Achinta Chowdhury @APPELLANT@Hash M/s. Eastern Coalfields Limited and Others

Sambuddha Chakrabarti, J.

The petitioner states that he joined the Eastern Coalfields Limited (ECL, for short) on February 11, 1990 declaring his date of birth as February 20,

1960 supported by his educational records. The respondent authorities by a letter, dated October 29, 1979, asked the petitioner to appear for a medical

examination for assessment of his age. He has alleged that the colliery lever medical officer had no infrastructure to assess the date of birth and he

was also not handed over any copy of the report and is, therefore, not aware of the assessment of age.

The petitioner states that in the year 1987 the respondents served a service excerpts form to the petitioner wherefrom it appeared that the date of

birth of the petitioner had been wrongly recorded as July 1, 1958. He raised his objection in the column provided for the same that his date of birth

should be February 20, 1960. Since the respondents did not effect any correction the petitioner made a representation on June 23, 2017. In response to

the last letter the respondents by a communication, dated December 25, 2017 rejected the prayer of the petitioner on the ground of absence of

supporting documents as proof of the claimed date of birth. On January 12, 2018 the respondents issued a notice for superannuation by informing him

that he would retire from service with effect from July 1, 2018.

The petitioner says that on March 14, 2018 he had obtained a certificate from the school where he had studied and deposited it with the office of the

Personnel Manager, but it had not been considered. The petitioner alleged that the grounds of rejection of the date of birth as claimed by him are liable

to be set aside. He had to sign in all the records of the company in spite of the wrong recording of the date of birth. The petitioner has submitted that

the school record is older than the records in the ECL and, therefore, the correction of his age as per the school record is permissible under the law.

He has also asserted that he raised an objection in the year 1987 and, therefore, it is incorrect to say that he raised a dispute only towards the fag end

of his career.

The petitioner has prayed for a direction upon the respondents to correct the date of birth as February 20, 1960, a writ in the nature of mandamus for

setting aside the communication, dated December 25, 2017 as well as the notice for superannuation, and for other reliefs. The General Manager of

Kajora area of the ECL has filed a report in the form of an affidavit. The case of the petitioner is that the petitioner raised his grievance for the first

time in his application, dated June 23, 2017 contending that his original date of birth was February 28, 1960, but it has been wrongly recorded as July 1,

1958. The representation of the petitioner was replied as per his instruction. The petitioner was informed that the date of birth, as recorded in the B-

Form register at the Kajora area as well as at Parascole Colliery, is July 1, 1958. The CMPF nomination form also recorded that as his date of birth.

The alleged certificate of West Bengal Board of Secondary Education appears to be for appearing at the test examination before the Secondary

Examination, 1983 as an external candidate. It is neither an Admit Card for the Madhyamik Examination nor a mark-sheet nor a certificate of passing

the examination. It appears that the registration certificate had been in possession of the petitioner, but he did not submit the same till one year before

his superannuation. The petitioner is due to retire on July 1, 2018 and shortly before that he sought to raise a frivolous dispute.

As directed by the court the respondents had produced certain documents and registers in original for proper verification and appreciation of the

respective merits of the case. It appears from the Form-B register at the petitioner’s initial place of posting i.e., Parascole Colliery under the

administrative control of Kajora area that the date of birth was recorded as July 1, 1958 and consequently, the date of termination of employment was

also recorded as July 1, 2018. The Form- B register of Kajora area i.e., the present place of posting, has also recorded the same age of the petitioner

including the same date as the date of termination of employment.

Mr. Banerjee, the learned Advocate for the respondents, submitted that important excerpts from the service record of the petitioner was served upon

him and requesting him to fill in the blank columns after putting his signature. The petitioner was given liberty to retain one copy for his record. There

the date of birth was specifically recorded as July 1, 1958, both in figure as well as in words. The petitioner had returned the same after merely putting

his signature and without recording any objection in the space left for it. In the form for Coal Mines Provident Funds he declared his date of birth at

various places as July 1, 1958 and he signed the document. Based on these Mr. Banerjee submitted that the case sought to be made out by the

petitioner is clearly unacceptable and has been nullified by the official records.

The petitioner on the other hand has relied on the case of Sukumar Dawn Vs. Coal India Ltd. reported in 2013 (4) CHN (CAL) 112 wherein it was

held that the respondents cannot refuse to follow their own Instruction which requires that a school certificate has to be accepted as the only valid and

an authentic document for the purpose of determining the date of birth of an employee, provided it is issued by the Board or institution prior to the date

of employment, even if the same was not produced at the time of his employment.

