Jharkhand High Court
Kamta Pandey vs B.C.C.L. Through ... on 8 August, 2007
Equivalent citations: [2007(3)JCR681(JHR)]
Author: M. Karpaga Vinayagam
Bench: M. Karpaga Vinayagam, Narendra Nath Tiwari, D.P. Singh
JUDGMENT M. Karpaga Vinayagam, C.J.
1. Kamta Pandey, the petitioner, an employee of M/s. Bharat Coking Coal Ltd., the respondent, has raised the dispute about the date of birth. According to the petitioner, his date of birth, as reflected in the Matriculation Certificate, is 1.7.1951. The respondents have, however, disputed the date of birth recorded in the Matriculation Certificate and insisted on the date of birth recorded in the Form 'B' Register, which is said to be the statutory one. Hence, the petitioner has chosen to approach this Court by filing a writ of mandamus.
2. At the time of hearing before the learned Single Judge, two judgments passed by the Division Bench of this Court giving conflicting views were brought to the notice of the learned Single Judge.
3. The Division Bench, comprising of Hon'ble Mr. Justice Altamas Kabir (then Chief Justice) and Justice R.K. Merathia in the case of Awadhesh Singh v. The Bharat Coking Coal Ltd. and Ors. 2005 (2) JCR 474 (Jhr.) held that as per the Instruction 76, the date of birth, as mentioned in the Matriculation Certificate alone has to be taken to be conclusive proof and not the entry in the service register. On the other hand, the other Division Bench comprising of Justice M.Y. Eqbal and Justice D.P. Singh, in L.P.A. No. 50 of 2006 Bipin Bihari Singh v. Central Coalfields Ltd. and Ors. held that the date of birth mentioned in the Matriculation Certificate will not prevail upon the service records admitted and acknowledged by the employee and service register alone has to be taken to be conclusive proof.
4. In view of the conflicting views of the Hon'ble Division Benches of this Court in the aforesaid two judgments and considering the mutual relationship between the employer and the employee, who are governed by National Coal Wage Agreement, learned Single Judge felt that it would be appropriate that the controversy be resolved by a Larger Bench, Accordingly, learned Single Judge has referred the matter with the following question:
Whether the date of birth recorded in the Matriculation Certificate duly authenticated should be considered as the conclusive proof of age or the age determined by the Medical Board and other service record?
5. Then the matter was placed before the Chief Justice, who passed administrative order to post this case before the Full Bench. That is how this matter has come up before this Full Bench.
6. This writ petition has been filed by Kamta Pandey seeking for the issuance of mandamus directing the respondents, namely, Bharat Coking Coal Limited to make necessary correction in the date of birth of the petitioner in his service record as 1.7.1951 as per the Matriculation Certificate as the date of birth has wrongly been mentioned in the service record as 16.7.1948. The case of the petitioner is as follows:
(a) The petitioner was appointed as Pay Loader Operator under Khas Kusunda Colliery of Bharat Coking Coal Limited in the year 1971.
(b) In the year 1968, the petitioner passed the Matriculation Examination.
(c) As per the Matriculation Certificate, his date of birth is 1.7.1951.
(d) The said Certificate was issued even prior to the date of appointment of the petitioner.
(e) When he was appointment on 16.7.1971, an Identity Card was issued to the petitioner and the date of birth was mentioned in the Identity Card as 1.7.1951 as per the Matriculation Certificate.
(f) While he was working, the respondent Company issued the Seva Abhilekh mentioning various details, including the date of birth, available on the records and sent to the petitioner for verification of those particulars.
(g) The petitioner, after receipt of the same, submitted the said Seva Abhilekh mentioning his correct date of birth as 1.7.1951 in the said form.
(h) After submitting the same, he was under bonafide impression that his date of birth should have been recorded in the service record as 1.7.1951 as given in the Seva Abhilekh after correcting the date of birth.
(i) When the petitioner came to know that the date of birth, which was mentioned in the service register, i.e., 16.7.1948 is not corrected as 1.7.1951, he sent a representation on 5.1.2004 requesting for the correction of the date of birth as 1.7.1951 as mentioned in the Matriculation Certificate.
(j) There was no response.
(k) As per Instruction No. 76 of National Coal Wage Agreement III dated 25.4.1988, the date of birth of the existing employees must be determined on the basis of Matriculation Certificate issued by the Board.
