Jharkhand High Court
Md.Naziruddin vs M/S Bharat Coking Coal Ltd.Through Its C ... on 31 July, 2015
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 69 of 2011
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Md. Naziruddin, son of Late Sekh Azimuddin, Resident of at New
Colony, Tilatand, Qr. No. 207, P.S. Katras, P.O. Katrasgarh, District:
Dhanbad. ... Petitioner
Versus
1.M/s Bharat Coking Coal Limited through its Chairman-cum-Managing
Director, Dhanbad, District: Dhanbad.
2.Director Personnel, M/s Bharat Coking Coal Limited .
3.Deputy Chief Personnel Manager, M/s Bharat Coking Coal Limited
Sl. No. 1,2,3 having their respective office at Koyla Bhawan, Koyla
Nagar, P.O and p.S. Saraidhela, District: Dhanbad.
4.General Manager, Govindpur Area No. III, P.O Sonardih, P.S.
Govindpur, District: Dhanbad.
5.Project Officer, New Akash Kinaree Colliery, P.O Katras Bazar, P.S.
Katrashgarh, District: Dhanbad. .... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Pratiush Lala, Adv.
For Respondents : M/s. Anoop Kumar Mehta & Amit Kumar,
Advocates.
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C.A.V. On 03.07.2015 Pronounced on 31/07/2015
Per Pramath Patnaik, J.:
In the accompanied writ application, the petitioner has inter
alia, prayed for issuance of appropriate writ/direction commanding
upon the respondents for quashing order dated 03.09.2010 (Annexure
5) of premature superannuation of the petitioner from services on the
basis of the wrong entry made in service record i.e. New Form 'B' etc,
and to allow the petitioner in service with effect from the date of
premature superannuation w.e.f 01.10.2010 with all consequential
benefits including the salary and continuity in service.
2. Bereft of unnecessary details, the fact in a nutshell, is
that the petitioner was initially appointed on the post of Dumper
Operator in the office of respondents on 04.05.1982 and his date of
birth has been recorded as 01.05.1957 in old and original Form 'B',
Service excerpt on the basis of age mentioned in School Leaving
Certificate and Driving Licence, as evident from Annexure 1 series to
the writ application. After five years of services the petitioner came to
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know that in the new form "B" his date of birth has been wrongly
mentioned as 09.09.1950, as per Annexure 2. Thereafter the
petitioner made several representations before the appropriate
authority on 23.01.1987, 16.02.1987, 22.04.1987 and on 09.06.1992
(Annexure 3 series) for the purpose of correction of his date of birth,
which has wrongly been recorded in new Form 'B'. But surprisingly
the petitioner was informed on 08.03.2010 regarding his
superannuation on 01.10.2010 on the basis of his date of birth
recorded in service record. Thereafter, the petitioner requested the
respondent for change of date of birth, on which, the respondents
agreed to send him before Medical Board for assessment of his age
and accordingly on 25.05.2010, the respondents sent the petitioner
for assessment of his age before Medical Board, which after
determining the age of the petitioner on the basis of forensic
examination, orthopaedic examination and radiological examination
assessed the age of the petitioner between 55-60 years on
08.07.2010as evident from Annexure 4 series. It has been contended in the writ application that despite the age assessment made in the Medical Board, the respondents issued Office Superannuation Order dated 03.09.2010, as per Annexure 5 to the writ application and accordingly, the petitioner has been superannuated from services on 1.10.2010, prior to attaining original age of superannuation. Being aggrieved, the petitioner has approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances.
