Sukumar Dawn vs Coal India Limited and Others

Sambuddha Chakrabarti, J.—The petitioner is an employee of the Eastern Coal Fields Limited, i.e., the respondent no. 2. He was appointed in the year 1980. According to the petitioner he appeared in the School Final examination in the year 1975 and in the Admit Card that was issued by the concerned Board his date of birth appears as October 3, 1957. The school where he studied also issued a certificate to that effect. At the time of entry into his service the petitioner disclosed his date of birth as that and he submitted the proof of his educational documents. According to him the respondents authorities did not correct the date of birth as October 3, 1957. They adopted a policy to prove the uniformity of the service record of all employees and in the year 1987 a service excerpts form had been supplied to all the employees including the petitioner for any objection so that it could be rectified. There the petitioner had noticed that the date of birth was wrongly recorded and in the columns specified therefor he raised his objection that his date of birth should be corrected.

The petitioner has claimed that in the year 2011 he came to learn that the date of birth had not been properly mentioned in his service record and he raised a dispute by several representations. The grievance of the petitioner is that he was asked to appear before the Age Dispute Committee and according to the implementation of Instruction No. 76 the respondents authorities are under an obligation to correct the date of birth as October 3, 1957.

By the present writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to correct the date of birth of the petitioner as October 3, 1957 and for other reliefs.

This writ petition has been contested by the respondents by filing an affidavit-in-opposition wherein the material allegations of the writ petition have been denied. The respondents'' case inter aila is this that while accepting the employment the petitioner had returned one copy of the letter of appointment. At the time of joining the service he did not submit any documentary evidence in support of the date of birth. Therefore, the relevant column in the letter of appointment relating to the age was kept blank. He was issued a Photo Identity Card on which he had put his signature in token of his acceptance and knowledge about the recorded date of birth and age in the company''s record as assessed by the Medical Officer of the colliery. The assessed age as on June 30, 1986 was 34 years. The petitioner was obliged to sign the statutory Form B under the relevant provisions of the Mine Rules where he had declared his age as 34 years as on June 30, 1986 and as per the stipulation under column 16 the petitioner had put his signature in clear handwriting and in the service excerpts he had recorded his observation to the effect that his date of birth was October 31, 1957.

The respondents say that based on the comments of the petitioner he was summoned to appear before the Age Dispute Committee on December 2, 1988. It was specifically mentioned therein that if he failed to appear before the committee it would be treated that there was no age dispute and the age as recorded in Form B should be binding upon the petitioner and no further representation would be entertained. In spite of it the petitioner neglected the call and did not appear before the committee. The Director (Personnel) of the respondents authorities by a letter dated May 2, 1988 had circulated an Implementation Instruction No. 76 of the National Coal Wages Agreement III for necessary action to deal with all pending cases relating to age, disqualification etc of the employees. According to the same the date of birth would be determined by the colliery medical officer keeping in view any documentary and other relevant evidence as produced by the appointee. The date of birth as determined shall be treated as correct date of birth and the same will not be altered under any circumstances.

The further case of the respondents is that the petitioner in his service excerpts had stated that he was a non-matriculate, notwithstanding the fact that he had disclosed a copy of an undated admit card for the school final examination which was held on March 5, 1975, almost six years before he joined the service of the respondents. The respondents have alleged that the photograph affixed to the admit card is superimposed since there is no visible rubber stamp underneath the affixed photograph. The respondents have claimed that he was well aware about his recorded date of birth as 34 years on June 30, 1986. He had signed the statutory Form B on December 22, 1986 consciously and he had put his signature on the Identity Card while taking delivery of the same. The respondents prayed for dismissal of the writ petition.

Pursuant to a direction of this court the respondents filed a supplementary affidavit concerning the mode of communication to the petitioner to appear before the committee for assessment of age on December 2, 1988. The respondents said that 49 employees of different collieries had appeared before the Age Assessment Committee on June 30, 1986. The petitioner was asked to appear before the said committee and he appeared and put his signature according to the committee''s report that his age on June 30, 1986 was 34 years. At the time of joining the service the petitioner did not produce any evidence in support of his date of birth, in spite of the fact that at the time of his joining the service he was in possession of the admit card. Therefore, the relevant clause of the letter of appointment relating to age was left blank.

