Jharkhand High Court
M/S. Bharat Coking Coal Lmited vs Shiv Nath Roy on 29 June, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
S.A.No.133 of 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.133 of 2008
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(Against the judgment dated 01.05.2008 {decree sealed and signed on 09.05.2008} passed by learned Additional District Judge-XIII, Dhanbad, in Title Appeal No.131 of 2007)
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1. M/s. Bharat Coking Coal Lmited, represented through its Chairman-cum-Managing Director, Koyla Bhawan, P.O. Koyla Nagar, P.S. Saraidhella, district- Dhanbad.
2. Dy. Chief Mining Engineer, Golakhdih Open Cast Project, P.O. P.S. Jharia, district-Dhanbad.
3. Manager/ Project Officer, Golakhdih Open Cast Project, P.O. P.S. Jharia, district-Dhanbad.
.... .... .... Defendants/Respondents/Appellants Versus Shiv Nath Roy, son of Late Ganpati Roy, resident of Hathang, P.S. Kajuria, district- Balia (U.P.), at present residing at Golakhdih Colliery, P.O. P.S. Jharia, district-Dhanbad.
.... .... .... Plaintiff/Appellant/ Respondent
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For the Appellants : Mr. Anoop Kr. Mehta, Advocate
For the Respondent : Mr. Deepak Kr. Dubey, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This Second Appeal has been preferred against the judgment of reversal being the judgment and decree dated 01.05.2008 passed by learned Additional District Judge-XIII, Dhanbad, in Title Appeal No.131 of 2007 by which the learned first appellate court reversed the judgment of dismissal of the suit passed by the Additional Munsif-1st in Title Suit 1 S.A.No.133 of 2008 No.77 of 2003 and allowed the appeal on contest and decreed the suit and the declared the date of birth of the sole respondent to be 01.07.1955.
3. The brief fact of the case is that the respondent-plaintiff is the employee of the defendant-appellant company. He was appointed on 31.01.1973. At the time of his joining in capacity of Mining Sardar, he recorded his date of birth to be 06.05.1948. In this respect he filled up Form-B of the appellant-defendant- Company which has been marked Ext.A but it is the case of the plaintiff that his actual date of birth is 01.07.1955 and during the preparation of service record of the plaintiff, the date of birth of the plaintiff was wrongly recorded as 06.05.1948. The plaintiff requested the defendant for correction of the date of birth in his service records but the defendants refused the same. Hence, the plaintiff filed the suit for declaration of his date of birth to be 01.07.1955 and further declaration that the plaintiff is entitled to work with the defendant till 01.07.2015 and cost of the suit. The defendant contested the suit by contending that the plaintiff is a literate person and he is knowing pretty well that his date of birth is 06.05.1948 and voluntarily mentioned the said date of birth in the Form-B and also signed the same. Hence, prayed that the suit be dismissed.
4. The learned trial court framed the following five issues:-
1. Whether the suit is maintainable in its present form?
2. Whether there is any cause of action for the suit?
3. Whether the suit is barred by the principles of waiver, acquiescence and estoppel?
4. Whether the date of birth of the plaintiff as entered in his service records is the correct date of birth?
5. Whether the plaintiff is entitled to any relief or reliefs as claimed?
5. Learned trial court considered evidence put forth by the parties and came to a conclusion that there is no plausible reason as to why the plaintiff did not produce documents to show his date of birth to be 01.07.1955 at the time of his employment and dismissed the suit.
6. Learned lower appellate court formulated the following two points for determination:-
1. Whether the age of the plaintiff/appellant is 01.07.1955 or 2 S.A.No.133 of 2008 06.05.1948?
2. Whether the judgment and decree of the learned court below is liable to be set aside?
7. The learned first appellate court made independent appreciation of the evidences and relied upon the judgment of this Court in the case of Kamta Pandey Vs. M/s. B.C.C.L. through its Chairman-cum-Managing Director, Koyla Bhawan, Koyla Nagar, Dhanbad & Others reported in 2007 (3) JLJR 726 and arrived at the conclusion that the date of the birth of the respondent/plaintiff is 01.07.1955 basing upon the Ext.1 which is the purported certificate of Junior High School Examination, 1970.
