Lakhan Sao vs Jharkhand State Electricity Board and Others

Vikramaditya Prasad, J.—The question to be answered in this writ application is whether it was legal on the part of the respondents to make the petitioner retire from service with effect from 31.12.1996, treating him to have attained the age of 58 years, when in the service book of the petitioner, his date of birth was shown as 20.12.1955, on the basis of the medical certificate?

The petitioner was appointed as temporary unskilled Khalasi on 16.12.1977. The service, book Annexure-6, which was opened on 10.1.1981, records his date of birth as 20.12.1955 (it also shows that date of birth as per the certificate given by the Doctor, Patratu Thermal Power Station, where the petitioner was posted), besides it also shows another date within bracket and 10.12. (alleged interpolation) outside the bracket and this alleged interpolation has led to this controversy.

The case of the petitioner is that subsequently in Form I of Provident Fund Form, Annexure-2, filed for nomination of the Provident Fund amount, his date of birth was recorded as 20.12.1955. On perusal of this annexure, it transpires that this form was also filed on 31.7.1981. Annexure- 1 is the medical certificate issued by the Medical Officer, PTPS, P.O. PTPS, Hazaribagh, on 20.12.1977. This is a photocopy of the original medical certificate. According to the petitioner, it was issued on 20.12.1977. This bears the LTI and the signature of the petitioner. By Annexure-3, which was an order issued on 6.10.1997 by the Electrical Executive Engineer of the respondent-Board, the petitioner was informed that the Board has determined his date of birth as 20.12.1936 and consequently, he is being treated to have been retired from service with effect from 31.12.1996. Annexure-4 shows that a Board was constituted to determine the date of birth of various employees and in that at Sl. No. 13, the name of the petitioner appears and against his name, the following is recorded :--

"The date of birth Sri Sao will be verified from Patratu."

This letter was issued in the year 1994. Annexure-5 is a letter issued by the Secretary of the Board to all the Electrical Superintending Engineers with regard to the disputes in the date of birth, the name of the petitioner finds place at Sl. No. 8, which reads as follows :--

"His date of birth has been recorded as 20.12.1936 after overwriting. The figure ''36'' is overwritten. Besides this in the bracket another date of birth as 20.12.1955 is written on the basis of the Medical Certificate issued by Medical Officer, PTPS. But there is no documentary proof in respect of date of birth available in the service book. The date of appointment is 16.12.1977 and the service book was opened on 10.1.1981.

His date of birth is determined as 20.12.1936. Electrical Superintending Engineer should send a report indicating the name who has entered the date of birth as 20.12.1955 in the bracket.

Then the Union took up the matter of the petitioner, Annexure-8. By Annexure-7, the petitioner informed the authorities, enclosing the photocopies of the medical certificate that on 20.12.1977, the age of the petitioner was determined to be 22 years by the Doctor, consequently, he averred that as due to overwriting in the service book arid treating it to be 1936, he has been retired; therefore, he should be reinstated. By Annexure-9, the Electrical Executive Engineer forwarded the union''s protest as also the letter of petitioner to the Superintending Engineer. By Annexure-10, he was informed that the petitioner to appear before the Secretary of the Board on 1.6.1998 along with Annexure-1 but the claim of the petitioner was not accepted and he was superannuated with effect from 31.12.1996, which, according to the petitioner, is against law.

The respondents have appeared and filed counter-affidavit. In para 8 and 9 of the counter-affidavit, the respondents have attributed the discrepancy occurring in the service book to the mal-practice adopted in the Field Offices. The respondents have also referred to Section 52 of the Bihar Service Code and Clause 4 (b) of the Certified Standing Order with regard to the medical certificate required to be submitted at the time of appointment and in para 15, it has been averred that at the time of appointment, i.e. on 16.12.1977, the date of birth of the petitioner was recorded as 16.12.1936. It has also been averred in para 11 that there is no justification of recording 20.12.1955 in the bracket against the recorded date of birth as 20.12.1936 in the service book in original.

Rule 52 of the Bihar Service Code read with Clause 96 of the Bihar Financial Rules, 1980, provides that in the service book, the date of birth will be given. Rule 97 (2) of the Financial Rules provides that if an employee is able to state his proximate age, his date of birth may be to the corresponding date after deducting the number of years representing his age from his date of appointment.

Bihar Service Code provides that though the service book will be kept in the custody of the Head of the Department but in case of the non-gazetted employees, the service book shall be transferred where the employee has been transferred. It also provides that at regular intervals, the service book shall be verified. In view of these provisions, which are also not controverted by the respondents because they have also relied upon the provisions of the Bihar Service Code as the service book is to be kept under the custody of the head of the department or head office where the employee is transferred, then obvious it is that the service book is in custody of the employer. so, if any interpolation is there the employee cannot be squarely blamed, but the question is if the employee is benefited by that interpolation, then it may be presumed that it is he who or on his behest interpolation was done. In this context, the date given in the bracket is to be examined. As stated earlier, the respondents have stated that there was no justification for mentioning the date of birth in the bracket. I agree with the view of the respondents that there was no justification of writing it in bracket and that speaks against the petitioner because the date written in the bracket is beneficial to the petitioner as against the interpolated date. Now, the other possibility is that the correct date is 20.12.1955 which is there in the bracket and somebody put up a new date ay 20.12.1936 one side of the bracket-it is a manipulation, which of the two is manipulated is a disputed question of fact. If the medical certificate is not in the service book, which is in custody of the respondents and the petitioner is producing photocopy thereof, then also there can be no presumption that the petitioner also possesses the original, which is a cause made out by the respondents. It is just, possible that the petitioner had kept the photocopy of the medical certificate.

Obviously the matter is a disputed one. It is found that the interpolation has by any expert. The view of the respondents that the petitioner is very old, his shriveled body and his inability to writ the names of his 7 children showed them that he was not only too old but also mentally unsound and very weak, is a subjective finding and cannot take place of documentary proof of age.

Therefore, in the aforesaid circumstances, as the disputed question of facts are there, the writ application is dismissed with the directions that the respondent Board (i) should get the petitioner scientifically examined by a Medical Board for determination of his age and (ii) the petitioner shall produce all the relevant documents such as voter list, if any ration card and such other documents, which incidentally record the approximate age to the Secretary of the Board and thereafter, on the basis of the Scientific Determination of age and other documents, if prodved?, and it is found that the petitioner''s date of birth is some where near the date of birth as claimed by him, he shall be reinstated, but if there is big and appreciable departure, then he shall be given no relief. These much be completed within two months from the date of receipt/ production of copy of this judgment by or before the Secretary.