Muneshwar Mistry vs Bharat Coking Coal Limited

Heard Mr. Saurav Arun, learned counsel for the petitioner, as well as Mr. Indrajit Sinha, learned counsel for the Respondent-BCCL.

In this writ application, the petitioner has sought for issuance of writ of certiorari for quashing the Notice dated 17.02.2009, issued by the respondent

no. 6 vide Annexure-5 pertaining to his retirement on attaining the age of 60 years as per the date of birth recorded in the Company record and further

prayer has been made for issuance of direction upon the respondents to correct the date of birth of the petitioner as “05.04.1955â€. Further prayer

has been made not to give effect to the Notice dated 17.02.2009 and to allow the petitioner to work accordingly, till he attains the age of 60 years on

the basis of date of birth i.e. 05.04.1955.Â

Shorn of unnecessary details, the facts, as has been disclosed in the writ application, are that the petitioner was initially appointed as the Helper in

the year 1974 and during course of his services, the petitioner continued to work as ‘Welder’ in Sudamdih Coal Washery under the Respondent-

BCCL and as per the averments made in the writ application, the date of birth of the elder and younger brothers of the petitioner has been shown

under Form ‘B’ Register and they are also continuing in services. Therefore, the petitioner submitted representation on 13.03.2008 for

correction of date of birth as 05.04.1955 in place of 17.04.1949, which has been changed and corrected by the BCCL without any show cause. The

petitioner sought certain documents under the Right to Information Act, more particularly Form ‘B’ Register under the Right to Information Act

and the petitioner was informed that the said Register is not available since the same has been received by the Director General of Mines (Safety), as

evident from the letter dated 25.09.2008 vide Annexure-3 to the writ application. Thereafter, the petitioner has been informed that after examining the

case, since there is no cutting/overwriting in the statutory records, so the date of birth cannot be rectified, as evident from Annexure4 to the writ

application. Thereafter, vide impugned Notice dated 17.02.2009, the petitioner has been served with the notice of retirement, which is impugned at

Annexure-5 to the writ petition. On receipt of the impugned Notice, the petitioner submitted representation on 15.05.2009, for correction of the date of

birth, but, all in vain. Thereafter, the petitioner approached the office of the Director General, Mines (Safety) for obtaining Form ‘B’ but the

same has also been denied, as evident from the letter dated 01.06.2009 and 12.06.2009 vide Annexure-7 and 7/1 to the writ application. Therefore,

being aggrieved by the impugned notice, vide Annexure-5, the petitioner has been constrained to approach this Court under Article 226 of the

Constitution of India for redressal of his grievances.

Learned counsel for the petitioner has vehemently submitted that the respondents have unilaterally changed the date of birth of the petitioner from

05.04.1955 to 15.07.1949 without any opportunity of issuing any show cause or giving adequate opportunity to the petitioner to put forth his case.

Learned counsel further submits that the best course open to the respondents, was to ask the petitioner to appear before the Committee or Medical

Examination Board for assessment of his age, but without, adhering to the procedure for alteration or correction of the date of birth, the respondents in

flagrant violation of the principles of natural justice, has passed the impugned order on non-existent and legally untenable grounds.

 Learned counsel for the petitioner, during course of hearing has further referred to Annexure-9, i.e. the letter dated 24.11.1987, in his reply to the

counter affidavit filed on behalf of the respondents, wherein, the age of the petitioner was mentioned as 35 years in the Register in Form B

prescribed under the Mine Rules, 1955 and this fact is evident from the letter, dated 24.11.1987 under the signature of the Manager/Agents of

Sudamdih Coal Washery.

 In support of his submissions, learned counsel for the petitioner has referred to the following citations: -

(i) 2006 (1) JLJR 326, Sunder Pandit-vs.-Jharkhand State Electricity Board, Ranchi and others

(ii) (2009) 1 SCC 80, Mohd. Yunus Khan-vs.-UP Power Corporation Limited and others

In the counter affidavit, it has been, inter alia submitted that the date of birth of the petitioner was erroneously mentioned as 1937 in the

Computerized NEIS records maintained at the headquarters of the respondent-Company. Upon raising a dispute by the Vice President, Akhil

Bharatiya Khadan Mazdoor Sangh, the same was corrected as 15.07.1949 on the basis of the relevant records maintained at the area level by the

respondent no. 1. This fact was communicated to the Additional Private Secretary to the Minister of State for Coal, New Delhi, who, in turn intimated

the Vice-President, Akhil Bharatiya Khadan Mazdoor Sangh, Sudamdih, Dhanbad through his letter dated 25.08.1998. Since there has been correction

in the date of birth as 15.07.1949 and the petitioner joined service without any further protest, reconsideration of the matter as claimed through his

representation dated 13.03.2008 at the fag end of his service was not possible. Moreover, claim for reconsideration in the date of birth by the

petitioner was without any cogent basis or valid documented proof, as evident from Annexure-A to the counter affidavit. It has further been

submitted that the date of birth of the petitioner recorded as 15.07.1949 finds place in all relevant records and the petitioner has accepted the same by

putting signatures in the concerned column. Entry of  date of birth as 15.07.1949 finds place in the following documents, relating to the petitioner.