8. At the time of admission of this Second Appeal, the following two substantial questions of law were framed:-
1. Whether the Court of Appeal below has committed error of law in reversing the finding recorded by the trial Court on the issue of date of birth?
2. Whether for the purpose of determining the age of an employee, Form-B Register will be the conclusive evidence?
9. Mr. Anoop Kumar Mehta- learned counsel for the appellants relies upon the judgment of a Division Bench of this Court in the case of Ram Pyare Singh Vs. Bharat Coking Coal Ltd. & Others reported in 2014 (3) J C R 679 (Jhr) paragraphs-6 and 7 of which read as under:-
"6. The learned counsel of the respondent - company has also relied on the decision of the Hon'ble Apex Court reported in 2014 (3) JBCJ 28 SC in the case of M/s Bharat Coking Coal Ltd & Ors. Vs. Chhota Birsa Uranw, wherein, it has been held that statutory documents like Form - B register is binding and School Leaving Certificate cannot prevail over records and statutory documents of the company; that the appellant should have produced the matriculation certificate at the time of appointment since he has stated that he had passed matriculation examination in the year 1966 as per Annexure - 2, which was prior to joining of his service. It has also been submitted that the appellant - petitioner has superannuated and the impugned order does not require any interference.
7. Having heard the learned counsels and on perusal of the material on record, it is evident in the decision relied on by the learned counsel, for the appellant, in the case of Eastern Coalfields Ltd & Ors. Vs. Bajrangi Rabidas reported in 2013 (4) JLJR SC 467, wherein it has been held that the person passing the matriculation examination should produce it at the first instance. It is apparent from the record of this case that the appellant - petitioner did not produce the matriculation certificate, which he claims was in his possession which he did not. It is evident from Form - B that his date of birth is mentioned as 01.01.1946 and the appellant - petitioner had signed in flawless English which shows that he is a literate person and 3 S.A.No.133 of 2008 signed on Form - B having full knowledge about the contents of documents. The said decision in fact supports the contention of the learned counsel for the respondent whereby the Supreme Court held that the entry in the records and statutory documents of the company shall be given primacy.
and submits that for the purpose of determining the age of an employee, Form-B Register will be the conclusive evidence.
10. Mr. Mehta next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Bharat Coking Coal Ltd. and Others Vs. Shyam Kishore Singh reported in (2020) 3 SCC 411 paragraphs- 8 to 10 and 12 to 14 of which read as under:-
"8. In the above background it is to be noticed as to whether the consideration as made by the High Court is justified. The learned counsel for the respondent with specific reference to para 10 in the order [Shyam Kishore Singh v. Bharat Coking Coal Ltd., 2017 SCC OnLine Jhar 3061] of the learned Single Judge referred to the aspect wherein the learned Single Judge has taken note of the representation made by the respondent in the year 2009 and the verification that was secured by the appellants from the Bihar School Examination Board. Though such reference is made, in our opinion, the same was not appropriate in the present facts when three decades had elapsed from the date of employment. The position is well established that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. In the instant facts the position is that the respondent entered service on 1-3-1982. The date of birth entered as 4-3-1950 has remained on record from the said date. The requirement to submit the nomination form indicating the particulars of the family and the nominee was complied with and it was submitted by the respondent on 25-5-1998. In the said nomination form the date of birth of the employee was required to be mentioned, wherein the respondent in his own handwriting has indicated the date of birth as 4-3- 1950. Apart from that fact, the learned Additional Solicitor General would also point out that since there was a change in the method of maintaining the service register, all the employees were provided an opportunity to verify and seek for change in the service record in the year 1987. At that stage also the respondent did not seek for any change. Therefore, in that circumstance, when the opportunity available at the first instance in 1987 had not been availed and thereafter on 25-5-1998 when the respondent himself in the Provident Fund nomination form had indicated the date of birth as 4-3-1950 which corresponds to the date of birth entered in the service register as on the date of commencement of the employment, merely because a verification was made from the Bihar School Examination Board and even if it was confirmed that the date of birth was 20-1-1955 such change at that stage was not permissible.
