Gorelal vs South Eastern Coalfields Limited

The petitioner herein has called in question the legality, validity and correctness of order dated 05/07.08.2010 (Annexure-P/1), passed by the respondent No.3, by which the petitioner's date of birth has been determined by the Age Determination Committee (for short “ADC”) pursuant to the direction issued by this Court in WPS No. 2216 of 2009 (Gorelal vs. South Eastern Coalfields Limited and others) decided on 03.05.2010, directing the ADC to determine the correctness of petitioner's age.

The case of the petitioner is that his date of birth is 10.08.1957, but he was served with a notice dated 25.01.2009 by the respondents to retire w.e.f. 31.07.2009, leading to filing of WPS No.2216 of 2009 before this Court on 27.04.2009 questioning the age of petitioner proposed in the aforesaid notice of retirement dated 25.01.2009, in which this Court directed the respondents-SECL to determine the correct age of the petitioner, which has now been decided by impugned order dated 05/07.08.2010 (Annexure-P/1) holding that the petitioner has only filed the document i.e. the Primary School Mark-sheet/Certificate which is not a classified document as per Para (B)(i)(a) of the Implementation Instruction No.76 issued under the National Coal Wage Agreement and the date of birth of the petitioner as recorded in Form-B is in accordance with law, which decision is called in question in this writ petition.

Return has been filed by the respondents-SECL stating, inter-alia, that the date of birth determined by the ADC is in accordance with law and no interference is called for by this Court.

Learned counsel for the petitioner submits that the ADC is absolutely unjustified in holding the age of the petitioner to be 60 years on the date of physical examination and the date of birth ought to have been read as 10.08.1957, which is contrary to law as well as Implementation Instruction No.76 of the National Coal Wage Agreement.

On the other hand, learned counsel appearing for the respondents-SECL supported the impugned order (Annexure-P/1) and prays for dismissal of the writ petition.

I have heard learned counsels for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

In order to consider the plea raised at the Bar, it would be appropriate to notice the relevant provision contained in Implementation Instruction No.76 which is a part of National Coal Wage Agreement III and which provides procedure for determination/verification of the age of the employees, and for resolution of disputed cases of Service Records, framed by the Joint Bipartite Committee for the Coal Industrial of Coal India Limited. In Implementation Instruction No.76, the procedure is divided in two parts, Para (A) provides for Determination of the age at the time of appointment whereas Para (B) provides for Review/determination of date of birth in respect of existing employees. In order to consider the plea raised at the Bar, it would further be appropriate to reproduce Para (A) (ii) which provides for determination of the age at the time of appointment. It reads as follows: -

“ii) Non-matriculates but educated.

In the case of appointees who have pursued studies in a recognised educational institution, the date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances.”

Para (B) of Implementation Instruction No.76 provides for Review/determination of date of birth in respect of existing employees which we are concerned here. Para (B) (i) (a) of the said Instruction reads as follows: -

“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.”

A careful  and  critical  reading  of  Para  (B)(i)(a)  of  Implementation Instruction No.76 would show that in case of existing employees, following documents issued prior to the date of employment shall be treated as correct: -

Matriculation certificate.

Higher Secondary Certificate issued by the recognized University or Board.

Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction.

Admit cards issued by the aforesaid Bodies.

Thus, four kinds of documents are deemed to be correct if they are available and they must have been issued by the said University, Board or Institution prior to the date of employment.

Their Lordships of the Supreme Court in the matter of Eastern Coalfields Limited and others v. Bajrangi Rabidas reported in (2014) 13 SCC 681 noticing the above-stated clause in Implementation Instruction No.76 have clearly held that date of birth recorded in Matriculation or Higher Secondary Examination is to be accepted as authentic.

Way back in the year 2000, in the matter of G.M., Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and others reported in (2000) 8 SCC 696, their Lordships of the Supreme Court held that once enquiry is made by the age determination committee following the procedure laid down in Implementation Instruction No.76 then the scope of interference by the writ court is quite limited and the High Court should not interfere with the date of birth as determined by the employer/SECL and issue a writ of mandamus i.e. claimed by the employee. Paragraphs 17, 18, 19, 20 and 24 of the report read as follows: -

“17. The date of birth of an employee is not only important for employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature. We are constrained to make this observation as we find that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialise, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement of the senior.

At this stage we may take note of certain instructions which were issued by the appellant laying down the procedure for determination/ modification of date of birth of employee. The document is styled as:

"Implementation Instruction No.76 Procedure for Determination Verification of Age of Employees".

