Sujit Kumar vs Central Coalfields Ltd And Ors

The present intra court appeal is under Clause 10 of the letters patent against the order dated 05.09.2018 passed in W.P.(S) No.6011 of 2017,

whereby and whereunder the writ Court has refused to interfere with the decision of the authority as contained in order dated 29.01.2014 by which

the claim of the petitioner for appointment on compassionate ground has been declined.

Before going to the propriety of the impugned order, it requires to refer certain factual aspects.

According to the petitioner, his father was under the employment of the respondent company, working as Upper Divisional Clerk at Kalyani Project

and while on duty his father had died on 31.08.2013.

The petitioner claiming to be the dependant of the father, has made an application on 15.01.2014 at the unit level, while processing his application it

was found that petitioner’s age in the service excerpts of his father is recorded as 11 years as on 19.12.1984 and in L.T.C Option Form, as

01.12.1983. The learned Single Judge taking into consideration the reference of age of the petitioner, as has been referred in the service excerpts and

the L.T.C Option Form has come to conclusive finding that there is inconsistency between the age of the petitioner recorded in Voter’s Identity

Card and transfer certificate etc. vis a vis service record, therefore, has declined to pass a positive direction for referring the writ petitioner for his

medical examination for assessment of his age before the Medical Board.

Learned counsel appearing for the appellant-writ petitioner has submitted with vehemence that the date of birth certificate will be treated to be the

conclusive proof of age and as would be evident from the document available at page 58 to the paper book, wherein the birth certificate has been

enclosed, which shows the date of birth of the writ petitioner as 30.12.1980 and has further submitted that transfer certificate is also containing the

date of birth of the petitioner as 30.12.1980.

In view of such discrepancy in the date of birth, it is better course to refer the petitioner before the Medical Board for his examination for assessment

of the actual date of birth, but having not passed a positive direction in that regard by the learned Single Judge, present appeal has been preferred.

Learned counsel has further relied upon “Implementation Instruction†No.76/88/145 dated 25.04.1988 by bringing the same on record by way of

interlocutory application being I.A. No.5066 of 2019.

In pursuance to the said document, the Implementation Instruction No.76 also suggests that in case of any discrepancy in the date of birth, the

appointees is to be referred before the Medical Board for assessment of the age, hence the submission has been made that even in view of the

decision of the Management-respondent, the contention/ground as has been agitated by the writ petitioner before the writ Court to refer his case for

medical examination before the Medical Board, is in consonance with the decision as contained in “Implementation Instruction†No.76/88/145

dated 25.04.1988.

Per contra, Mrs. Ranjana Mukherjee, learned counsel for the respondent-CCL has vehemently opposed the ground agitated by the appellant in the

present memo of appeal.

She submits by referring to the various documents available on record i.e. the details of service excerpts as contained in Annexure-I/3 (page-52 to the

paper book), wherein under the column of the family members, the name of the petitioner namely Sujit Kumar has been referred showing his age as

13 years on 01.04.1987. Further the L.T.C Option Form which is at page 74 to the paper book prepared on 19.12.1984, the age of the petitioner has

been shown as 11 years.

She submits that since the appointment is on compassionate ground, therefore, the reference of age of the petitioner has been verified from the service

record of the deceased employee and the document where the age of the petitioner has been found mentioned as either 13 years or 11 years and on

the date when the entry was made and compared with the date of application for getting appointment on compassionate ground, it was found by the

authority that he has already crossed the age of 35 years since he has attained the age of 39 years and as per National Coal Wage Agreement, the

maximum age of appointment is 35 years, therefore, the claim for compassionate appointment has been rejected.

So far as contention of the learned counsel appearing for the appellant, putting reliance upon the birth certificate or the transfer certificate, the same

cannot be taken into consideration for the reason that when the father of the petitioner himself, while he was alive, had furnished the age of the

petitioner in the service excerpts or the L.T.C Form, that would be said to be conclusive proof for putting reliance for consideration of appointment on

compassionate ground and not the birth certificate.

So far as contention by the learned counsel for the appellant-writ petitioner, sought liberty to rely upon the Implementation Instruction No.76/88/145

dated 25.04.1988, submission has been made that the said certificate may not be relied upon since the same was not part of the record before the writ

Court and it is settled position of law that the document which is not available before the original Court, cannot be brought at the appellate stage.

However, she submits that “Implementation Instruction†No.76 would not be applicable since the same pertains to the question of determination

of age pertaining to appointment to be looked into at the time of appointment of the appointees and admittedly the petitioner is the dependant of the

appointee.

This Court after having heard learned counsel for the parties and after going across the averments made in the pleading as also the finding recorded

by the learned Single Judge, wherefrom, it is evident that the learned Single Judge while passing the order, denied to interfere with the decision taken

by the authority dated 29.01.2014, is based upon the contradiction in the date of birth of the writ petitioner. The order dated 29.01.2014 has been

passed by the authority mainly on the ground that on the date of consideration, the age of the writ petitioner was found to be more than 35 years. The

age of the writ petitioner has been assessed on the basis of the reference of the age referred in the service excerpts, where his age has been referred

as 13 years as on 01.04.1987 while in the L.T.C Form it was referred as 11 years as on 19.12.1984 and on the basis of both the age, as on the date of

consideration, the writ petitioner has found to be the age of 39 years.

