents submitted that the petitioner's age was determined by the initial Medical Board in which his date of birth was fixed as 30th May, 1947. The petitioner had also signed an agreement Form-H, and only, thereafter, he was allowed to join the duty. Since the petitioner has signed Form-H, he cannot dispute the entry regarding his date of birth, which was based on the report of the initial Medical Board. The petitioner has raised the dispute at the fag end of his service, which cannot be accepted. Whether the petitioner's date of birth is 30th May, 1947 or 10th June, 1951 is a disputed question of fact, which cannot be decided in writ jurisdiction of this Court.
13. In the instant case, both the parties relied on the provisions of Implementation Instruction 76, which provides for procedure of determination/verification of age of employees. Relevant provision of the said Instruction 76 is reproduced hereunder:
IMPLEMENTATION INSTRUCTION NO. 76PROCEDURE FOR DETERMINATION VERIFICATION OF THE AGE OF EMPLOYEES (A) Determination of the age at the time of appointment
i) Matriculates In the case of appointees who have passed Matriculation or equivalent examinations, the dote 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.
ii) Non-matriculates but educated In the case of appointees who have pursued studies in a recognized educational institution, the date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances.
XXX XXX XXX XXX (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.
14. On plain reading of the said provision, it is clear that if the appointee has passed Matriculation or equivalent examination prior to the date of his employment, the date of birth in the said certificate shall be treated as a correct date of birth and the same will not be altered in any circumstance. Even for review/determination of the date of birth in respect of the employee, Matriculation Certificate/Higher Secondary Education Certificate issued by the recognized University or Board are to be treated as correct date of birth.
15. In the instant case, this is an admitted position that the petitioner had passed Matriculation Examination from the Bihar School Examination Board much prior to his appointment in the respondents' services. In the Matriculation Certificate, petitioner's date of birth is clearly mentioned as 10th June, 1951. The respondents had issued an Identity Card wherein also his date of birth has been shown as 10th June, 1951. In the statutory Form 'B' Register also same date of birth has been recorded with clear endorsement 'As per Matriculation Certificate'. Service excerpts (Annexure-4) were issued by the respondents-authorities in which his date of birth is recorded as 10th June, 1951. The entry in the Matriculation Certificate and the existing provision for determination/verification of the age as per Implementation Instruction No. 76 and the entries made by the respondents-authorities in the service excerpts and statutory Form 'B' Register leave no scope than to accept the petitioner's claim that the respondents have arbitrarily sought to change his date of birth at the fag end of his service without any factual or legal basis.
16. In the cases, arising out of similar facts and circumstances, this Court had occasion to consider and decide the similar issue earlier. There are direct decisions of two Division Benches of this Court; one by a Division bench presided over by Hon'ble Mr. Justice Altamas Kabir, Chief Justice (as his Lordship then was) in the case of Awadh Singh (Supra) and another presided over by Hon'ble Mr. Justice M. Karpaga Vinayagam, Chief Justice in Ramanand Tiwary's case (Supra). In both the decisions, it has been concurrently held that the date of birth recorded in the Matriculation Certificate shall be treated as correct and the same cannot be altered in any circumstance as per the said Instruction No. 76 of the National Coal Wage Agreement-3. Thus, the said decisions of this Court are squarely applicable to the facts of the instant case.
17. In view of the above discussions, it is held that the respondents have no right to alter the date of birth, which has been recorded in the Matriculation Certificate of the petitioner. And according to the date of birth recorded in the service records or the respondents, the petitioner is entitled to continue in service fill he attains the age of superannuation counted from his date of birth recorded in the Matriculation Certificate, followed by the entries in his service records i.e. 10th June, 1951.
The impugned order dated 16th January, 2007 (Annexure-12) is, accordingly, quashed.
18. If the petitioner, in the meanwhile, is made to superannuate on the basis of impugned order (Annexure-12), the petitioner shall be reinstated in service forthwith and shall be allowed to continue in service till he attains the age of superannuation on the basis of date of birth recorded in the Matriculation Certificate. The petitioner is entitled to get his full salary and other consequential benefits of the intervening period without any break.
19. This writ petition is, thus, allowed with cost of Rs. 2,500/-(rupees two thousand five hundred) to be paid to the petitioner by the respondents.