Andhra HC (Pre-Telangana)
Madamsetty Ravinder vs The Singareni Collieries Company ... on 5 August, 2014
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HONBLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.16010 of 2014 05-08-2014 Madamsetty Ravinder.Petitioner The Singareni Collieries Company Limited Rep.by its Chairman & Managing Director, Kothagudem, Khammam District and another..Respondents Counsel for the Petitioner: Smt. G.SUDHA Counsel for the respondent: Sri NANDIGAM KRISHNARAO <Gist : > Head Note: ? Cases Referred: 1. 2014 LAB IC 2364 2. (1995) 4 SCC 172 3. (2000) 8 SCC 696 4. (1994) 6 SCC 302 THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.16010 of 2014 The Court made the following: THE HONBLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.16010 of 2014 ORDER:
This writ petition is filed for a Writ of Mandamus declaring the action of the respondents in issuing impugned notice under Ref. No.RG2/GDK81NC/2013/908, dated 01.01.2013 reducing the petitioners service by 26 months as on 30.06.2014 under the guise of superannuation as illegal, contrary to NCWAII-JBCCI age determination rules and violative of Section 9A & 12(3) of the Industrial Disputes Act and Articles 14 and 19 of the Constitution of India and consequently direct the respondents to rectify the error by incorporating the petitioners date of birth as 08.08.1956 and continue him in service upto 30.06.2016.
2. Heard Smt.G.Sudha, learned counsel appearing for the petitioner and Sri Nandigam Krishnarao, learned counsel appearing for the respondents.
3. According to the petitioner, he joined the service of the respondent Company as Badli Filler on 09.04.1979. Subsequently, he was appointed as Coal Filler in the year 1981 and was allotted an Employee Code No.1132054. According to the petitioner, he studied I to X class in Zilla Parishad Secondary School, Gudur, Janagam Taluq, Warangal District from 26.06.1961 to 22.06.1972 and he submitted his personal particulars including his Transfer Certificate issued by the Head Master of the School wherein his date of birth was mentioned as 08.08.1956 to the recruiting officials. The recruiting officials took out a copy from the original and returned the original to the petitioner. Thereafter, they sent him for medical examination to find out whether he is medically fit for carrying on duties in the underground mines as Badli Filler. Having found him physically fit, the petitioner was appointed as Badli Filler on 09.04.1979. The officials of the respondent company obtained his finger impressions and also signatures on the sheets of a blank book stating that they would fill up the entries later. It is stated that the respondents had never shown any of the entries to the petitioner till date and petitioner was under bona fide impression that the respondent company officials have recorded all particulars correctly including the date of birth in accordance with the certificates submitted by him at the time of his initial appointment.
4. It is submitted by the petitioner that the respondents issued him the impugned notice dated 01.01.2013 directing him to retire on 30.06.2014. It is submitted that for the first time after service of the impugned notice the petitioner came to know that the respondent officials wrongly entered his aged as 28 years as on 26.06.1982 instead of 26 years as per his Transfer Certificate. The date of birth recorded by the officials of the respondent company is not in accordance with the school records and they perpetuated the wrong unilaterally as to which the petitioner has no knowledge at all. On the date of service of the impugned notice, the petitioner was working as Shot Firer in the respondent company.
5. The version of the petitioner is that his date of birth is 08.08.1956 as per the Transfer Certificate issued by the Head Master of the School, in normal course, he has to be continued in service till 07.08.2016 and will have to be superannuated on 30.06.2016 as per the procedure in vogue. He states that since he produced the Transfer Certificate at the time of his initial appointment, the respondents have no right to get his age determined under the guise of medical examination and there is no record to show that the petitioner was sent for age assessment.
6. It is submitted that the respondents have issued a Circular dated 01.08.1988 which obligates them to ask the petitioner who is an employee of the respondent company to submit documents relating to the date of birth before taking a decision as to the correct date of birth of the petitioner, but the respondents have violated the circular as well as the bipartite agreement. Thus, the petitioner questions the action of the respondents in directing him to retire 26 months earlier to his actual date of superannuation.
