Narayan Ram vs Union of India and Others

Ashwani Kumar Mishra, J.—1. Challenge is laid in this petition to an order passed by General Manager, Food Corporation of India, dated 25th September, 2015, refusing to correct petitioner''s date of birth in the relevant records, as ''10.9.1958'', instead of ''10.9.1955''.

Brief facts, giving rise to filing of the petition, are that petitioner was appointed on 1.5.1986 as Handling Labour at FSD, Kuraghat. Petitioner''s service card, in the prescribed proforma, was prepared on 1.5.1986, in which his date of birth was admittedly mentioned as 10.9.1958. A photocopy of the service card has been enclosed as Annexure-2 to this petition, which is not in dispute. Its perusal shows that petitioner''s date of birth was initially recorded as 10.9.1958, which has then been corrected by scoring off 1958 and mentioning 1955 instead. Petitioner asserts that in most of his records, including the contributory provident fund for the year 2012-2013 issued on 13th May, 2014, his date of retirement was mentioned as 30.9.2018. However, in the pay slip, petitioner''s date of retirement was mentioned as 30.9.2015, alongwith his date of birth as 10th September, 1955. An application for correction was moved by the petitioner on 4.5.2015, contending that the correction in the service card was wrong, and his date of birth be got corrected as 10.9.1958. Petitioner has also produced Transfer Certificate, issued from the concerned institution situated in District Nalanda (Bihar), dated 6.1.1967, as a Class-II student, wherein his date of birth is mentioned as 10.9.1958. However, the claim of petitioner was not considered, and as such, a fresh representation is stated to have been sent on 9.9.2015, and when no decision was taken, petitioner filed 53669 of 2015, which was disposed of on 18.9.2015, by the following order:--

"Heard learned counsel for the petitioner as well as Sri C.K. Jha, learned counsel appearing for the respondent No. 1 and Sri N.P. Singh, learned counsel appearing for the respondents No. 2 to 5.

The petitioner, who is working as Handling Labour in the respondent -Food Corporation of India has come up with the prayer that the respondent no 3 be directed to take a decision on the representation of the petitioner with regard to correction in his date of birth.

The submission is that in the Provident Fund Statement his correct date of birth i.e. 10.9.1958 is being shown whereas in his letter of appointment by way of cutting the year has been changed from 1958 to 1955 and on that basis he is being retired from service.

Learned counsel appearing for the respondents have no objection in case the prayer aforesaid is allowed.

In such view of the matter, without going into the merits of the claim of the petitioner, it is hereby provided that the respondent No. 2, the General Manager, Food Corporation of India, T.C. 3V Vibhuti Khand, Gomti Nagar, U.P. Lucknow shall decide the grievance of the petitioner, in accordance with law, expeditiously from the date of production of a certified copy of this order.

Since the petitioner is due to retire on 30th September, 2015, the respondent No. 2 shall make all efforts to consider and decide the representation of the petitioner before that date.

It is made clear that this Court has not examined the merits of the claim of the petitioner, which shall be looked into by the respondent No. 2 himself on its own merit without being influenced by this order.

This writ petition is, accordingly, disposed of. No order as to costs."

It is in pursuance of this direction that petitioner''s claim has been rejected, vide order dated 25.9.2015, which is under challenge.

The order records that in the history card of petitioner, his date of birth is shown as 10.9.1955, and that an affidavit dated 22.8.1987 was submitted by the petitioner accepting his date of birth as 10.9.1955, and in his LTC application form also, his date of birth is mentioned as 10.9.1955. It is also stated that in the cardex form dated 1.6.1996, revised cardex form dated 1.9.2006, employees'' family pension scheme, 1971 and group insurance form submitted by the petitioner, his date of birth is mentioned as 10.9.1955. It has been recorded that the proforma form appears to have contained a writing error, which was subsequently corrected and countersigned. It has also been stated that under Clause 3(5)(b) of the Certified Standing Order, the date of birth once entered in the service card of the establishment has to be the sole evidence of his age, in relation to all matters. It is also stated that such mistake, if any, ought to have been brought to the notice of the management within the stipulated time and not at the verge of retirement, and consequently, representation has been rejected.

I have heard Sri Deepak Kumar Jaiswal, learned counsel for the petitioner and Sri R.K. Singh, learned counsel for the respondents, and have perused the original records, which have been produced before this Court, pursuant to orders passed on the previous occasion.

It is not in dispute that service conditions of petitioner are governed by standing orders duly framed under Industrial Employment (Standing Orders) Act, 1946. Clause 3(5) deals with the record of age of an employee. Sub-clause (b) of Clause 3(5) of the Standing Orders reads as under:--

"3(5)(b). The date of birth of a workman once entered in the service card of the establishment shall be the sole evidence of his age in relation to all maters pertaining to his service including fixation of the date of his retirement from the service of the establishment. All formalities regarding recording of the date of birth shall be finalised within three months of the appointment of a workman."

