Ashoke Kumar Chatterjee vs M/s. Eastern Coalfields Ltd. & Ors

Amrita Sinha, J

The petitioner was an employee of the Eastern Coalfields Limited. He has filed the present writ application praying for correction of his date of birth in his service records. According to the petitioner his correct date of birth is 3rd January, 1961. The petitioner complains that the respondents have erroneously recorded his year of birth in his service records as 1956. According to the petitioner he ought to retire in the year 2021 but in view of the wrong recording of his date of birth he has been made to retire on 1st July, 2016.

In the instant matter by an order dated 29th June, 2016 the court directed that the notice of superannuation will remain stayed till the disposal of the petition. In the event it is discovered that the petitioner's date of birth is as suggested by the petitioner he will continue in employment. If the employer is found to be justified in having issued the notice of superannuation, the petitioner will not be entitled to any benefit after 30th June, 2016. The court further directed that for the period till 12th July 2016 the petitioner will report to the employer but will not undertake any duties. The parties were directed to exchange affidavits and the matter was made returnable on 12th July, 2016.

The court by an order dated 3rd August, 2016 observed that the issue that has arisen for consideration is whether the date of birth of the petitioner disclosed in the identity card or the date of birth recorded in the statutory register maintained under the Mines Act, is to be regarded as correct. After hearing the detailed submissions made on behalf of both the parties the court directed the respondents to constitute an age determination committee/medical board for determination of his age in the manner required by Implementation Instruction no. 76 of the NCWA. The court directed that sincere endeavour shall be made to ascertain the accurate age of the petitioner as on the date of the examination and the report of the committee/board shall be placed in a sealed cover. The court was however pleased to modify the earlier order passed on 29th June, 2016 and directed that the petitioner shall not report for his duty and further observed that if the report of the committee/board is finally found to be favourable to the petitioner he shall not only be entitled to reinstatement in service but also full back wages for the period he has been put off duty by virtue of the notice of superannuation.

In compliance of the order passed by the court the Apex Medical Board of the Eastern Coalfields Limited physically examined the petitioner and the view expressed by the Apex Medical Board was that the approximate age of the petitioner is between 60 and 65 years.

The petitioner is aggrieved by the report of the Apex Medical Board.

The petitioner has annexed documents namely a medical certificate issued by one Dr. B. P. Mohanty on 4th September, 2016 wherein upon skeletal survey the doctor was of the opinion that the petitioner was about 45 to 50 years of age. The petitioner has annexed the out-patient department card issued in his favour by the Sub-Divisional Hospital, Durgapur on 26th December, 2016 where upon skeletal survey of the petitioner the medical officer opined that the age of the petitioner was about 45 to 50 years.

The petitioner being dissatisfied has challenged the report filed by the Apex Medical Board. The petitioner contends that the Apex Medical Board constituted of doctors who were under the control of the employer, Eastern Coalfields Limited and the doctors may have acted as per the dictates of the Company. As the doctors are the employees of the Company they may not be in a position to go against the view of the employer. It has been submitted that the presence of high ranking senior officers of the Company at the time of medical assessment and their signatures in the age assessment report clearly indicate that the report is biased and far from genuine. The petitioner prays before the court for not placing any reliance upon the report filed by the Apex Medical Board.

The petitioner submits that as per the Implementation Instruction no. 76 the employer ought to record the date of birth of the employee in accordance with the school leaving certificate which was issued in his favour. He submits that as the petitioner appeared in the Matriculation Examination but failed in the same the date of birth as recorded in the admit card of the said examination ought to be taken as correct date of birth.

The petitioner also submits that the date of birth of his full blooded elder brother who is also an employee of the Eastern Coalfields Limited is 22nd February, 1956 whereas his date of birth has been recorded as July, 1956 which is practically impossible. The employer has released the terminal benefits of his elder brother taking his date of birth as 22nd February, 1956 and accordingly his date of birth under any stretch of imagination cannot be July, 1956.

The petitioner relies upon the decision delivered by the Hon'ble Supreme Court in the matter of M/s. Bharat Coking Coal Ltd. & Ors. -vs- Chhota Birsa Uranw reported in AIR 2014 SC 975 wherein the court held that the school leaving certificate issued after joining the service but on the basis of school records available long before cannot be put out of consideration.

