Shruti Sahoo, vs The State of Jharkhand

In the accompanied writ application, the petitioner has inter

alia prayed for setting aside the memorandum of settlement

arrived at between the petitioner and the management, whereby

the respondent even after accepting the date of birth of the

petitioner as 06.04.1954 made the petitioner to accept a condition

wherein he agreed to retire on 31.10.2013 even before attaining

the age of 60 years and for quashing letter dated 14.05.2013

whereby the project officer Alkusa Colliery issued an order

directing the petitioner to retire by 31.10.2013 and also for

direction upon the petitioner to allow the petitioner till the

completion of his statutory age of superannuation and extend all

consequential benefits.

Learned counsel for the petitioner submitted that as

per matriculation certificate, the date of birth of the petitioner is

06.04.1954 but due to wrong entry made in the petitioner''s

service excerpts and NEIS as 06.04.1952, the petitioner was made

to retire on 30.04.2012. It has further been submitted that

petitioner raised industrial dispute before the Assistant Labour

Commissioner Central, Dhanbad, who in turn while dealing with

the matter sent the matriculation certificate for verification before

Bihar School Examination Board, Patna, which sent a report

wherein it has categorically been mentioned that the date of birth

of the petitioner is 06.04.1954 and in such view of the matter, the

Assistant Labour Commissioner, Dhanbad directed respondents to

do the needful treating his date of birth as shown in the

matriculation certificate. But, in the meantime, the petitioner

under the duress was forced to sign a memorandum of settlement

wherein the petitioner was forced to withdraw all age dispute

matter from every Court of law. Learned counsel for the petitioner

further submitted that there is no provision in the service

condition or in the national coal wages agreement contemplating a

workman to continue in service for 42 years or till attaining the

age of 60 years. In support of his case, learned counsel for the

petitioner referred to a decision rendered in the case of Hari B.P

Vs. BCCL & Ors passed in L.P.A. No. 397 of 2015 and also in

the case of Sri Lerha Harijan Vs. BCCL & Ors passed in W.P (S)

No. 7052 of 2011.

At the very outset, learned counsel for the respondents

raised an objection with regard to maintainability of the writ

application by advancing an argument that the petitioner has

alternative and efficacious remedy of appeal, which he can raise

before Industrial Tribunal. On the merit of the case, learned

counsel for the respondents submitted that at the time of joining

the services, the petitioner never submitted matriculation

certificate hence, the date of birth recorded in all statutory forms

of the company has binding effect. Furthermore, it is the

petitioner, who voluntarily agreed to enter into a settlement to

bring the end to Industrial Dispute and agreed to forgo the back

wages for the idle period and such agreement/settlement between

the parties has binding effect and each party has to go by the

settlement. In support of his submission, learned counsel for the

respondents referred to a decision rendered in the case of State

of Uttranchal Vs. Jagpal Singh Tyagi as reported in (2005) 8

SCC 49.

Having heard learned counsel for the parties at length

and on perusal of record, there is no shadow of doubt that as per

matriculation certificate, the date of birth of the petitioner is

06.04.1954 and immediately after coming to know that there is

wrong entry in his service excerpts, the petitioner raised Industrial

dispute before Assistant Labour Commissioner, on whose

direction, the matriculation certificate was sent for verification

and the same was found to be genuine. From the averments made

in the respective affidavits, it is apparent that it was well within

the knowledge of the respondents-authority that the matriculation

certificate of the petitioner was sent for verification, but, under the

compelling circumstances as the petitioner was at the verge of

retirement entered into settlement and moreover, the respondent-

BCCL, being the employer, was in bargaining and dominating

position whereas, the petitioner had no other option but to sign

the dotted lines. Furthermore, it is nowhere the case of the

respondents that the petitioner passed the matriculation

examination during service leaving room for doubt that the

petitioner had at any point of time had any intention to submit

wrong date of birth. Hence, the plea taken by the respondents

that the dispute was amicably resolved by signing the

memorandum of settlement dated 28.02.2013 is de-hors the

principle of fairness in action. In such peculiar facts and

circumstances of the case, I am of the considered view that

memorandum of settlement dated 28.02.2013 cannot be given

effect to and is liable to quashed and set aside. View of this Court

gets fortified by the decision rendered in the case of Hari B.P

(supra)

Furthermore, this Court cannot lose sight of the fact that the

settlement entered into between the parties cannot belie the fact

that the matriculation certificate of the petitioner was genuine one

and further it is well settled proposition, which has been

enunciated by Hon''ble Apex Court in catena of judgments that in

case of date of birth dispute, the matriculation certificate is

conclusive piece of document.

As a cumulative effect of the aforesaid facts, reasons

and judicial pronouncements, the memorandum of settlement

arrived at between the petitioner and the management vide

Annexure 5 to the writ application is hereby quashed and set

aside and petitioner is treated to be in service till 30.04.2014 i.e.

till he attained the age of superannuation of 60 years treating his

date of birth as mentioned in matriculation certificate i.e.

06.04.1954. Resultantly, the respondents-BCCL is directed to

extend all consequential benefits.

With the aforesaid observations and directions, the

writ petition stands allowed.