(1) The Matriculation Certificate has been issued by the Bihar School Examination Board where he finished his matriculation in the year 1968, itself, and obtained Matriculation Certificate. Only thereafter, he joined the employment. As such, he obtained Matriculation Certificate even before his appointment.
(m) But, in the service records it is wrongly mentioned as 16.7.1948. The date of birth of the petitioner has been wrongly mentioned 23 years as on 16.7.1971 without any basis.
As there was no response to his request, he has approached this Court seeking for the mandamus.
7. The case of the respondents is as follows:
(a) The petitioner was appointed on 16.7.1971 under Khas Kusunda Colliery in Bharat Coking Coal Limited.
(b) At the time of his appointment, his age was recorded as 23 years.
(c) In token of acceptance of the entries made in the Form 'B' Register, he has put his signature.
(d) The respondent are bound by the age recorded in Statutory Form 'B' Register.
(e) At no point of time, petitioner produced Matriculation Certificate. Had he produced Matriculation Certificate at the time of his appointment, the same would have been taken note of and appropriate entries would have been made.
(f) The petitioner made his representation dated 5.1.2004, mentioning about the Matriculation Certificate and requested for recording of his date of birth as 1.7.1951. This claim was made only after completion of 33 years of service, that too when he was on the verge of retirement.
(g) The identity card, as mentioned by the petitioner, is not a record relating to the date of Birth.
(h) In the face of Form 'B' Register, duly acknowledged by the petitioner, the respondents are bound by the said date of birth.
(i) The petitioner did not object to the service excerpts recorded in the year 1971 recording his date of birth as 16.7.1948. Therefore, he cannot be allowed to raise the issue at the fag end of his service.
8. In the light of the above rival contentions, the following question would arise for consideration:
Whether the date of birth recorded in Matriculation Certificate, duly authenticated or the date of birth mentioned in any other records including the service records should be considered as the conclusive proof of the age, when mutual relationship between employer and employee is governed by the Implementation Instruction No. 76 of the National Coal Wage Agreement-III?
9. Let us now deal with the question, referred to above, on the basis of the facts and circumstances of this case. According to the petitioner, Kamta Pandey, he passed the Matriculation Examination in 1968 and obtained Matriculation Certificate in the year 1969. As per the Matriculation Certificate, his date of birth is 1.7.1951. He joined in the respondent Company in the year 1971. After his joining, an identity card was issued to the petitioner by the Company, wherein his date of birth was recorded as 1.7.1951, as reflected in the Matriculation Certificate as also in the Seva Abhilekh (record of company). When he came to know that his date of birth was wrongly mentioned in the service register as 16.7.1948. he sent a representation on 5.1.2004 requesting for correction of his date of birth in the service record as 1.7.1951 as mentioned in the Matriculation Certificate. Since there was no response from the end of the respondents, he has approached this Court seeking for the mandamus.
10. The main contention urged by the counsel for the petitioner is that as per Instruction No. 76 of the National Coal Wage Agreement III dated 25.4.1988, the date of birth of the existing employee must be determined only on the basis of the Matriculation Certificate issued by the Board and as such the said Matriculation Certificate, which has been issued in favour of the petitioner mentioning his date of birth as 1.7.1951, by the Bihar School Examination Board in the year 1968, obtained even before his appointment, has to be treated as authentic document and the date of birth as mentioned in the service register as 16.7.1948 is not correct one and it is wrongly mentioned as 23 years as on 16.7.1971 in the service register without any basis.
11. In reply, it is contended by the counsel for the respondents that at the time of his appointment in the year 1971 his age was recorded as 23 years and in token of the entries in Form 'B' Register he has put his signature and as such the respondents are bound by the age recorded in the statutory Form 'B' Register. It is also contended that the representation dated 5.1.2004 requesting for the correction of date of birth was at the fag end of his service. Therefore, his claim cannot be said to be illegal.
12. As indicated above, the counsel for the petitioner placed reliance, mainly on 2005 (2) JCR 474 (Jhr.) Awadh Singh v. The Bharat Coking Coal Ltd. and Ors. Similarly, counsel for the respondents relied upon the judgment rendered by a Division Bench of this Court in L.P.A. No. 50 of 2006 Bipin Bihari Singh v. Central Coalfields Ltd. and Ors. giving divergent views.
