Jai Prakash Singh vs South Eastern Coal Fields Ltd on 9 October, 2023

[Cites 15, Cited by 0]

Chattisgarh High Court

Jai Prakash Singh vs South Eastern Coal Fields Ltd on 9 October, 2023

1. The petitioner has assailed the order dated 23.02.2018 by which his representation for correction in date of birth from 28.02.1958 to 01.07.1959 has been rejected and also prayed that he be continued in service with all consequential benefits treating his date of birth as 01.07.1959.

2. The brief facts as reflected from the records are that the Page 2 of 17 petitioner was appointed as unskilled casual mazdoor on 28/02/1976 with the respondent SECL and his date of birth was recorded as 01/07/1959. The petitioner has also passed the Mining Sardar examination under the Mines Act, 1952 and awarded the Mining Sardar Certificate on 06/05/1987. Thereafter, he has also obtained the Overman's certificate on 24/09/1989 wherein also the date of birth of the petitioner was recorded as 01/07/1959. The record of the case would show that the petitioner has cleared High School Examination, Madhyamic Siksha Parishad, Uttarpradesh on 28/09/1975 which is prior to joining of the service wherein the date of birth of the petitioner has been mentioned as 01/07/1959.

3. Apart from these records, in the service register namely Form PS-3 and Form PS-4 (Annexure P/7) relating to the particulars of family and nomination form maintained by the respondent authorities the date of birth of the petitioner is recorded as 01/07/1959, even in Electoral Roll, PAN Card etc. the date of birth of the petitioner as correctly recorded as 01/07/1959. However, the respondent No.4 on the recommendation of the age determination committee had suo moto corrected the date of birth of the petitioner to 28/02/1958 vide order dated 12/05/2000 considering the required minimum age of 18 years on the date of coming into service. The petitioner made a detailed representation before the authorities for correcting the date of birth but the respondent authorities have not given any heed to the representation and after continuous persuasion and requests Page 3 of 17 ultimately vide the order dated 14/09/2014 it was informed to him that the case of the petitioner for correction of date of birth cannot be reopened and the date of birth of the petitioner will remain as 28/02/1958.

4. The petitioner being aggrieved with this order dated 14/09/2014, preferred writ petition No. 6642/2014 before this Court. This Court allowed the petition vide order dated 23.11.2017 setting aside the impugned order with liberty to the respondents to afford opportunity of hearing to the petitioner, hold enquiry and then take a decision with regard to date of birth of the petitioner. Thereafter, the respondent authorities referred the matter to the age determination committee and vide impugned order dated 23.02.2018 (Annexure P/1), the date of birth of the petitioner has been held to be 28.02.1958 accordingly he is due for retirement on 28.02.2018. Therefore he has filed the present petition assailing the legality and propriety of the order dated 23.02.2018 and also prayed that respondent authorities be kindly directed to allow the petitioner to continue in service with all consequential benefits treating his date of birth as 01/07/1959.

5. The respondent -SECL has filed their return wherein they have submitted that the petitioner was employed as Mazdoor as an illiterate person. He did not reveal his matriculation certificate at the time of appointment. After some years of joining, he managed to get his date of birth recorded in statutory certificates as per matriculation certificate. As per date of the birth as 01/07/1959 his age at the time of joining would be below 17 Page 4 of 17 years which is not permissible as per the provisions of the Mines Act, 1952. They have annexed copy of the CMPF Declaration Form - A (Annexure R/1 dated 28.02.1976) wherein he has mentioned his date of birth as 01/01/1957 and in Form B register (Annexure R/2 dated 27.07.2016 wherein date of birth of the petitioner has been shown as 28/02/1958. It has also been contended that there is contradiction in the date of birth at time of date of joining of service on 28.02.1976 wherein the date of birth has been mentioned as 01/01/1957 whereas in the subsequent certificates produced by the petitioner such as Mining Sardar and Overman, the date of birth has been mentioned as 01/07/1959. It has been further contended that after nationalisation of the mines in 1973 a large number of manipulation in date of birth in connivance with some of the staff of the company were observed therefore, the circular dated 01/02/1999 (Annexure R/3) was issued by the Government of India, Ministry of Coal clarifying that there are persons working in CIL and its subsidiaries who have rendered or likely to render service of more than 45 years considering the retirement age of coal mines and age of his entry in the service of PSUs it is obvious persons cannot render service of over 42 years. If any coal miner is working beyond this time limit it is likely that there is something wrong with the documents relating to his entry in the service of the coal mines, therefore, directions have been issued to take disciplinary action under the company rules and penal action under the IPC where warranted against such persons. Pursuant to this direction Page 5 of 17 Director (Pers. And I.R.) has issued direction on 13/02/1999 for verifying whether there is any employee who has worked for more than 42 years in the company and if yes, action which has been taken against the erring officers.

