M/s. Eastern Coalfield Ltd. vs Mulchand Yadav and Others

Syamal Kanti Chakrabarti, J.—The present appeal is directed against judgment and order dated 05.02.2010 read with order dated 01.03.2010 passed by learned single Bench of this Hon''ble Court In Writ Petition No. 478 of 2009. By the said order the Hon''ble single Judge has in substance allowed the prayer of the petitioner for correction of his date of birth from 01.07.1949 to 07.10.1956 and set aside the notice of superannuation dated 21.04.2009 issued against the writ petitioner on the basis of his earlier recorded date of birth as 1st July, 1949. The Hon''ble single Judge was also pleased to direct that the writ petitioner be forthwith reinstated as ''pit clerk'' as before and will be entitled to work as such at the colliery belonging to the respondent employer as before. He will, however, retire from service on the basis of his corrected date of birth as 1st July, 1956 upon attaining the age of superannuation and will also be entitled to receive arrear salary for the period from 1st July, 2009 till his reinstatement in service in terms of the aforesaid order. It was further directed that such arrear salary has to be paid positively within a period of three weeks from the date of communication of the order and reinstatement of the writ petitioner made by the employer Eastern Coalfields Limited positively within two weeks from the date of communication of the order, if not earlier. Being aggrieved by and dissatisfied with such order the instant appeal has been preferred by the respondent/appellant. M/s. Eastern Coalfields Limited contending inter alia, that the writ petitioner is a ''workman'' u/s 2(s) of the Industrial Disputes Act which provides prescribed mode for redressal of grievances and as such the instant writ petition is not maintainable in law. It is further contended that at the time of initial appointment on 08.05.1972 the writ petitioner has declared his age as 24 years. In course of his reappointment on 03.06.1982 he declared his year of birth as 1949 and the said date of birth has been duly recorded in all the statutory records like Form B Register as per Mines Act, 1952 and Rules framed thereunder. The writ petitioner endorsed all such records with his LTI without any objection. The first record of this employee was also not duly considered by the learned trial Judge. In fact, for his misconduct the petitioner was earlier dismissed on 27.02.1982 and was subsequently reinstated in service on 03.06.1982 and transferred to Pandabeswar Colliery. It is further contended that on 13th April, 1987 Important Service Excerpt was issued by the Agent/Manager of the colliery with counter signature of Senior Personnel Officer/ Welfare Officer. At that time also the writ petitioner did not raise any objection. As per sections 17(1) and 18 of the Mines Act, 1952 the Manager /Agent is the sole authority in case of affairs of the mines. In fact, the writ petitioner fraudulently procured the second Important Service Excerpt dated 03.06.1988 without signature of the Manager/Agent which is still blank and as such the said document has no legal value whatsoever. The petitioner was asked to submit his matriculation certificate or any other authentic document in support of his date of birth on 5th February, 2009 and 15/16th May, 2009 respectively by the appellants but he did not give any reply. The petitioner has submitted one School Leaving Certificate dated 20.02.2009 without disclosing the name of the school and as such the said document is invalid. Learned trial Judge has also not considered the actual date of birth of the writ petitioner and wrongly accepted his claim of date of birth as 7th October, 1956. This would be a negation of truth and at the time of his appointment on 01.12.1972 his age would be 16 years 2 months and he was a minor disentitling him to be appointed. There is a specific provision of appointment of any person below 18 years of age in terms of Section 45 of the Mines Act, 1952 which was not applied in his case as per record. Therefore, under no stretch of imagination it could be lawfully presumed that the appellant/ respondent appointed the minor in 1972 in violation of the aforesaid statutory provision. It has also escaped the notice of the learned trial Judge that at a most belated stage the writ petitioner has come up for correction of his date of birth only 20 days before his superannuation which is not in conformity with the normal human conduct. Therefore, the said order of the learned trial Judges is not sustainable in law and is liable to be set aside.

Learned Lawyer for the respondent No. 1 on the contrary has contended that the learned trial Judge has rightly decided the matter and allowed the prayer for correction of his date of birth on the basis of documents and other materials on record to protect the service career of the respondent/writ petitioner in accordance with law and as such there is no merit in this appeal which is liable to be dismissed.

From the rival submissions of both the parties and the averments made by them it appears that the following fact emerges for determining the merit of the case.

a) The writ petitioner was appointed as a ''Pit Clerk'' on 08.05.1972 at Madanmoni Colliery. At that time he declared his age as 24 years as on 08.05.1972 which was accordingly recorded in Form B Register with the endorsement of the writ petitioner under his LTI. Subsequently he was transferred to Mandarmoni Colliery but remained silent for 25 years regarding veracity of his age till issue of notice of his superannuation.

b) He was dismissed from service for gross misconduct on 27.02.1982 and reinstated in service on 03.06.1982. At the time of his reinstatement his date of birth was recorded as 01.07.1949 in the Form B Register which was interpolated as 07.10.1956 without required counter signature or authentication of the authorised official of the employer.