7. Besides controverting the material averments made in the affidavit filed in support of the writ petition, the respondents contended in their counter that the writ petition filed with abnormal delay after almost one year of issuance of notice of superannuation and the writ petition filed seeking the correction of date of birth at the fag end of service is not maintainable. According to the respondents, petitioner had not produced any documentary evidence in support of his age and date of birth at the time of his initial appointment, as such, on the requisition made by the recruiting officials, the Colliery Medical Officer assessed the date of birth/age of the petitioner as 28 years as on 26.06.1982 as per guidelines of Joint Bipartite Committee for Coal Industry (for short JBCCI) and circular dated 01.08.1988. The date of birth of the petitioner as per the initial medical examination is 28 years as on 26.06.1982 and the entries in the service book and Form-B Register also indicate that the same date of birth had been entered. The petitioner was issued one year advance notice of superannuation as per the rules of the respondent company. The petitioner who is fully aware of the date of birth entered as per the medical examination and entries made subsequently in the service book and Form-B register filed the present writ petition seeking correction of the date of birth to have unlawful gain.
8. The version of the respondents is that as per Instruction No.76 of JBCCI if the appointee submits any documents in proof of date of birth, the same date of birth will be entered, otherwise, he will be sent for the medical examination and the age determined by the Medical Officer will be treated as correct age of the appointee on the date of his initial appointment. It is further submitted that the company will entertain the dispute relating to date of birth and will make enquiry only when there is discrepancy or variation in the date of birth entered in the service records and when there is no glaring and apparent wrong entry brought to the notice of the Management, the Management will not entertain any dispute relating to the date of birth. It is the contention of the respondents that since the petitioner did not produce any document in proof of his date of birth at the time of his initial appointment, the date of birth entered in the service records and other relevant documents have to be taken as authenticated and it is not open for the petitioner to contend at the fag end of service that his date of birth was incorrectly recorded by the respondents. Contending thus, the respondents sought to dismiss the writ petition.
9. The question requires determination in the present writ petition is whether basing on the submissions made by the petitioner that his date of birth was not correctly entered at the time of his initial appointment and subsequently also in the service record, this Court can permit correction of date of birth in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
10. The contention of the petitioner is that though he produced Transfer Certificate issued by the Head Master of the School at the time of his initial appointment, he was referred to the Collieries Medical Officer for medical examination only to determine his fitness to the post, but not to ascertain his date of birth, the recruiting officials wrongly incorporated the date of birth determined by the Medical Officer at the time of medical examination and he was not aware of the said fact. He was issued notice directing to retire one year prior to the proposed retirement and he filed the present writ petition 15 days prior to his retirement. He did not raise the issue prior to receiving of the notice directing him to retire and not even soon after receiving of the notice of retirement. The learned counsel appearing for the petitioner sought to impress upon this Court that the date of birth has to be determined basing on the documentary evidence adduced by the petitioner and the request made by the petitioner cannot be turned down on the ground that he raised the issue of correction of date of birth at a belated stage.
11. In support of her contentions, the learned counsel appearing for the petitioner relied on the judgment in M/s.Bharat Coking Coal Ltd. V.Chhota Birsa Uranw wherein the Honble Supreme Court held that the petitioners claim for correction of date of birth cannot be denied merely because he signed Form-B Register at the time of its opening and shown him the date of birth recorded therein. The Supreme Court is further of the view that claim for correction of date of birth cannot be rejected on technical ground of being belated claim and when the school leaving certificate was issued prior to joining service by the petitioner, the school record cannot be disregarded as one issued after joining service.
12. In the case before the Supreme Court, the employee joined the service in the year 1973 and he made claim for correction of date of birth in the year 1987 on coming to know of the wrong recording of his date of birth in the service records. The Supreme Court, therefore, expressed the view that the rectification was not sought at the fag end of the service. But in the instant case the petitioner joined service in the year 1979 and challenged the date of birth entered in the service records only 15 days prior to his retirement. Therefore, the facts of the case before the Supreme Court in the above case are entirely different from the facts of the present case. Further, the Supreme Court in the afore cited judgment held that the correction of date of birth in the service record has to be done as per the Rules applicable and the said question being a question of fact, it has to be decided by appropriate forum and not by the Court. Therefore, I absolutely see no force in the contention advanced by the learned counsel appearing for the petitioner that basing on the afore cited judgment, the correction of date of birth in the service record of the petitioner has to be made.
