Andhra HC (Pre-Telangana)
Kancha Beeraiah vs Counsel For The on 11 July, 2014
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HONBLE SRI JUSTICE R.KANTHA RAO
WRIT PETITON No.19139 of 2013
11-07-2014
Kancha Beeraiah.Petitioner
The Area Age Determination Committee, rep.by its General Manager (personal)
Singareni Collieries Company Ltd., Ramagundam-II and 2 others..Respondents
Counsel for the Petitioner: Sri M.GOVINDA REDDY
Counsel for the respondents: Sri NANDIGAM KRISHNARAO
<Gist :
>Head Note:
? Cases Referred:
1. (2000) 8 SCC 696
THE HON'BLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION No.19139 of 2013
The Court made the following:
THE HONBLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION No.19139 of 2013
ORDER:
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus, declaring the action of the 1st respondent in not referring the petitioner to the 2nd respondent Apex Medical Board for determination of his date of birth as per Rule-3 Circular No.P.49/2702/IR/1270, dated 01.08.1988 and as per Rule-3 Circular No.CRP/PER/IR/A/51/4744, dated 23.12.2003 as arbitrary, illegal and unconstitutional.
The petitioner joined the service in the 3rd respondent company as Badili Filler on 23.08.1979. According to the petitioner, at the time of his initial appointment, his actual age was 22 years, but his age was assessed as 25 years as on 08.07.1979 at Area Hospital, Yelladu Area without his knowledge. It is submitted by the petitioner that during the year 1986 he passed Graduation through Open University in B.A.Sociology from Andhra University. Thereafter, he was promoted as Coal Filler on 01.01.1981, further as Timber Man on 01.10.1986 and subsequently he was promoted to various positions. Finally, he was posted as Assistant Superintendent Grade at AEPATB cell R.G.2 area in January, 2012.
It is further submitted by the petitioner that his age was recorded in the service records 3 years more than his actual age. He made an application on 06.04.2012 to the 1st respondent to refer him to the Apex Medical Board to determine his correct age and amend the records correctly. The 1st respondent refused to refer him to the 2nd respondent Board on the ground that there was no variation in Identity/Service Records, Form-B register and CMPF and other records, and in all records his age was mentioned as 25 years as on 08.07.1979 and there was no glaring discrepancy between the date of birth recorded in the company records and apparent age of the petitioner. It is submitted by the petitioner that the date of birth was not recorded in any records of the company except mentioning that his age was 25 years as on 08.07.1979 which is not sufficient to treat him as 25 years old and hence the petitioner contended that disallowing him to refer to the 2nd respondent Board is illegal and arbitrary.
The respondents in their counter contended inter alia that at the time of his initial appointment the petitioner failed to produce any documentary evidence in support of his date of birth and as such he was referred to the Medical Officer who assessed his age as 25 years as on 08.07.1979 fixing his date of birth as 08.07.1954 and the same age was entered in the Service Register, Identity Card, Form-A CMPF Nomination form, Form PS 3 and PS 4 Pension Forms. The respondents have denied the date of birth mentioned by the petitioner in the affidavit filed in support of the writ petition as correct.
The version of the respondents is that there is no overwriting or alteration with regard to the entry of the age of the petitioner in the Service Register or any other company records. The contents of the Identity and Service Cards have been read over to the petitioner and explained to him in Telugu at the time of preparation of service card and as a token of acceptance of the same, the petitioner affixed his signature putting date underneath his signature as 08.12.1979. It is further contended that during his entire service up to 06.04.2012 the petitioner never raised any dispute with regard to his age recorded in the company records.
Nextly, it is contended that the petitioner himself prepared the Forms PS-3 and PS-4 with his own handwriting duly incorporating his date of birth as 08.07.1954 on 29.04.1998. According to the respondents, the petitioner is well aware of the age/date of birth entered in the company records. He also obtained his driving license mentioning his date of birth as 08.07.1954.
