Mohan Rajwar vs The Bharat Coking Coal Ltd. and Others

Aparesh Kumar Singh, J.

I.A. No. 1727 of 2008

Heard learned counsel for the parties. The petitioner is aggrieved on issuance of letter No. 876 dated 05.07.2006 by the respondent No. 6, the

Project Office, Rajapur, CCP/South Jharia, Kustore Area, BCCL, Dhanbad whereunder his age has illegally been sought to be changed at the fag

end of his service ignoring the original entries of about 20 years back.

It is the case of the petitioner that he was appointed as Auto Electrician on 08.01.1972 at Kustore Area Office of respondent Bharat Coking

Coal Limited. His service excerpts were prepared and age was assessed by the Apex Medical Board being 30 years as on 07.08.1986. The

respondents vide Office Order dated 06.05.1987 duly communicated the a assessed age to the petitioner, Annexure-2. The said date of birth, as

assessed by the Apex Medical Board, was also entered into his service excerpts, identity card and other statutory records being 07.08.1956. The

respondents also confirmed the same by Communication dated 07.04.1988, Annexure-4. Despite such finality, at the fag end of his service he was

subjected to appear before Medical Board in the year 2006. The Medical Board opined his age to be between 55 to 60 years as on 24.04.2006

meaning thereby that date of birth of the petitioner was reassessed to be 24.10.1948 instead of 07.08.1956, Annexure-5. Learned counsel for the

petitioner has assailed the same as being in teeth of the Implementation Instruction No. 76 and is arbitrary and unreasonable at the fag end of

service and contrary to the admitted records being maintained by the respondents themselves on the basis of assessment of his age by an Apex

Medical Board in the year 1986 itself. Learned counsel for the petitioner by relying upon the judgment of the Division Bench of Patna High Court

in the case of Bihar Electricity Board Vs. Bihar Powers Workers Union and Others, submits that where the age of employee have been assessed

between 55 to 60 years by the Apex Medical Board at the fag end of his service, the employee should get benefit of minimum age as assessed by

the Medical Board, which has not been done in the instant case. On the other hand, respondents have assessed the age in the middle of 55 of 60

years as per their wisdom, which is contrary to the judgments of the Division Bench of the Patna High Court in the in the case of Bihar Electricity

Board Vs. Bihar Powers Workers Union and Others, as well as the Division Bench judgment of this Court in the case of Sunder Pandit Vs.

Jharkhand State Electricity Board and Others, .

The ground taken in the counter affidavit on behalf of the respondents is that if the petitioner was allowed to continue at his original date of birth,

he would have continued in service for 44 years which would mean that he had entered in service even before 18 years of age. That is why

reassessment was done and the respondents had adopted the age of employee, arriving average of 55 to 60 years, being 57 and 1/2 years in the

impugned order by which his date of birth has been altered and fixed.

I have heard learned counsel for the parties and have gone through the relevant materials on record. It is not in dispute that original date of birth

entered in the service excerpts, identity card and other official records of the respondents was undertaken on the basis of opinion of Apex Medical

Board fixing his date of birth being 30 years as on 07.08.1986 and being 07.08.1956 by that reckoning. However, further on 24.04.2006, the

respondents once again chose to subject the petitioner for reassessment of age which is ordinarily not permissible in law. However, the petitioner

being an obedient employee subjected himself to such reassessment and the Medical Board found his date of birth to be between 55 to 60 years

as on 24.04.2006. The respondents in their wisdom have chosen to refix the age of employee by arriving at an median of 55 to 60 years being 57

and 1/2 years on 24.04.2006. The judgment of Division Bench of the Patna High Court has laid down the ratio that in such cases the benefit of

uncertainty must always go to the weaker side. For better reference, the judgments of the Division Bench of the Patna High Court in the case of

Bihar Electricity Board Vs. Bihar Powers Workers Union and Others, is being quoted hereinbelow:--

Heard counsel for the parties. The sole grievance of this appeal is with regard to determination of age of the concerned workman. The Medical

Board found him to be between the age of 58 and 60, but the Board pursuant to its circular determined his age to be 59. Reliance has also been

placed upon a judgment of a learned Single Judge of this Court dated 10.02.1998 in C.W.J.C. No. 12864 of 1996 (Bhairo Singh Vs. The Bihar

State Electricity Board & Others) wherein it was held that in such circumstances the Board should accept the average of the minimum and

maximum age determined by the Medical Board. Following this principle, counsel contends that the Board has rightly determined the age of the

concerned workman as 59 years. As against this, there is a judgment of a Division Bench of this Court dated 05-03-1998 in L.P.A. No. 1532 of

1997. The Division Bench held that the employee should get the benefit of lesser age determined by the Medical Board under such circumstances.

Apart from the fact that the learned Judge was bound by the decision of the Division Bench, we also find ourselves in respectful agreement with the

principle laid down by the Division Bench.

We, therefore, overrule the decision dated 10.02.1998 passed in C.W.J.C. No. 12864 of 1996. Counsel submitted that since the decision of

the Board was based on a provision of the Circular issued by the Bihar State Electricity Board, no exception can be taken to the decision of the

Board. In our view, if the Circular of the Board does provide as contended by counsel for the appellant-Board, the Board must take immediate

steps to amend its Circular.

This appeal is, therefore, devoid of merit and it is, accordingly, rejected.

In that view of the matter the respondents are not justified in fixing the age of the petitioner as 57 and 1/2 years. Therefore, the petitioner ought

to have been granted the benefit of his age as 55 years on 24.04.2006 in terras of the ratio laid down by the Division Bench of Patna High Court.

In view of the aforesaid facts and circumstances and the reasons recorded hereinabove, impugned order is quashed The petitioner has, however,

been made to retire on 24.10.2008 itself during the pendency of the writ petition on the basis of his altered date of birth. In that view of the matter,

since by now the petitioner would have reached the date of retirement even after treating his age as 55 years as on 24.04.2006, in the fitness of

thing and to do justice, the respondents are directed to pay 50% of the back wages to the petitioner for the remaining period of his service since he

was made to retire due to wrong fixation of his age as 57 and 1/2 years as on 24.04.2006. The consequential post retirement benefits would also

be revised thereupon within a reasonable time preferably within a period of 12 weeks from the date of receipt of a copy of this order.

Accordingly, this writ petition is allowed in the aforesaid terms. I.A. No. 1727 of 2008 also stands disposed of.