Eastern Coalfields Ltd. vs Sudhamoy Gorai & Ors.

I.P. MUKERJI, J.

I entirely agree with the judgment and order to be pronounced by my sister Amrita Sinha, J. What is crucial is that the respondent has a Higher

Secondary qualification obtained in a supplementary examination in December, 1979. The admit card for that examination recorded his date of birth as

29th June, 1958. When the respondent was employed by the appellant, as trainee in 1982 and permanently from 30th March, 1983, his date of birth

with the appellant was recorded as 29th June, 1958, based on the above evidence.

The conditions of service (Implementation Instruction No.76) of the appellant make it plain that the date of birth of an employee recorded in the

Higher Secondary examination Certificate issued prior to the date of employment should be taken as correct. Furthermore, ordinarily an age dispute

should not be raised by the employer unless there is a glaring mistake in the records.

In this case the respondent’s higher secondary certificate was issued prior to his date of appointment. Therefore, in my opinion, the appellant

wrongly subjected the respondent to an age determination test by the medical board. They had no jurisdiction to do so. This whole exercise was

wrongful, arbitrary and capricious. The date of birth of the respondent has to be accepted as 29th June, 1958. His retirement taking his date of birth as

28th February, 1950 was premature and wrongfully announced and effected by the appellant. He is deemed to have been in service till the date of his

retirement taking his date of birth as 29th June, 1958. The ordering part will be according to the order of Amrita Sinha, J. The appeal is disposed of.

Amrita Sinha, J.

(1) Pursuant to a letter dated 23rd February, 1982 issued by the General Manager Kunustoria Area, Eastern Coalfields Ltd. (a subsidiary of Coal India

Ltd.) the writ petitioner/respondent was offered appointment as General trainee Mazdoor at Parasea Colliery under the Land Looser Scheme. The

writ petitioner/respondent undertook the training and on completion of the same was given permanent appointment on 30.03.1983.

(2) The excerpts of the Service Record/Card of the writ petitioner/respondent recorded his date of birth as 9th June, 1958. The Identity card issued in

favour of the writ petitioner/respondent by the Colliery recorded his date of birth as 29th June, 1958. The writ petitioner/respondent claimed that his

date of birth had been recorded in his service records relying on the date of birth recorded in the admit card issued in his favour by the West Bengal

Board of Secondary Education when he appeared for the Supplementary Higher Secondary Examination in December, 1979.

(3) In 1992 the writ petitioner/respondent was directed to undergo medical test to assess his date of birth. The assessment committee of the Apex

Medical board assessed the age of the writ petitioner/respondent as 42½ years as on 28.08.1992 and recorded his date of birth as 28.02.1950.

(4) A new Identity Card was issued in favour of the writ petitioner/respondent wherein his date of birth was recorded as 28.02.1950 in accordance

with the assessment made by the age assessment committee. The writ petitioner/respondent raised objection to such erroneous recording of his date

of birth, made representations and prayed for correction of the same. The authorities vide their letter dated 20.02.2005 intimated the writ

petitioner/respondent that there was no mistake in recording his date of birth and the same had been recorded as per assessment made by the age

assessment committee.

(5) Being aggrieved the writ petitioner/respondent filed writ petition before this Hon’ble Court being WP No. 15335 (W) of 2005, which was

finally disposed of by order dated 13.07.2015. During pendency of the writ petition the writ petitioner/respondent had been superannuated treating his

date of birth as 28.02.1950.

(6) The learned Single Judge allowed the writ petition by setting aside the recommendation of the Medical Board assessing the date of birth of the writ

petitioner/respondent and directed the authorities to accept the date of birth of the writ petitioner/respondent as recorded in the admit card of Higher

Secondary examination i.e, 29th June, 1958. The writ petitioner/respondent was given liberty to apply for reinstatement and back wages as a

consequence to the order.

(7) Eastern Coalfields Ltd. preferred the instant appeal against the order of the learned Single Judge and vide order dated 7th June, 2016 the

Hon’ble Appeal Court admitted the appeal and passed order of stay of the impugned order till the hearing of appeal.