6. Therefore, on the same basis case of the petitioner was examined and based on the documents available on record under the statutory provisions of Mines Rules, standing orders, medical test, date of birth of the petitioner was determined as 28.02.1958 and would pray for dismissal of the writ petition

7. Learned counsel for the petitioner would submit that the petitioner has obtained school certificate from the recognized board which shows his date of birth to be 01/07/1959. All of a sudden on 12/05/2000 (Annexure P/10) without giving any opportunity of hearing to the petitioner on the recommendation of Age Determination Committee his date of birth has been changed to 28/02/1958 on the count that minimum age of 18 years is required on the date of coming into service and his actual date of the birth is 01/07/1959, as such the department cannot on their own whims without assigning any justifiable reason change his date of birth, therefore, would pray for allowing the petition.

8. On the other hand, learned counsel for the SECL would submit that the impugned order has been passed as per the provisions of the Mines Act, 1952. He would further submit that even prior to amendment in the Mines Act in the year 1983 no person who has Page 6 of 17 crossed the age of adolescent will be allowed to work in any part of mine which is below ground unless certain conditions are fulfilled. The petitioner has not filed any document to demonstrate that any conditions which have been enumerated in Section 40 of the Mines Act has been fulfilled by the petitioner to justify that his date of birth was 01/07/1959 and at the time of joining with the respondent on 28.02.1976 his age was less than 17 years, therefore, he will be allowed to work beyond 42 years. He would further submit that even if the petitioner has cleared the High School Examination at the time of entering in to service, he has not submitted any document to demonstrate the age, therefore, the subsequent submission of marksheet though it relates to period before joining cannot give any benefit to the petitioner and it is an afterthought story projected by the petitioner. At the time of employment he had mentioned his date of birth as 01.01.1957 in Declaration Form-A (Annexure R/1). Subsequently, he has mischievously had produced the certificates claiming his age to be 01.07.1959 only for obtaining benefits. The respondents could have retired him on 31.12.2017 based on his date of birth as 01.01.1957, but the respondents have not done so and only to benefit him his date of birth was corrected as 28.02.1958. The petitioner has sought change in his date of birth at the fag end of his service career, therefore, this writ petition is not maintainable and would pray for dismissal of the writ petition.

9. Learned counsel for the petitioner would submit that the Mines Page 7 of 17 Rules as submitted by the learned counsel for the respondents, the said amendment has come subsequently in 1983. Section 40 of the Mines Act is reproduced below:-

"40. Employment of persons below eighteen years of age.--

(1) After the commencement of the Mines (Amendment) Act, 1983, no person below eighteen years of age shall be allowed to work in any mine or part thereof"

10. He would further submit that the issue raised in this petition is squarely covered by the judgment passed by the Coordinate Bench of this Court in Writ Petition (S) No. 138 of 2016 in Ashok Kumar Thakur vs. South Eastern Coal Fields Ltd. Decided on 30.08.2018 which was challenged by the respondents before the Hon'ble Division Bench in Writ Appeal No. 6/2019. The Hon'ble Division Bench dismissed the appeal on 06.03.2020 wherein in paragraphs 24 to 29, it has been observed as under :-

"24. Similar issue has already been decided by this Court and the order passed by the Division Bench of this Court was put to challenge by the Appellant-Employer before the Hon'ble Supreme Court, which came to be dismissed in the matter of SECL v. Mithilesh Sharma vide order dated 20.08.2010. The contents of letter dated 01.02.1999 on the pretext that the age of employee entering into service to be 18 years whereas as per Mines Act, 1952 prevailing at that relevant time, persons with 15 years or more can be appointed to work with mine.

