Madhya Pradesh High Court
Sheikh Yusuf vs Chief Managing Director on 1 February, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
Writ Petition No.10700/2016
Sheikh Yusuf
Vs.
Chief Managing Director, Western Coal Limited and Others
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Shri K.C. Ghildiyal, learned counsel for the petitioner.
Shri Naman Nagrath, learned senior counsel with Shri
Greeshm Jain, learned counsel for the respondents.
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ORDER
(01/02/2018) The petitioner has filed the present petition challenging the orders dated 21.03.2016, 22.03.2016 and 20.04.2016.
2. The petitioner was initially appointed on the post of Badli Tub Loader/Temporary D.P.R. in the Department of W.C.L. in Kanhan Area, Tehsil Parasiya vide order dated 25.09.1983, since then the petitioner is performing his duty efficiently. The date of birth of the petitioner was recorded as 22.10.1956 in the service record whereas the correct date of birth of the petitioner is 24.05.1962, his date of birth is recorded as 24.05.1962 in the office of Registrar (Birth and Death) in Chhindwara 2 W.P. No.10700/2016 District. As per the school record and in the transfer certificate his date of birth is recorded as 24.05.1962 then the petitioner came to know his date of birth has wrongly been recorded in the service rule. Thereafter 1989 to 1992 the petitioner has wrote number of letters to the respondents, to correct his date of birth, but nothing was done. As no action was taken by the respondents in the matter, the petitioner, therefore, filed a writ petition i.e. WP No.13225/2009 before this Court to direct the respondents to correct the date of birth of the petitioner from 22.10.1956 to 24.05.1962. On 18.12.2010, the petitioner got himself examined by the District Medical Board. The said writ petition was disposed off vide order dated 06.05.2015 with the direction to the respondent authorities to take up the matter afresh and get the same decided through the Age Determination Committee (A.D.C.). The authority would also be at liberty to decide the matter by taking all facts and circumstances into consideration and thereafter take a decision expeditiously in accordance with law, preferably within a period of 3 W.P. No.10700/2016 three months. The petitioner served the copy of the same on the respondents on 13.05.2015 thereafter on 13.06.2015, the Age Determination Committee was constituted and he was asked to remain present before the Age Determination Committee on 10.07.2015 at 11.00 am. On 10.07.2015, the Age Determination Committee (A.D.C.), conducted medical examination of the petitioner and all certificates in original were also examined by the said committee. On 10.07.2015, the respondents have passed an order thereby declaring the date of birth of the petitioner as 1956. The petitioner thereafter submitted an application on 21.10.2015 to supply the copy of the report submitted by the A.D.C but the same was not supplied. The petitioner thereafter applied under Right to Information Act, 2005. Thereafter vide order dated 03.12.2015, it was communicated to the petitioner that the A.D.C. report has been sent to respondent no.3 and not available with local office. As the copy of the A.D.C. report was not supplied to the petitioner. The petitioner, therefore, filed a contempt 4 W.P. No.10700/2016 petition i.e. Conc. No.232/2016 before this court. After filing this contempt petition, respondents asked the petitioner to appear before another A.D.C. on 21.03.2016. On 21.03.2016, respondent no.3 wrote respondent no.4 to inform the petitioner that his date of birth will remain 22.10.1956. This Court vide order dated 05.04.2015 in said contempt petition directed the respondents to supply the copy of the A.D.C. report to the petitioner within 15 days. Accordingly, the copy of the A.D.C. report was supplied to the petitioner on 26.04.2016 and consequently, the contempt petition was disposed off on 29.04.2016. Being aggrieved by the report submitted by the A.D.C., the petitioner has filed the present writ petition.