(8) The sheet anchor of the submission of the learned Advocate appearing for the appellant is that the writ petitioner/respondent was appointed on 6th

March, 1982 as General Mazdoor trainee in Parasea 6 and 7 inclines and subsequently transferred to Parasea O.C.P. on 30th March, 1983. There

was no age recorded in the Last Pay Certificate of Parasea 6 and 7 inclines sent to Parasea OCP. In such circumstances the writ

petitioner/respondent was directed to appear before the Apex Medical Board, for assessment of his age and date of birth. The age assessment

committee assessed the age of the writ petitioner/respondent as 42 ½ years as on 28th August, 1992 and recorded his date of birth as 28th February,

1950.

(9) The learned Advocate further submits that as per Section 48 of the Mines Act, 1952 it is mandatory to fill in the particulars of the employee

relating to his name, father/husband’s name, age, sex, nature of employment etc. The said particulars are maintained in a register as per Rule 77

of the Mines Rules, 1955, and the same are recorded in Form ‘B’ which is treated as the official service record of the employee. As no date of

birth was recorded in the said form ‘B’ of the writ petitioner/respondent accordingly he was directed to appear before the Apex Medical Board

for assessment of his date of birth. The writ petitioner/respondent appeared before the Medical board but did not produce any document in support of

his age. On assessment of his date of birth new photo Identity card was issued in his favour wherein the date of birth as assessed by the age

assessment committee was mentioned. The said fact was made known to the writ petitioner/respondent way back in 1992 and the writ

petitioner/respondent put his signature in the said ‘B’ form and accepted his identity card without raising any objection.

(10) The learned Advocate prays for setting aside the order under appeal on the ground of delay in presenting the writ petition at an extremely belated

stage.

(11) The learned Advocate relied upon the following judgments in support of his case:-

i. Unreported judgment of this Court in Budhan Mondal alias Budhan Chandra Mondal vs. Coal India Ltd. & Ors. (W.P. No. 152 of 2013).

ii. Unreported judgment of this Court in Kangress Pradhan vs. Eastern Coalfields Ltd. & Ors. (F.M.A. 395 of 2005).

iii. Raj Kumar Agarwalla vs. Eastern Coalfields Ltd. & Ors. APO No. 293 of 2012 W.P. No. 119 of 2012. iv. Unreported judgment of this Cour in

Bindeswari Paswan vs. Coal India Ltd. & Ors. F.M.A. 1065 of 2009.

v. G.M. Bharat Coaking Coal Ltd. vs. Shib Kumar Dushad & Ors. reported in (2000) 8 SCC 696.

vi. Unreported judgment of this Court in General Manager Eastern Coalfield Ltd. & Anr vs. Bhagirath Ghosh & Ors. F.M.A. 1356 of 2008.

vii. Burn Standard and Co. Ltd. vs. Dinabandhu Majumdar & Anr. reported in (1995) 4 SCC 172.

viii. Coal India Ltd. & Anr. vs. Ardhendu Bikas Bhattacharjee & Ors. reported in (2005) 12 SCC 201.

(12) Learned Advocate appearing on behalf of the writ petitioner/respondent submits that the excerpts from the service records of the employee

issued in the year 1987 mentioned his date of birth as 9th June, 1958 and his educational qualification had been mentioned as H.S. appeared. The said

entry had been made as per the data mentioned in his admit card issued by the West Bengal Board of Secondary Education when the writ

petitioner/respondent appeared for his Higher Secondary Supplementary Examination in December, 1979. The identity card issued by the appellant in

his favour also recorded his date of birth as 29th June, 1958 and as such there was no reason to direct him to appear before the Apex Medical Board

for assessment of his age and date of birth.

(13) He submitted that Implementation Instruction No. 76 lays down the procedure for determination/verification of the age of employees of the

appellants. As per the said procedure, the age of employees who passed matriculation at the time of appointment is determined on the basis of the

date of birth recorded in the matriculation or equivalent examination certificate.

