Aditya Kumar Chakrabarty vs M/s. Bharat Coking Coal Limited,

Heard learned counsel for the parties.Â

Petitioner has filed the instant writ petition with a prayer to call for the entire records and details appertaining to the services granted to him in

accordance with memorandum of settlement entered into by and between the Area Secretary, Bihar Colliery Kamgar Union and others of Barora

Area and the respondent â€" management. Petitioner has further prayed for a direction upon the respondents to consider his date of birth as

19.03.1959 instead of 19.03.1956 and set aside the order of retirement by which premature retirement order has been passed on the basis of wrong

entry of his date of birth and thereby reinstate him in service with all backwages, other consequential benefits as also interest and cost.Â

The brief facts of the case as has been delineated in the writ petition is that 70 workers including the petitioner were made to sit idle by the

respondent â€" BCCL in the year 1987 on the ground that they were all workers of the Contractor. Industrial dispute was raised by the Bihar Colliery

Kamgar Union and after the Award dated 21.02.1992, passed by Central Industrial Tribunal at Dhanbad in Reference Case No. 151 of 1989,

petitioner along with 70 other workers of the Contractor were reinstated in service of the respondent â€" Company with effect from 22.12.1983 and

direction was made to pay them back-wages minus wages already paid as available to the Stone Cutters as per the National Coal Wage Agreement.

The Award was challenged by the respondent â€" BCCL before the Patna High Court (Ranchi Bench) vide CWJC No. 2470 of 1992 (R) and the

same was upheld. Against the order of the Single Judge, the Management preferred L.P.A. No. 24 of 1998 (R) and the same was disposed of on

07.08.2000 with a modification to the Award to the extent that in place of backwages, a consolidated lump-sum amount of Rs.50,000/- was to be paid

to each awardees. The Management preferred Civil Appeal No. 8526 of 2002 before the Hon’ble Supreme Court, which was disposed of vide

order dated 09.03.2010 which also upheld reinstatement portion of the Awardees as well as payment of back-wages at the rate of Rs.50,000/- per

head. Thereafter, a Memorandum of Settlement was entered into by the Area Secretary, Bihar Colliery Kamgar Union and others Vs. Respondent

â€" Union and finally petitioner and others were taken into employment.Â

It is case of the petitioner that after the orders passed by the Division Bench in L.P.A. No. 24 of 1998 (R), he submitted his documents to the

General Manager, Barora Area of M/s. BCCL and was directed to report for his duties as General Mazdoor (Surface) Category-I from 21.07.2014.

However, prior to this, in the Apex Medical Board held on 12.12.2013, he was made to sign on blank papers wherein date of birth was recorded as 57

years 6 months and in the column of the Secondary Education, wherein age was to be given, was kept blank. The other Column at Sl. No. 9 i.e. age

recorded in Form-B, Serial No. 8, Serial No. 7, all were kept blank but the petitioner was made over to sign on the same though he was having

Secondary Examination Certificate granted by the West Bengal Board of Secondary Education wherein his date of birth had been recorded as

19.03.1959 and as per rules prevailing in the Coal industry, the date of birth recorded in the matriculation certificate should have been considered for

all practical purposes. After representation filed by the petitioner, vide Reference No. 1126 â€" 36, dated 29.06.2016, it was communicated to the

petitioner that the respondent â€" M/s. BCCL has accepted his date of birth as 19.03.1959 on the basis of his Matriculation Certificate. However,

again vide office order dated 30.06.2016, petitioner has been communicated that his date of birth shall be considered as 19.03.1956 as per Apex

Medical Board and accordingly, he shall be superannuated on and from 01.07.2016 and accordingly, he has been made to superannuate on and from

01.07.2016 without considering the representation filed by him. Being aggrieved, petitioner has knocked door of this Court.Â

Mr. Mahesh Tewari, learned counsel appearing on behalf of the petitioner submits that the respondents â€" BCCL cannot act as per their whims.

Once respondents have made a policy decision to consider date of birth of the employees having Matriculation/ Higher Secondary Certificate as

incorporated in the said certificate, the petitioner should not have been denied the similar consideration. The respondents being creatures of statutes,

cannot act beyond the four corners of the same and cannot be allowed to forcefully retire an employee prematurely on a nonexistent date of birth i.e.

3 years prior to his actual date of retirement. Learned counsel further submits that entire service of the petitioner and others was on the basis of a

Memorandum of Settlement entered into by and between Area Secretary, Bihar Colliery Kamgar Union and Others Vs. Respondent â€" M/s. BCCL,

and the same is binding upon both the parties. Learned counsel further submits that after representation filed by the petitioner, vide Reference No.

