CHANDRESHWAR RAI vs WESTERN COAL FIELD LTD. & OTHERS

This is second round of litigation between the parties. The petitioner is claiming that his date of birth is 02.01.1955, whereas, as per employer, his date of birth is 01.07.1953. Learned counsel for the petitioner submits that statutory certificate issued under Mines Act, 1952 (Annexure-P/6) issued on 27.01.1980, contains the date of birth as 02.01.1955. Thus, this date of birth should be treated as final. For this purpose, reliance is placed on the order passed in the earlier round i.e., in W.P. No.10770/2012, decided on 28.01.2013. Mr. Chand, learned counsel for the petitioner submits that this Court in clear terms held that petitioner is in possession of the document which falls within the ambit of Clause B(i)(a) & (b). Thus it is obligatory for the respondents to consider the claim of the petitioner in accordance therewith. Accordingly, petition was disposed of with the direction to the respondents to consider the case of the petitioner in accordance with Clause B of Implementation

Instruction No.76 (II No.76). Mr. Rajesh Chand, learned counsel for the petitioner further submits that since petitioner''s case is covered by Clause B of the II No.76, there was no question of sending petitioner''s case to the age determination committee. It is submitted that the date of birth mentioned in certificate (Annexure-P/6) should be accepted and should be treated as final. The respondents have committed an error in constituting an age determination committee for determining the date of birth of the petitioner.

Per contra, Mr. Anoop Nair, learned counsel for the respondents/employer placed reliance on Clause B(i)(b) of the II No.76. Mr. Nair, submits that Clause (b) makes it clear that only such statutory certificate issued under the Mines Act, can be accepted where the date of birth is certified by the Mining Manager. By taking this Court to the Mining Sirdar''s Certificate (Annexure-P/6). Learned counsel for the employer submits that the said certificate was issued by Director General of Mines Safety and it was not issued by Mining Manager. Hence, the said certificate is of no assistance to the petitioner. By relying on the order passed by this Court in W.P. No.3307/2013 [Shiv Prasad vs. WCL], Mr. Nair, submits that there is no flaw in the decision making process. The respondents have acted in accordance with the method prescribed in II No.76. If petitioner is aggrieved by the findings of age determination committee, the remedy is elsewhere. Reliance is placed on 2015 (3) MPLJ 226 [ Rameshwar Prasad Pathak vs. South Eastern Coalfields Ltd. & others ], in the said case this Court came to hold that writ petition is not maintainable and petitioner can avail remedy under the Industrial Disputes Act, 1947.

In rejoinder submissions Mr. Rajesh Chand, learned counsel for the petitioner submits that petition was amended and Para No.5.18-B was inserted way back in the year 2013. The petitioner made it clear that as per the established procedure and statutory form it must be filled up by the department which must contain signature of the concerned Mines Manager. This form is pregnant with necessary information including date of birth of the workman. This form which contains signature of Mines Manager is forwarded to the concerned statutory authority who, in turn issued certificate like one filed in this petition as Annexure-P/6, namely "Sirdar''s Certificate". Mr. Nair submits that it is a general statement and petitioner has not come forward with specific pleadings that such a course was adopted in the petitioner''s case. This bald pleading is of no assistance to the present petitioner.

No other point has been pressed by the learned counsel for the parties.

I have heard the parties at length and perused the record.

Before dealing with rival contentions it is apt to quote relevant portion of II No.76:

"(B) Review determination of date of birth in respect of existing employees:

(i) (a) In the case of the existing employee "Matriculation Certificate of Higher Secondary Certificate issued by the recognized Universities or 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 Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic. Provided that were 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) ........... (C) Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employee whose date of birth cannot be determined in accordance with the propriety 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, CMPF Records and Identity Cards (untempered), 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 determination of age." [Emphasis Supplied]

In the first round, the petitioner has placed heavy reliance on the very same certificate. This Court opined as under: "Since the petitioner is in possession of the document which finds mention in clause B (i) (a) & (b), incumbent it is for the respondents to consider the claim of the petitioner in accordance therewith. The respondents cannot shirk their liability. In view whereof, the petition is disposed of with the directions to consider the case of petitioner in accordance with clause B of Implementation Instructions No.76 and the documents relied upon by the petitioner and pass an order within three months from the date of communication of this order.

