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Monday, May 5, 2014

Service matter - Notice of superannuation - Form B was disputed in the year 1987 itself - not decided - School leaving certificate bares correct date of birth - not challenged - at fag end Employer can not dispute it - Writ field by Employee allowed - Apex court too confirmed the order of High court = M/S Bharat Coking Coal Ltd and Ors. … Appellants vs. Chhota Birsa Uranw … Respondent =2014 (April. Part)http://judis.nic.in/supremecourt/filename=41470

Service matter - Notice of superannuation - Form B was disputed in the year 1987 itself - not decided - School leaving certificate bares correct date of birth - not challenged - at fag end Employer can not dispute it - Writ field by Employee allowed - Apex court too confirmed the order of High court =

The Project Officer vide order  dated  August  2,  2006  intimated  the
     respondent that he is to superannuate from February 28, 2007. Aggrieved
     by the same, the respondent filed a writ bearing W.P. (S)  No.  496  of
     2007 for quashing of the order of superannuation by the Project Officer
     on the grounds that the date of  superannuation  has  been  incorrectly
     calculated by relying on the erroneous date of birth which should  have
     been rectified in terms of the NCWA III, which provided that the Mining
     Sardar Certificate and the School Leaving Certificate must  be  treated
     as authentic documents by the employer as proof of the date of birth of
     the employee. 
The appellant company without challenging the genuineness
     of the same countered the respondent on the grounds that the  Form  ‘B’
     register was a conclusive proof of date of birth as it was verified  by
     the signature of the employee being the respondent; and having accepted
     the entry then, the respondent is not entitled  to  raise  any  dispute
     after twenty years and at the fag end of his service.  
The  High  Court
     while allowing the writ determined that the respondent  did  not  raise
     such a claim at the fag end of his career, rather   such  a  claim  was
     made in 1987 itself and the appellant company  had  failed  to  respond
     suitably to the dispute raised by the respondent.  
Thereby,  the  Court
     directed  the appellant company  to conduct an enquiry on the basis  of
     the  certificates  produced  by  the  respondent  and  to   effectively
     communicate to the respondent the  decision  taken  together  with  the
     reasons assigned within three months of the passing of the order. =

As noted by us, the respondent in 1987 on coming to know of the  wrong
   recording of his date of birth in his service records from the nomination
   form sought rectification. 
Therefore, such rectification was  not  sought
   at the fag end of his service. 
We have  further  noticed  that  the  High
   Court duly verified the genuineness of the school leaving certificate  on
   the basis of a supplementary affidavit filed by Shri Dilip Kumar  Mishra,
   legal inspector of the appellant company on  September 6, 2010 before the
   High Court. 
It has been admitted in the said supplementary affidavit that
   the school leaving certificate has been verified and has been found to be
   genuine. 
We have further noticed that  Implementation  Instruction  No.76
   clause (i)(a) permits rectification of the date of birth by treating  the
   date of birth mentioned in the school leaving certificate to  be  correct
   provided such certificates were issued  by  the  educational  institution
   prior to the date of employment. 
The question of interpreting  the  words
   ‘were issued’ was correctly interpreted, in  our  opinion,  by  the  High
   Court which interpreted the said words for the  purpose  of  safeguarding
   against misuse of the certificates for  the  purpose  of  increasing  the
   period of employment.  
The High Court  correctly  interpreted  and  meant
   that these words will not apply where the school records  containing  the
   date of birth were available long before the starting of the  employment.
   
The date of issue of certificate actually intends to refer  to  the  date
   with the relevant record  in  the  school  on  the  basis  of  which  the
   certificate has been issued. 
A  school  leaving  certificate  is  usually
   issued at the time of leaving the school by the student,  subsequently  a
   copy thereof also can be obtained where  a  student  misplaces  his  said
   school leaving certificate and applies for  a  fresh  copy  thereof.  
The
   issuance of fresh  copy  cannot  change  the  relevant  record  which  is
   prevailing in the records of the school from the date  of  the  admission
   and birth date of the student, duly entered in the records of the school

15.  Therefore,  the  order  of  the  High  Court  does  not  call  for  any
   interference. We endorse the reasoning given by the High Court and affirm
   the same.