1126 â€" 36, dated 29.06.2016, it was communicated to him that they have accepted his date of birth as 19.03.1959 on the basis of his Matriculation

Certificate. However, again hurriedly vide office order dated 30.06.2016, petitioner has been communicated that his date of birth shall be considered

as 19.03.1956 as per Apex Medical Board, which clearly shows some malafide. Learned counsel has placed reliance on the Judgment passed by this

Court in W.P.(S) No. 2208 of 2010 in the case of Gopal Prasad Singh Vs. M/s. BCCL, Dhanbad and others and submits that as per Implementation

Instruction No. 76, it is clear that in case of appointee, who has passed matriculation or equivalent examination, date of birth recorded in Matriculation

Certificate shall be treated as correct date of birth and the same will not be altered under any circumstance. It is, therefore, not the entry made in

Register Form ‘B’ or any other records, rather the date of birth recorded in the Matriculation Certificate has to be accepted as a conclusive

proof of date of birth. In that view, if there is service excerpts or Form ‘B’ Register even signed by the employees mentioning date of birth

contrary to that recorded in Matriculation Certificate, cannot be said to be conclusive and the date of birth recorded in Matriculation Certificate shall

be treated as correct date of birth. Learned counsel has further placed reliance on the Judgment passed by Full Bench of this Court in Kamta Pandey

Vs. M/s. BCCL and others reported in 2007(3) JLJR 726 which clearly held that date of birth recorded in Matriculation Certificate is a conclusive

proof of age and no other records as the parties are bound by Implementation Instruction No. 76 of National Coal Wage Agreement, which is bilateral

agreement between the Company and the Union. Learned counsel has further placed reliance on the Judgment passed in the W.P.(S) No. 2208 of

2010 in the case of Gopal Prasad Singh Vs. M/s. Bharat Coking Coal Ltd. Dhanbad and others, Niranjan Lal Agrawal Vs. Bharat Coking coal Ltd. &

Others reported in 2016(4) JBCJ 503 (HC), Dayanand Ram Vs. M/s. BCCL & others [in W.P.(S) No. 5962 of 2014], Kamta Pandey Vs. BCCL and

others reported in 2007(3) JLJR 726, M/s. Bharat Coking Coal Ltd. & Others Vs. Chhota Birsa Uranw reported in 2014 (3) JLJR 182 (SC).

Per contra, counter affidavit has been filed.  Mr. Amit Kumar Das assisted by Ms. Pooja Kumari, learned counsel appearing for the

respondents vehemently opposes the contention of learned counsel for the petitioner and further argues that for the purpose of induction/ reinstatement

in service, age of the petitioner was medically assessed by an Apex Medical Board on 12.12.2013 wherein age of the petitioner was determined as 57

years 06 months and petitioner in acknowledgement of the correction of the same, had put his signature on the said document and as such, he cannot

be allowed to improve his case on a false assertion that he was made to sign on blank paper. There was no compulsion to sign the document and as

such, petitioner cannot be allowed to retract from his own admission. Learned counsel further submits that so far order of rectification of date of birth

of the petitioner is concerned, the same was passed in an irregular manner and therefore, on the very next date i.e. on 30.06.2016, the same was

cancelled and withdrawn vide letter reference No. BCCL: PER: IR: DOB: 16: 1383 â€" 85, dated 30.06.2016. Petitioner has no case as he had been

properly assessed by the Medical Board which was also accepted by the petitioner himself and therefore, there is no illegality or infirmity in the

impugned order. Learned counsel further submits that Form-B of the petitioner also reflect date of birth of the petitioner as 16.06.1956 which has been

duly acknowledged by him by putting his Left Thumb Impression and as such, there is no merit in this writ petition and the same is fit to be dismissed.

Learned counsel has placed reliance on the Judgment dated 10.11.2016, delivered by Division Bench of this Court in L.P.A. No. 725 of 2015.Â

Learned counsel further argues that case of Kamta Pandey (Supra) is not attracted in the case as it talks of Matriculation Certificate produced at the

time of appointment. Learned counsel further argued that case of Kamta Pandey (Supra) is not at all applicable in the instant case. Petitioner never

produced matriculation certificate or even School Leaving Certificate at the time of his joining. In the said case there was no entry made regarding

date of birth in Form-B but in the case at hand, there is specific entry in Form-B mentioning the date of birth and the said Form-B has been signed by

the petitioner. The said entry shows the date of birth as 16.06.1956. Accordingly, the said decision runs counter to the contention raised by learned

counsel for the petitioner. Petitioner never produced matriculation certificate or even School Leaving Certificate at the time of his appointment and it is

not a case of the petitioner that he had produced the School Leaving Certificate at the time of appointment and the same was not taken into

consideration and wrong entry of date of birth has been made. It has been held by the Division Bench of this Court in the case of Ram Pyare Singh

Vs. Bharat Coking Coal Ltd. through its Chairman-cum-Managing Director reported in (2014) 3 JCR 679 that Form-B, which was prepared at the

time of joining of the appellant, it is a statutory document and record of service and has been duly signed and authenticated by the appellant. Thus,

there is no plausible explanation as to why he had not produced the matriculation certificate at the time of appointment, which was in his possession as

argued by the learned counsel for the appellant. It is evident that he raised his grievance at the fag end of his service. Learned counsel further submits

that this Court and the Hon'ble Apex Court, in a catena of decision, has held that the date of birth cannot be corrected at the fag end of service.