(14) Implementation Instruction No. 76 relating to the provision for review/determination of the date of birth in respect of existing employees reads as

follows:-

“B) Review/determination of date of birth in respect of existing employees.

i) a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised. 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.

ii) 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 where 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.

iii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the

notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through Age

Determination Committee/Medical Board.â€​

(15) The date of birth of the writ petitioner/respondent being anexisting employee of the appellant could be reviewed/determined only on the basis of

the Higher Secondary certificate issued by the West Bengal Board of Secondary Education and not otherwise as the same had been issued prior to

the date of his employment.

(16) The age determination committee/medical board to be constituted only in case of employees whose date of birth cannot be determined in

accordance with the procedures mentioned therein. But in the present case as the date of birth of the employee is clearly mentioned in the certificate,

i.e., the admit card issued in his favour by the West Bengal Board of Secondary Education, prior to his date of appointment, accordingly there is no

scope and/or reason to review the date of birth of the writ petitioner/respondent.

(17) The learned Advocate submitted that he had produced the admit card as well as the photo identity card of the writ petitioner/respondent before

the learned Single Judge and those were examined by the learned Advocate as well as the representative of the appellant. None of them disputed the

genuinity of the said certificates. The learned Advocate for the appellant also did not dispute the veracity of the excerpts from the service record/card

issued by the appellant in his favour on 29th April, 1987 which had been annexed as Annexure P4 to the writ petition. In view of the fact that the date

of birth of the writ petitioner/respondent had been recorded as 29th June, 1958 in the admit card issued in his favour by the West Bengal Board of

Secondary Education prior to his date of appointment the appellants are liable to be directed to record the date of birth of the writ petitioner/respondent

as per the said entry. He referred to the judgment delivered by this Hon’ble Court in the case of Gadadhar Konar vs Union of India & Ors. 2011

(3) CLJ (Cal) 157 and prayed that the appeal may be dismissed and the order of the learned Trial Judge may be affirmed.

(18) The judgment of Budhan Mondal alias Budhan Chandra Mondal vs. Coal India Ltd. & Ors. (W.P. No. 152 of 2013) supra relied upon by the

learned Advocate appearing on behalf of the appellant in fact helps the cause of the writ petitioner/respondent in as much as the High Court in the

said matter held that the certificate of the West Bengal Board of Secondary Education was an admissible piece of evidence for the purpose of

determination of the age of the employee and more so if the certificate had been issued prior to the date of appointment of the employee.

(19) The proposition laid down in the judgments of Kangress Pradhan, Raj Kumar Agarwalla, G.M. Bharat Coaking Coal Ltd., Bindeswari Paswan,

Burn Standard and Co. Ltd. vs. Dinabandhu Majumdar & Anr. and Coal India Ltd. & Anr. vs. Ardhendu Bikas Bhattacharjee & Ors. (supra) are

settled principles of law that the service records of an employee cannot be sought to be rectified at the fag end of his service career. In the instant

case the writ petitioner/respondent did not approach this court at the fag end of his service career. The writ petition was filed in the year 2005 and the

same was finally decided in the year 2015. The writ petitioner/respondent ought not to suffer for the delay in disposal of the writ petition which

remained pending in this court for ten long years.

(20) In General Manager Eastern Coalfield Ltd. & Anr vs. Bhagirath Ghosh & Ors (supra) this court held that the date of birth recorded in the admit

card could not be accepted as the said admit card was issued after the date of appointment of the employee. Such is not the case at hand where the

admit card had been issued prior to the date of employment of the writ petitioner/respondent.

(21) On the contrary the judgment relied upon by the learned advocate appearing on behalf of the writ petitioner/respondent in the case of Gadadhar

Konar vs Union of India & Ors. 2011 (3) CLJ (Cal) 157 (supra) is quite applicable in the facts of the instant case. Relying on the case of Deepali

Gundu Surwase vs. Krauti Junior Adhyapak Mahavidyalaya (D.Ed) and Others (supra) and Pawan Kumar Agarwala vs General manager â€"II &

Appointing Authority State Bank of India & Ors. 2015 (Supreme) 609 the Learned advocate prayed that full back wages and all benefits to be paid to

the writ petitioner/respondent for the period he was wrongfully out of employment due to erroneous recording of his date of birth.