The petitioner also relies upon the judgment delivered by the Full Bench of the Jharkhand High Court in the matter of Kamta Pandey -vs- M/s. BCCL & Ors. reported in 2008 LAB I C 2677 (paragraph 29) wherein the Implementation Instruction no. 76 was taken into consideration by the court and the court held that 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 the Implementation Instruction no. 76 of NCWA.

The petitioner further relies upon the decision delivered by the Hon'ble Division Bench of this court in the matter of Gadadhar Konar -vs- Union of India & Ors. reported in 2011(3) CLJ (Cal) 157 wherein the court was of the opinion that the school leaving certificate issued by the headmaster of the school on the basis of the admission register should have been considered as conclusive proof of age of the employee.

The petitioner also relies upon an unreported judgment delivered by a learned Single Judge of this court on 1st May, 2018 in WP 25544 (W) of 2017 in the matter of Girish Deo Majhi -vs- M/s. Eastern Coalfields Limited & Ors. wherein the court directed the respondents to accept the opinion of the Durgapur State Government Hospital as well as the opinion of the medical board constituted pursuant to the direction of the court.

The petitioner prays for a direction upon the respondents to rectify his date of birth in accordance with the opinion given by the State General Hospital, Durgapur.

The learned senior advocate representing the respondents submits that the medical certificate relied upon by the petitioner in support of his age is blatantly incorrect. He draws the attention of this court to the medical certificate issued in his favour by Dr. B. P. Mohanty and by the Sub-Divisional Hospital, Durgapur wherein the age of the petitioner has been assessed as 45 to 50 years. The learned advocate has drawn attention of the court to the age assessment report of the Apex Medical Board wherein the age of the eldest daughter of the petitioner has been mentioned as 30 years.

It has been submitted that if the age of the petitioner is calculated on the basis of the age as assessed by the Dr. Mohanty and the Sub-Divisional Hospital, Durgapur then the petitioner must have been a minor at the time of his appointment.

The respondents submit that the petitioner was appointed in the year 1980 whereas the admit card relied upon by the petitioner indicates that he appeared in the Madhyamik examination in the year 1981. As per the Implementation Instruction no. 76 the entries made in the educational certificate issued by the Board of Secondary Education prior to the date of employment is to be treated as correct, accordingly, no reliance can be placed on the admit card issued in the year 1981, that is, after the date of appointment of the petitioner in the year 1980.

It has been submitted that the Apex Medical Board has assessed the age of the petitioner as between 60 to 65 years. The employer is bound by the decision given by the Apex Medical Board.

The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of State of Tamil Nadu -vs- T. V. Venugopalam reported in (1994) 6 SCC 302 wherein the court was of the view that the government servant having declared his date of birth as entered in the service register to be correct would not be permitted at the end of his service career to raise a dispute as regards correctness of the entries in the service register.

The respondents also rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of G. M. Bharat Coking Coal Ltd., West Bengal - vs- Shiv Kumar Dushad & Ors. reported in AIR 2001 SC 72 wherein the court held that there was hardly any scope for the High Court to interfere with the date of birth as determined by the employer following the procedure prescribed under service rules or General Instructions issued by the employer.

The respondents pray for dismissal of the writ petition.

I have heard the submissions made on behalf of both the parties.

In my opinion, the scope of the writ petition at this stage is extremely limited in as much as after detailed hearing of the matter the court by an order dated 3rd August, 2016 directed the respondents to constitute an age determination committee/medical board for assessment of the age of the petitioner in accordance with the Implementation Instruction no. 76. The parties accepted the said order and acted in accordance with the same. The Apex Medical Board physically examined the petitioner and was of the opinion that the age of the petitioner will be between 60 to 65 years.

The petitioner being aggrieved with the age assessment report of the Apex Medical Board ought to have challenged the same in a fresh proceeding and not by way of an affidavit. By filing an exception to the report of the Apex Medical Board the petitioner has tried to extend the scope of the writ petition which ought not to have been done.

Nevertheless, since the petitioner was given liberty to file exception to the report by way of affidavit the issue is considered and decided on merits.

The sheet anchor of the petitioner's contention in support of his age is the entries made in the documents allegedly issued in his favour by the educational institution namely his school leaving/character certificate dated 4th March, 2016 (page 28 of the writ petition), certificate issued by the headmaster of the school in his favour on 23rd April, 2016 (page 29 of the writ petition) and the admit card issued in his favour by the West Bengal Board of Secondary Education (page 27 of the writ petition) wherein his date of birth has been recorded as 3rd January, 1961.