c) In his reply dated 17.05.2009 given in response to employer''s communication dated 15/16th May, 2009 he has informed that he passed Class V and as such unable to produce any matriculation certificate.

d) On 13.04.1987 a Service Excerpt was handed over to the writ petitioner along with all other workers in which the date of birth was recorded as 01.07.1949 and at that time he also did not raise any objection.

e) A Second Important Service Excerpt is claimed to have been issued in favour of the writ petitioner showing his date of birth as 1956 but the same is alleged to have been procured without any signature of the Agent/Manager who happens to be the competent authority to issue the same.

f) In 1982 the writ petitioner was transferred showing his year of birth as 1949 but he has not produced any document to show that he raised any age dispute at that time for which he was required to be referred to Medical Board.

g) The management has claimed that they have no idea as to whether elder brother of the writ petitioner is still in service and his date of birth appears to be subsequent to the date of birth of the junior brother/writ petitioner which is absurd.

h) A member of the Legislative Assembly, West Bengal has issued birth certificate in favour of the writ petitioner. Since the writ petitioner and his brother were born in the state of Uttar Pradesh and as such the said certificate cannot be relied upon to determine the actual age of the writ petitioner.

i) Admittedly the writ petitioner read up to Class V and intended to file a school certificate showing his date of birth as 07.10.1956. Surprisingly in the said certificate date of admission has been shown as 01.10.1964 against column No. IX and date of leaving school has been shown as 20.02.2009 against column No. XII which is absurd because the writ petitioner was admittedly appointed as ''Pit Clerk'' of the respondent on 08.05.1972.

j) The terms and conditions of service of the writ petitioner will now be governed as per rules prevalent on the date of reappointment on 03.06.1982 and as such will be governed under the implementation instruction No.37 dated 05.02.1981 as subsequently amended. Under the revised implementation instruction No.76 it appears that for the of determination of the age at the time of appointment the employees were divided into four categories namely, i) Matriculates, if) Non-matriculates but educated, iii) Ex-service men and iv) Illiterate. In the said instruction it has been stipulated that the date of birth recorded in the school leaving certificate was to be treated as correct date of birth and the same will not be altered under any circumstance. Unfortunately, the copy of the school leaving certificate furnished by the writ petitioner does not disclose the name of the institution where he prosecuted his studies up to class V. It is also a question of fact whether determination of the age will be governed under the category of "illiterate workers'' for whom provision has been made for determination of age by the Colliery Medical Officer.

k) The authenticity of the excerpts from the service record of the writ petitioner dated 13.04.1987 (at page 28) has been disputed In which the date of birth has been shown as 1st July, 1949 which was received by the writ petitioner over his signature. But this has not been disputed for more than a decade.

1) The letter dated 16.12.2008 addressed to the Agent, Pandebeswar Colliery by the writ petitioner prima facie shows that from a perusal of the list of superannuation he came to know that that his date of superannuation was 01.07.2009 though his actual date of birth is 07.10.1956 and as such his superannuation date will be 1st June; 2016. This has been denied by the respondent/employer because of what has been stated in item No.(k) above.

m) From the copy of the letter No.0664/12/1/4/09 it appears that doubt has been raised regarding recording of date of birth in the following way by the employer:

As the date of birth in New form has been corrected without signature having reference no. and date but letter of area office or colliery office is not traceable. The letter No. 0664//11026 dated 16-18/02.1988 of Pand. area may be searched at Pand. area office record. As per service excerpts dated 13.04.1987 date of birth is 01.07.1949.

n) The said letter was never found out on search as per office endorsement dated 23.03.2009 (page 42). Yet the Committee members have recommended to accept his date of birth as 07.10.1956 contrary to Service Rules which has not been acted upon and accepted by the competent authority.

Having heard learned counsel for both parties on the aforesaid points it appears that veracity of the above facts has been disputed by the parties in either way but like a Suit Court the same cannot be decided in this appeal.

It is admitted fact that the writ petitioner was first appointed as a ''Pit Clerk'' on 08.05.1972 but there is no document to show that he was appointed as a minor. It is argued that u/s 40(1) of the Mines Act the appointment of persons below 18 years of age was prohibited after the commencement of the Mines (Amendment) Act. 1983. But under sub-section 2 apprentices and other trainees, not below 16 years of age may be allowed to work under proper supervision in the mine or part thereof by the Manager. But in the instant case the writ petitioner was not appointed as a trainee or apprentice. He was admittedly appointed as a Pit Clerk. Therefore, the above provision will not be applicable in his case.

The writ petitioner has claimed that his age was recommended by the Colliery Medical Officer from which it will appear that his date of birth would be 07.10.1956. But it appears from National Coalwage Agreement (III) Implementation Instruction No. 76 modifying the earlier Implementation Instruction No.37 dated 5th February, 1981 that determination of age in case of ''illiterate persons'' will be regulated as specified in Clause (A)(iv). For the sake of convenience the relevant provisions relating to determination of the age of appointment of non-matriculates but educated and illiterate persons are quoted below:

(A)(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.

