Eastern Coalfields Ltd vs Mithailal Maurya

Hiranmay Bhattacharyya, J

Eastern Coalfields Limited filed the instant application under Article 226 of the Constitution of India challenging an award dated March 13, 2003 passed by the Central Government Industrial Tribunal, Asansol in a Reference No. 43 of 1999 under Section 10(1) (d) (2A) of the Industrial Disputes Act, 1947.

The workman namely Mithailal Maurya was the pit clerk in the Naba Kajora Colliery. He was a permanent employee of M/s Eastern Coalfields Limited. His date of appointment is December 29, 1969. The workman passed the matriculation examination in the year 1965.

He made a representation before the Management to correct his date of birth in the service record as per the Matriculation Certificate. The date of birth of the workman was recorded in the Matriculation Certificate as 5.5.1950. In the Service Record the date of birth of the workman was recorded as July 1, 1938. The workman raised an objection against the wrong recording of his date of birth in his service record and prayed for correction of his date of birth by accepting the recording of the date of birth in the Matriculation Certificate.

The respondent No. 1 through his Union i.e. the respondent No. 2 herein raised an industrial dispute before the Assistant Labour Commissioner (Central) Raiganj, by a letter dated October 23, 1997 praying for correction of his date of birth by accepting the date of birth recorded in the Matriculation Certificate.

The Assistant Labour Commissioner (Central) Raiganj by a letter dated June 26, 1998 submitted a report before the Secretary to the Government of India, Ministry of Labour that the Conciliation proceedings had failed.

As the conciliation proceedings failed, the Government of India, Ministry of Labour, in exercise of the powers conferred under Section 10 (1) (d) (2A) of the Industrial Disputes Act, 1947 referred the dispute for adjudication by the Central Government Industrial Tribunal, Asansol. The dispute which was referred to before the Tribunal is as follows:

"Whether the action of the management of Madhabpur Colliery of M/s. ECL in not accepting the date of birth of Mithailal Mourya, workman, recorded in Matriculation Certificate as per the provision of NCWA-IV is legal and justified? If not, to what relief is the workman entitled?"

Upon being served with the summons by the Tribunal, both the parties appeared through their respective representatives. The Union i.e. the respondent No. 2 herein filed a written statement on behalf of the workman. Despite several adjournments being granted, no written statement was filed by the management and the case was fixed for exparte hearing by the Tribunal.

The learned Tribunal passed an award dated March 13, 2003 answering the reference in favour of the respondent No. 1 herein upon holding that the workman is entitled to continue in service till the date of superannuation according to Matriculation Certificate and to get all the benefits in the manner he is continuing in service till that date.

Against the aforesaid award dated March 13, 2003 passed by the Tribunal, the petitioner herein has filed the instant writ petition praying for setting aside and/or quashing the order of reference dated April 24, 1999 and the award dated March 13, 2003.

From the Affidavit-of -Service affirmed on August 29, 2019, it appears that the learned Advocate of the petitioner issued a notice dated August 14, 2019 upon the Koyla Majdoor Congress. It also appears therefrom that no notice was issued upon the respondent No. 1 i.e. the workman. It has been stated in the said affidavit-of-Service that the notice was served upon Koyla Majdoor Congress. However, no one appears to oppose the instant writ petition.

Mr. Majumdar, learned Advocate appearing on behalf of the petitioner submits that Section 48 of the Mines Act, 1952 provides that for every mine there shall be kept in the prescribed form and place a register of all persons employed in the mine showing in respect of each of such persons employed various personal details including his age. He further submits that Rule 77 of the Mines Rule, 1955 lays down that the register required by sub-Section (1) of Section 48 shall be maintained in 'Form-B'. He also submits that the respondent No. 1 was fully aware that his date of birth was recorded Burn Standard Company Ltd. And Ors. Vs. Dinabandhu Majumdar and Ors.