The respondents have claimed that the petitioner being aware of the age recorded by the Age Assessment Committee on June 30, 1986 abstained himself from appearing before the committee on December 2, 1988.

The petitioner has filed an affidavit-in-reply to the affidavit-in-opposition of the respondents as well as to the supplementary affidavit. The petitioner has reiterated the statements made in the writ petition and had stated that he never declared his date of birth as 34 years on June 30, 1986. Because the date of birth of a person cannot be like this. Every employee had to sign the B Form register where raising of any objection was not permissible. He has stuck to his case based on the age declared in the Admit Card of the school leaving examination. No details has been given as to how his date of birth was fixed by the authorities. He has taken a very specific point that the notice asking him to appear before the relevant committee on December 2, 1988 was never communicated to the petitioner nor was it displayed in the notice board and the petitioner was not aware of the same. The petitioner claimed to have disclosed the correct date of birth at the time of his joining.

To the supplementary affidavit filed by the respondents the petitioner has used yet another affidavit-in-reply. According to the petitioner the supplementary affidavit was filed pursuant to a direction given by the court showing the proof of service upon the writ petitioner of the notice. But no such statement or document had been annexed with regard to the notice to the petitioner to appear before the Age Dispute Committee. He has insisted that the notice requiring him to appear before the Age Dispute Committee was never communicated to him or displayed in the notice board. He has further taken a point that if a person has a valid admit card regarding his date of birth asking him to appear before the Age Dispute Committee is nothing but to cause prejudice to him because the admit card is the best document to prove the date of birth of any person.

The dispute thus boils down to which of the two dates of birth of the petitioner should be accepted so far as service is concerned. According to the petitioner his date of birth was October 3, 1957. According to the respondents his date of birth as recorded should be June 30, 1952 based on the assessment of his age at 34 years on June 30, 1986. According to the petitioner as per the Implementation Instruction No. 76 in case of appointees who pursue their studies in a recognized institution the date of birth recorded in the school leaving certificate should be treated as correct date of birth and the same will not be altered under any circumstances. In the said instruction it was clarified that admit cards issued by the board is also to be treated as correct.

The petitioner has relied on the judgment in the case of Kamta Pandey Vs. B.C.C.L. and Others, where a Full Bench of the Jharkhand High Court had held that Implementation No. 76 of the National Coal Wage Agreement - III is binding upon the respondent company. If it is found that the said certificate is genuine and has been issued by the recognized university or board of education it cannot be altered under any circumstances. The Jharkhand High Court very specifically held that it can never be said that the entries made in the service register alleged to have been acknowledged by the employee would nullify the effect of the objective with which the Instruction No. 76 had been introduced. This case has some similarity with the facts of the present one. In the case of Kamta Pandey (Supra) the B Form register merely stated that the employee was aged 23 years on July 16, 1971, i.e., the date of employment. The Full Bench of the Jharkhand High Court had held that no details had been given as to how the date of birth was fixed on July 16, 1948. On the other hand the Identity Card which was issued to the petitioner immediately after his appointment showed his date of birth as July 1, 1951.

The petitioner has relied on an unreported Division Bench judgment, dated November 11, 2008, of this court in the case of Sri Baidyanath Tewari -Vs.-Coal India Limited and Others, passed in APOT 471 of 2007. There the Division Bench had held: "It is immaterial whether the appellant appear as a private or regular candidate. What is relevant in the context of the matter in dispute is the actual date of birth declared by the appellant for appearing at the School Final Examination before joining the service. The date of birth declared by a candidate before joining the service and recorded in the School Final Certificate or school leaving certificate has to be accepted as the correct date of birth of the said employee. The copy of the School Final Certificate as supplied in the Paper Book clearly shows that the date of birth as August 13, 1948. The copy of service excerpts shows that in case of date of birth only the year 1947 was mentioned. There is no mention of the date or month. In this connection it is worth mentioning that although the appellant passed the School Final Examination in the year 1969 before joining the service the certificate was issued by the board in the year 1972.

The petitioner has further relied on the case of Food Corporation of India Vs. Ratan Dey, , for a proposition that the date of birth mentioned in the Admit Card and the school final certificate of the writ petitioner are the best proofs of his date of birth which the employer cannot ignore as those documents are admittedly contemporaneous documents since the same were issued by the West Bengal Board of Secondary Education before joining of the respondent/ writ petitioner in the employment of the appellant corporation.