16. In these circumstances,  we  do  not  find  any  merit  in  the  appeal.
   Accordingly, this appeal is dismissed.

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41470                                    GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE  

                                                              Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.4890/2014
        (Arising out of Special Leave Petition (C) No. 34133 of 2011)


       M/S Bharat Coking Coal Ltd and Ors.                        …
Appellants

                                     vs.

    Chhota Birsa Uranw                                                 …
                                 Respondent




                               J U D G M E N T


Pinaki Chandra Ghose, J.


1. Leave granted.

2. The present appeal arises  against  the  order  of  the   High  Court  of
   Jharkhand at  Ranchi  in  Letters  Patent  Appeal  No.90  of  2010  dated
   September 20, 2010, which was filed against the order  dated December 11,
   2009 passed by the learned Single Judge in a writ being W.P. (S) No.  496
   of 2007 filed by the respondent in the present matter, wherein the  court
   quashed the order dated  August 2, 2006 passed by  the  Project  Officer,
   Jamunia Open Cast Project (hereinafter referred to as ‘Project  Officer’)
   Area of the Bharat Coking Coal Ltd. (being appellant No. 1 in the present
   matter),  which  stated  that  the  respondent  will  superannuate     on
   February 28, 2007.
3. The brief facts leading to the same are as under :
  1. The respondent  joined   appellant  No.  1,  Bharat  Coking  Coal  Ltd.
     (‘BCCL’), a ‘Government Company’ as under Section 617 of the  Companies
     Act, 1956,  his  date of joining as per the impugned order is stated to
     be  March 31, 1973.   At the time of joining, his  date  of  birth  was
     recorded  as  February  15,  1947,   in  Form  ‘B’,  a  statutory  form
     stipulated under the Mines Rules, 1955, the basis of recording the same
     is not clear.  The  respondent  obtained  a  Secondary  School  Leaving
     Certificate issued  on  October  12,  1979,  which  indicated  that  he
     attended Rajya  Samposhit  Uchcha  Vidyalaya,  Baghmara,  a  Government
     school in Dhanbad from January, 1964  to  August,  1964.  In  the  said
     certificate, the date  of  birth  of  the  respondent  is  recorded  as
     February 6, 1950, which is in  conflict  with  his  date  of  birth  as
     entered by him in the service records  being  the  aforementioned  Form
     ‘B’.
  2. Subsequently, in 1983, he was transferred  to  the  Jamunia  Open  Cast
     Project and as stated, he once again signed the Form  ‘B’  wherein  his
     date of birth was recorded as February 15, 1947 and  he  allegedly  did
     not raise any objections then.
  3. In 1986, the  respondent  passed  the  Mining  Sardarship  and  in  the
     certificate acknowledging the same his date of birth  was  recorded  as
     February  6,  1950,  corresponding  to  the  date   recorded   in   the
     aforementioned School Leaving Certificate.   Therefore,  there  existed
     two sets of records of the respondent’s details; first being  the  Form
     ‘B’ register on one hand in which the date of birth was recorded to  be
     February 15, 1947 and second being the Mining  Sardar  Certificate  and
     the School Leaving Certificate wherein the date of birth  was  recorded
     as February 6, 1950.
  4. In 1987, the National Coal Wage Agreement III (hereinafter referred  as
     ‘NCWA III’) being Implementation Instructions were put  into  operation
     for   stabilizing   service   records   of   employees.   Pursuant   to
     Implementation  Instruction  No.  76,  appellant  No.  1  provided  its
     employees with  Nominee  Forms  as  prescribed  by  the  Implementation
     Instructions which contained relevant extracts from the service records
     in the Form ‘B’ register, thereby enabling the  employees  to  identify
     any discrepancy or error in the records and get the same  rectified  as
     per the prescribed procedure. In wake of the same the respondent became
     aware of inconsistencies in the records regarding his  date  of  birth,
     date of appointment, father’s name and permanent address;  therein  the
     respondent made representations to the Project  Officer,  Jamunia  Open
     Cast Project for rectification of  the  abovementioned  errors  and  he
     specifically sought the incorrect date of birth to be corrected as  per
     the date mentioned in the Mining  Sardar  Certificate  and  the  School
     Leaving  Certificate.  It  appears  that  the   concerned   authorities
     rectified the discrepancies regarding the name of the  father  and  the
     permanent address; however the date of birth and  date  of  appointment
     remained unchanged. Thereafter, as stated by the respondent, he made  a
     subsequent representation to the concerned Project Officer on July  16,
     2006 for correction of the date of birth in the Form  ‘B’  register  in
     accordance with the Mining Sardar Certificate and the same was rejected
     by the appellant company vide letter dated July 19, 2006.
  5. The Project Officer vide order  dated  August  2,  2006  intimated  the
     respondent that he is to superannuate from February 28, 2007. Aggrieved
     by the same, the respondent filed a writ bearing W.P. (S)  No.  496  of
     2007 for quashing of the order of superannuation by the Project Officer
     on the grounds that the date of  superannuation  has  been  incorrectly
     calculated by relying on the erroneous date of birth which should  have
     been rectified in terms of the NCWA III, which provided that the Mining
     Sardar Certificate and the School Leaving Certificate must  be  treated
     as authentic documents by the employer as proof of the date of birth of
     the employee. The appellant company without challenging the genuineness
     of the same countered the respondent on the grounds that the  Form  ‘B’
     register was a conclusive proof of date of birth as it was verified  by