Its authenticity is not disputed by the parties. Indeed the respondent employee has filed this document as Annexure R-7 to the counter-affidavit filed in this court. Under para 'A' the manner of determination of age at the time of appointment is laid down. Under para 'B' are laid down the procedures to be followed in cases of determination of date of birth in respect of existing employees. Under sub-para (i) of para 'B' the case of the existing employee having a Matriculation Certificate or Higher Secondary Certificate issued by the recognised University or Board or Middle Form Certificate issued by the Board of Education and/or Department of Public Instruction should be treated as the correct date of birth provided the documents are issued by the University/Board prior to the date of the employment. Under sub-para (i) (b) of para 'B' it is provided that mining sirdarship, wind up engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic. Provided that where both the documents mentioned in (i)(a) and (i)(b) above are available the date of birth in (i)(a) will be treated as authentic. In clause (ii) of para 'B' it is specifically stated that 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 merit of the case will take appropriate steps for corrections through the Age Determination Committee/Medical Board. In 'C', 'D' and 'E' the procedures to be followed by the Age Determination Committee/Medical Board for determination of age of an employee are laid down. The provisions read as follows:

"(C) Age Determination Committee/ Medical Board for the above will be constituted by the management. In the case of employees whose date of birth cannot be determined in accordance with the procedure 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 Record and Identity Cards (untampered) will be treated as final, provided that where there is a nomination 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.

(D)Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or

(E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately."

From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board. Therefore, no fault can be found with the action taken by the appellant to refer the case of the respondent to Medical Board. The Medical Board as laid down in the instructions is to consider the matter on the evidence available with the colliery management and in accordance with the requirement of medical jurisprudence. As noted earlier, in the present case the Medical Board determined the age of the respondent to be 52 years in 1988 and the employer (appellant) accepted such determination. In the circumstances there was hardly any scope for the High Court to interfere with the date of birth as determined by the employer (appellant herein) and issue a writ of Mandamus that the date as claimed by the employee (the respondent herein) should be accepted.

On the analysis and the discussions in the foregoing paragraphs, we have no hesitation to hold that the High Court erred in interfering with the date of birth/age of the respondent as determined by the appellant. Accordingly, the appeal is allowed. The judgment of the Single Judge in Writ Petition No.2717 of 1994 and the judgment of the Division Bench, confirming the judgment of the Single Judge with a modification, are set aside. Writ petition stands dismissed. ...”

The Supreme Court in the matter of Bharat Coking Coal Limited and others v. Shyam Kishore Singh reported in (2020) 3 SCC 411 placing reliance upon its earlier judgment in the matter of State of Madhya Pradesh and others v. Premlal Shrivas reported in (2011) 9 SCC 664 held that even if there is good evidence to establish that the recorded date of birth is clearly erroneous, correction cannot be claimed as a matter of right and held in paragraph 10 as under: -

“10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. v. Premlal Shrivas reported in (2011) 9 SCC 664 it is held as hereunder: (SCC pp. 667 & 669, paras 8 & 12)

“8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (See Union of India v. Harnam Singh reported in (1993) 2 SCC 162 : 1993 SCC (L&S) 375).

* * *

Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were dutybound to correct the clerical error in recording of his date of birth in the service book.”

Similarly, the Supreme Court in Shyam Kishore Singh’s case (supra) as well as in the matter of Eastern Coalfields Limited and others v. Ram Samugh Yadav and others reported in (2020) 3 SCC 421 held that prayer for correction in the date of birth at the fag end of career is totally impermissible.

Reverting to the facts of the present case, finally, in the light of aforesaid legal analysis, it is quite vivid that the question of date of birth is a pure and simple question of fact. The petitioner has failed to bring any document mentioned in the Implementation Instruction No.76 issued under the National Coal Wage Agreement and only brought the document i.e. the mark-sheet/certificate of the Primary School which is not an earmarked document as per Para (B)(i)(a) of the Implementation Instruction No.76. In that view of the matter and in view of the medical evidence, petitioner's age has been held to be 60 years on the date of examination and, not only this, the petitioner entered into service on 25.07.1975 and he for the first time raised dispute regarding incorrect date of birth by filing writ petition before this Court on 27.04.2009 in the first round of litigation i.e. after more than 30 years of continuous service and at the fag end of his service. Raising such a dispute after three decades of induction in service and that too at the fag end of service is highly belated claim, which is ex facie illegal as held by their Lordships of the Supreme Court in Shyam Kishore Singh’s case (supra) and correction of date of birth cannot be claimed as a matter of right as held by their Lordships in Premlal Shrivas’s case (supra) and followed in Shyam Kishore Singh’s case (supra).

In the considered opinion of this Court, the petitioner has failed to make out a case for interference in the date of birth as determined by the Age Determination Committee (ADC) and duly accepted by the respondent-SECL. I do not find any infirmity in the decision making process of the Age Determination Committee (ADC) which is a finding of fact.

As a fallout and consequence of the above-stated discussion, the writ petition deserves to be and is accordingly dismissed, leaving the parties to bear their own cost(s).