On a close perusal of the aforesaid three documents it appears that the headmaster of the school in the certificate dated 23th April, 2016 certifies that the petitioner was a bona fide student of class-X in the year 1979. He appeared in the Madhyamik examination in the year 1979 and failed and he again appeared in the Madhyamik examination in the year 1980.

The school leaving/character certificate issued by the same headmaster on 4th March, 2016 mentions that the petitioner was a bona fide student of class-IX in the year 1977. The portion where it is mentioned that he appeared/passed/failed in the Madhyamik examination has been struck off which indicates that the petitioner never appeared as the candidate of the school in the Madhyamik examination.

The admit card issued by the West Bengal Board of Secondary Education at page 27 of the writ petition is for the year 1981. The petitioner has not annexed any document to show that he appeared in the Madhyamik examination in the year 1979 and 1980 as mentioned in the certificate of the headmaster at page 29 of the writ petition. The headmaster curiously does not certify that the petitioner appeared in the Madhyamik examination in the year 1981. He only mentions about class-IX in the year 1977 and the Madhyamik examination for the years 1979 and 1980.

The petitioner has not come up with any other contemporaneous document in support of his date of birth. As the educational certificates relied upon by the petitioner is apparently contradictory to each other, no reliance can be placed on the same.

The next document which the petitioner relies upon are the medical certificates one of which has been issued in his favour by one Dr. B. P. Mohanty on 4th September, 2016 and the other by the medical officer, Sub-Divisional Hospital, Durgapur on 26th September, 2016. Both the doctors, on skeletal survey, certify that the assessed age of the petitioner is about 45 to 50 years.

Before the Government hospital the petitioner has himself declared his age as 54 years (at page 13 of the affidavit of exception) whereas the certificate issued by the medical officer mentions the age of the petitioner as 45 to 50 years. Accordingly the certificate of the medical officer of the Sub-Divisional Hospital, Durgapur and the certificate issued by Dr. B. P. Mohanty are erroneous at the face if it and cannot be relied upon.

Before the Apex Medical Board on 24th August, 2016 the petitioner voluntarily declared his age as fifty five years six months and his wife's age as 48 years, i.e his wife is seven years younger to him. He declared that he was married at the age of 24 years. The age of his eldest daughter is 30 years. Arithmetical calculation will reveal that the age of the petitioner as disclosed by him will be approximately 24 + 30 = 54 years + 10 months 10 days gestation period = 54 years 10 months.

Assuming that the age assessed by the medical officer of the Sub-Divisional Hospital, Durgapur is correct then the age of the petitioner in December, 2016 is 45 to 50 years and the age of his daughter is 30 years. i.e the age difference between the father and the daughter is fifteen years. By simple mathematical calculation it means that the petitioner gave birth to his daughter when he was 15 years or at best 20 years of age and at the time of birth of the child his wife was 15-7= 8 years or 20-7= 13 years. The petitioner has declared that he was married at the age of 24 years which means that the age assessed by the medical officer and the private doctor is absurd and absolutely improbable.

If the age of the petitioner mentioned in the two certificates is taken as correct then by mathematical calculation the date of birth of the petitioner will be either 1971 (2016 - 45 = 1971) or 1966 (2016 - 50 = 1966), whereas the petitioner himself disclosed that his year of birth is 1961, which means that the said certificates cannot be relied upon. The figures hereinabove indicates that the petitioner time and again has tried to change and amend his date of birth as per his convenience.

The respondents have annexed the service register of the petitioner wherein his year of birth has been mentioned as 1956. The petitioner has collected his provident fund dues in the year 2001 wherein his date of birth has been recorded as 1st July, 1956. The petitioner has also filled up the nomination form in the year 2003 wherein his date of birth has been recorded as 1st July, 1956. The petitioner has signed both the documents without raising any objection with regard to the wrong recording of his date of birth.

At the fag end of his service career he has come up with the plea that the date of birth recorded in his identity card should be taken as correct. The identity card which the petitioner is relying upon, annexed at page 27 of the writ petition, mentions the date of appointment of the petitioner as 8th October, 1978 whereas the petitioner has himself averred that appointment letter was issued in his favour on 1st April, 1980. From the copy of the appointment letter annexed at page 21 of the writ petition it appears that appointment was given to the petitioner under the Land Loser Scheme pursuant to his interview taken on 27th March, 1980.

