Jharkhand High Court
Surendra Nath Singh vs M/S Bharat Coking Coal Represented ... on 13 October, 2020
Equivalent citations: AIRONLINE 2020 JHA 1154
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.424 of 2018
Surendra Nath Singh, aged about 64 years, S/o Late Ram Ayodhya
Singh, R/o Qr. No. M-30 Sudamdih Main Colony, P.O & P.S.-
Sudamdih, District-Dhanbad. ... ... Petitioner/Appellant
Versus
1. M/s Bharat Coking Coal represented through Managing Director,
Koyla Bhawan, P.O. & PS-Dhanbad, District-Dhanbad.
2. The Director (Personnel), Bharat Coking Coal Ltd., Koyla Bhawan,
P.O. & PS-Dhanbad, District-Dhanbad.
3. The General Manager, Sudamdih Coal Washery, Bharat Coking Coal
Ltd. Sudamdih, PO & PS-Dhanbad, District-Dhanbad.
4. Senior Personnel Officer, Sudamdih Coal Washery, Bharat Coking
Coal Ltd. Sudamdih, PO & PS-Dhanbad, District-Dhanbad.
... ...Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Siddharth Roy, Advocate
For the Respondents : Mr. Arpan Mishra, Advocate
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CAV on 24.06.2020 Pronounced/Delivered on 13/10/2020
Per Sujit Narayan Prasad, J.
1. The instant intra-court appeal is under Clause 10 of the Letters Patent directed against order/judgment dated 06.04.2018 passed by learned Single Judge of this Court in W.P.(S) No.3526 of 2015 whereby and whereunder the writ petition has been dismissed by not interfering with the letter dated 30.05.2012 whereby the appellant/writ-petitioner has been given information regarding his superannuation w.e.f. 30.11.2012.
2. It requires to refer herein that one interlocutory application had been filed being I.A. No.9451 of 2018 to condone the delay of 91 days in [2] preferring the instant appeal which has already been condoned vide order dated 24.06.2020.
3. The brief facts of the case which require to be referred herein reads hereunder as:
The appellant/writ-petitioner joined the service of the Bharat Coking Coal Ltd. on 27.12.1974 and was posted as Time Rated Worker in Sudamdih Shaft Mines of BCCL, Dhanbad. He was transferred to Sudamdih Coal Washery in the year 1980 and was granted the benefit of 1st ACP in the year 2006.
The claim of the appellant/writ-petitioner is that the service records did not come to Sudamdih Coal Washery and in the excerpt of attendance register, the date of appointment of the appellant/writ-petitioner has been mentioned as 27.12.1974 and the date of birth is given as 08.12.1954 as would appear from serial No.96 thereof. The appellant/writ-petitioner further claimed that he was issued one I.D. card wherein the column of date of birth has been kept vacant due to which the appellant/writ-petitioner has the impression that his date of birth has not been mentioned in the service record.
It is further the case of the appellant/writ-petitioner that the nominee form of the appellant/writ-petitioner was prepared on 26.06.1987 and in that also, the date of birth of the appellant/writ-
petitioner has been given as 08.12.1954. Subsequently, when he was transferred to Sudamdih Coal Washsery, a new Form 'B' was prepared by the respondent-management, it is only then the [3] appellant/writ-petitioner got information regarding change of his date of birth, upon getting such information, the appellant/writ- petitioner represented before the respondent-authorities to correct his date of birth as per the CMPF record of 13.07.1994 but the respondents have sat tight over the matter for several years and finally vide letter dated 30.05.2012 the respondents informed the appellant/writ-petitioner that he is going to retire on 30.11.2012, thereafter, vide letter dated 05.07.2013, the appellant/writ-petitioner was informed to appear before the Medical Board, Koyla Nagar Hospital on 10.07.2013 at 9:30 a.m., after a year of his retirement, therefore, the appellant/writ-petitioner approached to this Court for ventilating his grievance that he be treated in service treating his date of birth as mentioned in the CMPF record as 08.12.1954, however, the same has been dismissed inter alia on the ground that the writ petition has been filed after three years from the date of his retirement.