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.4 S.A.No.133 of 2008
The learned Additional Solicitor General has in that regard relied on the decision in State of Maharashtra v. Gorakhnath Sitaram Kamble [State of Maharashtra v. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423 : (2011) 2 SCC (L&S) 582] wherein a series of the earlier decisions of this Court were taken note and was held as hereunder : (SCC pp. 428-29, paras 16-17 & 19) "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 [U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465 : 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 [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 [Pitamber Dutt Semwal v. State of U.P., 1999 SCC OnLine All 1610 : 2000 All LJ 2341] of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades. Xxxxxxxx
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. v. Premlal Shrivas [State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664 : (2011) 2 SCC (L&S) 574] it is held as hereunder : (SCC pp. 667 & 669, paras 8 &
12) "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 or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [Union of India v. Harnam Singh, (1993) 2 SCC 162 : 1993 SCC (L&S) 375] ).
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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 5 S.A.No.133 of 2008 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-bound to correct the clerical error in recording of his date of birth in the service book."
12. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer, namely, the appellants herein in Bharat Coking Coal Ltd. v. Chhota Birsa Uranw [Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, (2014) 12 SCC 570 : (2014) 3 SCC (L&S) 725] wherein this Court with reference to the earlier decisions of this Court has upheld the order [Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, 2010 SCC OnLine Jhar 1228] of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement III was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, father's name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him.
13. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the nomination form and rectify the defect if any, he had indicated the date of birth as 4-3-1950 and had further reiterated the same when Provident Fund nomination form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31-3-2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified.
14. Hence, the order dated 13-10-2017 passed by the learned Single Judge in Shyam Kishore Singh v. Bharat Coking Coal Ltd. [Shyam Kishore Singh v. Bharat Coking Coal Ltd., 2017 SCC OnLine Jhar 3061] and the 6 S.A.No.133 of 2008 order dated 19-2-2019 passed by the Division Bench in Bharat Coking Coal Ltd. v. Shyam Kishore Singh [Bharat Coking Coal Ltd. v. Shyam Kishore Singh, 2019 SCC OnLine Jhar 2412] are not sustainable.
and submits that the respondent having approached the court at the fag end of his service and all along accepting his date of birth to be 06.05.1948, the learned first appellate court erred by reversing the finding recorded by the trial court on the issue of date of birth, in the process throwing to the woods, the settled principle of law that if a particular date of birth is entered in the service register of an employee, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. It is further submitted by Mr. Mehta that the facts of this case are entirely different from the facts of Bharat Coking Coal Ltd. v. Chhota Birsa Uranw reported in (2014) 12 SCC 570 as in this case unlike the case of Bharat Coking Coal Ltd. v. Chhota Birsa Uranw (supra) opportunity was not given to the respondent-plaintiff, in 1987 on implementation of the National Coal Wage Agreement III being put into operation for stabilising the service records of the employees any chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records hence the ratio of Bharat Coking Coal Ltd. v. Chhota Birsa Uranw (supra) is not applicable in the facts of this case in view of the distinction of the same made by the Hon'ble Supreme Court of India in the subsequent judgment in paragraph-12 in the case of Bharat Coking Coal Ltd. and Others Vs. Shyam Kishore Singh reported in (2020) 3 SCC
411. It is then submitted by Mr. Mehta that under the procedure laid down by Implementation Instruction No.76 to determine date of birth of an existing employee, the provisions of which reads as follows as has been taken note of by the Hon'ble Supreme Court of India in the case of Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw reported in (2014) 12 SCC 570 in para-12:-
"12. The appellant in the present case should have followed the procedure as laid down by Implementation Instruction 76 to determine the date of birth of an existing employee. The provisions of which read as follows:
"(B) Review determination of date of birth in respect of existing 7 S.A.No.133 of 2008 employees.--(i)(a) In the case of the existing employees matriculation certificate of (sic or) higher secondary certificate issued by the recognised universities of Board or middle pass certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid bodies should be treated as correct provided they were issued by the said universities/Boards/institutions prior to the date of employment.
(i)(b) Similarly, Mining Sardarship, winding engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic.
Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.
(ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the management. The management after being satisfied on the merits of the case will take appropriate action for correction through Determination Committee/Medical Board.