It is evident that the date of appointment has been incorrectly mentioned in the identity card which was issued in his favour by the Company in the year 2006.

In Chhota Birsa (supra) the employee raised the issue of erroneous recording of the date of birth, date of joining, father's name and permanent address. The employer corrected the date of joining, father's name and permanent address but did not rectify the date of birth. The court, while deciding the issue took note of the order passed by the court in the matter of Secretary and Commissioner, Home Department -vs- R. Kuruba Karan reported in AIR 1993 SC 2647 and held that unless a clear case on the basis of materials which can be held to be conclusive in nature is made out, the court should not issue a direction on the basis of materials which make such claim only plausible. Before any such direction is issued the court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of the date of birth has been made in accordance with the procedure prescribed. Whenever any such issue arises the onus is on the employee to prove the wrong recording of his date of birth. The court in the case of Chhota Birsa (supra) recorded that the dispute was not raised at the fag end of the career and it was raised almost two decades prior to his superannuation when he first came to know the discrepancy. It was under such circumstances that the court directed for correction of the erroneous recording of the date of birth.

The facts of Chhota Birsa (supra) are distinguishable from the facts of the case at hand. In the instant case the petitioner has approached the court after receiving his notice of superannuation, just days before being superannuated. The petitioner has failed to come up with any evidence far less substantial evidence in support of his date of birth. Accordingly, the direction given in the case of Chhota Birsa cannot be passed in favour of the petitioner.

In Kamta Pandey (supra) the court held that the date of birth recorded in the Matriculation certificate duly authenticated should alone be treated as exclusive proof of age. In the instant case the petitioner does not have any Matriculation certificate and accordingly the claim of the petitioner for correction of his date of birth on the basis of his educational certificates fails. The entries in the admit card issued in favour of the petitioner for appearing in the Matriculation examination for the year 1981 does not tally with the figures mentioned in the certificates issued in his favour by his school. In view of such discrepancy the same cannot be relied upon. Moreover the said admit card was issued in the year 1981 i.e, after the petitioner joined service in the year 1980.

In the case of Gadadhar Konar (supra) the actual date of birth of the petitioner was recorded in his service record but the Company sought to change the same on the basis of the medical report. Such is not the case at hand, where the employer intends to follow and rely on the date of birth which is recorded in the service records of the petitioner.

In Girish Deo Majhi (supra) the court directed the respondents to accept the opinion of the Durgapur State Government Hospital as well as the opinion of the medical board constituted pursuant to the direction of the court. In the instant case the mathematical calculation mentioned hereinabove will show that the certificates relied upon by the petitioner allegedly issued by the private doctor and the medical officer of the Sub-Divisional Hospital, Durgapur are a practical impossibility and accordingly the age assessed by the Apex Medical Board has to be taken as true and correct.

The petitioner apprehends bias due to the presence of the senior officers of the Company in the Apex Medical Board. The certificate issued by the Apex Medical Board annexed at page 11 of the affidavit of exception shows that the same was signed by the C.M.S (Orthopaedic), the Deputy Chief Medical Officer (Special Radiology), the Deputy Chief Medical Officer (Eye)(SPL) as well as the Deputy Chief Medical Officer of the Company. The identity of the petitioner was certified by the senior officer of the colliery. The petitioner has not given any specific instance of bias and there is nothing to show that the Apex Medical Board was influenced by the presence of the high ranking officers. The allegation of bias is not substantiated at all.

Lastly, the petitioner cannot take any advantage of the recording of the date of birth of his brother in his service records. The brother of the petitioner is not a party in the instant writ petition and the court is not minded in conducting a roving inquiry on the said issue. As and when specific complaint or allegation is made the same will be considered in accordance with law. For the time being, the petitioner cannot rely upon the age of his brother for the purpose of assessment of his age.

In view of the above, the contention of the petitioner that the report of the Apex Medical Board cannot be relied upon on account of bias is not acceptable to the court. The prayer of the petitioner for correction of his age relying upon his educational certificates is rejected. The respondent Company is directed to record the date of birth of the petitioner strictly in accordance with the age assessed by the Apex Medical Board.

The respondents shall make the necessary correction in the service records of the petitioner and take necessary consequential steps for releasing his terminal benefits within a period of three months from the date of communication of a copy of this order.

W.P No. 471 of 2016 is disposed of.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.