Calcutta High Court
Pratul Kr. Mukherjee vs Steel Authority Of India And Ors. on 7 July, 1995
Equivalent citations: (1996)IILLJ869CAL
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
JUDGMENT Satya Brata Sinha, J.
1. The ambit and scope of the right of the employee to correct his date of birth is the core question involved in this application.
2. The petitioner is an employee of the Respondent No. 1 being a Canteen Helper having been appointed on September 17, 1973. He at the relevant time filed a School Leaving Certificate showing his date of birth as November 26, 1937. His mother, however, on August 16, 1968 affirmed an Affidavit alleging that the date of the birth of the petitioner was November 24, 1942 and the uncle of the petitioner erroneously recorded his date of birth in the School Register as November 26, 1937.
3. November 26, 1937 was recorded as the date of birth of the petitioner in the Service Book. The petitioner appeared in the School Final Examination in the year 1975 as a private candidate wherein his date of birth was recorded as November 24, 1942. He filed the said Matriculation Certificate and the fact that he passed the Matriculation Examination was recorded in the Service Book. However, his date of birth was not altered. At that time the petitioner did not lodge any protest. The petitioner on July 25, 1992 made a representation for correction of his date of birth. He on April 3, 1994, allegedly due to inaction on the part of the respondents represented that his age be determined by a Medical Board. The petitioner appeared before the Medical Board but the result whereof was allegedly not communicated to him. By a letter dated May 6, 1995 the respondent No. 4 informed the petitioner that it was not possible to change his date of birth in view of the Service Records.
4. Mr. Shaw the learned counsel appearing on behalf of the petitioner has raised several contentions in support of this application. The learned Counsel submits that the impugned or-der suffers from non-application of mind inasmuch as the respondents having accepted the fact that he had passed the Matriculation Examination could not have refused to alter his date of birth as recorded therein.
5. According to the learned Counsel the respondents violated the principles of natural justice in refusing to correct his date of birth. The learned counsel urged that the Matriculation Certificate being admissible in evidence in terms of Section 35 of the Indian Evidence Act, the respondents were bound to act on the basis thereof. In support of his aforementioned contentions the learned counsel has relied upon in (1981-I-LLJ-271), Jiwan Kishore v. Delhi Transport Corporation. 87 CWN page 713, R.K. Chatterjee v. Union of India, 1993 (2) CLJ page 74, Deputy Commissioner of Police, Special Branch and Ors. v. Bhupesh Chandra Karanjai and Moti Ranjan Bhattacharya, 99 CWN page 181, Power Tools & Appliances Co. Ltd v. Union of India.
6. Mr. Arunava Ghosh, the learned counsel, appearing on behalf of the respondents, however, submitted that the petitioner himself relied upon the School Leaving Certificate at the time of his entry in service, as he read upto Class IV and only after joining the service, he appeared in School Final Examination as a private candidate. The learned counsel pointed out that an unilateral declaration of the date of birth at the time of filling up of the form for appearing at the School Final Examination cannot be accepted. The learned Counsel further submitted that the petitioner himself annexed a copy of the School Learning Certificate which is contained in An-nexure A to the writ application and the story that his date of birth was wrongly stated by his uncle at the time of his admission appears to be an afterthought.
7. It is admitted that the petitioner's date of birth in the Service Book was recorded as November 26, 1937. In the instant case the employer did not take any action to alter the date of birth recorded in the Service Book to the prejudice of the petitioner and thus the question of invoking the principles of natural justice does not arise.
8. The petitioner entered the services of the respondents in the year 1973. He appeared at the Matriculation Examination in the year 1975 i.e., after joining the services. Admittedly the petitioner's mother had sworn an Affidavit which is contained in Annexure 'B' to the writ application only on August 6, 1968. A date of birth recorded in the Matriculation Certificate is an evidence inasmuch as the same is based upon entry made in the School Register. Similarly a horoscope or an Affidavit can also be treated as evidence.
9. It is for the Court and/or of the concerned authority who had the requisite jurisdiction to determine the age of the concerned person may weigh evidence adduced in support of the respective case of the parties but it cannot be said that date of birth recorded in the Matriculation Certificate is conclusive.
10. The normal rule is that the date of birth recorded in the Service Book should be accepted as correct. A person seeking alteration of his date of birth in the Service Book must produce irrefutable and conclusive proof before the employer so as to enable it to acceed to the request of the employee for alteration of date of birth. Even the entries in the School Register is not a conclusive document inasmuch as in a Court of Law the basis for such entry has to be established. In Biradmal Singh v. Anand Purohit the Apex Court has held that an entry relating to the date of birth made in the School Register is relevant and admissible under Section 35 of the Evidence Act but the entry regarding the age of a person in a school does not have much evidentiary value to prove the age of a person in the absence of material on the basis of which the same was recorded. Thus, in absence of the primary material on the basis whereof the age was recorded, the same may not be accepted.