4. The instant appeal has been preferred inter alia on the ground that the learned Single Judge has dismissed the writ petition relying upon the judgments of Hon'ble Supreme Court wherein it has been decided that the issue of date of birth cannot be allowed to be agitated at the fag end of service but according to the learned counsel for the appellant/writ-petitioner it is a case where the ratio laid down in the judgments to the effect as referred in the impugned order would not be applicable as because the appellant/writ- petitioner raised the issue for the first time by filing an application on 13.07.1994 as would appear from Annexure-4 series appended to [4] the paperbook and thereafter series of representations have been filed as have been brought on record, in pursuance thereto, finally the respondent-authorities have come out with a communication issued by the Senior Officer Personnel, Sudamdih Shaft Mines addressed to the Deputy Manager (P) SCW, Sudamdih Coal Washery whereby and whereunder the fact has been admitted to the effect that the name of the appellant/writ-petitioner does not appear in the Form 'B' register in as much as in the year 1976 after explosion in Shaft Mine-Sudamdih, the old Form 'B' register was seized by DGMS and court of inquiry was held later on. Then a fresh Form 'B' register was prepared in the year 1986 in which the name of the appellant/writ-petitioner does not appear. His name only appeared in the ID Card Register and date of appointment is only written as 28.12.1975 but his date of birth was not available, no medical board report is also available, however, reference of the CMPF has been made therein which finds mention the date of birth of the appellant/writ-petitioner as 08.12.1954, in pursuance to the said communication, the Deputy General Manager has given a note for immediate action into the matter but instead of taking any action in the matter for resolving the dispute a notice of retirement dated 30.05.2012 was issued communicating the appellant/writ-petitioner about his superannuation w.e.f. 30.11.2012 and as such, the respondent-authorities without adjudicating and settling the dispute, although have considered by taking into consideration the CMPF record wherein the date of birth is mentioned as 08.12.10954, no action has been taken.
[5]
Further, on the ground that the appellant/writ-petitioner has been asked to appear before the Medical Board for age assessment vide communication dated 05.07.2013, i.e., after the superannuation of the appellant/writ-petitioner as per the notice of retirement dated 30.05.2012 by which the appellant/writ-petitioner has been noticed to retire w.e.f. 30.11.2012 and therefore, the respondent-authorities has acted arbitrarily first by taking cognizance of the grievance of the appellant/writ-petitioner vide communication dated 27.05.2011 but without holding any enquiry and without coming to conclusion the notice of retirement has been issued on 30.05.2012 and thereafter, the appellant/writ-petitioner has been asked to appear before the Medical Board for age assessment vide communication dated 05.07.2013 and as such, it is not a case of raising the dispute at the fag end rather the dispute had been raised right from the year 1994 which has been taken cognizance after lapse of about 17 years and further even after superannuation from service but these facts have not been taken into consideration by the learned Single Judge and without appreciating the factual aspect the applicability of the judgments which laid down the ratio that the dispute pertaining to date of birth is not to be looked into at the fag end of the service, the writ petition has been dismissed.
5. Per contra, learned counsel for the respondent-BCCL has submitted that there is no infirmity in the order passed by the learned Single Judge since it is not that the appellant/writ-petitioner has raised the dispute at the fag end of the service rather he has raised the issue [6] after three years from the date of retirement and as such the learned Single Judge is right in passing the order by not interfering with the notice of retirement dated 30.05.2012.
In response to such submission of the learned counsel for the respondent, the learned counsel for the appellant/writ-petitioner has submitted that the appellant/writ-petitioner has filed writ petition although after his superannuation from service w.e.f. 30.11.2012 which, according to the appellant/writ-petitioner, is absolutely arbitrary exercise of the respondent-authorities by asking the appellant/writ-petitioner to appear before the Medical Board knowing it fully well that he had already been superannuated w.e.f. 30.11.2012. It has been submitted that the bona fide of the respondent authorities could have been understood if the initiative of asking the appellant/writ-petitioner to appear before the Medical Board would have been taken before the issuance of retirement notice dated 30.05.2012 and as such in the present case if the appellant/writ-petitioner has approached to this Court in the year 2015 that cannot be questioned by the respondent by taking the plea of approaching the writ Court after three years from the date of retirement since the occasion to approach this Court has been provided by the respondent by serving the communication dated 05.07.2013 asking the appellant/writ-petitioner to appear before the Medical Board after his superannuation.