The petitioner has also relied on the case in M/s. Bharat Coking Coal Limited and Others Vs. Chota Birsa Unraw, reported in AIR 2014 SC 1975, for

a proposition that the claim for correction cannot be rejected on technical ground on being a belated one. The appellant should have followed the

procedure laid down in the Instruction for recording the date of birth of an existing employee. The third case relied on by the petitioner is the judgment

in the case of Godadhar Konar Vs. The Union of India and Others, reported in (2011) 3 CLJ (CAL) 157. There a Division Bench of this High Court

held that since the date of birth had not been fixed on the basis of the date of birth recorded in the school leaving certificate issued by the Headmaster

of the concerned school, the respondents wrongfully relied upon the date of birth record in the B Form register on the basis of the report submitted by

the Age Determination Committee ignoring age in the service record.

The petitioner lastly relied on the judgment in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyala (D. ED) and Others, reported in

(2013) 10 SCC 324 for a proposition that in case of wrongful termination of service reinstatement with continuity of service and back wages is the

normal rule. There are observations and ratio decided both in Gadadhar Konar (Supra) and Bharat Coking Coal Limited (Supra) which go to help the

petitioner in a very long way in establishing his case. In Gadadhar Konar (Supra), a Division Bench observed that the school leaving certificate issued

by the Headmaster of the school on the basis of the admission register could not be ignored under any circumstances. This certificate should have

been considered as conclusive proof of age of the petitioner.

The large position has been affirmed by the Supreme Court in Bharat Coking Coal Limited (Supra). The Supreme Court held that the rule permitting

rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided with certificate is issued

by the educational institution or the Board prior to the date of employment, will not apply where the school record 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 date on the school on the basis of

which the certificate has been issued. The school leaving is usually issued at the time of leaving the school by the student. Subsequently, a copy

thereof also could be obtained where the student misplaces the said school leaving certificate and applies for a fresh copy thereof. The issue of a

fresh copy cannot change the relevant record which was prevailing in the record of the school from the date of admission and the date of birth of the

student was duly entered in the record of the school. The school leaving certificate issued after joining in the service but on the basis of school record

available long before cannot be put out of consideration.

The above observations of this Court as well as the Supreme Court apply to the facts of the case. The petitioner is relying on the certificate issued by

the Headmistress of the concern school certifying that his date of birth as recorded in the admission register of the school is February 20, 1960. The

petitioner has also specifically alleged that he made necessary correction in the service record in the year 1987 itself. The correction was made in the

space for remark where he corrected this father’s name as well as the date of birth. The respondents have produced the service excerpts to

submit that the petitioner did not write anything in the space reserved for remark. They alleged that the petitioner had kept this portion blank.

Mr. Ghosh submitted this was the duplicate copy. More than one copy was submitted by the petitioner and the respondents were not producing the

original of the copies submitted by him. It is not possible for a writ court to find out the truth in a case on a factual dispute. But regard being heard to

the common course of human conduct based on experience and probability the case of the petitioner appear to be proximate to reasoning. He does not

stand to gain anything by not correcting the date of birth or not filling up the service excerpt form, as sought to be verbally submitted by Mr. Banerjee.

In any case, the copy of the service excerpt form produced by the respondents is not a copy of the form annexed to the writ petition as annexure P-3

at page 23. The General Manager of the ECL who affirmed the affidavit never controverted the statement made by the petitioner in this regard.

Thus one thing stands out clearly that the respondents did not rely on the documents which the courts have held to be valid for determining the age of

the petitioner and relied on documents which have been found to be not as important as the documents relied on by the petitioner. By making him

retire the respondents acted in derogation of the settled principle of law expressed through various judgments. The respondents are directed to rectify

the service record of the petitioner upon recording the date of birth on the basis of the date of birth as certified by the Headmistress of the school and

annexed to the writ petition as Annexure P-8.

The petitioner should be reinstated in service with continuity of service and back wages. This was a case of unlawful termination service of the

petitioner. Following the ratio in the case of Deepali Gundu Surwase (Supra) the respondents must be held to be the wrongdoers and there is no

justification to give a premium to the employer for their wrong doing of reliving them from the burden to pay to the employee the dues in the form of

full back wages. I direct the respondents to reinstate the petitioner to his service within two weeks from the date of communication of the order.

During the period the petitioner had been kept out of the employment he shall be entitled to full back wages which shall be paid by the respondents in

two equal monthly installments over and above his current monthly salary. The first such arrear shall be paid by November 10, 2018. With the

direction as above, the writ petition is allowed. There shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be

supplied to the parties on priority basis upon compliance of all requisite formalities.