The next judgment relied on by the petitioner is the case of Gadadhar Konar Vs. Union of India, for a proposition that by issuing of notice of superannuation ignoring the school leaving certificate of the writ petitioner wherein the actual date of birth had been mentioned and when the same date of birth was recorded in the last pay certificate issued by the respondent, the coal company the authorities had acted wrongfully. The respondents authorities were directed not to rely on the date of birth recorded in the B Form register on the basis of the report submitted by the age determination committee ignoring other relevant service records in respect of the petitioner.

Again in the case of Bajrangi Rabidas Vs. Chairman, Managing Director, E.C.L. Ltd. and Others, , a Division Bench of this court had held that the employee concerned had passed the Matriculation examination long before he joined his service and, therefore, the date of birth recorded in the Matriculation certificate had to be accepted as the only valid and authentic document for the purpose of determination of the date of birth of the employee. The Division Bench had further observed that the authorities could not refuse to follow the prescribed rules, guidelines, notifications etc. issued in relation to the service condition of an employee wherein the procedure for determination of the date of birth has been specifically provided.

Mr. Ghosh next relied on a Supreme Court judgment in the case of Sannaia Subba Rao and Others Vs. State of A.P., wherein the Supreme Court had held that a school certificate proved by the Headmaster of the school from which the certificate was obtained, is a legal document and has evidentiary value and has to be given due weightage. The petitioner also relied on the case of CIDCO Vs. Vasudha Gorakhnath Mandevlekar, and the case of Narinder Kaur Vs. Punjab and Haryana High Court and Others, . In the latter judgment the Supreme Court discussed on the presumptive value which is attached to the birth and death records.

The main plank of the respondents'' submission was that in the appointment letter in Column 18 age of the petitioner was left blank as the petitioner did not produce any evidence in support of his date of birth at the time of his appointment. Since they did not produce any documentary evidence at the time of his appointment the age was assessed by the Colliery Medical Officer on June 30, 1986. The petitioner was issued a Photo Identity Card in which his assessed date of birth was recorded and was lying in his possession till now. The petitioner had signed the Photo Identity Card. This age was recorded in the B Form register which was signed by the petitioner. The petitioner himself had annexed two documents in support of his claim. One is a copy of the certificate from a private and non-recognized school declaring his date of birth as October 3, 1957 according to the admission register. The other is a copy of the Admit Card to the effect that he had appeared in the School Final Examination and his date of birth was certified to be October 3, 1957. The respondents submitted that the petitioner had appeared as a private candidate. It does not, however, appear from the Admit Card that he appeared as a private candidate. The respondents submitted that the petitioner did not submit any evidence to prove his date of birth at the time of his joining in the service. An exception has been taken by the respondents that the age was declared by the petitioner himself and that the Admit Card was attested by the Headmaster of another private and non-recognized school situated in a different district, who could not attest and who never had any authenticated and certified particulars of a student.

A further plank of the respondents'' argument is that when the petitioner was asked to appear before the Age Dispute Committee he did not appear. The respondents have argued that the moment the petitioner raised objection about the date of birth as recorded they formed an Age Dispute Committee and despite the warning about the effect of the petitioner''s non-appearance he did not appear. From this the respondents have contended that the petitioner did not deliberately appear before the committee just to avoid the consequences of the finding of the Age Dispute Committee.

After considering the respective submissions of the petitioner and the respondents one mystery remains unresolved. A very specific point was taken by the petitioner in his affidavit-in-reply that the notice to appear before the Age Dispute Committee on December 2, 1988 was neither displayed in the notice board nor was it ever communicated to the petitioner. To this Mr. Halder, the learned advocate for the respondents prayed for leave to file a supplementary affidavit showing proof of service of notice upon the petitioner. Pursuant to that a supplementary affidavit was also filed. But the said supplementary affidavit failed to mention anything about how the petitioner was communicated about the notice asking him to appear before the Committee. The supplementary affidavit says that the petitioner preferred to abstain from appearing before the Age Dispute Committee but the respondents are silent about the mode of communication of the notice to the petitioner for which the supplementary affidavit was filed.

