Sugrim Shaw vs Central Coalfields Limited And Ors

Aggrieved of the dismissal of the writ petition through which the appellant­writ petitioner (hereinafter referred to as petitioner) had thrown a challenge to order dated 17.01.2007 whereby, his date of superannuation was fixed as 31.01.2007, the petitioner has preferred the present Letters Patent Appeal.

Heard.

Mrs. M.M. Pal, the learned Senior counsel for the petitioner submits that the date of birth of the petitioner recorded in Form­B is at variance with the date of birth recorded in CMPF records. Referring to Implementation Instruction No.76, it is contended that in view of discrepancy in the date of birth of the petitioner recorded in Form­B and the CMPF records the age of the petitioner should have been determined by the Medical Board or the Age Determination Committee however, the respondent­CCL neither produced the CMPF records nor followed the procedure under Implementation Instruction No.76, which renders the decision to superannuate the petitioner w.e.f. 31.01.2007, illegal.

Per contra, Miss Puja Kumari, the learned counsel for the respondent­CCL submits that the petitioner after he received his post­retiral benefits raised the dispute of date of birth which cannot be entertained by the Writ Court. Disputing the plea taken on behalf of the petitioner that in the year, 1987 he raised an objection to his date of birth recorded in Form­B, it is submitted that no document was ever produced by the petitioner either before the authorities or before the Writ Court and even the horoscope on which the petitioner places reliance was not produced before the Writ Court. It is thus, contended that the dispute as to date of birth which was raised after superannuation from service cannot be entertained by this Court.

The relevant portion of the Implementation Instruction No.76 reads as under:

Procedure for Determination/ Verification of age of Employees

(A) Determination of the age at the time of appointment

i) Matriculates

In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.

ii) Non­ matriculates but educated

In the case of appointees who have pursued studies in a recognised educational institution, 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.

iii) Ex­ servicemen

In the case of Ex­servicemen who are not matriculates, the date of birth recorded in the Army Discharge Certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. In the case of Ex­servicemen who have passed Matriculation examination, the date of birth recorded in the Matriculation certificate will be treated as correct date of birth, provided they have passed the Matriculation examination before entering the Defence Services; otherwise the date of birth recorded in Army Discharge Certificate will be taken as correct date of birth.

iv) Illiterate

In the cases of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Office keeping in view any documentary and other 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.

(B) Review determination of date of birth in respect of existing employees

i) a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/ Boards/ Institutions prior to the date of employment.

i) b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic.

Provided that where both documents mentioned in (i)

(a) and (i) (b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.

ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through Determination Committee/ Medical Board.

(C) Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the company, namely, Form B register, CMPF Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/ Medical Board constituted by the Management for determination of age.

The petitioner, admittedly is illiterate. The procedure for determination of the age of an illiterate person at the time of appointment is described under Clause­ A(iv) which provides that the Colliery Medical Officer would decide the date of birth on the basis of documentary and other relevant evidence as produced by the appointee. The petitioner claims that he produced a horoscope which bears his date of birth as 12.06.1955 which should have been accepted by the Colliery Medical Officer. The learned Senior counsel for the petitioner contended that the petitioner was unaware of his wrong date of birth recorded in Form­B and the said fact came to his notice only in the year, 1987­88 when he was supplied the service­sheet.

We are not inclined to accept the plea raised on behalf of the petitioner. The Implementation Instruction No.76 does not provide that horoscope is a conclusive evidence of the date of birth. The expression "other relevant evidence" used in Clause­ A(iv) permits the Colliery Medical Officer to decide the date of birth of the appointee considering the documentary as well as other evidences. It further provides that the date of birth so determined by the Colliery Medical Officer shall be treated as correct date of birth and it would not be altered under any circumstances. The petitioner has failed to produce an unimpeachable document to contradict the age determined by the Colliery Medical Officer. The respondents have denied that the petitioner produced a horoscope at the time of appointment. The learned counsel for the respondents has rightly pointed out that petitioner did not produce the horoscope before the Writ Court. Nor did he produce any evidence which may indicate that he had produced the horoscope before the Colliery Medical Officer.

In our opinion, the case of the petitioner is squarely covered under Clause­ A(iv) and it is not covered under Clause­C of the Implementation Instruction No.76. From the materials produced on record, it is apparent that the petitioner did not produce any document showing his age in the CMPF records and he merely stated that in CMPF records a different date of birth is recorded. The petitioner did not make the CMPF Authority a party in the writ proceeding rather, he made In­charge CMPF/Pension of M/s. CCL as Respondent No.4 before the Writ Court. It is not in dispute that the respondent no.4 is not the custodian of CMPF records still, the petitioner did not implead the CMPF Authority a party in the writ proceeding. The learned counsel for the respondents has submitted that CMPF Forms are filled up by the employees themselves whereas, Form­B is a statutory form which is prepared by the Company and authenticated by the employee and thus, Form­B has been held binding on both the parties. The law does not mandate that on mere asking of the employee, the matter must be referred for age determination.

The learned Senior counsel next contended that the service excerpts which were supplied to the petitioner in the year, 1987­88 contained two errors namely, wrong date of appointment and wrong date of birth, which was subsequently corrected partly whereby, the date of appointment of the petitioner was corrected and thus, a presumption must be raised against the respondents that they had knowledge of the dispute raised by the petitioner however, the error in date of birth was not corrected. The dispute as pleaded by the petitioner, if at all was raised in the year, 1987, seeks an answer on the issue, why the petitioner remained silent even two years after he superannuated from service on 31.01.2007. There is no explanation by the petitioner for not approaching the Court within a reasonable time. The plea taken by the petitioner that he submitted a representation for correction in his date of birth, has been denied by the respondents. The petitioner has neither produced a copy of the alleged representation nor asserted the date on which it was submitted to M/s. CCL. In "G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad & Ors." (2000) 8 SCC 696, holding that the burden lies on the employee who disputes the date of birth recorded in the service record, the Hon'ble Supreme Court has observed as under:

"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. ............................................"

The learned Senior counsel for the petitioner relied on decision in "National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore & Ors." (1988) 1 SCC 626, to contend that the document which may be helpful in doing justice must be produced before the Court. As noticed above, the petitioner at the time of raising the dispute in respect of his date of birth as recorded in Form­B did not produce any evidence which prima­facie would indicate that in CMPF records his date of birth is recorded as 12.06.1955. On the contrary, besides Form­B the respondent­CCL produced various other documents which would disclose that the date of birth of the petitioner is recorded in the official records as 02.01.1947. The other documents such as family form, pay­slip etc. produced by the respondent­CCL were not challenged by the petitioner. Now, in the above facts it cannot be construed that CMPF record is the best evidence which would have conclusively decided the dispute.

The Writ Court, after considering the contentions raised on behalf of the parties, has held thus:

"............................................ Since the Form B register maintained under the Mines Act is a statutory document the authenticity and legitimacy of the date of birth recorded in the said form B register inspires confidence and in such circumstances no illegality has been committed by the respondents in superannuating the petitioner from service treating his date of birth as 02.01.1947.

After examining the case of the petitioner from all angles, we do not find any infirmity in the impugned order dated 03.08.2015 passed in W.P.(S) No.1472 of 2009. Resultantly, the instant Letters Patent Appeal warrants dismissal.