The copy of the extract of the National Coal Wage Agreement is annexed as Annexure-II/D, where from Clause No.9.3.4 that the dependants to be

considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of

employment of female spouse would be 45 years as given in Clause 9.5.0. So far as male spouse is concerned, there would be no age limit regarding

provision of employment.

The aforesaid decision explicitly made it clear that the dependant is not to be more than 35 years.

The learned Single Judge has also considered the plea of the writ petitioner, putting reliance upon the birth certificate or the transfer certificate

although there is discrepancy in the date of birth but on that ground the case of the writ petitioner cannot be referred before the Medical Board for its

assessment.

So far as reliance placed by the learned counsel for the appellant-writ petitioner of Implementation Instruction No.76/88/145, although the said

document was not brought on record before the writ Court but this Court deem it fit and proper to consider about the applicability of the said

instruction in the ends of justice and while doing so this Court has gone across the said instruction.

It is evident by going through the Condition Nos.8 and 9 as also the procedure for determination/verification of age of employees as contained under

Annexure-1 to the interlocutory application which is being referred hereunder:

“8. Disputes in respect of date of appointment :

In the case of taken over employees, the date of appointment is determined with reference to the employment of the employee under the

immediate past employer from where he was taken over. Relevant CMPF records relating to qualifying for membership may also be taken

into account. The date of appointment may continue to be determined on this basis.

Disputes in respect of number and names of dependents:

It was agreed that the declaration incorporating names of dependants made in respect of CMPF, LTC records and gratuity will be taken

into consideration. Where the worker concerned is residing with the family in the Company’s quarter, certificate of the Welfare

officer/Manager may be taken as final for the purpose. In case of employee who is not residing with his family, certificate issued by Gram

Panchayat/Notified Area Council/Municipal Corporation concerned, countersigned by the BDO/Circle Officer will be taken into

consideration.â€​

It is evident from the Condition No.8 which pertains to determination of dispute in respect of date of appointment, meaning thereby, Clause-8 is not

applicable in the instant case since the same deals with respect to the date of appointment and admittedly herein the case of the petitioner is not having

any dispute with respect to date of appointment.

The Condition No.9 pertains to dispute in respect of number and names of dependents and after going through the contents incorporated under the

said heading, it transpires therefrom that if there would any dispute about the declaration incorporating names of dependents made in respect of

CMPF, LTC records and gratuity, will be taken into consideration.

According to us, these conditions are also not applicable in the facts and circumstances of the instant case since there is no dispute about declaration

incorporating the names of dependents made in respect of CMPF or LTC records or gratuity.

It is evident from Annexure-1 to the Implementation Instruction which pertains to procedure for determination/verification of age of employees, which

reads hereunder:

“(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 recognized educational institution, the 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 Ex-servicemen 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 Ex-servicemen who have passed

Matriculations 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 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 Officer

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.

(D) For determination of the age, the Committee/Medical Board referred to above may consider the evidences, available with the Colliery

Management and/or adduced before the employee concerned.

(E) Medical Board constituted for determination of age will be required to assess the age in accordance with the requirement of

“Medical Jurisprudenceâ€​ and the Medical Board will as far as possible indicate the accurate age assessed and not approximately.

(F) Where the Management (i.e) Area Age Assessment Committee consisting of General Manager, Personnel Manager and Medical officer-

in-charge of the Area is satisfied that there is a glaring disparity between the date of birth recorded in the identity cards and the apparent

age of the employee, the cases may be referred to the Apex Medical Board located at Headquarters of the company for determination of

age.â€​

Under Clause-A which is for determination of age at the time of appointment, the present case does not fall under the said category since appellant

has not yet been offered appointment rather it is the stage of pre appointment.

So far as the reference to be made before the Medical Board, the same finds place at Condition No.C, it is evident therefrom that Age Determination

Committee/Medical Board will be constituted by the management in a situation when the employees whose date of birth cannot be determined in

accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) but herein status of the appellant/writ petitioner is not of an employees since he is

yet to get employment and therefore, implementation of Instruction No.76 is not applicable in the facts and circumstances of the present appeal.

It is the basic principle to entertain a writ petition under Article 226 of the Constitution of India, to issue appropriate writ, if there is no dispute on

facts.

The learned Single Judge by going across the factual aspects and considering the relevant documents found discrepancy in the date of birth and the

variation to be so wide which led to the finding that the writ petitioner cannot be referred for the Medical Board, as has been said by us hereinabove

that the reference before the Medical Board is only to be given on the basis of policy decision and in absence thereof it cannot be referred, therefore,

we after going across the factual aspects and the finding recorded by the learned Single Judge, are of the view that the same requires no interference

by this Court.

In view thereof, the present appeal is hereby dismissed.

Consequently, I.A. No.5066 of 2019 also stands disposed of.