(C) Age Determination Committee/Medical Board for the above will be constituted by the management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the Company, namely, Form B register, CMP records and identity cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the management for the determination of age. (D) Age determination by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or (E) The Medical Board constituted for determination of age will be required to manage (sic 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 the respondent-plaintiff did not qualify on the basis of the documents produced by him to get his date of birth changed.
11. It is next submitted by Mr Mehta that as the Ext.1 was not issued by any university, board or institution, the same could not have been relied upon by the learned first appellate court in view of the said procedure laid down by the Implementation Instruction No.76. It is further submitted that the learned first appellate court erred by relying upon the Ext.1/A which is School Leaving Certificate as admittedly no date of issue of this school leaving certificate has been mentioned in the said Ext.1/A and date of issue of the certificate portion has been kept blank so, it cannot be treated to be a School Leaving Certificate which was issued prior to the date of appointment of the plaintiff/respondent. Mr. Mehta 8 S.A.No.133 of 2008 next submits that the facts of the case of Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw (supra) was different from the facts of this case as in that case the School Leaving Certificate was issued prior to the appointment of the employee concerned but the certified copy of the same was obtained subsequent to the appointment of the employee concerned of that case but here in this case, the certified copy of the School Leaving Certificate which has been marked Ext.1/A, does not bear any date whatsoever and the date column has been kept blank. So, under such circumstances it cannot be said that the Ext.1/A was issued prior to the appointment of plaintiff/respondent. Hence, it is submitted by Mr Mehta that the learned first appellate court ought not to have relied upon the same and hence, certainly the learned first appellate court committed grave error of law in reversing the finding recorded by the trial court on the issue of date of birth. Hence, it is submitted that the impugned judgment and decree of the first appellate court be reversed and the judgment and decree of dismissal of the suit of the trial court be restored.
12. Mr. Deepak Kumar Dubey- learned counsel for the respondent on the other hand relied upon the judgment of Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw (supra) and submits that the facts of this case are squarely covered by the facts of the case of Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw (supra). It is then submitted by Mr Dubey that the first appellate court has rightly appreciated the evidence in the record in its proper perspective and has not committed any other law in reversing the judgment and decree of the trial court. Hence, it is submitted that this appeal, being without any merit, be dismissed.
13. Having heard the submissions made at the Bar and after carefully going through the evidence in the record, let me first consider the second substantial question of law as to 'whether for the purpose of determining the age of an employee, Form-B Register will be the conclusive evidence?' It is pertinent to mention here that a full Bench of this Court in the case of Kamta Pandey Vs. M/s. B.C.C.L. through its Chairman-cum-Managing Director, Koyla Bhawan, Koyla Nagar, Dhanbad & Others (supra), the full Bench has held as under in paragraphs 27 and 29:-
9 S.A.No.133 of 2008"27. In these decisions, though it is observed that the employee will not normally be permitted to apply for change of his date of birth at the fag end of his service career, the Supreme Court clearly held that if the Court is fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and when a clear case, relating to the date of birth, is made out on the basis of clinching materials, then necessary direction to make a declaration of the said date of birth can be given.
29. In view of the above discussion, our answer to the question raised in this case is as follows:-
"The date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by Implementation Instruction No.76 of National Coal Wage Agreement - III."
14. In view of this categorical enunciation of law by the full Bench of this Court in the case of Kamta Pandey Vs. M/s. B.C.C.L. through its Chairman-cum-Managing Director, Koyla Bhawan, Koyla Nagar, Dhanbad & Others (supra) the 2nd substantial question of law is no more res integra. The 2nd substantial question of law, as to whether for the purpose of determining the age of an employee, Form-B Register will be the conclusive evidence is answered in the negative. It is made clear that in cases where the parties to the dispute are governed by Implementation Instruction No.76 of National Coal Wage Agreement - III, the date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board in terms of clause (B) (i)(a) of the said Implementation Instruction No.76 of National Coal Wage Agreement - III, as already mentioned above in paragraph-12 of Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw reported in (2014) 12 SCC 570, is the conclusive proof of age. The 2nd substantial question of law is answered accordingly.