6. This Court, after having heard the learned counsel for the parties and appreciating their rival submissions, deem it fit and proper to first refer some undisputed facts which reads hereunder as: [7]
Admittedly, the appellant/writ-petitioner has been appointed on 27.12.1974 as Time Rated Worker in Sudamdih Shaft Mines, BCCL, Dhanbad. He had been transferred to Sudamdih Coal Washery from Sudamdih Shaft Mines, BCCL, Dhanbad sometime in the year 1980, however, on his transfer the service record of the appellant/writ-petitioner did not come to his transfer place of posting and reason for non-transfer of the service record of the appellant/writ-petitioner is evident from the communication dated 27.05.2011 which was due to explosion in the Shaft Mines-
Sudamdih, the old Form 'B' register was seized by DGMS in order to conduct court of inquiry. A fresh Form 'B' register was prepared in the year 1986 in which the name of the appellant/writ-petitioner does not appear. After preparation of the fresh Form 'B' the appellant/writ-petitioner was directed to submit his nominee form which was prepared on 26.06.1987 wherein the appellant/writ- petitioner has given his date of birth as 08.12.1954 but when the new Form 'B' was prepared the appellant/writ-petitioner got information regarding change of his date of birth, i.e., 20.04.1952 and thereafter the appellant/writ-petitioner has made objection to that effect as would appear from the representations dated 13.07.1994, 27.11.1995, 11.08.2006 and 19.10.2007. It appears from the aforesaid objections as contained in Annexure-4 series appended to the paper book that all the representations/objections have been received by the authority on the same date. It further appear from the representation/objection dated 27.11.1995 that the Project Officer has given a note in the left side of the said objection to conduct an inquiry and submit report but no such inquiry has [8] been conducted as would appear from communication issued under the signature of Senior Officer Personnel addressed to the Deputy Manager Personnel SCW, Sudamdih Coal Washery dated 27.05.2011 wherein by giving reference of a letter dated issued in the month of April, 2011, it has been reported by the Senior Officer Personnel that the name of the appellant/writ-petitioner does not appear in the Form 'B' register as because in the year 1976 after explosion in the Shaft Mines-Sudamdih the old Form 'B' register was seized by the DGMS in order to conduct a court of inquiry then a fresh Form 'B' register was prepared in the year 1986 in which the name of the appellant/writ-petitioner does not appear, however, his name appeared only in the ID Card Register and the date of appointment is only written as 28.12.1975 but his date of birth was not available. No Medical Board Report is also available in the record of the appellant/writ-petitioner since the same has already been sent to the Project Officer, Sudamdih Coal Washery vide letter dated 02.08.200. As per the CMPF record his date of birth is 08.12.1954.
7. It is evident from the communication dated 27.05.2011 that the General Manager Personnel SCW, Sudamdih Coal Washery has given a note in the left side of the said communication "discuss for immediate action into the matter". For ready reference, the content of the letter dated 27.05.2011 reads hereunder as:
"Bharat Coking Coal Limited (A subsidiary of Coal India Ltd.) Office of the Dy. CME/Project Officer Shaft Mine: Sudamdih Ref. No:SMD/PERS/F/2011/68 Dt: 27-5-2011 [9] To The Dy. Manager (P) SCW, Sudamdih Coal Washery.
Dear Sir, Pursuant to your letter no.SCW/F-pers/11/92 dt. 14/15-4-11 we are appending below the details in respect of Sri Surrendra Nath Singh, P/No.01007178, TRW.
It has been revealed that his name does not appear in the „B‟ Form Register inasmuch as in the year 1976 after explosion in Shaft Mine-Sudamdih, the old Form „B‟ register was seized by D.M.G.S. and court of inquiry was held later on. Then a fresh „B‟ Form register was prepared in the year 1986 in which his name does not appear. His name only appeared in the ID Card Register and date of appointment is only written as 28- 12-1975 but his date of birth was not available, ID Card Discuss for No.203626. No Medical Board Report is also available in our immediate action record of Sri Surendra Nath Singh. This has already been sent into the matter.
to Project officer, Sudamdih Coal Washery vide letter 27.05.2011 No.SMD/PERS/2001/2519 dt. 1/2-8-2001. As per CMPF record his D.O.B. is 08-12-1954.
Thanking you, Yours faithfully, Sr. Officer (pers) Sudamdih Shaft Mines.