25. The Hon'ble Supreme Court in the matter of Union of India v. Harnam Singh reported in (1993) 2 SCC 162 has held as under :

"7. ..........A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for Page 8 of 17 seeking correction of date of birth, the Government servant must do so without any unreasonable delay"

26. Further, the Hon'ble Supreme Court in the matter of State of Punjab and Others v. S.C. Chadha reported in (2004) 3 SCC 394 had held as under :

"8. Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuation orretirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement and it is necessary to maintain the date of birth in the service records. .........

14. In the instant case the Higher Secondary Examination Certificate was issued on 3.6.1962 which contained information that the date of birth of the respondent was only 19.6.1944. If the said certificate disclosed a wrong date, it is not explained by the respondent as to why he did not make any move to get it corrected at that point or on any one of the occasions when he sought and obtained employment in 7/8 public institutions. Merely because in 1994 an opportunity was granted to the Government employees to get their date of birth corrected, that does not take away the affect of inaction and continued silence for more than three decades, which dehors laches on his part would seriously reflect on the bona fide nature of the claim itself. Even in the application made for employment in the year 1992-93 the date of birth was indicated, as noted above to be 19.6.1944. No contemporaneous document was produced to show that recording of the date of birth to be 19.6.1944 was wrong. Accepting the plea of the respondent would result in two public records, educational on one side and service on the other reflecting two different and conflicting dates of birth. Such anomalous situations are to be averted and not be countenanced."

27. The Hon'ble Supreme Court in the matter of Bharat Coking Coal Limited and others v. Chhota Birsa Uranw reported in (2014) 12 SCC 570 has held as under

:-

"15. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought Page 9 of 17 rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, Legal Inspector of the appellant Company on 6-9-2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 Clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words 'were issued' was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school."

28. There is no doubt that the Employer can take recourse of correction of date of birth of any of its Employees, but he should be in possession of satisfactorily, admissible and irrefutable piece of evidence with him, particularly, when the Employer wants to correct date of birth recorded by one of its Employees, in service record of any other Employee at the time of entering into the service of that particular Employee.

29. In the instant case, it is the Employer who suspected the date of birth recorded in service record. The Employee is having matriculation certificate with same date of birth as recorded in service record i.e. 14.11.1960. Page 10 of 17

The certificate is not questioned by the Appellant- Employer, which is one of the documents as mentioned in Implementation Instruction No.76 to be authentic document for ascertaining the age."

11.The Special Leave to appeal (C) against the judgment dated 06.03.2020 has also been dismissed by the Hon'ble Supreme Court in SLA(C) No. 8107/2020 on 13.07.2020.

12. On above stated factual position, the point to be determined by this Court is whether the petitioner who has disclosed his date of birth at the time of entering into service as 01/01/1957 can be allowd to change date of birth on the basis of High School Mark-sheet which has not been produced at the time of entering into service though it is prior to date of joining.

13. The respondents in their reply to preliminary submission as well as in reply to para 8.15 have categorically stated that in CMPF Declaration Form dated 10/09/1976 (Annexure R/1) his date of birth has been mentioned as 01/01/1957 which has not been rebutted in the rejoinder. He has only stated that document Form-A is not official document to prove the date of birth of any person. Even the signature appended in the document does not match with the signature of the petitioner and unless the original of the said document is produced the existence of same is denied. Further he has stated that these documents have no relevancy but he has no where mentioned that the date of birth mentioned in the declaration form is incorrect. The contentions raised by the petitioner that signature is not matched with the petitioner, thus, it is a disputed which cannot be agigated before this Court. As disputed facts can very well be adjudicated before the Central Government Industrial Tribunal where recording of the evidence to ascertain the facts is available. The record of the case would Page 11 of 17 demonstrate that the petitioner retired as Overman who is a workman as defined under the Industrial Dispute Act, therefore, there was clear alternate efficacious remedy available to the petitioner by raising an industrial dispute.