(i) Identity card issued to the petitioner.

(ii) Form-B Register showing his date of birth which was accepted by putting signature thereon.

(iii) Extract copy of a Register maintained by National Coal Development Corporation. Serial No. 259 contains the details of the petitioner wherein, his

age has been recorded as 25 years and his date of appointment has been shown as 15.07.1974 meaning, thereby, his date of birth is 15.07.1949.Â

(iv) Extract copy of a Register of Identity Card, Serial No. 492 bears the details of the petitioner, wherein, his date of birth has been recorded as

15.07.1949, which has been duly accepted by putting signature in the relevant column, as evident from Annexure-B, B/1, B/2 and B/3 respectively.Â

A supplementary counter affidavit, dated 06.09.2017 has been filed on behalf of the respondents, wherein, the original Document of “Form Bâ€

has been annexed as Annexure-A, wherein, the date of birth of the petitioner has been shown as 15.07.1949.

Learned counsel for the respondents by referring to the counter affidavit and the supplementary counter affidavit, filed by the respondents has

assiduously submitted that basing on the unimpeachable documents, the petitioner has rightly retired vide Annexure-5 to the writ application.Â

Learned counsel further submits that in paragraph 5 of the writ application, the petitioner has averred that the date of birth of the younger brother of

the petitioner is 25.03.1953 and if the date of birth of the younger brother is of the year 1953, then on what basis, the petitioner has staked his claim as

1955, therefore, the claim of the petitioner is preposterous. Moreover, the petitioner has approached this Court at the fag end of the service career.Â

 In support of his contentions, learned counsel for the respondent has referred to the following citations: -

(i) (2010) 14 SCC 423, State of Maharashtra &  Another-vs.-Gorakhnath Sitaram Kamble and others (ii) (2010) 9 SCC 337, State of Haryana-

vs.-Satish Kumar Mittal and Another

(iii) (2011) 9 SCC 664, State of Madhya Pradesh and others-Vs.-Premlal Shrivas

After hearing the learned counsel for the respective parties and on perusal of the records, this Court is not inclined to accede to the prayer of the

petitioner due to the following facts and reasons : -

(i) Law has been fairly well-settled that correction of date of birth in service record at the fag end of career can be permitted only in exceptional

cases, on irrefutable proof. It has been held by the Hon’ble Apex Court that the Court should be loath to allow the correction of date of birth in

service record of incumbent at the fag end of his career, unless it is satisfied by irrefutable proof of date of birth and utmost care, circumspection,

caution is to be adhered to while allowing the correction of date of birth.Â

(ii) In the instant case, on perusal of the relevant documents, it appears that the date of birth of the petitioner was corrected in the year 1998, as on

25th August, 1998 vide Annexure-A to the counter affidavit, from the erroneous entry of 1937 to 15.07.1949 and the same was within the knowledge

of the petitioner. In Annexure-B series to the counter affidavit, including Form ‘B’ register, the date of birth has been shown as 15.07.1949 and

the petitioner has put his signature thereon. The stand of the respondents also gets fortified vide Annexure-A to the supplementary counter affidavit

i.e. the Form B register, where the date of birth of the petitioner has been recorded as 15.07.1949, the original of which has been perused by this

Court. In view of the overwhelming, unimpeachable documentary proof, the respondents have treated the date of birth, as 15.07.1949 and accordingly,

the petitioner has retired on attaining the age of superannuation. Since the petitioner has failed to produce any irrefutable proof, in support of his

contentions for correction of date of birth from 15.07.1949 to 05.04.1955, therefore, there is absolutely no manifest error or illegality or impropriety on

the part of the respondents in issuing the impugned notice vide Annexure-5 to the writ application for retirement of the petitioner on attaining the age

of superannuation.Â

In view of the discussions made in the foregoing paragraphs coupled with the consistent legal position, the impugned notice vide Annexure-A, does

not warrant any interference by this Court. Accordingly, the writ petition is dismissed, being devoid of any merit.          Â

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