13. We have carefully considered the submission made by the counsel for the respective parties and gone through the records and citations referred to above.
14. At the outset it shall be stated that the Instruction No. 76 of National Coal Wage Agreement III is applicable to the respondent Company as well as to the petitioner. In fact, there is no dispute over the applicability of provisions of Instruction No. 76 of National Coal Wage Agreement III in this case as the same has been admitted by the counsel for the respondents also. The Instruction No. 76 of the National Coal Wage Agreement III dated 24.5.1988 is a bilateral agreement between the Company and the Union and this deals with the procedure for verification of the age of the employee, which is reproduced below:
Implementation Instruction No. 76 Procedure for Determination/Verification of 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 examination the date 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.
15. As per this instruction as agreed upon by the parties, the determination of the age shall be based upon Matriculation Certificate and the date of birth recorded in the said certificate alone shall be treated as the correct date of birth. Clause (B) of Instruction No. 76 which provides for the review of determination of date of birth in respect of existing employees, is reproduced below:
(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 Board of Education and/or Department of Public Instruction and admit cards issued by the above Boards should be treated as correct provided they were issued by the said Universities/ Board/ Institutions prior to the date of employment.
16. The above instruction, which is, admittedly, binding upon the respondent company, would clearly indicate that in the case of the existing employees, date of birth mentioned in the Matriculation Certificate alone shall be treated as authentic and correct date of birth. If it is found that the said certificate, which is genuine, containing the date of birth, has been issued by the recognized University or recognized Board of Education, it cannot be altered under any circumstances. When the instruction found in the agreement reflecting the scheme provided for implementation envisaging the specific procedure for determination of date of birth conclusively, it cannot be said that entries made in the service register alleged to have been acknowledged by the employee would nullify the effect or the object with which the Instruction No. 76 has been introduced.
17. In the light of the above facts and legal situation, let us now come to the views expressed by the two Division Benches in relation to determining the factor to fix the date of birth of the employee. The Division Bench, comprising of Hon'ble Mr. Justice Altamas Kabir (the then Chief Justice) in 2005 (2) JCR 474 (Jhr.) Awadh Singh v. The Bharat Coking Coal Ltd. and Ors. would make the following observations:
6. There is no dispute that after the said settlement, the Matriculation Certificate of the writ petitioner/appellant was once again verified from the Bihar School Examination Board, Patna, which repeated its earlier stand that the date of birth of the writ petitioner/appellant was 7th May, 1954. There is also no dispute that under Implementation Instruction No. 76, which is followed by the respondents age determination is to be done at the time of appointment first on the basis of Matriculation Certificate, if available. In fact, the said Instruction indicates that in the case of appointees, who have passed matriculation or equivalent examination, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same cannot be altered under any circumstances. There is no dispute that the petitioner is a Matriculate and his matriculation certificate was repeatedly verified from the concerned Board. The question of sending the writ petitioner for medical examination did not, therefore, arise, notwithstanding the fact that the petitioner did not object to be examined by the Medical Board.
9. ...Admittedly, the certificate was duly verified from the Bihar School Examination Board and there could have been no further doubt in the matter and having particular regard to the Instruction No. 76, the respondents should have accepted the petitioner's age in terms of his matriculation certificate....
18. The above decision would specifically deal with Instruction 76 of he National Coal Wage Agreement III. When there are conflicting date of births between the entries made in the Matriculation Certificate and the entries made in the other records, including the medical records, this Court would specifically hold that it cannot be disputed under Implementation Instruction No. 76, which is followed by the employer, the age determination is to be done at the time of appointment, first on the basis of Matriculation Certificate, if available, as the said instruction indicates that in the case of appointees, who have passed matriculation or equivalent examination, the date of birth mentioned in the said certificate alone shall be treated as an authentic and correct date of birth and the same cannot be altered under any circumstances. This ratio decided by the Division Bench in Awadh Singh (supra) was mainly based upon the Implementation Instruction No. 76, which was accepted by both the parties through a bilateral agreement. This view in our considered opinion is correct view as the said view decided the ratio on the basis of the bilateral agreement agreed upon by both, the respondent Company and the Unions. So we feel the said judgment rendered by the Division Bench in Awadh Singh (supra) has been correctly decided.