as July 1, 1938 in the "Form-B" register. The said respondent for the first time disclosed that he is a Matriculate while filing his service excerpt form in the year 1987 in which he raised an objection as to recording of his date of birth and prayed for correcting the same in terms of the Matriculation Certificate which shows his date of birth as July, 1, 1950. According to Mr. Majumdar, since a prayer for correction of the date of birth was made by the workman at the fag end of his service career, the prayer for correction of the date of birth as recorded in the Matriculation Certificate cannot be accepted by the writ petitioner. He further submitted that the learned Tribunal erred in law by holding that the workman is entitled to continue in service till the date of superannuation according to Matriculation Certificate thereby allowing the prayer for correction of the date of birth without considering that the recording of date of birth in Form B is final. He also submitted that the award of the Learned Tribunal is contrary to the law laid down by the Hon'ble Supreme Court of India in the case of Reported at AIR 1995 SC 1499.

In the written statement filed by the workman before the Tribunal it was specifically stated that the workman raised the dispute before the management several times and also in the year 1987 after receiving the service excerpt with a request that his date of birth should be corrected as per the Matriculation Certificate. It was also stated therein that the management directed the workman to appear before the Age Determination Committee and accordingly the workman appeared and produced his Matriculation Certificate before the Committee and the members of the Committee simply decided to give benefit of further four years service to the workman according to their wish and ultimately the workman was allowed to superannuate on 1st July, 2002.

Since, no written statement was filed by the management before the learned Tribunal the aforesaid statement made on behalf of the workman remains uncontroverted.

The National Coal Wage Agreement-IV, Implementation Instruction No. 37 dated 5.2.1981 was revised and the procedure for determination/verification of the age of the employees and for resolution of disputed cases of service records was laid down in Implementation Instruction No. 76 dated April 25, 1988. It was provided therein that in case of appointees who have passed the matriculation or equivalent examination, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. It was also provided therein that in case of existing employees, Matriculation Certificate or Higher Secondary certificate issued by the recognized University and admit card issued by the aforesaid bodies should be treated as correct provided they were issued by the said University/Boards /Institutions prior to the date of employment.

In the case of Burn Standard (supra) the employee was due to retire on April 24, 1991 on the basis of the date of birth recorded in his Service Record. The employee applied for correction of such date of birth only on February 1, 1989 i.e. a little over two years from the date of his superannuation. After rejecting the prayer for correction, a letter of superannuation was issued on 05.06.1990 which was challenged by the employee by filing a writ petition in the year 1990. The learned Single Judge of the High court allowed the writ petition by issuance of a writ in the nature of Mandamus directing the employer to correct the date of birth of the employee and allowing him to continue in service beyond his superannuation age according to his date of birth entered in the service record at the time of appointment. The employer preferred an appeal against the order passed by the Learned Single Judge which was also dismissed. The employer challenged the order of dismissal of the appeal before the Hon'ble Supreme Court of India.

The Hon'ble Supreme Court allowed the appeal thereby setting aside the judgement of the Division Bench of the High Court on the ground that the High Court failed to exercise its discretion in the matter either judiciously or reasonably. It was further held that even on merits the judgment of the High Court cannot be sustained as matriculation certificate was not produced and only the copy of the duplicate Admit Card was produced. On such facts it was held by the Hon'ble Supreme Court of India that ordinarily the High Courts should not in exercise of its discretionary writ jurisdiction entertain a writ petition for correction of date of birth at the fag end of his service.

However, the Hon'ble Supreme Court in Paragraph 9 of the said Judgment observed as follows:

"No doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality, as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee if forbid correction of such date of birth of employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee, becomes impermissible. However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the Government or its instrumentality, as the case may be, would be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction."

Thus it appears from the aforesaid judgement of Burn Standared (supra) that if the special law or rules governing the service of an employee forbids correction of date of birth of an Employee after its acceptance by the government or            its instrumentality, the subsequent correction of date of birth may become impermissible but in the absence of such prohibition an employee can seek correction of his date of birth declared by him and accepted by the government.

In the instant case the workman raised a dispute before the Management on several occasion even prior to 1987 and also in the year 1987   after receiving the Service excerpt and applied for correction of his date of birth. The workman was allowed to superannuate on 1st July 2002. Thus it cannot be said that the respondent No. 1 applied for such correction at the fag end of his service career and just before his date of superannuation.