A perusal of the service card, which has been brought on record as Annexure-2 to the writ petition, clearly shows that petitioner''s date of birth in the service card is mentioned as 10.9.1958. It has subsequently been corrected by substituting 1955, in place of 1958. The cutting in the service card is not signed by the petitioner nor the respondents have been able to disclose as to who is the officer, who has countersigned the correction. From the records, it transpires that petitioner is merely a handling labour, and his qualification as per the records is only of Class-IInd. It appears that petitioner can only write his name in Hindi. The endorsement in the service card is in English. Respondents have relied upon an affidavit of the petitioner to demonstrate that such correction was made on the basis of affidavit of petitioner himself. A photocopy of the affidavit has been filed as Annexure-1 to the counter affidavit. The notarial affidavit, aforesaid, distinctly shows that it has been prepared on 22nd August, 1987 at Kanpur, and petitioner has signed it. However, the name of petitioner as well as his date of birth in para-2 as 10.9.1955 is apparently typed on a different machine, and clearly appears to have been filled in later on. Petitioner contends in the rejoinder affidavit that his date of birth was not filled, when he signed on the affidavit. According to the petitioner, once the entry in the service card clearly mentioned his date of birth as 10.9.1958, it had to be relied upon in view of Clause 3(5)(b) of the Standing Orders, unless there was cogent material to show that such entry was incorrect. It is contended that absolutely no basis for correction has been brought on record. Learned counsel for the petitioner has also relied upon paras 6 and 16 of the counter affidavit, in order to show that while in para-6, it has been stated that at the time of identification/verification, petitioner mentioned incorrect date of birth in the proforma and was corrected and countersigned by Secretary of the Union, whereafter an affidavit was filed by the petitioner certifying his date of birth as 10.9.1955, whereas in para-16, it has been stated by the respondents that petitioner''s date of birth as 10.9.1955 was recorded in the service book, after the personal affidavit was given by the petitioner. Relevant portion of paras-6 and 16 of the counter affidavit are reproduced:--

"6. ..... In reply it is humbly submitted that at the time of identification/verification of the labour at F.C.I. District Office Kanpur by Trade Union Secretary, the petitioner mentioned incorrect date of birth in the Proforma which was corrected and countersigned by the Secretary of the Union. Thereafter the F.C.I. authority asked the petitioner to file the affidavit disclosing his date of birth. The petitioner filed an affidavit on 22.08.1987 before District Manager, F.C.I., Kanpur and disclosed his date of birth as 10.09.1955. .....

.... It is submitted that the petitioner''s date of birth is 10.09.1955 which has been recorded in the service book after the personal affidavit of the petitioner. ....."

Learned counsel for the respondents does not dispute that provisions of Clause 3(5)(b) of the Standing Orders would govern the date of birth, but it is stated that mentioning of petitioner''s date of birth had been made long back, which has continued to remain so recorded, without any protest by petitioner at any stage, and such belated claim on petitioner''s eve of superannuation is not liable to be entertained. Reliance has been placed upon judgments of the Apex Court in State of Gujarat and others v. Vali Mohd. Dosabhai Sindhi, reported in , 2006 (6) SCC 537, as well as State of Maharashtra and another v. Gorakhnath Sitaram Kamble and others, reported in , 2010 (14) SCC 423, to contend that change in date of birth ought not to be allowed at the fag end of the career. Learned counsel for the respondents has also produced pay slip of the petitioner from the month of July, 2012 in order to contend that ever since then, petitioner would be presumed to have known recording of his date of birth as 10.9.1955, since the pay slip mentions it, and therefore, a belated attempt to seek amendment in it is impermissible.

The propositions of law laid down by the Apex Court, in the judgments relied upon by the respondents in State of Gujarat and others (supra) and State of Maharashtra and another (supra), are too well settled. It is not in dispute that any endeavour, made at the fag end of the career by a retiring employee to seek change in his date of birth, is not liable to be entertained. However, in the facts of the present case, petitioner is not seeking any correction in the date of birth, but is challenging the subsequent correction recorded by the employer in it. Petitioner''s date of birth in the service card is mentioned as 10.9.1958. In terms of Clause 3(5) (b) of the Standing Orders, the date of birth of a workman once entered in the service card of the serviceman has to be the sole evidence of his age in relation to all matters pertaining to his service including fixation of the date of his retirement. The date of birth of petitioner mentioned as 10.9.1958 in the service card would be presumed to be his correct date of birth. No change in it is liable to be entertained, as per the Standing Orders, which statutorily governs the service conditions between employer and workman. The question is as to whether any change could be made by the employers in such service card, subsequently, and whether any basis exists on record to justify it?

In view of the specific provision in the Standing Orders, this Court is of the opinion that once the date of birth has been recorded in the service card, the age of retirement would have to be determined, accordingly. No change in the recording of date of birth is to be normally countenanced. Moreover, the basis for correction in the date of birth of notarial affidavit also cannot be relied upon, as the affidavit clearly shows that material facts had been filled later on, as is proved from different fonts, which support petitioner''s contention that the date of birth was subsequently typed on the affidavit. It has also to be kept in mind that petitioner''s educational qualification is merely of Class-IInd pass, and he is virtually a semi-literate person, who is working as a labour. As per the date of birth recorded in the service card, he was nearly 28 years of age, when he was appointed in 1986. The respondents have not been able to demonstrate as to what compelled them to correct the date of birth originally recorded in the service card. The judgments of the Apex Court relied upon also do not apply in the facts of the case, as petitioner merely seeks restoration of the date of birth, originally mentioned in the service card, by deleting the corrections subsequently made. In such view of the matter, I am inclined to hold that the order of authority refusing to restore petitioner''s date of birth in the service card, as originally mentioned therein, of 10.9.1958, was liable to have been allowed, and the contrary view taken is unsustainable.

Consequently, the writ petition succeeds, and is allowed. The order dated 25.9.2015 is set aside. Respondents are directed to treat petitioner''s date of birth as 10.9.1958, which was in fact mentioned in petitioner''s service card, and was the basis to determine his date of superannuation in terms of the Standing Orders. Petitioner would be entitled to continue till he attains the age of superannuation, relying upon his date of birth as 10.9.1958.