     the signature of the employee being the respondent; and having accepted
     the entry then, the respondent is not entitled  to  raise  any  dispute
     after twenty years and at the fag end of his service.  The  High  Court
     while allowing the writ determined that the respondent  did  not  raise
     such a claim at the fag end of his career, rather   such  a  claim  was
     made in 1987 itself and the appellant company  had  failed  to  respond
     suitably to the dispute raised by the respondent.  Thereby,  the  Court
     directed  the appellant company  to conduct an enquiry on the basis  of
     the  certificates  produced  by  the  respondent  and  to   effectively
     communicate to the respondent the  decision  taken  together  with  the
     reasons assigned within three months of the passing of the order.
  6. Aggrieved, the appellant company preferred a Letters Patent Appeal, the
     order in which is impugned herein. The High Court dismissed the  appeal
     having found  no  merit  in  the  same  in  light  of  the  clauses  in
     Implementation Instruction No. 76.
  7. Thereafter, the matter lies before us.
4. The appellant in the present appeal has come before us seeking  that  the
   impugned judgment be set aside. The case of the  appellant  is,  firstly,
   when a  school  leaving  certificate  is  not  a  document  mentioned  in
   Implementation Instruction No.  76,  the  High  Court  was  incorrect  in
   substituting the same with the documents given in the  said  Instruction,
   thereby  creating  a  situation  which  supersedes  all  other  statutory
   documents like Form ‘B’ register. Secondly, the High  Court  should  have
   considered that the date of birth recorded in Form ‘B’ register  being  a
   statutory document under Mines Act is binding and cannot be preceded by a
   non-statutory document and therefore, the inter alia holding of the  High
   Court that School Leaving Certificate and Mining Sardar Certificate would
   take precedence over company records and  other  statutory  documents  is
   contrary to the judgment of this Court in G.M. Bharat Coking  Coal  Ltd.,
   West Bengal  vs. Shib Kumar Dushad and Ors.[1].  Thirdly,  the  appellant
   has challenged the exercise of  jurisdiction  by  the  High  Court  under
   Article 226 considering  that  the  respondent  as  workman  could  avail
   efficacious remedy from the forum under the Industrial Disputes  Act  and
   the respondent could raise such a dispute at the fag end of his career de
   hors the judgment in Bharat Coking Coal Ltd. vs.  Presiding  Officer  and
   Anr[2]. Fourthly, that the documents on which the respondent  has  relied
   being School Leaving Certificate and Mining Sardar  Certificate  are  not
   those mentioned in  Implementation  Instruction  No.  76  for  review  of
   determination of date of birth with respect  to  existing  employees  and
   that the implementation of the impugned order  would  give  way  to  many
   unscrupulous employees to procure such documents and  take  advantage  of
   the same. Fifthly, the respondent while signing the Form ‘B’ register  at
   the time of appointment had verified his date of birth  as  February  15,
   1947 on his joining on January 1, 1973 and later on his transfer in 1983;
   since he is a supervisory  staff  capable  of  reading  and  writing  and
   understanding English his verification  amounts  to  acceptance  and  his
   raising of dispute in 1987, fourteen years after is  incorrect.  Sixthly,
   the appellant has challenged the reliance placed on  the  School  Leaving
   Certificate by the respondent on the grounds that the same was issued  on
   October 12, 1979 six years after his appointment and as the Mining Sardar
   Certificate was based on the same  reliance  on  it  is  also   doubtful;
   furthermore, since both the documents  were  issued  after  the  date  of
   employment they cannot form  basis   of  correction  of  date  of  birth;
   furthermore, the appellant has challenged the correctness  of the  School
   Leaving Certificate on the grounds that the alleged Certificate  was  not
   verified by the District  Education  Commissioner;  that  the  attendance
   register for relevant  period  when  the  respondent  allegedly  attended
   school was not available and the verification was with respect to one Sri
   Birsa Prasad Uranw; it is  further  submitted  that  these  discrepancies
   which were covered by legal inspector of company (who  was  duly  charge-
   sheeted) in  collusion  with  the  respondent  make  the  school  leaving
   certificate dubious. Finally, it was submitted that  the  respondent  has
   raised the issue at the fag end by means of a belated  writ  i.e.  thirty
   years after appointment and after twenty years (as claimed by him) of his
   knowledge.
5. Per contra, the respondent has denied the averments of the appellant  and
   has submitted that he has not disputed his date of birth at the  fag  end
   of his service as  found  by  the  learned  Single  Judge.  It  has  been
   submitted that the respondent  joined service on March 31, 1973, when his
   date of birth was recorded as February 15, 1947 basis  of  which  is  not
   clear; that subsequently in 1986 he cleared his Mining Sardarship and was
   given a Mining Sardar Certificate where his date of birth was recorded as
   February 6,  1950  same  as  in  his  School  Leaving  Certificate;  that
   subsequently in 1987, on noticing the incorrect date of birth  and  other
   details in his service records, the respondent immediately  submitted  an
   application for the correction of his date of birth as February  6,  1950
   and other minor corrections in  his  service  records.  On  receiving  no
   information regarding the same on inquiry  from  his  superiors,  he  was
   given the impression that the necessary  corrections  were  made  in  the
   service  records  and  the  respondent  was  surprised  to  receive   his
   superannuation order in 2006 on the basis of the incorrect date of  birth
   being February 15, 1947.