13. On the other hand, the learned counsel appearing for the respondents, in support of his contention that the claim made by the petitioner is not genuine and that the relief sought by the petitioner cannot be granted to him in exercise of powers under Article 226 of the Constitution of India, relied upon the following judgments.
14. In Burn Standard Co.Ltd. v. Dinabandhu Majumdar the Honble Supreme Court held that when an employee of Government or its instrumentality makes a voluntary declaration, on the basis of which the date of birth was entered in the service and relevant records at the time of appointment, authenticated by him and never objected to upto the fag end of service, the writ petition seeking correction of date of birth is not ordinarily entertainable.
15. In G.M.Bharat Coking Coal Ltd. v. Shib Kumar Dushad , the Honble Supreme Court held as follows:
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 the absence of any arithmetical or typographical error apparent on the face of the record, High Court should not interfere with such decision of the employer in exercise of its extraordinary jurisdiction under Article 226.
When the certificates produced by the employee showing his date of birth different from that entered in his service record is acceptable, it is a disputed question of fact and High Court in exercise of jurisdiction under Article 226 of the Constitution of India should not undertake any inquiry into such question.
16. In State of T.N v. T.V.Venugopalan the Honble Supreme Court held that when date of birth recorded after entry into the service and countersigned by the Government servant, it would not be permitted to be challenged by the Government servant at the fag end of the service.
17. The question involved in the present writ petition has to be examined in the light of the principles laid down by the Honble Supreme Court in the judgments relied upon by the learned counsel appearing for the petitioner as well as the respondents.
18. Broadly speaking the issue as to whether the date of birth entered in the service register of an employee is correct or not is a disputed fact which cannot be investigated into by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. However, in exceptional cases where the employee raises the question within a reasonable time of his joining into service and produces acceptable and clinching evidence, this Court may examine the said question in exercise of jurisdiction under Article 226 of the Constitution of India. In the present case, as already stated, the petitioner raised the issue of the correctness of his date of birth 15 days prior to his retirement, in such an event, normal presumption would be that he approached the Court for correction of date of birth with a view to continue in service beyond the normal period of retirement.
19. The contention of the petitioner that he did not verify any of the records relating to his service till the date of receiving the impugned notice directing him to retire is quite unconvincing and unacceptable. The petitioner did not produce any material before this Court showing that he was prevented from accessing to the service records by the management. Therefore, no reliance can be placed on his statement that he does not know the actual date of birth entered in the service records till the date of receiving the impugned notice.
20. As regards the circular dated 01.08.1988, referred to by the learned counsel appearing for the petitioner, the management would ask the employee to submit the documents relating to his date of birth only when there is discrepancy in the service records as to the date of birth and not in each and every case. In the present case, there is no variation or discrepancy in the date of birth of the petitioner entered in the service records and other documents concerning his employment.
21. The petitioner filed Xerox copy of the Transfer Certificate which shows that it was issued to him on 19.09.1973. The petitioner relied on the said certificate wherein his date of birth is mentioned as 08.08.1956. It is not understandable if really the petitioner was having this certificate even prior to his initial appointment, as to why he did not produce the same at any point of time till he attained the age of superannuation. In the absence of any proof the contention that the recruiting officials intentionally did not enter the date of birth mentioned in the Transfer Certificate produced by the petitioner, cannot be accepted. The authenticity and genuineness of the certificate which came to light at the fag end of the service of the petitioner is very much doubtful.
22. For the foregoing reasons, I am of the view that this is not a case wherein this Court can exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to grant relief of correction of date of birth of the petitioner by making a roving enquiry into the disputed question of fact.
23. The writ petition therefore fails and the same is accordingly dismissed. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
___________________ R.KANTHA RAO,J Date: 05.08.2014