Furthermore the workman passed the Matriculation Examination in the year 1965 i.e. prior to his entry in service. As such in terms of Implementation Instruction No. 76, dated April 25, 1988 the Matriculation Certificate produced by the workman has to be treated as correct and the same is to be given effect to by the writ petitioner herein. A photocopy of the said certificate was also produced by the workman before the Tribunal and the writ petitioner herein did not raise any objection with regard to the genuineness of the said certificate before the Tribunal.

The employer did not take any steps to verify the genuineness of the Matriculation Certificate when it was produced by the respondent No.1 before the employer. The said certificate was again produced by the workman before the Tribunal. No written statement was filed by the Management before the tribunal and the genuineness of the said document was also not the matter in issue before the Tribunal. On the other hand, it has not been disputed by the employer/petitioner herein that the members of the Age Determination Committee has given a benefit of four more years of service to the workman and the workman was allowed to superannuate on 1.7.2002 though the workman was due to retire on superannuation with effect from 1.7.1998 as per the date of birth recorded in the service records. Thus, the employer was also satisfied that the date of birth recorded in the service records requires alteration as the same does not depict the correct date of birth of the workman. When the employer also did not act on the basis of the date of birth recorded in the Service records for the purpose of computation of the date of superannuation and allowed the workman to work for four more years, they cannot now turn around and say that the date of birth recorded in the service record cannot be corrected. Thus from the conduct of the writ petitioner it is evident that the date of birth of the workman recorded in the service records requires alteration.

The Implementation Instruction provides that only in cases where the Matriculation Certificate or other authentic documents issued by Universities or Board is not available, the date of birth recorded in Form B will be final. When the Matriculation Certificate is produced by the workman which records his date of birth, the employer cannot refuse to correct the date of birth on the ground that recording in Form B is final.

The Implementation Instruction dated April 25, 1988 also provides that the age disputes pending in the case of employees superannuated on or after 1st July 1987 will be examined in accordance with the revised procedure. Thus no restriction has been imposed in the Instruction for correction of date of birth of an existing employer. On the other hand the said Instruction even permits resolution of age disputes even in case of employees who had superannuated.

In the instant case the application for correction of the date of birth was pending as on the date of issuance of the Implementation Instruction No. 76 and as such there was no embargo to correct the date of birth in the service records.

It is not in dispute in the instant case that the Matriculation Certificate produced by the respondent No.1 was issued prior to the date of employment of the workman. Since the Implementation Instruction No. 76 dated 25.4.1988 provides that a Matriculation Certificate issued prior to the date of employment shall be treated to be correct, the employer has no other alternative but to accept the said certificate to be true and correct when the employer has not produced any document to show that the Matriculation Certificate produced by the workman is not genuine. In absence of any such evidence in its custody, the employer has to accept the date of birth of the respondent No.1 recorded in such certificate to be true and correct as provided in the Implementation Instruction.

The Implementation Instruction permits correction of the date of birth of an employee and also provides that the Matriculation Certificate shall be treated to be correct. In view thereof the submission of Mr. Majumdar that the prayer for correction of the date of birth of the respondent No. 1 herein is to be rejected cannot be accepted.

Since the respondent no. 1 herein applied for correction of his date of birth in the Service Records long prior to the date of superannuation and also produced a valid document in terms of the Implementation Instruction, the principles laid down in Burn Standard (supra) cannot be applied in the instant case as the said decision was rendered in a different set of facts.

The learned Tribunal was thus justified in accepting the date of birth recorded in the Matriculation Certificate to be valid and directing that the workman is entitled to continue his service till the date of superannuation according to Matriculation Certificate and to get all the benefits in the manner he is continuing in service till that date. There is no infirmity and/or illegality in the award passed by the Tribunal. The said award also do not suffer from perversity. As such no interference is called for under Article 226 of the Constitution of India.

The instant writ petition is devoid of any merit and the same is accordingly dismissed without however any order as to costs.

Urgent Photostat certified copy of this order if applied for, be given to the parties on priority basis upon compliance of all formalities.