Nafr High Court · 2025

Judgment

1. The petitioner has preferred this petition under Article 226 of the Constitution of India for setting aside impugned order dated 03.10.2020 (Annexure-P/1), whereby the petitioner was informed that his services shall be terminated with effect from 31.5.2019.

2. Facts of the case, in nut shell are that, initially the petitioner was appointed as General Mazdoor on 29.10.1983 in Doman Hill Colliery (WCL). Subsequently, the service of the petitioner was transferred in the office of respondent/SECL. At the time of joining in the SECL, Form- ‘B’ was filled up in BINI PRADEEP PRADEEP 2 which the date of Birth was recorded as 05.6.1964. Subsequently, it was mentioned in various other documents maintained by the SECL/respondent authorities. The petitioner has also been promoted taking into account the date of birth as 05.6.1964. But vide Annexure-P/1 dated 03.10.2020, the petitioner was informed by the respondent authorities that his services is terminated immediately and he has been superannuated from his post since 31.5.2019,

Legal Reasoning

which has been challenged by the petitioner in the instant petition.

Legal Reasoning

Learned counsel for the petitioner submits that initial appointment of the petitioner was made in the year 1983 in Western Coals Fields Ltd. (WCL) as General Mazdoor and at that time no document with regard to educational qualification of the petitioner was sought and necessary information was filled up by the officials of WCL in Form - ‘B’. But while filling those information, the petitioner’s date of birth was not asked from him, as such, he was not aware of the fact as to what date of birth has been mentioned in those documents of WCL. She further submits that when employment of the petitioner was transferred from WCL, Nagpur to SECL, Bilaspur in the year 1989, at that time statutory Form ‘B’ was got filled up from the petitioner and in that form the petitioner had clearly mentioned his date of birth as 05.6.1964, which has also been mentioned in words. She further submits that in all the documents maintained by the respondents/SECL, date of birth of the petitioner has been mentioned as 05.6.1964. Learned counsel referring to B. I (a) of

Decision

‘Implementation Instruction No.70/76’ (page No.33 of the writ petition) issued by Joint Biparite Committee for the Coal Industry, Coal India Limited, ‘Coal Bhawan’, 10, Netaji Subhas Road, Calcutta – 700 001 bearing No.CIL/NCWA- III/I.I. No.76/88/285 dated 25th April, 1988, would submit that, as per the aforesaid Instruction, if there is any dispute with regard to review/determination of date of birth in respect of existing employees of SECL, then Matriculation certificate or Higher Secondary Certificate issued by the recognised University, 3 Certificate or Board of 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 documents and in this regard referring to aforementioned document as well as certificate, issued by ‘Bihar Vidyalaya Pariksha Samiti’ about passing of Middle School by the petitioner, learned counsel submit that date of birth of the petitioner is mentioned as ‘5 JUN SIXTY FOUR’ (page 19 of the writ petition) in it. This date of birth has also been mentioned in the identity card (Annexure-P/5), Form PS-3, Form PS-4 etc. Therefore, she submits that in the document maintained by WCL, date of birth of the petitioner mentioned as 10.5.1959 is incorrect, as it was mentioned without any document and without consent of the petitioner, as such, his actual date of birth be treated as 05.6.1964 and not as 10.5.1959 and accordingly his date of superannuation may be treated as 30.6.2024 and not as 31.5.2019. Learned Senior Counsel further submits that impugned order (Annexure-P/1), retiring the petitioner from service since 31.05.2019, was issued after about 1 ½ years of his alleged date of retirement. This fact itself shows that the respondent authorities themselves were treating his date of birth as 05.6.1964 and therefore, the petitioner was permitted to work with the respondent institute till his retirement i.e. 30.6.2024 in view of order passed by this Court and he has been retired vide order dated 30.5.2024 (Document A), therefore, it is prayed that impugned order dated 03.10.2020 (Annexure-P/1) may be set aside.