The petition is finally disposed of in above terms. No cost." [Emphasis Supplied]

A plain reading of the order of this Court makes it clear that curtains are finally drawn on the issue by holding that the petitioner posses a document which finds mention in Clause B(i)(a) & (b). In other words, in absence of any further challenge to this order passed in W.P. No.10770/2012, in the second round, between the same parties, it cannot be held that the said document does not fall within the ambit of Clause B(i)(a) & (b). In this view of finding, I am constrained to hold that the mining certificate (Annexure-P/6) relied upon by the petitioner must be treated to be a certificate within the meaning of Clause B (i)(a) & (b) of the II No.76. Apart form this, I find substance in the argument of Mr. Rajesh Chand, learned counsel for the petitioner that as per statutory form prescribed under the Mines Act, the employer is required to fill-up the details and provide it to the competent authority who, in turn, may issue Mining Sirdar Certificate. The statutory form on the bottom of it provides that it is required to be signed by Mines Manager. The employer is the custodian of service records and other information related to the workmen/employee. On the basis of information so furnished in the prescribed form, the ultimate Mining Sirdar Certificate is issued by the competent authority. In my view, when it is established that for issuing a Sirdar Certificate the necessary information is provided through the prescribed form by the employer, whether or not it is specifically pleaded that in petitioner''s case also the same procedure is being followed, it will not make any difference. Putting it differently, once

statute prescribed things to be done in a particular manner i.e., by providing information by the employer in statutory form which contains signature of Mines Manager it can be safely presumed and concluded in the case of petitioner also that such information must have been provided by the employer in the prescribed form which was pregnant with the signature of Mines Manager. Thus, the certificate (Annexure- P/6) is a document on the strength of which petitioner''s date of birth should be ascertain and finalized. At the cost of repetition, in my view in this second round of litigation, this Court cannot travel behind and beyond the order passed in the first round which, in absence of any further challenge, had attained finality.

The matter may be viewed from another angle. In ultimate directions in the earlier round, this Court directed the respondents to consider the case of petitioner in accordance with Clause B of II No.76 and documents relied by the petitioner and an order be passed. The Clause B of II No.76 shows that when age/date of birth of an employee can be determine on the basis of Mining Sirdarship Certificate, the said date of birth recorded therein shall be treated as authenticate. This Court did not permit the employer to take recourse of Clause C which permits the employer to constitute an age determination committee. Thus, the question of taking recourse of Clause C did not arise.

Apart from this, Clause C makes it crystal clear that where date of birth cannot be determined as per Clause B and there exists variation in date of birth recorded in Form B, CMPF records and Identity Card, the employer may constitute

an age determination committee. As noticed, in the present case, the date of birth of the petitioner can be determined by the Mining Sirdarship Certificate (Annexure-P/6). Thus, I find force in the argument of Mr. Rajesh Chand, learned counsel for the petitioner that respondents had committed an error in referring the case of the petitioner to the age determination committee. Mr. Anoop Nair, learned counsel for the respondent/employer although relied on certain judgments mentioned herein above, since clear finding has been given in the first round litigation, in this round the said judgments are of no assistance to respondent/employer.

Resultantly, order passed by age determination committee and consequential order dated 13.06.2013 & 17.07.2013 are set aside. The retirement notice dated 01.12.2012 is also set aside. The respondents shall treat the date of birth mentioned in the certificate (Annexure-P/6) as final and authentic for all purposes. Respondents shall treat the petitioner as retired on the basis of said date of birth (02.01.1955). The petitioner shall get all consequential benefits arising thereto.

Petition is allowed.