(22) Upon hearing the rival contentions made on behalf of both the parties and upon perusal of the case records certain undisputed facts emanate

from the same. Firstly, the writ petitioner/respondent was issued an admit card by the West Bengal Board of Secondary Education in December, 1979

mentioning his date of birth as 29th June, 1958. Secondly, the writ petitioner/respondent was appointed as General Mazdoor trainee at Parasea Colliery

under Land Looser Scheme on 6th March, 1982. Thirdly, excerpts from the service record/card issued in favour of the writ petitioner/respondent on

29th April, 1987 by the Eastern Coalfields Ltd. Parasea Colliery mentioned his date of birth as 9th June, 1958. Fourthly, photo identity card was issued

by the Parasea Colliery in favour of the writ petitioner/respondent mentioning his date of birth as 29th June, 1958. Fifthly, the appellant did not dispute

the authenticity of either the admit card or the photo identity card or the excerpts of the service record of the writ petitioner/respondent either before

the learned Single Judge or before this Court.

(23) In view of the above uncontroverted facts, it can be concluded that had the writ petitioner/respondent not produced his admit card before the

appellant then the date of birth could not have been recorded by the Colliery in his photo identity card and his service records. Assuming that the writ

petitioner/respondent did not produce any document in support of his age even then as his year of birth recorded in his service records of 1987

matched that of his admit card accordingly there was no reason to review the age of the writ petitioner/respondent.

(24) The employee in question, being a General Mazdoor relied upon the entries made in the documents issued in his favour by the Colliery and did not

appreciate the reason for assessment of his age by the medical board. The employee in no uncertain terms believed that as he had the prescribed

document in support of his age, accordingly the colliery would maintain proper records and calculate his date of superannuation on the basis of the

same.

(25) It is only when the writ petitioner/respondent appreciated that his date of birth had been erroneously entered in his service records he made

representations before the authority to correct the same. On refusal to carry out the necessary corrections the writ petitioner/respondent approached

this Hon’ble Court in its high prerogative writ jurisdiction.

(26) The learned Trial Judge after careful consideration of the matter and upon examination of the original photo identity card and the original admit

card came to a definite finding that there were no discrepancy in said documents. The learned Trial Judge also recorded that the authorities made no

averments disputing the said documents in their affidavit in opposition. The learned Trial Judge was also satisfied that the admit card had been issued

prior to the date of appointment of the writ petitioner/respondent. On the said backdrop the learned Trial Judge set aside the recommendation of the

medical board and directed the appellant to accept the date of birth as recorded in the admit card of the Higher Secondary examination of the writ

petitioner/respondent. I do not find and reason to interfere with the order of the learned Trial Judge as the same had been passed upon proper

appreciation of the facts as well as upon perusal of the documentary evidence placed before the learned Court.

(27) As the writ petitioner/respondent had already attained his date of superannuation accordingly there is no scope for his reinstatement. The

appellants are directed to correct his date of birth as per the entry made in his admit card issued by the West Bengal Board of Secondary Education

and determine his wages, including increment relating to the period the respondent was not allowed to work and calculate his retirement dues

accordingly. The writ petitioner/respondent is also entitled to receive his back wages including increment so determined for the period he was not

allowed to work due to erroneous recording of his date of birth. The said payment is to be calculated and paid to the writ petitioner/respondent at the

earliest but not later than eight weeks from the date of communication of a certified copy of this order. At the time of calculation of the retiral benefits

the appellants will take into consideration the retiral dues already paid to the writ petitioner/respondent and adjust the same at the time of fresh

calculation in accordance with this judgment.

(28) This appeal is dismissed. No order as to costs.