4. The respondents have filed reply, wherein it has been stated that the petitioner was served with notice dated 03.10.2020 (Annexure-P/1) as he was made to retire after attaining the age of superannuation i.e. 60 years by reckoning to the date of birth as 10.5.1959. Learned Senior counsel appearing for the respondents referring to its reply and documents annexed with the reply would submit that when the petitioner was initially appointed in WCL in the year 1983, at that time, while filling up Form ‘B’ (Annexure - R/1), his date of birth was 4 mentioned as 10.5.59. Said date of birth was also mentioned in the Last Pay Certificate (Annexure R-5) issued by WCL when his employment was transferred from WCL to SECL. He would further submit that since initial document contains date of birth of the petitioner as 10.5.59, subsequent modification in the document maintained by the SECL cannot be relied upon, as such, date of birth of the petitioner be treated as 10.5.59 and accordingly, he will be superannuated on 31.5.2019. Learned Sr. counsel further submits that though in the documents maintained by the SECL, date of birth of the petitioner is recorded as 05.6.1964, but such recording is against initial document therefore, it cannot be relied upon. However, he further submits that though even after 31.5.2019 (which is the date of retirement of the petitioner as per the respondents) the petitioner has performed his duty for about 1 ½ years and in pursuance of subsequent stay order passed by this court on 19.10.2020, he has been retired on 30.6.2024, but he is not entitled to get monetary benefit which he obtained after 31.5.19, hence, learned Sr. counsel submits that actual date of birth of the petitioner be considered as 10.5.1959 and not as 05.6.1964, as such the petition is liable to be dismissed.

5. I have heard learned counsel for the parties and perused the material available on record.

6. Admittedly, the petitioner was initially appointed as General Mazdoor in the year 1983 in Western Coal Fields Ltd (WCL). Subsequently, in the year 1989, he was transferred to South Eastern Coal Fields Ltd. (SECL).

7. As per the respondents, when the petitioner was initially appointed in the WCL, at that time, in Form -’B’ (Annexure- R/1) as well as in Service Register (Annexure-R/2) and other documents also his date of birth was mentioned as

10.5.59. Even in the Last Pay Certificate issued by WCL/SECL (Annexure-R/5) also his date of birth was mentioned as 10.5.1959. In this regard, learned counsel for respondents referred aforesaid documents. But, in Form – ‘B’ 5 (Annexure-P/2), which was filled by SECL when the petitioner was transferred to SECL, his date of birth has been mentioned as 05.06.1964. Subsequently, in the identity card issued by SECL (Annexure-P/5), Form PS – 3 (Particulars of Family) filled by the petitioner and Form PS – 4 (Nomination Form) maintained by the respondent authorities, his date of birth has been mentioned as

05.6.1964.

8. To substantiate the fact of date of birth of the petitioner as 05.6.64, the petitioner has also filed true copy of the certificate bearing No. सं/80C/089582 issued by ‘Secretary, Bihar Vidyalaya Pariksha Samiti, Patna’ dated 29 JUL 80, wherein it has been mentioned that the petitioner passed Middle School Third Division in the year 1980 and his date of birth is “5 JUN SIXTY FOUR”.

9. Thus, as per record of the petitioner maintained by WCL and after his transfer maintained by the SECL, different date of birth i.e. 10.5.59 and 05.6.64 respectively has been mentioned . As per Clause ‘B’ of Implementation Instruction No.70/76 (page No.33 of Writ Petition), procedure for Review/ Determination of date of birth in respect of existing employees are as under:- I. (a) In the case of the existing employees Matriculation certificate or Higher Secondary Certificate issued by the recoginsed University Certificate or board of 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/instructions prior to the date of employment. I. (b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (I) (a) and (1) (b) above are available, the date of birth recorded in (I)(a)will be treated as authentic. II. Wherever there in 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 6 management after being satisfied on the merits of the case will take appropriate action for correction through age determination: (c) Age determination committee/medical board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B) (I) (a) or (B) (I) (b) above, the date of birth recorded in the records of the company, namely, form B register, CMPF records and identity cards (untampered) will be treated as final. Provided that where there is a variation in the age recorded in the records mentioned above. The matter will be referred to the Acts Determination committee/Medical Board constituted by the Management for determination of age. (D). For determination of the age, the Committee/Medical Board referred to above any consider the evidences available with the Colliery Management and/or adduced before it has the employee concerned. (E) The medical Board constituted for determination of age will be required to 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. (F) Where the Management (i.e.) area age assessment Committee consisting of General Manager, Personnel Manager and Medical Officer in charge of the area is satisfied that there is a glaring disparity between the date of birth recorded in the Company records and the company records and the apparent age of the employee, the cases may be referred to the Apex medical Board located at Head quarters of the Company for determination of age. (G) After the assessment of the age by the age Determination Committee/ Medical Board. The same will be computerized and print out of the same will be given to the employee concerned and the unit from where the reference was received with a month if age is not however computerized, still the same will be intimated to the employer concerned and the unit within a month. 7 (H) It was agreed that in cases where instead of date of birth year has been recorded, first July of the year will be deemed to be the date of birth.