6. In these circumstances, the respondent has contended,  firstly,  that  it
   is not the case that the respondent disputed date of birth at the end  of
   service, instead he had disputed the same way back in the year  1987,  it
   is the employer who disputed the same at the  fag  end  by  creating  the
   impression that claim of respondent for correction of date of  birth  was
   accepted when, in reality, it was not and even the learned  Single  Judge
   has concurred that the rectification was  not  sought  at  the  fag  end.
   Secondly, it  was  contended  that  the  respondent  has  relied  on  two
   documents for correction of his date of birth as February 6, 1950, namely
   the  statutory  Mining  Sardar  Certificate  and   the   School   Leaving
   Certificate. Thirdly, it has been contended that in light of  the  policy
   contained  in  part   (B)  of  Implementation  Instruction  No.  76,  the
   appellant as per clause (i)(a) accepted the  School  Leaving  Certificate
   but it was contended before the High Court that as the same was issued in
   1979 and as the workman joined service in 1979, the certificate was thus,
   ‘not issued’ prior to the date of employment and  therefore  cannot  form
   the basis of correction of date of birth. However,  this  contention  was
   rejected by the High Court, which  held  that  the  school  records  were
   created prior to joining and a copy issued on a subsequent date does  not
   create a difference as the date of issue of  certificate  refers  to  the
   date when the relevant record was created  on  the  basis  of  which  the
   certificate has been issued. In addition to the same, it  has  also  been
   submitted that the appellate court had granted time to the  appellant  to
   verify the genuineness of the School Leaving Certificate and in  response
   through a supplementary  affidavit,  the  appellants  have  admitted  the
   school  leaving  certificate  to  be  genuine,  thus  contended  by   the
   respondent that as  the  School  Leaving  Certificate  was  found  to  be
   genuine, it warrants no interference. Fourthly, it has been contended  by
   the respondent that his claim for correction was not  considered  on  the
   basis of the Mining Sardar Certificate which as claimed has been given by
   the Central Government and was submitted by him, which is also  mentioned
   as a basis for correction of date of birth in Clause (i)(b) in Part B  of
   Implementation Instruction No. 76.  It  is  further  submitted  that  the
   appellant did not give any reason as to why the Mining Sardar Certificate
   was rejected by them. Finally, the respondent has submitted that  he  was
   made to retire prematurely and not allowed to work inspite of  favourable
   orders from the High Court; furthermore, the respondent filed a  contempt
   petition but was not allowed to work by the petitioners on the pretext of
   pendency of matter before higher courts. It  is  also  the  case  of  the
   respondent that he was not gainfully employed anywhere else  during  that
   period.