Copy to:-
1. The Chief Manager (Pers) - EJ Area-Bhowra."
8. It is further admitted that no such action has been taken in pursuance to the communication dated 27.05.2011 and without any action, notice of retirement was issued on 30.05.2012 communicating the appellant/writ-petitioner about his retirement from service w.e.f. 30.11.2012 as would appear from Annexure-6 appended to the writ petition.
It is further admitted that after the retirement of the appellant/writ-petitioner w.e.f. 30.11.2012 the appellant/writ- petitioner has been communicated with a communication dated 05.07.2013 issued under the signature of Deputy Manager [10] Personnel Sudamdih Coal Washery, in pursuance to the letter dated 26.06.2013 issued by Deputy Chief Medical Officer directing the appellant/writ-petitioner to appear before the Medical Board, Koyla Nagar Hospital on 10.07.2013 at 9:30 a.m. along with certain documents for his age assessment.
The appellant/writ-petitioner, although after his superannuation and after receipt of the communication dated 05.07.2012 has approached to this Court by filing writ petition being W.P.(S) No.3526 of 2015 questioning the notice of retirement dated 30.05.2012 but however, the learned Single Judge has refused to interfere with the same by dismissing the writ petition which is the subject matter of the instant intra-court appeal.
9. The learned counsel for the respondent-BCCL has defended the order passed by the learned Single Judge by taking the ground of approaching the writ Court by the appellant/writ-petitioner after three years from the date of retirement and as such according to him, the learned Single Judge has rightly not interfered with the notice of retirement after his retirement.
He has taken aid of the judgments referred by the learned Single Judge in the impugned order as has been rendered in the case of Naib Subedar Lachhman Dass Vs. Union of Inida, AIR 1977 Hon'ble Supreme Court 1979, State of Tamil Nadu Vs. T.V. Venugopalan, (1994) 6 SCC 302, State of Maharashtra Vs. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423, State of M.P. Vs. Premlal Shrivas, (2011) 9 SCC 664 and judgments rendered in the case of Vidya Devi Vs. The State of Himachal Pradesh and [11] Others, (2020) 2 SCC 569 and Bharat Coking Coal Ltd. Vs. Shyam Kishore Singh, 2020 SCC Online Supreme Court 126.
10. We have considered the judgments rendered by Hon'ble Apex Court in the aforesaid case and found therefrom that it has been laid down in the case of Naib Subedar Lachhman Dass Vs. Union of Inida (supra) that the Hon'ble Apex Court while dealing with the issue of approaching the High Court under Article 226 of the Constitution of India challenging the legality of an order passed on 21.12.1996 for the first time in the month of September, 1970 but the High Court has refused to exercise the extraordinary power conferred under Article 226 of the Constitution of India, which has been found to be justified by Hon'ble Apex Court in the case of State of M.P. Vs. Premlal Shrivas (supra), it has been held therein 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.
In the case of State of Maharashtra Vs. Gorakhnath Sitaram Kamble (supra) as also in the case of State of Tamil Nadu Vs. T.V. Venugopalan (supra), the ratio has been laid down that at the fag end of service career the dispute pertaining to date of birth is not allowed to be agitated.
In the case of Vidya Devi Vs. The State of Himachal Pradesh and Others (supra), the ratio has been laid down in [12] approaching the writ Court after delay of unreasonable period, the writ petition is not required to be entertained.
In the case of Bharat Coking Coal Ltd. Vs. Shyam Kishore Singh (supra), it has been laid down by making reference of the other judgments rendered in the case of State of Maharashtra Vs. Gorakhnath Sitaram Kamble (supra), U.P.Madhyamik Shiksha Parishad Vs. Rak Kumar Agnihotri, (2005) 11 SCC 465, State of Uttaranchal Vs. Pitamber Butt Semwal, (2005) 11 SCC 477 and Home Department Vs. R. Kirubakaran, 1994 Supp (1) SCC 155 laying down therein that the issue of date of birth is not allowed to be agitated after lapse of reasonable period.
It is evident from the aforesaid judgments of the Hon'ble Apex Court as referred above that the issue of date of birth is not allowed to be agitated at the fag end of service.