3. Per Contra, counter affidavit has been filed by the respondents controverting the averments made in the writ application. In the counter affidavit, it has been stated that the points 3 raised in the writ petition are disputed questions of fact, which need not be decided by this Court in exercise of power conferred under Article 226 of the Constitution of India. Moreover, the petitioner is a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, as such disputed questions of fact can be decided by the Industrial Tribunal upon a reference made to it by the appropriate Government. Apart from raising preliminary objection regarding the maintainability of the writ application, it has been submitted that the date of birth of the petitioner has been recorded differently in different records of the company. In the Coal Mines Provident Fund records and in Form 'B' register of Govindpur Colliery the date of birth of the petitioner is recorded as 09.09.1950 whereas in the Form 'B' of Kooridih Coliery, it is mentioned as 01.09.1957. Likewise, in service excerpt of the petitioner, initially date of birth has been recorded as 01.05.1957 and later after correction, it has been made as 09.09.1950 and Non-Executive Informative System (NEIS) i.e. computer records shows the date of birth of the petitioner as 09.09.1950. Photocopy of CMPF record, Form B of Govindpur Colliery, Form B of Kooridih Colliery, the service excerpt and NEIS are annexed as Annexure A, B, C, D and E respectively to the counter affidavit. It has further been stated that as there was glaring disparity in recording the date of birth of the petitioner, the petitioner was referred to the Apex Medical Board for assessment of age, which examined the petitioner medically on 07.07.2010 at Koyla Nagar Hospital. In the report, the Apex Medical Board has given its finding that his date of birth as recorded in CMPF and New Form B as 09.09.1950 is accepted, hence, the petitioner has rightly been superannuated on attaining the age of 60 years in September, 2010. It has further been submitted that the petitioner has never 4 complained about the assessment of age by Medical Board. Relying upon the judgment as reported in 1995 Supp (2) SCC 598, it has been submitted that It is well settled proposition of law that once the age has been assessed by the Medical Board, the same cannot be questioned.
4. Heard Mr. Pratiush Lala, learned counsel for the petitioner and Mr. Anoop Kumar Mehta, learned counsel for the respondents perused the materials available on record.
5. Learned counsel for the petitioner has strenuously urged before this Court that when the petitioner came to know about the incorrect date of birth entered in his service record, he immediately submitted representations before the respondents, as per Annexure 3 series stating therein that his correct date of birth is 01.05.1957, as mentioned in old and original Form 'B' as well as in School Leaving Certificate, as per Annexure 1 to the writ petition. It has been submitted that since the respondents have not disposed of the representations of the petitioner, the action of the respondents is totally arbitrary and against the settled principles of law and also against the provisions of National Coal Wages Agreement (in short 'N.C.W.A').
6. Referring to the judgment delivered in the case of M/s Bharat Coking Coal Ltd & Ors Vs. Chhota Birsa Uranw as reported in 2014 (3) JBCJ 28 [SC] , the learned counsel for the petitioner submitted that the Hon'ble Apex Court has held that 'School Leaving Certificate' prevails over Form 'B' register and here in the present case, the petitioner submitted his representation in the year 1987 and it was the company's fault not to decide the representation and further not to follow N.C.W.A. Learned counsel further submitted that delay is no ground if the dispute regarding 5 date of birth has been raised belatedly, as referred in paragraphs 11 and 12 of the aforesaid judgment and ratio of the judgment of the Hon'ble Supreme Court in the aforesaid case is applicable in the present case.
7. Learned counsel further referred the Full Bench judgment rendered in the case of Kamta Pandey Vs. M/s B.C.C.L & Ors as reported in 2007 (3) JLJR 726 (F.B.) , in particular at paragraph 21, the Hon'ble Court held that if the employee made representation for correction of his date of birth but employer does not dispose of the same, then it shall be considered that representation is decided in favour of the employee. Further by referring paragraph 27 of the said judgment, learned counsel for the petitioner submitted that the claim regarding date of birth can be raised at the fag end of service if such dispute has been raised earlier by giving representation.
8. Learned counsel further submitted that Medical Board constituted for determination of age will be required to assess the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately. But, in the present case, the Medical Board assessed the age between 55-60 years and not the accurate age and committed great error by taking the age in upper side. To buttress his argument, learned counsel for the petitioner referred the judgment rendered in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir and others as reported in (1982) 2 SCC 538 , wherein it has been held that in the case of age determination margin of two years on either side could be taken and Court can take judicial notice of margin of error in age ascertained by such examination in two years on either side. It has been submitted 6 that if the ratio of Jaya Mala (Supra) is taken into consideration in the present case, the age of the petitioner would be 57.5 years.
9. Learned counsel for the petitioner further referred the judgment rendered in the case of Ashok Kumar Singh Vs. C.C.L & Ors . as reported in 2012 (3) JLJR 258 , wherein at paragraph 5, the Hon'ble Court held that if the medical report shows age between 52 to 55 years and if lesser side 52 years is taken into consideration, then it comes to age recorded in matriculation certificate and as such age recorded in lesser side is taken as final and, if the ratio of Ashok Kumar Singh's case is applied in the present case and age of petitioner in lesser side which is 55 years then it comes nearer to the age of the petitioner mentioned in S.L.C. Old Form B etc. 10 . Learned counsel for the petitioner further referred the judgment rendered in the case of Karu Nonia Vs. B.C.C.L & Ors. as reported in 2002 (1) JCR 418 (Jhr), wherein the Court held that it is settled law that date of birth recorded in statutory form B cannot be changed if not changed in 10 years of service and further date of birth cannot be changed without giving any notice. On this point, learned counsel also referred judgment reported in the case of Kunj Bihari Mahto Vs. BSEB & Ors. as reported in 2002 (3) JLJR 491 .