10. Perusal of the above said instructions shows that, if there is a question as to, what is the date of birth of existing employee, then Matriculation Certificate or Higher Secondary Certificate issued by recognized University/Board of Middle Pass Certificate issued by Board of Education should be treated as correct document to ascertain the date of birth. In the instant case, the petitioner has filed true copy of his certificate of passing Middle School issued by ‘Secretary, Bihar Vidyalaya Pariksha Samiti, Patna’ dated 29 July 80, in which his date of birth is mentioned as “5 JUN SIXTY FOUR”. As per aforesaid Instruction, date of birth mentioned in the certificate issued by University/Boards/Instructions prior to the date of employment should be treated as correct date of birth, as such, as per aforesaid document, date of birth of the petitioner mentioned in the certificate issued by ‘Secretary, Bihar Vidyalaya Pariksha Samiti, Patna’ is found to be correct. Even otherwise, in various documents including statutory ‘Form-B’ maintained by the respondent authorities after transfer of the petitioner from WCL to SECL, date of birth of the petitioner has been mentioned as 05.6.1964. The respondent/SECL has also not taken any measure to correct date of birth as has been provided in Instruction 70/76 issued by Joint Biparite Committee for the Coal Industry, Coal India Limited, ‘Coal Bhawan’, 10, Netaji Subhas Road, calcutta – 700 001 bearing No.CIL/NCWA-III/I.I. No.76/88/285 dated 25 th April, 1988, by examining the issue from age determination Committee/medical board.

11. If there is any variation in the date of birth of the petitioner in the record maintained by the respondent authorities, as the petitioner is claiming his date of birth as 05.6.1964, then, the respondent authorities may get verified the documents issued by ‘Secretary, Bihar Vidyalaya Pariksha Samiti, Patna’ dated 29 Jul 80, on the basis of which the petitioner is claiming his date of birth as 8

05.6.1964. But no such steps has been taken by the respondent authorities.

12. Further, as per Clause ‘(c)’ of the Instruction 70/76, in the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(I)(a) or (B)(I)(b) above, the date of birth recorded in the records of the Company, namely form-B register, CMPF record and identity card (untampered) will be treated as final.

13. In the instant case, in the statutory Form – ‘B’, maintained by the respondents/SECL (Annexure-P/2) and identity card of the petitioner (Annexure- P/5) issued by the respondents/SECL, which seems to be untampered, date of birth of the petitioner has been mentioned as 05.6.1964, therefore, as per Instruction of ‘c’ also, date of birth of the petitioner i.e. 05.6.1964 is found to be true.

14. It is also apt to note here that initially in the documents maintained by the respondent/SECL, date of birth of the petitioner was mentioned as 05.6.64 and thereafter if the respondent authorities found that aforesaid date of birth of the petitioner was in correct and his actual date of birth is 10.5.59, then they ought to have sought explanation from the petitioner by serving notice to him and by seeking valid document in this regard. Instead there off, they directly issued impugned Order dated 03.10.2020 (Annexure-P/1) informing him that he has been superannuated since 31.05.2019.

15. In the case of Hari Singh vs. State of Bihar, (2000) 10 SCC 284, the Hon’ble Supreme Court has held that since the Government had never put the employee on notice to indicate that the date of birth as entered in the service book was incorrect though it could have done so and since no notice had been given to the employee concerned for accepting a date of birth other than the one entered in the service book, the order of retirement could not be sustained.

16. In the case in hand also no notice has been found to served to the petitioner with regard to his date of birth against the record maintained by the 9 respondent authorities. Hence, on this count also Order impugned (Annexure- P/1) is liable to be quashed.

17. It is apparent that the respondent authorities have passed impugned order (Annexure-P/1) without complying the required procedures as discussed above, whereas, as per Instruction 70/76, not only in the Middle School certificate of the petitioner, but in the statutory ‘Form-B’ and other documents maintained by the respondents/SECL, date of birth of the petitioner is 05.6.1964, which is found to be correct. Therefore, order impugned dated 03.10.2020 passed by the respondents/SECL is hereby quashed.

18. In that view of the matter, date of superannuation of the petitioner would fall on 30.6.2024 and all the necessary consequences shall follow accordingly.

19. Resultantly, the petition stands allowed. Sd/- (Naresh Kumar Chandravanshi) Judge Bini