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Judgment
Pramath Patnaik, J
In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents for making necessary corrections in all
the relevant records especially NEIS as maintained by respondents wherein the date of birth of the petitioner has been wrongly entered as 18.03.1958
instead of 03.03.1961 as per the matriculation certificate and further prayer has been made for direction upon the respondent to act as per the
policy/guidelines and practice of settlement entered into for resolving the dispute in terms of Implementation Instruction No.76. Â
The factual matrix as has been depicted in the writ application, in a nutshell is that as per the matriculation certificate date of birth of the petitioner
has been recorded as 03.03.1961 and the petitioner passed matriculation in the year 1981 as per Annexure-1 to the writ application and on the basis of
the said certificate the petitioner got employment in the BCCL at Dhanbad in the year 1982 as Minor Loader at Amlabad Project and now the
petitioner is serving as Electric Helper. Though, the petitioner at the time of his services submitted the matriculation certificate before the authorities
but the same was not taken into consideration. The petitioner raised his objection by filing representations regarding the wrong entry made in the
service records as would be evident from the representations dated 14.04.2003 vide Annexure-2 to the writ application. It has been averred in the writ
application that the matriculation certificate is the most authentic document for determination of date of birth of any person including the petitioner and
as per the Implementation Instruction No.76 which envisages with the procedure for determination/verification of the age of employees in specific
clause B-i(a) i.e. “In the case of the existing employees matriculation certificate or 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 card 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†the copy of which is annexed as Annexure-3 to the writ application. Inspite of the relevant provisions since the authorities did not pay
any heed for correction of the date of birth of the petitioner, the petitioner has been constrained to approach this Court under Article 226 of the
Constitution of India for redressal of his grievances. Â
During course of hearing, learned counsel for the petitioner in support of the contention raised in the writ application has strenuously urged that the
action/inaction on the part of the respondents in not considering the matriculation certificate of the petitioner for determination of the date of birth is in
the teeth of Implementation of Instruction No.76 which deals with procedure for determination/verification of age of employees in specific Clause B-
i(a). Learned counsel for the petitioner has vehemently submitted that the respondent authorities are duty bound to ascertain the genuineness of the
matriculation certificate since the petitioner passed the matriculation prior to entering into the services. In support of his contention, learned counsel for
the petitioner has referred to decision reported in W.P.(S) No.5022 of 2009 in the case of Nirmal Kumar Singh Vs. The Bharat Coking Coal Limited,
through its Chairman-cum-Managing Director, Dhanbad & Others which has been affirmed in L.P.A. No.67 of 2015 including payment of salary.
Learned counsel for the petitioner has also referred to W.P.(S) No.454 of 2015 in the case of Sukullah Mian @ Sukrullah Mian Vs. The Bharat
Coking Coal Limited, through its Chairman-cum-Managing Director, Dhanbad & Others. Learned counsel for the petitioner further referred to
decision reported in (2014) 12 SCC 570 in the case of Bharat Coking Coal Limited & Others Vs. Chhota Birsa Uranw and also referred to decision as
reported in 2007 (3) JCR 681 (Kamta Pandey Vs. B.C.C.L. Through Chairman-Cum-Managing Director).
Repudiating the contentions raised in the writ application, a counteraffidavit has been filed on behalf of the respondents wherein it has been
submitted that during the period 1989 to 1992, a form commonly known as service excerpts was circulated directing the employees including the
petitioner to fill up the same and submit it before the department. Accordingly, the petitioner filled up the said form mentioning his date of birth as
18.03.1958 and submitted the same before the department and on the basis of the said entry made in the statutory form i.e. Form-B by the petitioner,
his date of birth was recorded as 18.03.1958 in all service excerpts. On the basis of aforesaid entry made in the statutory record, further entry was
made in all records such as NEIS. It has further been specifically submitted that the petitioner has never made representation before the concerned
authority for correction of his date of birth and for the first time, the petitioner has raised this dispute before the Hon'ble Court by filing of the instant
writ application and at the fag end of services, the petitioner cannot be allowed to raise dispute regarding correction of date of birth recorded in the
service excerpt. Further, it has been submitted that the petitioner comes under the purview of the workman and there is alternative remedy available
to the petitioner to raise his dispute before appropriate forum.
Learned counsel for the respondents apart from reiterating the submissions made in the counter-affidavit has vociferously submitted that if the
petitioner was having the matriculation certificate, the same should have been submitted before the respondent authorities at the first available
opportunity. But the reason best known to the petitioner, the petitioner kept mum for nearly 22 years to raise the dispute regarding wrong entry in the
service book which at this distance of time cannot be accepted, in view of series of the decision of the Hon'ble Apex Court that the date of birth
dispute cannot be entertained at the fag end of service career.
Before adverting to the contentious issues it would be apposite to refer to Implementation Instruction No.76 which being a Bilateral Agreement, is
binding on the respondent-M/s BCCL and the relevant portion is extracted below:-
“(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 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 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.Â
(ii) 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 action for correction through
Determination Committee/Medical Board. (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 records and Identity Cards (untampered) 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.
(D) For determinant of the age, the Committee/Medical Board referred to above may consider the evidences, available with the Colliery Management
and/or adduced before the employee concerned. (E) Medical Board constituted for determination of age will be required to 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.â€
Now the question remains decided as to whether the date of birth mentioned in the Matriculation Certificate will be taken as conclusive proof or the
date of birth mentioned in Form-B Register or the service excerpts be taken as genuine date of birth.
In “Kamta Pandeyâ€, reported in 2007 (3) JCR 681, the Full Bench of this Court held that date of birth of the employee recorded as
Matriculation Certificate is a conclusive proof of the date of birth of an employee. It was further held that Implementation Instruction No.76 which is a
Bilateral Agreement, is binding on the respondent-M/s BCCL.      Â
Clause (i)(a) of the Implementation instruction fortifies the stand of the employee and the said provision has been considered by the Hon'ble Apex
Court in “Chhota Birsa Uranwâ€, reported in (2014) 12 SCC 570 , wherein the Hon'ble Apex Court has inter alia held that the date of birth in the
Certificate issued prior to the date of appointment is arbitrary or genuine. It has further been held that the Hon'ble Apex Court in paragraph-14 of the
said judgment has been pleased to hold that:-
“14. In the present case, the appellant company failed to follow the procedure as laid down in the implementation instruction. It is the
appellant’s omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude
of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of
resources at their command, goes against the grain of equity and duty towards society at large.â€
After hearing the learned counsel for the respective parties and having bestowed my anxious consideration to the rivalized submissions and on
perusal of the documents on records, I am of the considered view that the case of the petitioner needs for reconsideration by the respondents in view
of the Implementation Instruction No.76 as discussed (supra).
As a logical sequitur to the aforesaid reasons and to meet the ends of justice it would be apposite to dispose of the writ application with a direction
to the respondents to consider the certificate issued by the Board prior to date of employment in view of Implementation Instruction No.76 B(i)(a) and
the respondents authorities are further directed to pass appropriate reasoned order in accordance with law taking into consideration the aforesaid
instruction and if the case of the petitioner after due consideration comes within the purview of correction of date of birth, the same shall be done and
date of birth be corrected and thereafter, appropriate order shall be passed for reinstatement in services of the petitioner in accordance with law
hence, the aforesaid exercise shall be completed within a period of eight weeks from the date of receipt/communication of copy of this order.
With the aforesaid direction, the writ petition stands allowed.
In view of the disposal of the writ application, I.A. No.8779 of 2017 also stands disposed of.