14. So far as, contention raised by the petitioner that the respondents' stand that the petitioner cannot be employed beyond 42 years, therefore, they have recorded the date of birth of the petitioner as 28.02.1958, which suffers from illegality cannot be considered. As the respondents have taken specifically stand that in Form-A the petitioner has disclosed his date of birth as 01/01/1957 which was not denied but the technical objections have been taken by the petitioner, therefore, this Court is of the view that there is no illegality in the impugned order. The record of the case would also disclose that the petitioner has nowhere mentioned what date at the time of entering into service, he has mentioned as these facts are specifically in knowledge of the petitioner which should have been disclosed by him but in the petition, the petitioner has nowhere mentioned these facts. Thus, the judgment cited by learned counsel for the petitioner in case of Ashok Kumar Thakur (supra) is distinguishable on the facts as in that case the petitioner has mentioned his date of birth as 14/11/1960 which was recorded by the employer in the service record maintained by them. In present case the petitioner has no where mentioned that what was the date mentioned by him at the time of joining of the service, which was very much required for the petitioner to establish that the present case is on the same facts and circumstances which has been decided by the Hon'ble Division Bench. Thus, the petitioner cannot claim parity on the basis of judgment passed by Hon'ble the Supreme Court. Page 12 of 17

15. Record of the case would reveal that the respondents have recorded the date of birth of the petitioner as 28/02/1958 on 12/05/2000 (Annexure P/10) which has been challenged by him after completion of 38 years of service by filing writ petition before this Court in WPS No. 6642/2014 at the fag end of the service career which is not permissible in view of well settled legal position as laid down by Hon'ble the Supreme. Hon'ble the Supreme Court in case of Karnataka Rural Infrastructure Development Limited Vs. T.P. Nataraja & others reported in (2021) 12 SCC 27 has held at paragraph 10 to 12 as under:-

"10. Even otherwise and assuming that the reasoning given by the High Court for the sake of convenience is accepted in that case also even respondent No.1

- employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service. At this stage, few decisions of this court on the issue of correction of the date of birth are required to be referred to. 9.1 In the case of Home Deptt. v. R.Kirubakaran (Supra), it is observed and held as under:

"7. An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever..."

9.2 In the case of State of M.P. v. Premlal Shrivas, (Supra) in paragraph 8 and 12, it is observed and held as under: "8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious Page 13 of 17 and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 :

(1993) 24 ATC 92] ).

11. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the timelimit within which an application is to be filed, the appellants were dutybound to correct the clerical error in recording of his date of birth in the service book." 9.3 In the case of Life Insurance Corporation of India & Others v. R.Basavaraju (Supra), it is observed as under: "5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change Page 14 of 17 in date of birth cannot be entertained at the fag end of retirement" 9.4 In the case of Bharat Coking Coal Limited and Ors. v. Shyam Kishore Singh (Supra) of which one of us (Justice A.S. Bopanna) was a party to the bench has observed and held in paragraph 9 & 10 as under: "9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. v. Gorakhnath Sitaram Kamble (2010)14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:

"16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC465: 2006 SCC (L&S) 96]. In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.

17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7) "7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, Page 15 of 17 continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. ... According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be 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 within the time fixed by any rule or order. ... the onus is on the applicant to prove the wrong recording of his date of birth, in his service book." "10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (Supra) it is held as hereunder:

"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court Page 16 of 17 or the tribunal can come to the aid of those who sleepover their rights" (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).

12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the timelimit within which an application is to be filed, the appellants were dutybound to correct the clerical error in recording of his date of birth in the service book."

11. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:

(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.

12. Therefore, applying the law laid down by this court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law. "

16. In the light of above stated factual position and considering the fact that at the fag end of his career the petitioner has challenged the date of birth and considering the facts that disputed facts are involved, the writ petition Page 17 of 17 deserves to be dismissed and accordingly it is dismissed.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh

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