The prime contention of the respondents is that as per company Rules where there is any variation in the company records with regard to the age/date of birth of an employee, then only those cases can be referred to Area Age Determination Committee. According to the respondents, as the petitioner did not submit any documentary evidence at the time of his initial medical examination, his age was assessed by the then Medical Officer and the same age was entered in all the company records.
It is the further version of the respondents that as per Instruction No.76 of the Joint Bipartite Committee for Coal Industry (JBCCI) circulated through Circular No.P.49/4702/IA/1270, dated 01.08.1988, when there is variation in the age recorded in the records of the company and identity cards (untampered), such cases will be referred to the Age Determination Committee or Medical Board.
It is also the contention of the respondents that when there is glaring discrepancy between the date of birth recorded in the Company record and the apparent age of the employee, such cases will be referred to the Apex Medical Board for determination of the age by the Area Age Determination Committee. It is further contended that mere representation without any supporting evidence/document cannot provide the petitioner any vested right to claim that his age was assessed 3 years more than the actual age and he shall be referred to the Medical Board.
Nextly, it is contended by the respondents that as token of acceptance to the one year advance superannuation notice, the petitioner claimed CMPF refund vide application dated 14.08.2013 and therefore, the petitioners claim that he has to be referred to the Medical Board for determination of his date of birth is unsustainable. Contending as above, the respondents sought to dismiss the writ petition.
From the pleadings of the parties and contentions advanced on either side by the learned counsel, it is highly difficult to believe that the petitioner before making application to refer him to the Medical Board for determination of his date of birth never verified the service records. Admittedly, the petitioner secured several promotions, during which time he must have verified his date of birth entered in the relevant records. But at no point of time prior to his making the application he raised any dispute regarding his date of birth and applied to the 3rd respondent company for determination of his correct date of birth. The rules of the company governing the determination of the date of birth provide for referring the employee to the Medical Board only if there is any discrepancy in the date of birth entered in the records of the company. In the instant case, obviously, there is no such discrepancy, further more, there is no glaring discrepancy regarding actual age of the petitioner and the date of birth entered in the service records.
In G.M.,Bharat Coking Coal Ltd. v. Shib Kumar Dushad while dealing with identical situation, the Honble Supreme court held as follows:
When the date of birth as entered in service record is questioned before court by an employee shortly before his retirement, burden lies heavily on him to establish his stand by producing acceptable evidence of clinching nature, Court should not pass interim order for continuance of such employee beyond the date of superannuation as per his service record.
In case where the certificates produced by the employee showing his date of birth different from that entered in his service record acceptable, it is a disputed question of fact and the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India should not undertake an inquiry into such question.
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 absence of any arithmetical or typographical error apparent on the face of the record, Court should not interfere with such decision of the employer in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
In the instant case, the petitioner also raised the question regarding the correctness of his date of birth long after his joining the service. The Bipartite Agreement and Instructions of the 3rd respondent Company regarding the determination of the date of birth provide for referring the employee to Medical Board for determination of date of birth only when there is discrepancy of the date of birth entered in the records of the company or when there is a glaring discrepancy between the actual age of the employee and the date of birth entered in the service records of the employee. These two things do not exist in the case of the petitioner. The respondents will exercise their discretion only with reference to the Rules of the Company governing the determination of the date of birth, as contended by the respondents in their counter. They are not supposed to refer each and every case for medical opinion whenever a dispute is raised regarding the date of birth of an employee.
In the instant case, absolutely, the petitioner did not produce any iota of evidence showing his correct date of birth. Simply he made a representation to the respondents to refer him to the Medical Board for determination of his date of birth. Under these circumstances, the respondents are not automatically supposed to refer him to the Medical Board. Therefore, the respondents have correctly exercised their jurisdiction in accordance with the Rules and Instructions in the Bipartite Agreement and the Circulars issued. Therefore, the petitioner cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking the relief of issuance of a direction to the respondents to refer him to the Medical Board for determination of his date of birth.
The Writ Petition is devoid of any merit and accordingly, the same is dismissed without any order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
_____________________ R.KANTHA RAO,J Date: 11.07.2014