Sudarshana Sharma and Others vs Steel Authority of India Limited and Others

Sanjay K. Agrawal, J.—Invoking supervisory jurisdiction of this Court under Article 227 of the Constitution India, petitioner had filed this petition questioning the order dated 25/10/2002 passed in Civil Appeal No. 2/M.P.I.R./(A) 11/99, in which, the Industrial Court has set aside order passed by the Labour Court on 25.02.1999 granting application filed under the Chhattisgarh Industrial Relations Act, 1960 (hereinafter referred to as ''the Act of 1960'') for correction of his date of birth. Brief facts required for judging the correctness of the order states as under:--

"2.1 Petitioner Gian Chand Sharma (who died during the pendency of writ petition) was appointed as Master Technician on 14/06/1961 and his date of birth was recorded as 15/01/1940 in service records, whereas according to him, his date of birth was 15/01/1943. When the petitioner was served a notice of retirement dated 04/07/1997 directing that he will stand retired from service on 31/01/1998, he filed an application under Section 31(3) read with Section 61 of the Act of 1960 for correction of his date of birth.

2.2 Respondents filed their reply before the Labour Court stating inter alia that petitioner''s date of birth is 15/01/1940 in attestation form, provident fund form, declaration form, nomination form and service book (Exhibits-D/1 to D/5) and petitioner''s application for correction of his date of birth has been rejected by the respondents by order dated 21/01/1993 vide Exhibit-D/7 and petitioner was communicated by the said order.

2.3 The Labour Court by its order dated 25/02/1999 allowed the application of the petitioner directing the respondents to correct the date of birth of the petitioner in service records as 15/01/1943 accepting the entries made in the seniority list and school certificate produced by the petitioner.

2.4 Feeling dissatisfied with the order of the Labour Court, the respondents filed an appeal under Section 65 of the Act of 1960 before the Industrial Court. The Industrial Court by its order dated 25/10/2002 set aside the order of the Labour Court and allowed the appeal of the respondents, rejecting the petitioner''s application for correction of date of birth in service record.

2.5 Questioning the order of the Industrial Court, the instant writ petition has been filed by the petitioner, in which, respondents have reiterated the stand taken by them before the Labour Court holding that the petitioner''s date of birth is 15/01/1940."

Appearing for the petitioner, Mr. M.P.S. Bhatia learned counsel would submit that the order passed by the Industrial Court on 25/10/2002 reversing the order passed by the Labour Court is absolutely unsustainable and bad in law as the Industrial Court in appeal could not have reversed the finding of facts recorded by the Labour Court, as such, the order of the Industrial Court being perverse and contrary to the law, deserves to be set aside.

Appearing for the respondents, Mr. Ashish Surana would submit that the order of the Industrial Court reversing the order of the Labour Court is based on material available on record, as such, the petition deserves to be dismissed.

I have heard learned counsel appearing for the parties and given my thoughtful consideration to the facts of the case and also gone through the original record with utmost circumspection.

The short question involved in this writ petition is whether finding recorded by the Industrial Court holding that the petitioner''s date of birth is 15/01/1940 is a finding of fact based on material available on record or it is perverse to the record requiring interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India?

At this stage, it would be appropriate to notice the decisions rendered by their Lordships of the Supreme Court relating to importance of date of birth in service record, scope of interference in the date of birth recorded and stage at which the Court should entertain the petition relating to date of birth.

6.1 In case of Union of India Vs. Harnam Singh, AIR 1993 SC 1367 : (1993) 3 JT 711 : (1993) LabIC 1010 : (1994) 1 LLJ 318 : (1993) 1 SCALE 478 : (1993) 2 SCC 162 : (1993) 1 SCR 862 , by their Lordships of the Supreme Court has highlighted the importance of the date of birth recorded in the service record of the Government servant at initial stage by observing as under:--

"7. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam and Another Vs. Daksha Prasad Deka and Others, AIR 1971 SC 173 : (1971) LabIC 27 : (1971) 1 LLJ 554 : (1970) 3 SCC 624 : (1971) 2 SCR 687 a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him."

6.2 In Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, AIR 1993 SC 2647 : (1993) 5 JT 404 : (1994) 1 LLJ 673 : (1993) 3 SCALE 829 : (1994) 1 SCC 155 Supp : (1993) 2 SCR 376 Supp : (1994) 1 SLJ 141 , their Lordships of the Supreme Court has laid down the criteria for interfering with the date of birth made in accordance with law, by holding as under: -

"7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for then-respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, men such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior."

6.3 In a decision reported in Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, AIR 1995 SC 1499 : (1995) 71 FLR 282 : (1995) 4 JT 23 : (1995) LabIC 1825 : (1995) 3 SCALE 37 : (1995) 4 SCC 172 : (1995) 3 SCR 712 , it has held by their Lordships of the Supreme Court that ordinarily High Court should not entertain a writ petition seeking correction of date of birth at the fag end of the employee''s service. It held as under:--

"10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his ''Service and Leave Record'' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his ''Service and Leave Record'' or Service Register with the avowed object of continuing in service beyond the normal period of his retirement."

