Andhra HC (Pre-Telangana)
Rolla Sathaiah vs The Singareni Collieries Company ... on 8 February, 2014
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HONBLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION No.21218 of 2013
08-02-2014
Rolla Sathaiah.Petitioner
The Singareni Collieries Company Limited, Rep. by its Chairman & Managing
Director, Red Hills, Hyderabad and another..Respondents
Counsel for the Petitioner: Sri A.K.JAYAPRAKASH RAO
Sri GADI PRAVEEN KUMAR
Counsel for the respondents: Sri NANDIGAM KRISHNA RAO
Sri PATTABHI RAMA RAO
< Gist:
>Head Note:
? Cases Referred:
1.(1995) 4 SCC 172
2.(2000) 8 SCC 696
3.Civil Appeal No.8634/2013
(arising out of SLP(c)No.22813/2007)
Dated 23.09.2013
4.2011(2) ALD 493
5.2011(6) ALD 244
THE HON'BLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION No.21218 of 2013
The Court made the following:
ORDER:
This writ petition is filed for a Writ of Mandamus declaring the proceedings No.SRP/RK.6/13/WO/Notice/521, dated 01.02.2013 issued by the 2nd respondent proposing to retire the petitioner from service on 28.02.2014 as illegal, contrary to law, arbitrary and illegal, and to declare that as per the School Leaving Certificate of the petitioner, the petitioner is entitled to continue in service up to 31.08.2017.
2. Heard Sri A.K.Jayaprakash Rao, learned counsel appearing for the petitioner and Sri Nandigam Krishnarao, learned counsel appearing for the respondents.
3. According to the petitioner, he joined the service of the respondent Company as Badli Coal Filler on 26.02.1978. He was promoted as Coal Filler on 01.07.1979. Further, he was promoted as Mining Sirdar on 27.10.1988 and further promoted as Senior Mining Sirdar on 01.10.1999 and subsequently he was given A-Grade Senior Mining Sirdar on 24.12.2006.
4. It is submitted by the petitioner that he failed SSC and his date of birth as per School Records is 13.08.1957. At the time of joining service, the petitioner informed about his date of birth which was entered in the School Transfer Certificate as 13.08.1957. He was asked to produce the Memorandum of Marks of 9th class and he produced the copy of the same. The respondent Company Authorities entered the same against the column Educational Qualifications in the B-Register as he appeared for SSC.
5. Nextly it is submitted by the petitioner that when he appeared for Mining Sirdars Examination, the Superintendent of Mines of the respondent Company issued him date of birth certificate dated 10.09.1988, according to which, his date of birth is 13.08.1957. Therefore, according to the petitioner, his date of birth is 13.08.1957 which was also duly certified by the Superintendent of Mines based on the School Leaving Certificate.
6. The contention of the petitioner is that when he appeared for SSC examination and when his date of birth is very much available, his age cannot be assessed by the Medical Officer of the respondent Company and the certificate issued by the Medical Officer is relevant only on the aspect whether he was fit for job or not. Thus, the petitioner submits that any date referred to by the Medical Officer has no evidentiary value as long as his School Leaving Certificate is available and the date of birth recorded therein was prior to his joining the service. It is submitted by the petitioner that the assessment of age by the Medical Officer would arise only in respect of illiterate persons and as he studied up to SSC and literate, the Medical Officer cannot assess his age.
7. It is further submitted by the petitioner that he was issued Mining Sirdars Certificate under Coal Mines Regulations, 1957 wherein his date of birth was shown as 13.08.1957 and the said certificate was issued on 03.04.1989 and the said Mining Sirdars Certificate is valid up to 12.08.2017.
8. It is the further case of the petitioner that a notice was served on him on 01.02.2013 as advance intimation of his date of retirement, informing him to retire on 28.02.2014. In response thereto the contention put forth by the petitioner is that as per his School Leaving Certificate his date of birth is 13.08.1957 and therefore, the date of birth recorded by the respondent authorities at the time of his entry into service as 24 years as on 26.02.1978 is contrary to the school record and the same is invalid. His version is that he obtained the School Leaving Certificate prior to joining service and therefore, he is entitled to continue in service up to 31.08.2017.
9. Counter affidavit has been filed by the Additional General Manager (Personnel) of the respondent company on behalf of respondents contending that the petitioner comes under the definition of the workmen under the Industrial Disputes Act, 1947 and he got an effective and efficacious alternative remedy and as such the writ petition as filed is not maintainable in law and the writ petition has to be dismissed on this sole ground alone.