(A)(iv) Illiterate: In the cases of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Officer keeping in view any documentary and the relevant evidence as produced by the appointee. Date of birth as determined shall be treated as correct date of birth and the same will not be altered under any circumstances.

Therefore, under the agreement the writ petitioner will have to prove his date of birth as per school leaving certificate under Clause A(ii) above but unfortunately he has produced one school leaving certificate which is prima facie disputed on grounds of absence of the name of the school in such certificate. Moreover, in the said certificate his date of admission has been shown as 01.10.1964 against column No. (ix) while date of leaving school has been shown as 20.02.2009 against column No. (xii). This is also a pure question of disputed fact which cannot be decided in appeal.

Similarly, the validity of the recommendation of the age determination committee has also been disputed and it is alleged that the Second Service Excerpt was obtained by the writ petitioner without signature of the competent person, i.e., the Manager or the Agent which also cannot be relied upon. The learned trial Judge has relied upon the documents furnished by the petitioner on the presumption that all those documents were issued by the officials of the petitioner''s employer and as such petitioner cannot be expected to prove that the petitioner had no part to play in preparation of such documents nor the petitioner can be expected and legally bound to prove the case of the petitioner''s employer as set up in his defence to contest the proceedings.

The employer has claimed that the writ petitioner has committed fraud in obtaining certain reports and documents and the learned trial Judge is of the view that the onus lies upon the employer to prove that the petitioner was or is guilty of committing fraud in obtaining the documents which has not been discharged. It is further observed that unfortunately, the employer has failed to discharge even its initial onus of proving fraud or any wrong doing on the part of the petitioner in taking out his case.

Such a finding of the learned trial Judge is not based on proper appreciation of the documents furnished by the writ petitioner. It has already been pointed out above that the documents, particularly his school leaving certificate, which is the sole determining factor of his date of birth, is disputed for valid reason and the Second Service Excerpt also is not the authentic document issued by the competent authority on behalf of the employer. At best it can be treated as a recommendation of the subordinate officer to the authorized officer of the employer who is only competent officer to accept or reject such opinion.

Therefore, on the basis of incomplete and disputed documents, the date of birth of the petitioner cannot be accepted as 07.10.1956 as held by the learned trial Judge. The initial records of his employment and the First Service Excerpt prima facie show that his date of birth was 01.07.1949 and from the record it also appears that he was appointed as the ''Pit Clerk'' after attaining the age of 18 years. Since there is no evidence or averment to the effect that his appointment was made as a apprentice or trainee he is not entitled to claim any benefit as a minor employed under the Rules. As such no presumption can reasonably be held in his favour denying the veracity of the admitted documents of the employer. Whenever admitted document of the employer regarding the service record is disputed by the employee, the burden of proof is shifted upon the person who has disputed it and in this case this burden is lying upon the employee to prove the contrary because, the school leaving certificate is his own document coining from his custody. But if such document is disputed the burden of proof lying upon him cannot be treated as properly discharged the adverse presumption would go against him.

In this connection learned lawyer for the writ petitioner has drawn our attention to an unreported judgment of this Hon''ble Court in connection with W.P. No. 1617 of 1997 (Prabhu Nath Tiwary v. Coal India Limited). In the said case the writ petitioner who was appointed before nationalisation of the company claimed his date of birth as 1938 which was accepted by the company and recorded in his Service Book as also in the Provident Fund records. But in his superannuation notice it was found that the petitioner was already in employment from 1st April, 1955 and therefore, he has put in 42 years of service. According to initial service record he attained age of superannuation i.e., 60 years on 1st April, 1997 but the petitioner claimed that he was not 18 years old at the time of his entry into service. He was 17 years because, in those days the private management often employed persons whose age was below 18years. The said issue, however, was not decided on merit but the learned trial Judge decided the quantum of retiring benefits since by virtue of such interim order the petitioner continued in service and was paid his salary up to the date of his superannuation. The learned trial Judge accepted appointment of the writ petitioner at the age of 17 because in those days it was not absurd and he held that it was the reality. The above fact is distinguished. When there is dispute regarding presumption of such fact the Appeal Court cannot itself decide such question like a Suit Court. In the above case the said writ petitioner first entered into the service as a General Mazdoor under the erstwhile Bengal Coal Company Limited. Therefore, that principle is not applicable in this case.

Considering all these facts we hold that there is sufficient merit in this appeal. Therefore, the impugned order of the learned trial Judge allowing the writ petitioner to continue in service by setting aside the notice of superannuation dated 21.04.2009 with further direction upon the employer to pay his arrear salaries from 1st July. 2009 till his reinstatement in service in terms of the above order is not sustainable in law and the same is hereby set aside giving liberty to the petitioner to approach the appropriate Civil Court seeking the reliefs claimed. There shall be no order as regards costs. Urgent certified photostat copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.

Kalyan Jyoti Sengupta, J.

I agree.