11. Lastly, learned counsel for the petitioner referred to the judgment rendered in the case of Shatrugan Pd. Ram Vs. State of Bihar & Ors. as reported in 2002 (2) BLJ 361 (Pat) , wherein the Hon'ble Court held that in the case of disputed date of birth, the benefit of doubt should be given to the employee.
12 . Learned counsel for the petitioner submitted that considering the arguments advanced as well as the judgment cited above, the case of the petitioner is fit to be allowed and impugned order dated 03.09.2010 is fit to be quashed.
713 . Learned counsel for the respondents - B.C.C.L has dexterously countered the submissions advanced on behalf of petitioner and referred Annexure 2 to the writ petition, wherein the date of birth of the petitioner has been mentioned as 09.09.1950 and submitted that in other service record, different date of birth has been mentioned. Learned counsel has also drawn attention of the Court at page 19 of the writ petition, wherein at Educational Qualification Column, nothing has been mentioned. 14 . To buttress his argument, learned counsel for the respondents has referred to the decision rendered in the case of G.M. Bharat Coking Coal Ltd. Vs. Shib Kumar Dushad as reported in AIR 2001 SC 72 , wherein the Hon'ble Court has held that the High Court in writ petition cannot make an enquiry into such disputed questions of fact and further the date of birth as determined by Medical Board on considering the evidence available with management and in accordance with requirement of medical jurisprudence is binding and final. It has been submitted that from perusal of report of Apex Medical Board, Annexure G to the counter affidavit, it appears that assessing the age of the petitioner 55-60 years, his date of birth as recorded in CMPF and New Form 'B' as 09.09.1950 is accepted, hence, the impugned order issued vide Annexure 5 dated 03.09.2010 has rightly been issued by the respondents.
15 . Having heard learned counsel for the parties at length and on perusal of the records, I am of the considered view that the impugned order under Annexure 5 dated 03.09.2010 does not call for interference by this Court for the following facts, reasons and judicial pronouncements:
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(i). Admittedly, different date of birth was entered in different documents, for which, representations were submitted by the petitioner in the year 1987 and 1992, but they were not disposed of, as alleged by the petitioner. But the petitioner waited for a long period and just at the fag end of service, he approached this Court and for such long delay, no reason has been assigned by the petitioner, which is not acceptable at all. The Hon'ble Apex Court in the case of C. Jacob Vs. Director, Director of Geology and Mining & Anr as reported in (2008) 10 SCC 115 and catena of judgments has held that repeated representations will not save limitation. Therefore, the petitioner is guilty of laches and acquiescence.
(ii). The petitioner raised the disputed question of facts relating to his date of birth at the fag end of service, which cannot be adjudicated in view of the decision rendered in the case of Burn Standard Co. Ltd. & Ors. Vs. Dinabandhu Majumdar & Anr as reported in AIR 1995 SC 1499 , wherein the Hon'ble Apex Court in unequivocal terms has enunciated that writ petition for correction of date of birth at the fag end of service with object of continuing in service ordinarily should not be entertained.
(iii). Furthermore, the respondents have rightly taken recourse of resolving the issue of date of birth by referring the same before Apex Medical Board, which assessing the age of the petitioner 55-
60 years, opined his date of birth as recorded in CMPF and New Form 'B' as 09.09.1950. The petitioner never complained about the assessment of age assessed by the Medical Board. Moreover, the Hon'ble Apex Court in the case of G.M. Bharat Coking Coal (Supra) has held that the High Court in writ petition cannot make an enquiry into such disputed questions of fact and further the 9 date of birth as determined by Medical Board on considering the evidence available with management and in accordance with requirement of medical jurisprudence is binding and final. 16 . On cumulative effect of the aforesaid facts, reasons and judicial pronouncements, he impugned order issued vide Annexure 5 dated 03.09.2010 does not warrant any interference by this Court. Accordingly, the writ petition is dismissed being devoid of any merit.
(Pramath Patnaik, J.) Alankar/-