11. It is the settled position of law that the applicability of the judgment is to be seen on the basis of the facts and circumstances governing the case and there cannot be any universal applicability of the judgment rather it has to be tested on the basis of facts and circumstances of each and every case as per the ratio decided by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75, paragraph 47 of which reads hereunder as:
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without [13] discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.""
Admittedly, at the fag end of service the dispute pertaining to date of birth cannot be allowed to be agitated but simultaneously it is to be seen as to whether really there any dispute exist and if the dispute really exist which can be said to be genuine dispute in the eye of law the ratio laid down in the judgments refereed hereinabove certainly will be applicable but if there is no genuine dispute the question of applicability of the aforesaid judgments will not arise.
12. We have proceeded to scrutinize the issue on the basis of the factual circumstances involved in his case in the light of the aforesaid proposition.
It is the admitted case of the respondent that due to explosion in the Shaft Mine-Sudamdih, the earlier place of posting of the appellant/writ-petitioner, he was transferred to Sudamdih Coal Washery sometime in the year 1980. It is further admitted case that the old Form 'B' Register was seized by the DGMS in order to inquire into the incident occurred in the Shaft Mine-Sudamdih and in consequence thereof, a fresh Form 'B' Register was prepared in the year 1986 although in the fresh Form 'B' Register the name of the appellant/writ-petitioner does not appear. The appellant/writ- petitioner was transferred after explosion in the Sudamdih Shaft Mine, as referred above, where the reference of date of birth of the appellant/writ-petitioner as available as per the CMPF record is 08.12.1954.
[14]
It is further evident from the service excerpts of the appellant/writ-petitioner wherein under the column of date of birth the date of birth, i.e., 20.04.1952 has been shown to be cut and the date of birth, i.e., 08.12.1954 is found mentioned.
The question which arises herein that when due to explosion in the Shaft Mine-Sudamdih the old Form 'B' Register was seized by the DGMS and as per the CMPF record, the date of birth of the appellant/writ-petitioner found mentioned therein as 08.12.1954 then from where the date of birth of the appellant/writ- petitioner has been recorded as 20.04.1952 as referred in the service excerpts although it was cut and in its place the date of birth has been recorded as 08.12.1954.
13. This Court has put a specific query to the learned counsel for the BCCL that from where the date of birth as 20.04.1952 has come and what is the basis thereof when due to explosion in the Shaft Mine- Sudamdih original record, i.e., Form 'B' register has been seized hence, there is no record available save and except the record available with the CMPF where the date of birth has been recorded as 08.12.1954.
Learned counsel has failed to answer and sought for time to seek instruction in the matter.
14. This Court requires to refer herein that even no counter affidavit was filed before the writ Court and as would appear from the entire order sheet of the writ Court that several opportunities have been granted to file counter affidavit as would appear from the order [15] dated 10.11.2017, 04.12.2017, 29.01.2018, 16.02.2018 and 16.03.2018, on that date, the learned Single Judge of this Court granted time subject to payment of cost but even thereafter no counter affidavit has been filed and therefore, we are of the view that in spite of several opportunities having been granted by the learned Single Judge of this Court to file counter affidavit the respondent-BCCL had chosen not to file counter affidavit, therefore, this Court deem it fit and proper not o adjourn the matter in order to enable the respondent-BCCL to file counter affidavit considering his earlier conducts before the learned Single Judge.
And further, due to the reason that since we are in the intra-court appeal, as such, the legality and propriety of the order is to be tested on the basis of the material available on record before the learned Single Judge as also the finding recorded by him.
15. We, on the basis of no reply furnished by the learned counsel for the respondent-BCCL showing the basis of making insertion of date of birth of the appellant/writ-petitioner as 20.04.1952, are of the view that the said date of birth cannot be taken into consideration and this view we are constraint to take in view of the available record before the CMPF which is a statutory body recording the date of birth as 08.12.1954 and therefore, we are of the view that the dispute which has been created by the BCCL cannot be said to be a genuine dispute.