The exception taken by the respondents that the Admit Card was attested by the Headmaster of a school other than that from which the petitioner had appeared does not appear to be a very strong and valid objection. There is no compulsion that an admit card or a school leaving certificate must be attested by the Headmaster of the concerned school only. Any Headmaster of any school is competent to do so if he is satisfied about the genuineness of the document. That apart the respondents, if they lulled any doubt about the genuineness of the document could have definitely referred the matter to the concerned authority for ascertaining whether the certificate issued was a genuine one. The respondents did not do it and now they have taken a point that the certificate was attested by the Headmaster of a different school which is located in a different district which on the face of it does not appear to be a very convincing denial of the petitioner''s case. The court can take judicial note of the fact that more often than not different employers while inviting applications for different posts require documents to be attested by a class of persons which includes a government officer or a headmaster of a school or a principal of a college etc. It is never insisted that the attestation must be by the concerned school or college from which the candidate passed out. That will be too much for the respondents to expect when the petitioner had passed a long time ago.

I also do not understand why the age of the petitioner as determined by the Colliery Medical Officer should be considered that sacrosanct as the respondents would have liked this court to believe. It appears that the age was assessed by him on June 30, 1986 when he appeared to him to be of 34 years. It no where appears from the affidavits used by the respondents as to how the said colliery doctor assessed the petitioner''s age. Determination of age is a highly specialised job and several methods are followed to determine the age of a person. In the Full Bench judgment referred to by the petitioner in the case of Kamta Pandey (Supra) it was very specifically observed in a case, similar to the present one, that in the B Form register it was stated that the employee was aged 23 years as on July 16, 1971. No details had been given as to how the date of birth was so fixed. Here also no certificate of the Colliery Medical Officer has been annexed by the respondents and on the very first day the respondents could ascertain it is too much to deny the petitioner''s case.

The court cannot also ignore one more glaring aspect of this case. It is incorrect to say that the petitioner had raised this age dispute on the eve of his retirement. This is not entirely correct. In 1987 he did it and this seems very probable because it was then that the service excerpts were served upon him for necessary correction. The response of the respondents by arranging an Age Dispute Committee cannot really defeat the petitioner''s right in the absence of any proof of service of notice of the said committee upon the petitioner.

That apart the respondents have not very specifically raised any question about the authenticity of the Admit Card. The Admit Card was issued by the authority concerned before the petitioner was employed. As has already been held by the Division Bench of this court in the case of Bajrangi Ravidas (Supra) the respondents cannot refuse to follow their own Implementation Instruction No. 76 which requires that a school certificate has to be accepted as the only valid and authenticate document for the purpose of determining the date of birth of an employee provided it is issued by boards or institutions prior to the date of employment even if the same was not produced by him at the time employment. It is also not clear if the petitioner had not produced any proof relating to his date of birth, why and how the appointment letter was issued keeping this portion blank. This is a very serious matter in the service of an employee and if this was the result of the petitioner''s failure to produce sufficient documents at the time of his entry into the service why the respondents took more than six years to assess the age by their own doctor is again an aspect on which no light has been thrown. Thus even if the petitioner had failed to discharge his initial responsibility the respondents cannot in derogation of the certificate issued by the authorities fix a date of birth unsupported by any reason for the conclusion reached by the Colliery Medical Doctor determining the age of the petitioner and to retire him prior to the date of his retirement according to the certificate of the school authorities.

Therefore, I hold that by issuing the superannuation letter the authorities acted improperly. The respondents authorities are directed to rectify the service record of the petitioner upon recording his correct date of birth on the basis of the date of birth recorded in the Admit Card of the School Final Examination without any further delay, but positively within a period of three weeks from the date of communication of this order and allow the petitioner to resume his duties immediately in the event the petitioner had already retired due to wrong recording of the date of birth in his service records.

The petitioner will be entitled to receive admissible arrear salary and all other consequential service benefits in the event he had already retired from service on the basis of the wrong recording of his date of birth. The respondents are further directed to re-fix the age of superannuation of the petitioner upon correcting the date of birth as per the Admit Card of the School Final Examination.

The respondents shall calculate the arrear dues payable to the petitioner in terms of this order at an early date but positively within a period of three weeks from the date of communication of the order and disburse the necessary payment to him within a week thereafter.

The writ petition is allowed.

However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.