11. However, in this case the date of birth of the petitioner was recorded in the Service Book on the basis of his own declaration and on the basis of the School Leaving Certificate produced by him. He, therefore, normally cannot shift his stand on the basis of a self-serving declaration regarding his date of birth while appearing at the School Final Examination as a private candidate.
12. In Steel Authority of India Limited v. Sud-hendu Kumar Chakraborty and Ors., reported in, 1991 (62) F.L.R. page 766 a Division Bench of this Court has held that recording of age of a regular student cannot be equated with that of a private candidate in the School Leaving Certificate. The Division Bench in that case directed, that the entry made in the Service Book on the basis of a Medical Examination held in the year 1958 may be acted upon in the interest of justice.
13. In Saroj Kumar Bhattacharya v. Bengal Immunity Ltd., reported in 1994 Vol. I CLJ page 79 a Division Bench of this Court held that there is a distinction between a student who had passed as a regular student and as private student. The Division Bench observed:
"In the instant case the School Final Certificate was not a contemporaneous document and there is a distinction between a student who had passed as regular student and as a private student. In case of regular student, the age/date of birth is registered with the register of the School where the School Authority insist upon production of some records or documents or statements made from the guardian and the same is also considered in view of the appearance of the boy by the trained and experienced teachers and in such a case there is very little scope for suppressing the real age or to manipulate the age before the teachers who are dealing with thousands of similar students and in that case age recorded in the School Register is reflected in the Matriculation or School Final Certificate. That age is accepted because of certain safeguards therein. But in case of a private student the Board accepts the age declared by the Candidate in the application form, without any verification and in case of a private Candidate any age may be declared suppressing real age and there is no machinery or there is no check and balance for verifying the actual age."
14. In the National Airport Authority v. M.A. Wahab, reported in (1995-I-LLJ-34) the Supreme Court pointed out that the petitioner thereof had also filed a School Certificate at the time of his appointment wherein his date of birth was recorded and the same formed basis for the entry in the Service Book. In the aforementioned case the Supreme Court also stated in the law that a stale claim should not be entertained.
15. Similar view has been taken by the Allahabad High Court in R.S. Mehoratra v. Central Government Industrial Tribunal reported in (1992-II-LLJ-530) wherein it was held that documents which came in evidence subsequent to the date of entry in the Service cannot be relied upon.
16. The determination of a disputed question with regard to a date of birth being a pure question of fact, the same should not be investigated by the High Court in exercise of its jurisdiction under Article 226 of Constitution of India. The Court, where there exists conflicting evidence, would normally accept that the date of birth as recorded at the time of entry in the Service should be accepted. This view of mine finds support from a recent decision of the Division Bench of Allahabad High Court in Smt. Sub-hashini Jyoti Masih v. Prabhari Chikitsa Adhi-kary and Anr. reported in 1994 (69) FLR page 528. In Krishna Chandra Rout v. Steel Authority of India Ltd. and Ors. reported in(1994-II-LLJ-933) a Division Bench of the Orissa High Court held that a question relating to a date of birth cannot be decided in a writ application and the proper forum is to refer the dispute for decision before an appropriate Tribunal in terms of Section 10 of the Industrial Disputes Act.
17. In the instant case even the decision of the Medical Board was communicated to the petitioner.
18. It is true that the report of the Medical Board was not communicated to the petitioner but it cannot be accepted that the respondent being a State within the meaning of Article 12 of the Constitution of India did not communicate the said report although the same was beneficial to the employee. In my opinion, it was not necessary jn this case to refer the case to the petitioner to the Medical Board at all.
19. In Fateh Alam Khan v. The Trading Corporation of India and Ors. reported in (1994-I-LLJ-1175) it has been held that the determination of the question as to whether the opinion of the Medical Board is correct or not cannot be investigated in a writ application.
20. In Jiwan Kishore v. Delhi Transport Corporation (supra) there had been wide discrepancies in two records regarding the date of birth of the petitioner and in that situation it was held that age as assessed by the Medical Board appointed by employer can be accepted. The said decision, therefore, has no application in the instant case.
21. ln R.K. Chatterjee v. Union of India (supra) a learned Single Judge of this Court, inter alia held that the Medical expert's opinion that the age of the petitioner in December 1975 was between 45 and 50 cannot be assailed as uncertain merely because the range of variation of probable age is somewhat wide. The learned Judge held that the opinion depends on data obtained by ossification test and the opinion of the Medical expert for determination of age in controversy involved in the case was very important. With utmost respect to the learned Judge, the views expressed by him cannot be accented in view of the decisions referred to hereinbefore. If the Medical Board is not in a position to ascertain the correct date, the purpose thereof would stand frustrated. In the aforementioned case the petitioner thereof mentioned a wrong date of birth which was recorded in his Service Book. It was held that he was not estopped from challenging the correctness of the same on the basis of an authentic document namely, School Leaving Document. It is not necessary to consider the matter any further as in the instant case the date of birth of the petitioner recorded in the School Leaving Certificate had been accepted as correct.