Further, it is also not the case wherein the appellant/writ- petitioner has raised the dispute for the first time after his superannuation rather he has ventilated his grievance by filing a [16] representations/objections on 13.07.1994, 27.11.1995, 11.08.2006, 19.10.2007 in pursuance thereto, an inquiry had also been directed to be conducted and report to be presented before the concerned competent authority but no such inquiry has been conducted and finally the Senior Officer Personnel Sudamdih Shaft Mine, the place where the incident of explosion occurred and the earlier place of posting of the appellant/writ-petitioner prior to his transfer to Sudamdih Coal Washery, has issued a communication dated 27.05.2011 addressed to the Deputy Manager Personnel SCW, Sudamdih Coal Washery as quoted hereinabove wherein it has been admitted that after the seizure of the Form 'B' Register by the DGMS a fresh Form 'B' Register was prepared in the year 1986 but the name of the appellant/writ-petitioner does not appear, however, his date of birth appeared in the CMPF record as 08.12.1954.
16. It is evident therefrom that the Deputy Manager Personnel SCW has also directed for immediate action into the matter but no action has been taken ultimately the order of superannuation has been issued on 30.05.2012 informing the appellant/writ-petitioner about his superannuation w.e.f. 30.11.2012.
17. This Court after considering the aforesaid aspect of the matter as discussed hereinabove since has arrived to a conclusion that the dispute as has been agitated by the respondent BCCL cannot be held to be genuine dispute rather according to our considered view when it is the admitted case of the respondent-BCCL that due to explosion the original Form 'B' has already been seized and while preparing fresh Form 'B' Register the name of the appellant/writ- [17] petitioner does not found mentioned, the authority ought to have taken into consideration the date of birth recorded in the other document which was available before the CMPF which is also a statutory body wherein the date of birth was recorded as 08.12.1954 and in turn thereof, Deputy Manager Personnel SCW, Sudamdih Coal Washery has directed to conduct an inquiry in the matter but reason best known to the respondent-BCCL that in spite of conducting an inquiry and taking into consideration the date of birth recorded in the CMPF record as 08.12.1954 why the notice of retirement was issued on 30.05.2012 which has not been answered by the learned counsel for the respondent-BCCL, however, at this juncture, it has been submitted that the appellant/writ-petitioner was directed to appear before the Medical Board for age assessment on 05.07.2013 but according to the respondent-BCCL the appellant/writ-petitioner chosen not to appear and as such his case is not fit to be considered but we are not in agreement with such ground as because the appellant/writ-petitioner since has already been superannuated from service w.e.f. 30.11.2012 as such, there was no reason asking the appellant/writ-petitioner to appear before the Medical Board for his age assessment.
Further for the reason that since in the statutory record, i.e., of CMPF, the date of birth of the appellant/writ-petitioner has been recorded as 08.12.1954 and as such, having no dispute considering the date of birth mentioned in the CMPF record, there was no occasion for the BCCL to ask the appellant/writ-petitioner for his age assessment.
[18]
18. In view of the discussion made hereinabove, we are of the considered view that the learned Single Judge has failed to appreciate these facts and gone into the general principle not to entertain a writ petition at the fag end of the service if the dispute pertains to the date of birth but he before coming to such conclusion ought to have considered the factual aspect involved in the instant case.
It also requires to refer herein that although the learned Single Judge has made reference of judgments rendered in the case of State of M.P. Vs. Premlal Shrivas (supra) wherein at paragraph- 8 & 12 thereof have been quoted. The Hon'ble Apex Court has laid down the ratio that at the fag end of the service dispute pertaining to correction of the date of birth is not required to be raised, however, at paragraph-12 it has been laid down that even if there is inordinate delay, such an application should be filed which can be held to be reasonable. For ready reference, paragraph-12 of the said judgment is being reproduced hereunder as:
"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 time-limit within which an application is to be filed, the appellants were duty-[19]
bound to correct the clerical error in recording of his date of birth in the service book."
19. Since we have come to the conclusion that there was no dispute and if the document has been seized by the DGMS and the service excerpts of the appellant/writ-petitioner found mentioned the date of birth as 08.12.1954 by cutting the date of birth recorded as 20.04.1952 it has got no basis as per the finding recorded by us as hereinabove and hence, it is not a case where the judgment referred hereinabove will be applicable in the facts and circumstances of the case rather the aforesaid judgment only speaks that if there is any dispute then only the same is to be agitated within the reasonable period but in the instant case since there is no dispute, according to our considered view, the aforesaid judgments will not be applicable.
20. The respondent-BCCL has agitated the ground in approaching the writ Court after three years from the date of retirement basis upon which the learned Single Judge has dismissed the writ petition and as such the same is also required to be answered.