10. It is further submitted that as per Implementation Instruction No.76 of the Joint Bipartite Committee for Coal Industry (for short JBCCI) the procedure for determination of age/date of birth at the time of appointment is as follows:
(A) Determination of the age at the time of appointment:
(iv) Illiterate:
In the case of appointees who have not passed Matriculation and who have not pursued studies in a recognized educational institution, the date of birth will be determined by the Colliery Medical Officer keeping in view any documentary and other relevant evidence as produced by the appointee. Date of Birth as determined shall be treated as correct date of birth and the same shall not be altered under any circumstances.
(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 Institutions 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.
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 Age Determination Committee/Medical Board.
11. According to the respondents, in the present case, the petitioner did not produce any documentary evidence at the time of initial appointment. As per Clause-A(iv) in Implementation Instruction No.76 of JBCCI and as the petitioner failed to produce documentary or any other evidence at the time of joining the respondent company, the petitioners age was determined by the Colliery Medical Officer as 24 years as on 26.02.1978 and the same was recorded in the authentic service records, such as Identity & Service Book and other records.
12. It is the further contention of the respondents that the age of the petitioner was determined by the then Colliery Medical Officer at the time of initial appointment in the respondent company as the petitioner did not produce any documentary evidence in support of his age and the petitioner had acknowledged the same as token of acceptance. The contention of the petitioner that at the time of joining in service he had produced School Transfer Certificate and that his date of birth was entered as 13.08.1957 is flatly denied by the respondents.
13. It is further contended by the respondents that the date of birth mentioned in the Mining Sirdar Certificate cannot be considered for assessing the age of the petitioner as per JBCCI Guidelines mentioned supra. The petitioner produced duplicate transfer certificate showing that he studied 10th class and the said certificate is said to be issued on 25.06.1982 which is after joining the respondent company and therefore, the said certificate cannot be considered as per JBCCI Guidelines. The version of the respondents is that the date of birth certificate which was said to be issued by the Superintendent of Mines, Kalyankhani/Somagundem No.2 Inclines is not correct as it was clearly mentioned in the certificate that the age mentioned as per Form B- Register, but the actual age recorded in Form-B Register is 24 years as on 26.02.1978. Thus, it is submitted by the respondents that obviously the petitioner has obtained the certificate in collusion with the officials of the respondent company to appear for Sirdars examination purely based on the SSC certificate obtained after entry into service of the respondent company.
14. It is further contended that at the time of petitioners appointment, the then Colliery Medical Officer assessed the age of the petitioner as 24 years as on 26.02.1978 and the petitioner affixed his thumb impression as token of acceptance and he did not claim that he is literate and as per JBCCI Guidelines the petitioners age was assessed as 24 years as on 26.02.1978, showing his date of birth as 26.02.1954.
15. Lastly, it is submitted by the respondents that the petitioner did not produce any documentary evidence in support of his age at the time of appointment. Therefore, his age was assessed as 24 years as on 26.02.1978 and the same was recorded in all the service books. The transfer certificate produced by the petitioner is after joining in the company and as such, it cannot be considered as per the JBCCI Guidelines. The petitioner was issued Employees Personal Record Data even prior to issue of superannuation notice and he had duly acknowledged the receipt of the same. The petitioner did not submit any claim as to his age stating that his age was wrongly recorded in the records of the respondent company. The petitioner raised the dispute at the fag end of service which is not maintainable.
Contending as above, the respondents sought to dismiss the writ petition.
16. Before proceeding to decide the issue as to whether the petitioner is entitled for a Writ of Mandamus directing the respondents to continue him in service up to 31.08.2017, it would be necessary to go through some of the judgments relied on by the learned counsel appearing on either side.
17. In Burn Standard Co. Ltd. v. Dinabandhu Majumdar relied upon by the learned counsel appearing for the respondents, the Honble Supreme Court held as follows:
The extraordinary nature of jurisdiction vested in the High Courts under Article-226 of the Constitution is not meant for enabling the employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly-found material. The fact that an employee of Government or its instrumentality who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee should be a sufficient reason for High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches.
18. In another decision relied on by the learned counsel appearing for the respondents in G.M.Bharat Coking Coal Ltd. v. Shib Kumar Dushad , the Honble Supreme Court held as follows:
Where question regarding correctness of date of birth as entered in service record raised by employee long after his joining the service and the employer decided the question following the procedure prescribed by statute, statutory rules or instructions, in the absence of any arithmetical or typographical error apparent on the face of the record, High Court should not interfere with such decision of the employer in exercise of its extraordinary jurisdiction under Article 226.
