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
-----------------------
23
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
-----------------------
23