7. It is pertinent to note at this point that during the  oral  proceedings,
   this Court vide order dated July  4,  2013  directed  the  appellants  as
   under:

      “List after four weeks to enable the counsel for  the  petitioners  to
      produce the original and also photocopy of the Form ‘B’ register where
      it is alleged that the respondent had affixed  his  signature  on  the
      date of birth which was recorded as 15.02.1947.”


However, as found by us and pointed out by the respondent instead of  filing
the original Form ‘B’ prepared in 1973,  at  the  time  of  joining  of  the
respondent  with  designation  as  Explosive  Carrier  (which   as   claimed
admittedly did not bear the signature of the respondent), filed a  photocopy
of the alleged Form ‘B’ dated January 27, 1987 which showed the  designation
of the respondent to be that of Mining Sardar. It has been submitted by  the
respondent that his signature was taken on the alleged form on  January  27,
1987 while handing over the photocopy of the same for  necessary  correction
of the record.


8. On the basis of the above, we find that within the  given  set  of  facts
   the dispute is regarding the manner in which the date of birth should  be
   determined; whether the reliance should be placed on the set  of  records
   being the Mining Sardar Certificate and the  School  Leaving  Certificate
   which state the date of birth to be February 6, 1950 or  reliance  should
   be placed on the extracts of the Form ‘B’ register which state  the  date
   of birth to be February 15, 1947. The position which emerges on the basis
   of the above is that after having joined service in 1973  when  the  Form
   ‘B’ register was filled and when it was  filled once again in  1983  when
   the  respondent  was  transferred,  there  were   certain   discrepancies
   regarding permanent address, father’s name and date of joining. In  1987,
   when the appellant made  available  the  details  of  all  employees  for
   verification of  service  records,  the  respondent  raised  the  dispute
   regarding his incorrect particulars being the date of  joining,  father’s
   name, permanent address and date of birth. Apparently, the abovementioned
   corrections other than date of birth were made. Thus, it is  evident  and
   correctly determined by the learned Single Judge that the dispute was not
   raised at the fag end of service or on the eve of superannuation  but  it
   was raised  at  the  earliest  possible  opportunity  in  1987  when  the
   respondent became aware of the discrepancy. As the  factum  of  when  the
   dispute was raised is settled what remains to be determined is the  issue
   of date of birth.

9. In the corpus of service law over a period of time,  a  certain  approach
   towards date of birth disputes has emerged in wake of  the  decisions  of
   this Court as an impact created by the change in  date  of  birth  of  an
   employee is akin to the far reaching ripples created when a single  piece
   of stone is dropped into the water. This Court  has succinctly  laid down
   the  same  in  Secretary  and  Commissioner,  Home  Department   vs.   R.
   Kirubakaran (supra), which is 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  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 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, then 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.”




The same approach had been followed by this Court while deciding on date  of
birth disputes irrespective of the relief being in favour of the workman  or
the employer. (See: State of Punjab vs. S.C.  Chadha[3],  State  of  U.P.  &
Anr. v. Shiv Narain Upadhyay[4], State of  Gujarat  &  Ors.  v.  Vali  Mohd.
Dosabhai Sindhi[5], State  of  Maharashtra  &  Anr.  vs.  Goraknath  Sitaram
Kamble[6])