19. Same view was expressed by the Honble Supreme Court in the recent judgment in Eastern Coalfields Ltd. v. Bajrangi Rabidas .
20. We have to examine the present case in the light of the principles laid down by the Honble Supreme Court in the afore referred judgments.
21. In the instant case, the contention of the petitioner is that he studied up to SSC but failed in the examination. Therefore, he says that he is not an illiterate. But the version of the respondents is that as the petitioner did not produce any certificates showing his educational qualifications at the time of initial appointment, he was considered as illiterate and he was referred to the Colliery Medical Officer as per Regulations of JBCCI and the Medical Officer determined his age as 24 years as on 26.02.1978 and the same was recorded in authentic service records, such as Identity & Service Book and other records.
22. The respondents produced certain copies of documents, such as Employees Personal Record and Initial Medical Examination Form. The petitioner himself filed copies of Identity & Service card and Service Register. In all these documents the age of the petitioner was recorded as 24 years as on 26.02.1978. The contention of the petitioner is that he studied SSC though he failed in the examination he was issued Date of Birth Certificate by the Head Master, Zilla Parishad High School, Bejjanki on 16.07.2011 which is long after his joining in service. He produced the said certificate before the Director of Mines, at the time of appearing for the Sirdars Examination and basing on the said date of birth certificate, the Sirdar Certificate was issued to him under Mines Act 1952. Much reliance is placed by the petitioner on the Sirdar certificate issued to him. The respondents seriously disputed the authenticity of the said certificate, specifically contending in the counter that the petitioner has obtained the said certificate in collusion with the officials of the respondent company to appear for statutory examination purely based on SSC certificate obtained after entry into service of the respondent company.
23. The petitioner also filed some other documents showing his date of birth, such as 9th class marks memo, SSC marks memo, Study certificate etc., the genuineness or authenticity of the said documents need not be gone into in the present writ petition since they were never produced before the authorities of the respondent company at the time when the petitioner was initially appointed. As to the contention that the petitioner is a literate, it is relevant to mention that in the copy of initial medical examination form filed by the respondents, the petitioner was shown as an illiterate, he was examined by the Medical Officer, Colliery Hospital, it is specifically mentioned in the form that as the petitioner was unable to furnish the documentary proof of age, he accepted the age as fixed by the Medical Officer. This happened on 13.04.1978 and on the said date the petitioners age was determined as 24 years. The same age was recorded in the Employees Personal Record and Identity & Service Card issued to the petitioner and the petitioner never disputed the age initially recorded in the aforesaid documents till a notice was issued to him directing him to retire him from service on 28.02.2014. Therefore, the issue whether the petitioner is an illiterate or he studied up to SSC is insignificant because he accepted for the medical examination conducted by the Medical Officer, Colliery Hospital at the time of initial appointment. The petitioner did not place on record any material showing that in fact he produced the certificate showing his date of birth as 13.08.1957 at the time of his initial appointment but that was not considered.
24. From the documents filed by both sides it is clear that the petitioner for the first time produced the School Transfer Certificate showing his date of birth. On 03.04.1989 when the petitioner appeared for the Sirdars examination, a certificate was issued to him under Mines Act on the said date. Further, as evident from the School Transfer Certificate produced by the petitioner before the respondent company authorities, the said Transfer Certificate was issued to him on 25.06.1982 by the School Authorities, long after his joining in service.
25. Reliance is placed by the learned counsel appearing for the petitioner in Boddu Laxmi Rajam v. Singareni Collieries Co.Ltd., Kothagudem and Elpula Bhoomaiah v. Singareni Colleries Co.Ltd., Godavarikhani wherein this Court issued directions to continue the petitioners therein in service as per the date of birth claimed by the petitioners. I have gone through the facts of the said cases which are entirely different from the facts of the present case and therefore, they are not applicable to the facts of the present case.
26. In the instant case, I find no violation of any statutory Rule or Regulation or any Rule having any statutory force by the respondents in issuing the impugned notice dated 01.02.2013 to the petitioner directing him to retire on 28.02.2014 to invoke the jurisdiction of this Court under Article-226 of the Constitution of India.
27. The writ petition therefore fails and the same is accordingly dismissed. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
_____________________ R.KANTHA RAO,J Date: 28.02.2014