6.4 Likewise, in a decision reported in G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others, AIR 2001 SC 72 : (2001) 1 LLJ 532 : (2000) 7 SCALE 270 : (2000) 8 SCC 696 : (2000) 4 SCR 336 Supp : (2001) 1 UJ 66 : (2000) AIRSCW 3883 : (2000) 7 Supreme 380 , their Lordships of the Supreme Court has held heavy burden lies on the employee to get the date of birth corrected by producing appropriate legal evidence as under:--

"17 The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature. We are constrained to make this observation as we find that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialise, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement of the senior."

6.5 Their Lordships of the Supreme Court in case of State of U.P. and Others Vs. Smt. Gulaichi, AIR 2003 SC 4209 : (2003) 6 JT 59 : (2003) 5 SCALE 432 : (2003) 6 SCC 483 : (2003) SCC(L&S) 908 : (2003) 1 SCR 762 Supp : (2004) 1 SLJ 281 : (2003) AIRSCW 3775 : (2003) 5 Supreme 122 , held as the fag end of service career, application for correction in the date of birth should not be entertained :--

"8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not."

6.6 In State of Gujarat and Others Vs. Vali Mohmed Dosabhai Sindhi, AIR 2006 SC 2735 : (2006) 110 FLR 891 : (2006) 6 JT 468 : (2006) 7 SCALE 206 : (2006) 6 SCC 537 : (2006) SCC(L&S) 1445 : (2006) 3 SCR 685 Supp : (2006) 2 UJ 1065 : (2006) AIRSCW 3687 : (2006) 5 Supreme 650 , in which, their Lordships of the Supreme Court has observed that application for correction of date of birth should be filed within a reasonable time and observed as under:--

"12. An application for correction of the date of birth should not be dealt with by the courts, the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant to prove about the wrong recording of his date of birth in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior."

6.7 In case of State of Haryana Vs. Satish Kumar Mittal and Another, AIR 2010 SC 3312 : (2010) 9 JT 276 : (2010) 9 SCC 337 : (2010) 10 SCR 1009 : (2010) 6 SLR 513 : (2010) 2 SLR 407 their Lordships of the Supreme Court has held as under:--

"14. As recorded above, it has been held time and again that the application for correction of date of birth is also to be looked into from the point of view of the concerned department and the employees engaged therein. The other employees have expectations of promotion based on seniority and suddenly if such change is permitted; it causes prejudice and disturbance in the working of the department. It is, therefore, quite correct for the State to insist that such application must be made within the time provided in the rules, say, two years, as in the present case."

6.8 In case of State of M.P. and Others Vs. Premlal Shrivas, AIR 2011 SC 3418 : (2011) 131 FLR 361 : (2011) 10 JT 519 : (2011) 10 SCALE 600 : (2011) 11 SCR 444 : (2012) 1 SLJ 31 : (2011) 6 UJ 3598 : (2011) AIRSCW 5398 , by their Lordships of the Supreme Court has held that courts should be cautious and careful in directing correction of the date of birth, by observing as under:--

"9. It needs to be emphasised that in matters involving correction of date of birth of a Government servant, particularly on the eve of his superannuation or at the fag-end of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any Government service. Unless, the Court or the Tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a Government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No Court or the Tribunal can come to the aid of those who sleep over their rights."

Having examined the legal position qua the interference in the date of birth, reverting back to the facts of the case, it appears that in support of petitioner''s date of birth, the petitioner has filed eleven documents (Exhibits-P/1 to P/11) whereas, respondents have filed seven documents (Exhibits-D/1 to D/7).

A bare perusal of the aforesaid documents filed by the respondents would show that at the time of joining of service, the petitioner filled his attestation form (Exhibit-D/1) as well as in the particulars of the employee (Exhibit-D/2), application for admission to the provident fund (Exhibit-D/3), declaration and nomination form (Exhibit-D/4) and service book (Exhibit-D/5), petitioner himself has mentioned his date of birth as 15/01/1940 and ultimately, by Exhibit-D/6, the respondents accepted the date of birth of the petitioner as 15/01/1940. Thereafter, representation of the petitioner to change the date of birth has been rejected by order dated 21/01/1993 (Exhibit-D/7), which was communicated to the petitioner.

The aforesaid documents unmistakably would show that the petitioner''s date of birth is 15/01/1940 and when petitioner received notice of retirement on 04/07/1997 vide Exhibit-P/11, then he filed the application on 21/08/1997 before the Labour Court for correction of his date of birth at the fag end of his service.

The Industrial Court being Court of appeal, re-appreciating the evidence available on record and came to the specific conclusion that the petitioner-employee has not adduced any legal and appropriate evidence to prove his date of birth to be 15/01/1943 except his self serving statement. The Industrial Court has also recorded that school certificate has not been proved by the petitioner-employee in accordance with law. However, Industrial Court has accepted the documents i.e. attestation form (Exhibit-D/1) as well as particulars of the employee (Exhibit- D/2), application for admission to the provident fund (Exhibit-D/3), declaration and nomination form (Exhibit-D/4) and accepted date of birth recorded in the service record of the petitioner and thereby reversed the finding of the Labour Court.

After hearing learned counsel for the parties and on the basis of aforesaid discussion, I am satisfied that the order of reversal by the Industrial Court holding the date of birth of the petitioner to be 15/01/1940 is based on documents available on record and it is neither perverse nor contrary to the documents available on record, this Court does not find any jurisdictional error in the impugned order and the order of the Industrial Court warrants no interference in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The writ petition deserves to be and is accordingly dismissed.