10. Another practice followed by the courts regarding such disputes is  that
   date of birth  of  an  employee  is  determined  as  per  the  prescribed
   applicable rules or framework existing in  the  organization.  Even  this
   Court inspite of the extraordinary powers conferred under Article 136 has
   decided date of birth disputes in accordance with  the  applicable  rules
   and seldom has the Court determined the date of birth as it is a question
   of fact fit to be determined by the appropriate  forum.  (See:  State  of
   Maharashtra & Anr. vs.  Goraknath  Sitaram  Kamble  &  Ors.[7]  Registrar
   General, High Court of Madras vs. M. Manickam &  Ors.[8]  High  Court  of
   Andhra Pradesh vs. N. Sanyasi Rao[9] )


  11.  As stated earlier, this Court needs to decide  the  manner  in  which
      date of birth has to be determined. It is the case  of  the  appellant
      that as the respondent raised the dispute at the fag end of his career
      and as there exists a set of records being the Form ‘B’ register which
      is a statutory document in which the date of birth has  been  verified
      by the respondent himself twice, other non statutory documents  should
      not be given precedence and the orders of the High Court must  be  set
      aside. This claim of the appellant  does  not  stand  in  the  present
      matter. As determined, the dispute was not raised at the  fag  end  of
      the career; on the contrary,  it was raised in 1987 almost two decades
      prior to his  superannuation  when  he  first  came  to  know  of  the
      discrepancy. It has been held  in  Mohd.  Yunus  Khan  v.  U.P.  Power
      Corporation Ltd.[10],  that,  “an  employee  may  take  action  as  is
      permissible in law only after coming to know that a mistake  has  been
      committed by the employer.” Thus, the case of  the  respondent  should
      not be barred  on  account  of  unreasonable  delay.  Admittedly,  the
      appellant as the  employer  in  view  of  its  own  regulations  being
      Implementation Instruction No. 76 contained in the National Coal  Wage
      Agreement III, gave all its employees a chance to identify and rectify
      the discrepancies in the service records by providing them  a  nominee
      form containing details of their service records. This  initiative  of
      the appellants clearly indicated the existence of  errors  in  service
      records of which the appellants were aware  and were taking  steps  to
      rectify the same. Against this backdrop, the stance of  the  appellant
      that the records in the Form ‘B’ register must be relied upon does not
      hold good as it is admitted by the appellant that  errors  existed  in
      the same. Even a perusal of the nominee form  exhibits  the  ambiguity
      regarding the date of birth and date of joining. It  was  due  to  the
      discrepancies  which  subsisted  that  the  appellants  gave  all  its
      employees a chance to rectify the same.  In  such  circumstances,  the
      appellants are bound by their actions and their attempt  to  deny  the
      claims of the respondent is incorrect. The  respondent  in  this  case
      duly followed the procedure available and the attempt of the appellant
      to deny the claim of the respondent on the basis  of  technicality  is
      incorrect. We, therefore, feel  that  the  learned  Single  Judge  has
      correctly held that:

      “11. Having given the petitioner, like all employees, the  benefit  of
      seeking correction of the entries contained in their  service  records
      including their date  of  birth,  the  petitioner’s  claim  cannot  be
      denied, merely because he had signed upon the Form ‘B’ Register at the
      time of its opening and containing  the  entry  of  date  of  birth  a
      recorded therein.”


12. The appellant in the present case should have followed the procedure  as
   laid down by Implementation Instruction No. 76 to determine the  date  of
   birth of an existing employee. The provisions of which  read as follows:

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


         (i)(a)   In  the  case  of  the  existing  employees  Matriculation
      Certificate of (sic: or) Higher Secondary Certificate  issued  by  the
      recognized Universities of 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 Sardarship, winding engine  or  similar
      other statutory certificate 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, CMP
      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 the determination of age.


               (D)   Age   determination:   by   the    Age    Determination
      Committee/Medical Board referred to above may consider their  evidence
      available with the colliery management; and/or


           (E) Medical Board constituted for determination of  age  will  be
      required to manage  (sic  assess)  the  age  in  accordance  with  the
      requirement of medical jurisprudence and the Medical Board will as far
      as possible indicate the accurate age assessed and not approximately.”