3. Learned counsel for the petitioner argues that the report of the A.D.C. by which the committee has directed to record his date of birth as 22.10.1956 is illegal and arbitrary. He submits that the Joint Committee for Coal Industry Coal India Limited has issued implementation instructions no.76 vide letter dated 5 W.P. No.10700/2016 25.04.1988 with subject title procedure for determination/verification of the age of the employee and for resolution of disputed cases of service record (hereinafter referred to as 'the Policy'). The Para(B) of the said policy provides for Review/Determination of date of birth in respect of existing employees. Sub Para (i)(a) of Para (B) says that the date of birth recorded in Matriculation Certificate or Higher Secondary certificates issued by the recognized Universities of Board or Middle Pass Certificate issued by the Board should be treated as corrected provided they were issued prior to the date of employment. He submits that in the present case, the A.D.C. was constituted as per order of this Court passed in W.P. No.13225/2009 and Committee has considered the documents i.e. service record, employment exchange as well as school transfer certificate and in all these documents, the date of birth of the petitioner is recorded as 24.05.1962. Once the committee has given the findings that the date of birth of the petitioner is 24.05.1962 then the respondents have no power to review the said report. 6 W.P. No.10700/2016 He further submits that as per the policy, the report submitted by the A.D.C. is final. He further submits that by the impugned order, the committee has directed the petitioner to appear before the A.D.C. again. He further submits that once he appeared before the A.D.C. and A.D.C. has given his report on the basis of the documents produced before him then the respondents cannot again asked him to appear before the A.D.C. It is the observation made by the committee that the earlier A.D.C. has not assessed the age of Shri Yusuf on the basis of the medical facts and only relied on the documents presented by Shri Yusuf is not correct. He further submits that this Court while disposing of the earlier writ petition has directed the authority to decide the matter by taking all facts and circumstances into consideration. He submits that in pursuance of the directions issued by this Court, the petitioner has produced all the documents before the committee in which his date of birth is recorded as 24.05.1962 and on the basis of these documents, the committee has given a report that the date of birth of the 7 W.P. No.10700/2016 petitioner is 24.05.1962. That once the committee has given his finding then there is no power of review under the instructions no.I.I-76. He further relied on the judgment passed by the Apex Court in the case of Bharat Coking Coal Limited and Others Vs. Chhota Birsa Uranw reported in AIR 2014 SC 1975.
4. Respondents have filed their reply and in the reply they have taken a preliminary objection that the present writ petition involves the disputed questions of fact and, therefore, the petitioner has a remedy to approach under the Industrial Disputes Act. The date of birth of the employee is essentially a pure question of fact which can only be determined by adducing evidence before appropriate Court or tribunal. It has further been submitted that the petition filed by the petitioner is also liable to be dismissed on the ground of delay and latches. The petitioner himself has admitted in the year 1989, he came to know that his date of birth has written as 22.10.1956 and he has taken on the matter almost after 20 years. Thus, the petition deserves to be dismissed on the 8 W.P. No.10700/2016 ground of delay and latches. The respondents have further submitted that at the time of his appointment, the petitioner has filled Form (B) which is statutory form and in that form his age was recorded as 22.10.1956 and the said document was counter signed by the petitioner. At the time of appointment, the petitioner has not submitted any document to show that his date of birth is 22.05.1962. That in past pay slips and in various other documents, the date of birth of the petitioner has been recorded as 22.10.1956 which was duly accepted by the petitioner. In the year 1996, a decision was taken to constitute a Medical Board, the Medical Board has submitted his report and was of the opinion that the age of the petitioner is 40 years as per official record and medical evidence. The petitioner has never challenged the said decision. The petitioner later on again made prayer for determination of his age the matter was reconsidered and it was found that the age of the petitioner in the year 2006 is 50 years. Respondents have further submitted that in pursuance of the direction passed by this Court, the Area Level Medical 9 W.P. No.10700/2016 Board was constituted, the Medical Board has taken into consideration the documents submitted by the petitioner and has given its finding that the age of of the petitioner is between 50 to 55 years. The recommendation of this Medical Board was sent to W.C.L. Head Quarter and the matter was examined at various level and ultimately it was put up before the competent authority i.e. Director(P). The competent authority was of the view that the Area Level Medical Board has not acted as per II-76, therefore, direction was issued to constitute the Apex Medical Board at Head Quarter level. Accordingly, the Apex Medical Board was constituted. The petitioner was called upon on various dates to appear before it, however, the petitioner has refused to appear on the ground that the matter is subjudice before this Court. It is further been submitted that the said Medical Board has not assessed the age of the petitioner on the basis of medical jurisprudence and perspective. The competent authority has already issued show cause notice to the members of the medical board for not following the norms and 10 W.P. No.10700/2016 circulars of C.I.L.. The petitioner in spite of granting ample opportunity but the petitioner did not come, therefore, the impugned orders have been passed.
5. Heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner was appointed on the post of Badli Tub Loader/Temporary D.P.R. vide order dated 25.09.1983 and at the time he filled up the statutory Form(B) maintained under the Mines Act and declare his date of birth as 22.10.1956 and the same was duly counter signed by him. The respondents organization for determination of the age of employees have issued instructions from time to time, however, in the year 1988 a Joint Bipartite Committee for Coal Industry Coal India Limited had issued implementation instruction no.I.I-76 under the National Wages Agreement No.3. In the implementation instruction no.76, a procedure has been laid down for determination/verification of the age of the employee and for resolution of disputed cases of service record. As per the said instruction, a decision of the A.D.C./Medical 11 W.P. No.10700/2016 Board will be binding and final. In the year 1989, the petitioner has came to know that his date of birth was wrongly been mentioned in the service record as 22.10.1956. He, therefore, submitted number of representations to the respondents to correct his date of birth but as no action has been taken in the matter, the petitioner has, therefore, filed the writ petition i.e. W.P. No.13225/2009 before this Court. The said writ petition was disposed off vide order dated 06.05.2015 with a direction to W.C.L. Authorities to take up the matter afresh and get the same decided through A.D.C, thereafter, A.D.C. was constituted comprising of three doctors and area personal manager. The A.D.C. met on 10.07.2015 and it was found that the committee has given its report that the date of birth of the petitioner is 22.05.1962. The decision of the A.D.C. was thereafter sent to the W.C.L. Head Quarter and the matter was examined at various levels and ultimately it was put up before the competent authority and the competent authority was of the view that the Area Level Medical 12 W.P. No.10700/2016 Board has not acted as per in instruction no. I.I-76 and, therefore, direction was issued to constitute the Apex Medical Board at Head Quarter Level. Being aggrieved by that order, the petitioner has filed the present petition. As per the Joint Bipartite Committee for the Coal Industry Coal India Limited, the procedure has been laid down for determination of the age of the employees in dispute case. Clause 7 is relevant for this purpose which reads as under.
7. It was agreed that an employee raising a dispute regarding his/her qualifications shall submit his/her certificates relating to his/her qualifications to the Management and the management after satisfying about the genuineness of the claims would insert the said qualifications in the Service Record of the employees original documents furnished by the employee would be returned to him/her after verification by the employee would be returned to him/her after verification and photo copies retained, if required by the management.
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6. Clause 11 further provides that the decision of the Age Determination Committee/Medical Board will be binding and final. Under these guidelines, Clause-B of the implementation instructions no.76 provides that the Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board, the date of birth recorded in these documents should be treated as correct provided they were issued by the Universities/Board Institutions prior to the date of employment.
7. Clause D further provides that 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 is the employee concerned. Clause E provides that the Medical Board constituted for determination of age will be required to assess the age in accordance with the requirement of Medical Jurisprudence.
8. Clause (F) of the said instructions further 14 W.P. No.10700/2016 provides that where the management (i.e.) Area Age Assessment Committee 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 Determination of age.
9. In the present case, the committee has given its report on the basis of the documents produced by the petitioner and has assessed the date of birth of the petitioner as 24.05.1962, however, when the matter was referred to the Head Quarter of W.C.L. it was decided to refer the matter to the Apex Medical Board as per instruction no.76 and however, the petitioner did not turn off before the Apex Committee and has filed the present petition. The Committee was also of the opinion that the A.D.C has assessed the age of the petitioner only on the basis of the documents produced by the petitioner and has not assessed the age of the petitioner on the basis of medical facts and jurisprudence. Accordingly, committee has decided to examine the matter afresh and accordingly, 15 W.P. No.10700/2016 it was decided to reconstitute the A.D.C. The report of A.D.C. shows that the committee has considered the documents produced by the petitioner relating to the education and service and thereafter, he was subjected to physical as well as radiological examination and thereafter, the findings were given by the A.D.C.. Thus, the findings of the apex body that the A.D.C. has not given the report on the basis of medical jurisprudence is not correct. The A.D.C. has given its findings on the basis of documentary as well as physical and radiological examination of the petitioner. As per the tri partite settlement also the decision of the A.D.C./Medical Board will be binding and final. A conjoint reading of Clause 10(11) aforesaid with Clause B(C) of Annexure I of II No.76 prima facie shows that the report of the A.D.C. is not recommendatory in nature. On the contrary, it has binding force on the parties. Clause (H) of the said instructions makes it clear that Clause (H) after assessment by A.D.C., the same shall be computerized and printout will be given to the employee concerned and 16 W.P. No.10700/2016 to the respective unit which shows that this report of A.D.C. is not subject to any acceptance by any authority and, therefore, the question of further examination of the petitioner by another A.D.C. does not arises. II-76 further shows that when the age of an employee cannot be determined as per Form B Register, ID card, etc then his case should be sent before A.D.C. for age determination. Once A.D.C. is constituted, this report of the Committee will prevail.
10. Thus as per the instruction no.76 as decision of the A.D.C is final and, therefore, in view of the aforesaid, the writ petition is allowed and the impugned orders dated 21.03.2016, 22.03.2016 and 20.04.2016 are hereby set aside. The respondents are directed to amend the date of birth of the petitioner in service record as 24/05/1962 as per report of the age determination committee dated 10/07/2016.
(Ms. Vandana Kasrekar) Judge Tabish Digitally signed by MOHAMMAD TABISH KHAN Date: 2018.02.06 10:42:51 +05'30' 17 W.P. No.10700/2016