19. Let us now look into the other decision given by the Division Bench in L.P.A. No. 50 of 2006 Bipin Bihari Singh v. Central Coalfields Ltd. and Ors. on the basis of which, the learned Counsel for the respondent had submitted that the Matriculation Certificate will not prevail upon the service records. The relevant observation is as follows:
There is no doubt that matriculation certificate is an authenticatic document for the purpose of verifying the qualification of the candidate. Matriculation certificate is also a reliable piece of evidence for the purpose of ascertaining and verifying the date of birth of the candidate. But, at the same time the date of birth entered into the Form-B Register is also the conclusive evidence with regard to date of birth of the appellant was recorded as 6.1.1949 in the matriculation certificate, but at the time of appointment in 1971, his date of birth was recorded in Form-B Register as 6.1.1946 which was acknowledged by the appellant by putting his signature. Not only that, in the seniority list issued by the respondents in the year 1999 the date of birth of the appellant, was shown as 6.1.1946. It further appears that when the appellant availed L.T.C. in the year 2005, in L.T.C. Form-A filled up by the appellant he showed his age as 59.8 years. This L.T.C. Form-A also singed by the appellant. In this way, notwithstanding the date of birth recorded in the matriculation certificate, the appellant, since the beginning, accepted and acknowledged his date of birth as 6.1.1946. In such circumstances, we are of the view that the matriculation certificate will not prevail upon the documents admitted and acknowledged by the appellant wherein his date of birth was shown as 6.1.1946. In our view, therefore, the learned Single Judge has not erred in law in dismissing the writ petition.
20. As per this decision, the Division Bench is of the view that even though the Matriculation Certificate is an authenticated document, which can be considered a reliable piece of evidence for the purpose of ascertaining the date of birth, the date of birth entered into Form 'B' Register is the conclusive piece of evidence and since all the documents, including Form 'B' Register and other service records, were acknowledged by the employee by putting his signature, the Matriculation Certificate cannot be considered to prevail upon his service records. Though this finding has been given on the basis of the facts and circumstances of the said case, we are unable to accept this view for the following reasons:
(i) This judgment rendered in L.P.A. No. 50 of 2006 on 19th July, 2006 did not at all consider the earlier Division Bench judgment, rendered on 4th May, 2005 and reported in 2005 (2) JCR 474 (Jhr.). Thus it is per incurium.
(ii) It has not dealt with the Instruction No. 76 of the bilateral agreement between the company and the Unions.
(iii) When a special procedure for determination of date of birth of an existing employee has been prescribed in the Instruction No. 76(A) and (B), the same cannot be given a go bye, merely because there are some entries in the Form 'B' Register acknowledged by the employee.
21. As a matter of fact, in this case, in the Form 'B' Register it is merely stated that he was aged about 23 years as on 16.7.1971, i.e., the date of employment. No details have been as to how the date of birth was fixed as 16.7.1948. On the other hand, the identity card which was issued to the petitioner, immediately after the appointment, showed his date of birth as 1.7.1951. This Identity Card reflected the date of birth as mentioned in the Matriculation Certificate. This was, admittedly, issued by the respondents. By virtue of issuance of this Identity Card, hence, it must be taken to mean that the date of birth, as mentioned in the Matriculation Certificate, has been acknowledged and admitted by the respondents. Furthermore, while he was working, the respondents sent Seva Abhilekh mentioning various details, including the date of birth, available on record to the petitioner for verification of those particulars. On receipt of the same, the petitioner submitted the said Seva Abhilekh records mentioning his correct date of birth as 1.7.1951 in the said form. The receipt of the same by the respondents is not disputed. Despite that, there is no reason as to why the date of birth has not been corrected then and there. The respondents had also not chosen to intimate the petitioner that the respondents have rejected his claim for correcting date of birth. Therefore, it is quite reasonable on the part of the petitioner to have a bonqfide impression that his date of birth would have been corrected or correctly recorded in the service register as 1.7.1951 as given in the Seva Abhilekh. When that being the case, the respondents cannot contend that the claim for correction of date of birth was made by the petitioner only at the fag end of the service. This is contrary to their own records.