        In another case, being G.M. Bharat Coking Coal Ltd. vs.  Shib  Kumar
Dushad (supra) where the date of birth of an employee of the  Bharat  Coking
Coal was in dispute and the same set of instructions were  applicable,  this
court referring to the Implementation Instruction held that:
      “20. From the provisions in the instructions referred to above, it  is
      clear that in case of dispute over the date of birth  of  an  existing
      employee who has neither a Matriculation Certificate/Secondary  School
      Certificate nor a statutory  certificate  in  which  the  Manager  has
      certified the entry regarding the date of birth to  be  authentic  the
      employer is to refer the matter to the Medical Board.”


13. We give due regard to the sensitive nature of  date  of  birth  disputes
   and fully agree with the approach  laid  down  in   R.  Kirubakaran  Case
   (supra). However, with an aim to  prevent  the  cascading  inconveniences
   caused by a change of date of birth, a wronged  employee  should  not  be
   denied of his rights especially when he has adhered to the procedure laid
   down  and  attempted  to  avoid  litigation  by  resorting  to   in-house
   mechanisms. Public  Corporations/Departments,  should  not  benefit  from
   their own omission of duty. In the present  case,  the  appellant-company
   failed to follow  the  procedure  as  laid  down  in  the  Implementation
   Instruction. It is the appellant’s omission and not the inaction  of  the
   respondent which led to the dispute being raised in the courts at such  a
   delayed stage. The attitude of such corporations  wherein  to  avoid  the
   rectification of a date of birth, litigation is  unnecessarily  prolonged
   just because they have number of resources at their command, goes against
   the grain of equity and duty towards society at large.

14.   As noted by us, the respondent in 1987 on coming to know of the  wrong
   recording of his date of birth in his service records from the nomination
   form sought rectification. Therefore, such rectification was  not  sought
   at the fag end of his service. We have  further  noticed  that  the  High
   Court duly verified the genuineness of the school leaving certificate  on
   the basis of a supplementary affidavit filed by Shri Dilip Kumar  Mishra,
   legal inspector of the appellant company on  September 6, 2010 before the
   High Court. It has been admitted in the said supplementary affidavit that
   the school leaving certificate has been verified and has been found to be
   genuine. We have further noticed that  Implementation  Instruction  No.76
   clause (i)(a) permits rectification of the date of birth by treating  the
   date of birth mentioned in the school leaving certificate to  be  correct
   provided such certificates were issued  by  the  educational  institution
   prior to the date of employment. The question of interpreting  the  words
   ‘were issued’ was correctly interpreted, in  our  opinion,  by  the  High
   Court which interpreted the said words for the  purpose  of  safeguarding
   against misuse of the certificates for  the  purpose  of  increasing  the
   period of employment.  The High Court  correctly  interpreted  and  meant
   that these words will not apply where the school records  containing  the
   date of birth were available long before the starting of the  employment.
   The date of issue of certificate actually intends to refer  to  the  date
   with the relevant record  in  the  school  on  the  basis  of  which  the
   certificate has been issued. A  school  leaving  certificate  is  usually
   issued at the time of leaving the school by the student,  subsequently  a
   copy thereof also can be obtained where  a  student  misplaces  his  said
   school leaving certificate and applies for  a  fresh  copy  thereof.  The
   issuance of fresh  copy  cannot  change  the  relevant  record  which  is
   prevailing in the records of the school from the date  of  the  admission
   and birth date of the student, duly entered in the records of the school

15.  Therefore,  the  order  of  the  High  Court  does  not  call  for  any
   interference. We endorse the reasoning given by the High Court and affirm
   the same.

16. In these circumstances,  we  do  not  find  any  merit  in  the  appeal.
   Accordingly, this appeal is dismissed.


                                             …....……………………..J.
                                             (Gyan Sudha Misra)



New Delhi;
.........…………………….J.
March 25, 2014.                                          (Pinaki Chandra
Ghose)



-----------------------
[1]    (2000) 8 SCC 696
[2]    (1995) Suppl. 2 SCC 598
[3]    (2004) 3 SCC 394
[4]    (2005) 6 SCC 49
[5]    (2006) 6 SCC 537
[6]    (2010) 14 SCC 423
[7]    (2010) 14 SCC 423
[8]    (2011) 9 SCC 425
[9]    (2012) 1 SCC 674
[10]   (2009) 1 SCC 80

-----------------------


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