Learned counsel has placed reliance on the Judgments passed in the cases of State of Haryana Vs. Satish Kumar Mittal reported in (2010)9 SCC

337; State of Maharashtra Vs. Gorakhnath Sitaram Kamble [ (2010) 14 SCC 423]; Punjab & Haryana High Court Vs. Megh Raj Garg reported in

(2010) 6 SCC 482; Civil Paswan Vs. State of Jharkhand & Others [2005(2) JCR 245 (Jhr.)]; Karu Nonia Vs. Bharat Coking Coal Ltd. & others

[2002(1) JCR 418 (Jhr.)]; Hindustan Level Ltd. Vs. S.M. Jadhav & Anr. [2001(2) JCR CR 1 (SC) 251]; Daya Ram Gope Vs. Central Coalfields Ltd.

& others [2002(3) JCR 339 (Jhr.)]; and Management of Heavy Engineering Corporation Ltd. Ranchi Vs. Mrs. Sarita Narayan & Others [2003(4)

JCR 602 (Jhr.)] and in the order passed by Division Bench of this Court in L.P.A. 725 of 2015 in the case of Mohd. Jalil Vs. Bharat Coking coal Ltd.

and others. Learned counsel submits that in view of settled principles of law, no interference is warranted in this writ petition and impugned order does

not merits any interference in fact and in law.Â

Having gone through rival contention of the parties and after perusing the records, I am of the considered opinion that this writ petition has no merit

and no interference is required in the writ petition on the following grounds:Â

(i) Petitioner is harping on the date of birth mentioned in the Matriculation Certificate but no averment has been made in the writ petition to the effect

as to whether he had produced the same at the time of his initial appointment.Â

(ii) The cases relied upon by the petitioner is not attracted in the instant case. In the case of Kamta Pandey (Supra) the Full Bench of this Court has

clearly held that the Matriculation Certificate can be taken for the purposes of date of birth only when it is submitted at the time of appointment. Even

Instruction No. 76 is also not attracted in the instant case. The Hon'ble Apex Court, has clearly held that if the School Leaving Certificate or the

certificate on which the employee is claiming the date of birth is not submitted at the time of appointment, the same cannot be accepted. It has further

been held that no correction is allowed to be made at the fag end of service.

(iii) Form-B is a Statutory Form which cannot be disbelieved. Petitioner has signed the Statutory Form-B which shows that he was very much

conscious of the fact that his date of birth has rightly been mentioned. The Judgment of this Court affirmed by Hon’ble Apex Court in catena of

decisions have clearly held that the date of birth mentioned in Statutory Form-B can only be considered and not any other date of birth relied upon by

the parties. As the date of birth mentioned in the Statutory Form-B was duly signed by the petitioner himself, it cannot be disputed at the fag end of

service as it is a Statutory Form

(iv) Petitioner approached this Court after his superannuation in the year 2017 and now in the year 2018, after his retirement, no direction can be given

for correction in date of birth of an employee who has already retired in the year 2016.Â

(v) Neither employer nor the employee can be allowed to raise issue of correction in date of birth at the fag end of service.

Issue fell for consideration before this Court in W.P.(S) No. 488 of 2007 and W.P.(S) No. 1239 of 2010. Relying on the Judgment of the Hon’ble

Apex Court, delivered in the case of State of M.P. Vs. Ram Lal Premlal Shrivas reported in (2011) 9 SCC 664 and in the case of State of

Maharashtra Vs. Gorakhnath Sitaram Kamble reported in (2010) 14 SCC 423 and also in the case of State of Tamilnadu Vs. T.V. Venugopalan

reported in (1994) 6 SCC 302, the Hon’ble Apex Court was of the view that no correction in the date of birth can be done at the fag end of

service career. It has also been held by the Hon’ble Apex Court that Form-B Register is a Statutory Form which is binding on the parties and any

date of birth mentioned in Statutory Form-B Register has to be taken into consideration.Â

As a cumulative effect of the aforesaid rules, guidelines, legal proposition, I find no merits in the instant writ petition. This writ petition is accordingly

dismissed.Â

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