22. According to the petitioner, when he came to know that the date of birth was not corrected and was wrongly mentioned as 16.7.1948, he immediately sent a representation on 5.1.2004 mentioning all the above details and as well as requesting for correcting the date of birth as 1.7.1951 as reflected in the Matriculation Certificate. It is not the case of the respondents that the Matriculation Certificate is not genuine. It is not the case of respondent that the Matriculation Certificate was not issued by the recognized Board. It is not also the case of the respondents that the Matriculation Certificate was obtained after his employment. When the Matriculation Certificate was issued by the recognized Educational Board and when the Matriculation Certificate was obtained by the petitioner even before the appointment, which has been reflected in the identity card issued by the Company, immediately after the appointment, we are at a loss to understand as to how the respondent Company can claim that only service register should be taken note of for determining the date of birth, even though Instruction No. 76, which is a product of the bilateral agreement is binding on the company.
23. The view expressed by the Division Bench presided over by Hon'ble Mr. Justice Altamas Kabir (the then Chief Justice) in Awadh Singh (supra) find support from the other decisions also, i.e.:
(i) 2001 (1) PUR 451 Radhe Shyam Singh v. State of Bihar
(ii) 2003 (2) JCR 663 (Jhr.) Sarita Narayan v. H.E.C. through the Chairman-cum-Managing Director, Head Quarter
(iii) 2003 (4) JCR 602 (Jhr.) Management of Heavy Engineering corporation Ltd., Ranchi v. Mrs. Sarita Narayan
(iv) 2007 (3) JCR 31 (Jhr.) Ramanand Tiwary v. Indian Iron and Steel Company Ltd., Chas
24. The views expressed in those decisions, as indicated above, is correct one.
25. On the side of the respondents, as indicated above, the authority cited by them in L.P.A. No. 50 of 2006 has not been correctly decided. The other authorities cited by them, namely, (i) 2005 (2) JCR 245 (Jhr.) Civil Paswan v. State of Jharkhand and Ors. and (ii) 2004 (1) JLJR 217 (Jhr): 2003 (3) JCR 169 (Jhr), Daya Shankar Prasad v. Bharat Coking Coal Limited would not be of any help to the respondents as in those decisions, it has been decided in favour of the respondents since in those cases the Matriculation Certificate was obtained by the employee after the appointment.
26. One other point, incidentally, raised by the respondents is that the dispute over date of birth cannot be raised at the fag end of service. The counsel for the respondents cited the following authorities of the Supreme Court
(i) 1994 Supp (1) SCC 155 Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran
(ii) Burn Standard Co. Ltd. v. Dinabandhu Majumdar
(iii) (1995) Supp. (2) SCC 598 Bharat Coking Coal Ltd. v. Presiding Officer and Anr.
(iv) , Hindustan Lever Ltd. v. S. M. Jadav and Anr.
(v) AIR 2001 SC 72 : 2001 (2) JCR 251 (SC), G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushand and Ors.
(vi) State of U.P. and Ors. v. Gulaichi
(vii) (2005) 12 SCC 201 Coal India Ltd. v. Ardhendu Bikas Bhattacharjee and Ors.
(viii) State of U.P. v. Shiv Narain Upadhyay
27. In these decisions, though it is observed that the employee will not normally be permitted to apply for change of his date of birth at the fag end of his service career, the Supreme Court clearly held that if the Court is fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and when a clear case, relating to the date of birth, is made out on the basis of clinching materials, then necessary direction to make a declaration of the said date of birth can be given.
28. In this case, as indicated above, it cannot be said that the claim has been made only at the fag end of the service. On the other hand, some of the records of the Company, like Identity Card and Seva Ab-hilekh, which have been issued immediately after appointment, would indicate that his date of birth had been mentioned as 1.7.1951 as reflected in the Matriculation Certificate. Therefore, above decisions cited by the counsel for the respondents dealing with claim at the fag end would not be of any help to the respondents.
29. In view of the above discussion, our answer to the question raised in this case is as follows:
The date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by Implementation Instruction No. 76 of National Coal Wage AgreementIII.
30. In the light of the above answer, we think it fit to give a direction to Bharat Coking Coal Limited to make necessary correction in the date of birth in the petitioner's service records as 1.7.1951 as per the Matriculation Certificate and pass consequential orders.
This writ petition is, thus, allowed.
Narendra Nath Tiwari, J.
31. I agree.
D.P. Singh, J.
32. I agree.