22. In Bhupati Prasad Kanariai (supra), the Full Bench was considering the scope of rule 9(5) of the West Bengal Service Rules, Part-1, 1971 vis-a-vis Rule 9(1) thereof. In that case the Full Bench observed:-
"Secondly, when there are several evidences before the Court of facts, the Court has to assess the evidence and has to come to a conclusion. If there are contrary evidence, in that event, it cannot be said that the age recorded in the school register is conclusive, final and binding".
23. Reliance placed by Mr. Shaw on the Division Bench decision of this Court in Power Tools & Appliances Co. Ltd v. Union of India (supra) is wholly misplaced. In that case this Court was merely considering the question as to whether the provisions of Section 75 of the Employees' State Insurance Act provides for more efficacious remedy and in that situation whether the High Court may refuse to exercise its jurisdiction under Article 226 of the Constitution of India when there has been a violation of the principles of natural justice as also the jurisdiction of the authorities under the said Act was in question. As indicated hereinbefore, in the instant case the principles of natural justice have no application. It is not a case where alteration in the date of birth is sought to be made by the employer to the disadvantage of the employee. Only in such cases the principles of natural justice would be applicable. See Binapani Dei v. State of Orissa and Sarjoo Prosad v. General Manager and Anr. (1981-II-LLJ-380).
24. Moreover, in the instant case, the claim of the petitioner is a stale one. Such a stale claim made after a long time may not be entertained by the employer. This Court in such a situation would also refuse to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
25. In Bhupendra Nath Chatterjee v. State of Bihar, the Supreme Court has held that the date of birth recorded in the service records should be accepted as correct. The said decision has recently been followed by a Division Bench of this Court in Steel Authority of India Ltd. v. Abani Kumar Moitra reported in 1995 (1)CLJ page 105.
26. In Union of India v. Harnam Singh re ported in (1994-I-LLJ- 318). the Supreme Court held at pages 320-321 " A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is, open to civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay".
27. The Apex Court allowed the appeal preferred by the Union of India stating at P 324 : -
"In the facts and circumstances of this case. we are not satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done. The application for correction of date of birth, entered in the Service Book in 1956, for the first time made in September 1991, was hopelessly belated and did not merit an) consideration. As already noticed, it had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56 (m) in 1979. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth and the impugned order of the Tribunal cannot be sustained".
28. In Secretary & Commissioner. Home Department and Ors. v. R. Kirubakaran. reported in (1994-I-LLJ-673), the Supreme Court, inter alia held that when no time limit is prescribed for filing an application for correction of date of birth, it should be done within a reasonable time. The Supreme Court in the aforementioned case has observed that the applicant has to produce evidence in support of his claim which may amount to irrefutable proof relating to his date of birth and whenever any such question arises, the onus is on the applicant to prove that his date of birth recorded in his Service Book is wrong.
29. This aspect of the matter has recently been considered by the Supreme Court again in State of T.N. v. T.V. Venugopalan, wherein the Supreme Court in no unmistakable terms has laid down that a belated application on the eve of retirement should not be accepted.
30. In Chief Medical Officer v. Khadeer Khadri it was held that an employee cannot claim that he had detected the mistake after a long time. Such a plea, the Apex Court observed, would not be bond fide and only a ruse to get over the bar of limitation, for the date of birth entered in the Service Book record to be corrected.
31. In Union of India v. Kanti Lal Hematram Pandya reported in (1995-II-LLJ-659) the Supreme Court followed Harnam's case (supra). The Supreme Court, inter alia held that when two School Leaving Certificates are filed the genuineness of one of which is doubtful, the employer could reject the same. It observed:-
"The respondent slept over his rights to get the date of birth altered for more than thirty years and woke up from his deep slumber on the eve of his retirement only. The law laid down by this Court in Harnam's case, (supra) was, thus, fully applicable to the facts and circumstances of the case of the respondent and the Tribunal failed to follow the same without even pointing out any distinguishing features on facts. Stale claims and belated applications for alteration of the date of birth recorded in the Service Book at the time of initial entry., made after unexplained and inordinate delay, on the eve of retirement, need to be scrutinised carefully and interference made sparingly and with circumspection, The approach has to be cautious and not casual. On facts, the respondent was not entitled to the relief which the Tribunal granted to him".
32. Furthermore, the stand of the petitioner that the entry relating to his date of birth in the School as erroneous cannot be accepted. The plea taken in this regard by the petitioner appears to be an afterthought.
33. In P. Ramakrishnan Nair v. Guruvayoor Devaswom Managing Committee and Ors. reported in (1995-1I-LLJ-225) it has been held by a Division Bench of Kerala High Court that alteration of date of birth should not he allowed it the fag end of the career.
34. For the reasons aforementioned there is no merit in this application which is accordingly dismissed but in the facts and circumstances of the case there will be no order as to costs.