Admittedly herein, the writ petition has been filed after about three years from the date of superannuation, i.e., w.e.f. 30.11.2012, but on this ground can the writ petition be thrown out. This Court, has discussed the issue based upon the factual aspect involved in this case hereinabove by taking the view that there was no dispute since it is the admitted case of the respondent that the original record including the Form 'B' Register which contained the details of the date of birth of the employees/workmen are available, have been seized by the Directorate General of Mines Safety [20] (DGMS), hence, no record containing the date of birth of the appellant/writ-petitioner were available with the respondent-BCCL rather one record was available, i.e., CMPF record in which the date of birth of the appellant/writ-petitioner has been recorded as 08.12.1954, as such, if the original Form 'B' Register was not available with the respondent, the authority ought to have considered the date of birth mentioned in the CMPF record.
Even assuming that the CMPF record was not acceptable to the respondent-BCCL then in that circumstances, the respondent- authorities ought to have resorted to the condition mentioned in instruction No.76 which is a bipartite settlement with the Coal India Ltd. and the Union containing therein the condition for medical assessment of one or the other employee/workmen for determination of their date of birth in case of any dispute but having chosen not to do so before the issuance of retirement notice as on 30.05.2012 and forced the appellant/writ-petitioner to be separated from the roll of the respondent-BCCL. The appellant/writ-petitioner has been separated from the service w.e.f. 30.11.2012 and the respondent authority kept mum fairly for a period of eight months and it is only on 05.07.2013 the appellant/writ-petitioner was communicated about constitution of a Medical Board for age assessment asking him to appear before the said Board but the question herein is that what led the authority not to constitute a Medical Board before forcing the appellant/writ-petitioner to be separated from service w.e.f. 30.11.2012 and when the appellant/writ-petitioner had already been separated what is the [21] occasion for asking the appellant/writ-petitioner to appear before the Medical Board vide communication dated 05.07.2013.
The appellant/writ-petitioner after receipt of the communication dated 05.07.2013 has ventilated his grievance by invoking the jurisdiction of this Court as conferred under Article 226 of the Constitution of India about two years from the communication dated 05.07.2013.
The question herein is that can the respondent be allowed to agitate the ground of approaching the writ Court by the appellant/writ-petitioner after three years from the date of retirement when the respondents themselves have come out with the communication dated 05.07.2013 by asking the appellant/writ- petitioner to appear before the Medical Board for age assessment, therefore, according to our considered view the respondent authorities have acted with the ulterior motive since if they would have acted with bona fide then they would have asked the appellant/writ-petitioner to appear before the Medical Board before taking decision of superannuation by issuance of retirement notice as on 30.05.2012 but instead of doing so, even though their own decision as contained under instruction No.76 is available, have chosen not to resort to, as such, the decision for constituting Medical Board before the retirement notice and when the appellant/writ-petitioner has retired from service then acting with the mala fide intention the respondent has asked the appellant/writ- petitioner to appear before the Medial Board for age assessment vide communication dated 05.07.2013, as such, if the respondent [22] authorities have acted with mala fide by issuing communication dated 05.07.2013 they cannot be allowed to agitate the ground of three years in approaching this Court from the date of retirement rather the cause of action would be said to be from 05.07.2013 and if within two years from 05.07.2013 the writ petition has been filed, the same cannot be said to be have been barred by the principle of delay and latches.
This Court, therefore, is of the view that the learned Single Judge ought to have taken into consideration this fact also before coming with the finding basis upon which the writ petition has been dismissed, i.e., approaching the writ Court three years from the date of retirement.
21. In view of the discussion made hereinabove, the order of learned Single Judge is not sustainable and is fit to be quashed and set aside.
Accordingly, the order/judgment dated 06.04.2018 passed in W.P.(S) No.3526 of 2015 is quashed and set aside.
In consequence thereof, the writ petition is allowed.
22. In the result, the appellant/writ-petitioner will be held to be in service till attaining the age of superannuation counting it from 08.12.1954 as his date of birth and as such he is entitled for monetary benefit for the aforesaid period.
23. The respondent-BCCL is directed to disburse the monetary benefits within a period of three months from the date of receipt/production of copy of the order.
[23]
24. In the result, the appeal stands allowed.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saurabh
A.F.R.