15. So far as first substantial question of law as to whether the First Appellate Court has committed error of law in reversing the finding recorded by the trial Court on the issue of date of birth is concerned, it is crystal clear that certainly the first appellate court committed an error of law by not taking into consideration the settled principle of law that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service as has been reiterated by the Hon'ble 10 S.A.No.133 of 2008 Supreme Court of India in paragraph-8 of the case of Bharat Coking Coal Ltd. and Others Vs. Shyam Kishore Singh reported in (2020) 3 SCC 411. Further the First Appellate Court also committed an error of law by failing to distinguish that as has been observed by the Hon'ble Supreme Court of India in paragraph-12 of the case of Bharat Coking Coal Ltd. and Others Vs. Shyam Kishore Singh reported in (2020) 3 SCC 411 that the distinguishing feature of the judgment passed in Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw reported in (2014) 12 SCC 570 is that in the said case it was taken note that in 1987 implementation of the National Coal Wage Agreement III was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records and the respondent (employee) of that case had noticed the inconsistencies in the records regarding his date of birth, date of appointment, father's name and permanent address and availed the opportunity to seek correction. Further though in that case the respondent- employee had sought for the correction of the errors and the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him, but in the instant case as the respondent-employee did not move for correction of his date of birth on the implementation of the National Coal Wage Agreement III being put into operation for stabilising the service records of the employees hence the settled principle of law that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service, is applicable in the facts of the case.
16. The First Appellate Court also committed an error of law by failing to appreciate that even as per said Clause B (i) (a) of Implementation Instruction No.76, in case of existing employees review determination of date of birth can be made on the basis of matriculation certificate or higher secondary certificate issued by the recognized university or Board or 11 S.A.No.133 of 2008 middle pass certificate issued by the Board of Education and or a Department of Public Instruction and admit card issued by the aforesaid bodies should be treated as correct provided they were issued by the said university, Board, institution prior to the date of employment. So far as Ext.1 is concerned, the same is neither the certificate of matriculation nor the higher secondary certificate nor the middle pass certificate nor the same was issued by any institution rather the same is claimed to be issued by one Deputy District School Inspector. So, the Deputy District School Inspector cannot be treated as an institution. Hence, the same cannot be treated to be a in a certificate in terms of the said Clause B (i) (a) of the Implementation Instruction No.76, basing upon which the date of birth of an employee can be corrected of an implementation of the National Coal Wage Agreement III.
17. So far as Ext.1/A is concerned, the same is purported to be School Leaving Certificate but the portion of date of issue of the said purported Certificate is blank. Without a date of issue of the said purported School Leaving Certificate, certainly, the same do not qualify to be a School Leaving Certificate which was issued prior to the date of employment of the plaintiff-respondent. Hence the First Appellate Court ought to have held that the date of birth of the respondent-employee cannot be changed either on the basis of Exhibit 1 or Exhibit 1/A.
18. In view of the discussions made above, the first substantial question of law is answered in the affirmative and it is held that the First Appellate Court committed an error of law in reversing the judgment and decree passed by the trial court. As, the learned trial court committed grave error in relying upon Exhibit 1 and 1/A, by making improper interpretation of the contents of the documents and the same is of the nature of perversity besides committing error of law by not taking into consideration the settled principle of law that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service as also the fact that as in this case the respondent-employee did not sought for correction of his date of birth upon implementation of the National Coal Wage Agreement III, which was put into operation for stabilising the 12 S.A.No.133 of 2008 service records of the employees hence the ratio of Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw reported in (2014) 12 SCC 570 is not applicable in the facts of this case. Hence, this Court holds that the impugned judgment and decree passed by the learned first appellate court is not sustainable in law. Accordingly, the judgment and decree dated 01.05.2008 passed by learned Additional District Judge-XIII, Dhanbad, in Title Appeal No.131 of 2007 is set aside and judgment and decree passed by the Additional Munsif-1st in Title Suit No.77 of 2003 by which the suit was dismissed, is restored.
19. In the result, this Second Appeal is allowed on contest but in the circumstances without any cost.
20. The parties to bear their own cost.
21. Let a copy of this judgment along with the lower court records be sent to the learned courts below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th of June, 2022 AFR/ Animesh 13