Vijay Sharma, aged about 58 years, Son of Late Vishnu Sharma, Resident of Qtr v. 1. M/s Bharat Cocking Coal Limited, a subsidiary of Coal India Limited, through its
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 1382 of 2023 Vijay Sharma, aged about 58 years, Son of Late Vishnu Sharma, Resident of Qtr. No. A1/315 Koyla Nagar, P.O. Koyla Nagar, P.S. Seraidhela, Dist. Dhanbad, Jharkhand Petitioner … … Versus 1. M/s Bharat Cocking Coal Limited, a subsidiary of Coal India Limited, through its Chairman-cum-Managing Director, having its registered office at Koyla Bhawan, P.O. Koyla Nagar, P.S. Seraidhela, Dist. Dhanbad, Jharkhand 2. The Chairman cum Managing Director, M/s Bharat Coking Coal Limited office at Koyla Bhawan, P.O.- Koyla Nagar, P.S.- Seraidhela, Dist: Dhanbad, Jharkhand. 3. The Director (Personnel), M/s Bharat Coking Coal Limited office at Koyla Bhawan, P.O.- Koyla Nagar, P.S.- Seraidhela, Dist: Dhanbad, Jharkhand. 4. General Manager (P & I R), M/s Bharat Coking Coal Limited office at Koyla Bhawan, P.O.- Koyla Nagar, P.S.- Seraidhela, Dist: Dhanbad, Jharkhand. 5. General Manager (P)/NEE, M/s Bharat Coking Coal Limited office at Koyla Bhawan, P.O.- Koyla Nagar, P.S.- Seraidhela, Dist: Dhanbad, Jharkhand. 6. Sr. Manager (Personnel/Establishment), M/s Bharat Coking Coal Limited office at Koyla Brawan, P.O.- Koyla Nagar, P.S.- Seraidhela, Dist: Dhanbad, … … Respondents Jharkhand. --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents 06/7th May 2024
Legal Reasoning
dated 05.12.2022 has been passed pursuant to the order passed by this Court in W.P. (S) No. 3421 of 2020. The order of the writ Court has been annexed at
Arguments
--- : Mr. Raj Nandan Chatterjee, Advocate Mr. Ajay Kumar Singh, Advocate : Mr. Anoop Kumar Mehta, Advocate Mr. Manish Kumar, Advocate --- 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs: - “a. For direction/directions issuance of an appropriate writ/writs, order/orders/ the Reasoned Order dated for quashing of 1 05.12.2022 (Annexure-17) passed by the General Manager (P & IR), Koyala Nagar, BCCL i.e. Respondent No. 4, whereby and whereunder the date of birth of the petitioner given before entering into service in the Attestation Form and Verification Roll as 29.11.1964 as per school Certificate (Annexure-II) and subsequent documents viz Service Excerpts. CMPF Documents, Form A, etc. have been neglected and it has been declared in a very arbitrary manner that the age of the petitioner was accessed as 30 years on 16.10.1990 by Kustore Central Hospital which is evident from the appointment letter issued about one month ago on 19.09.1990. b. For issuance of an appropriate writ/writs, order/orders/ direction/directions commanding upon the respondents to correct the date of birth of the petitioner as 29.11.1964 in terms of his Service Excerpts, CMPF Documents, Form A and various documents etc., instead of his wrong date of birth mentioned by the medical report as 30 years as on 16.10.1990 by the responded authority. c. For issuance of appropriate order/direction upon the respondents to immediately and forthwith produce the service record of the petitioner so as to enable the court to fix responsibility upon the erring officer who has manipulated the records of the petitioner. For any other relief/reliefs, order/orders as Your Lordships may deem fit and proper in the present facts and circumstances of this case.” And/or 3. The learned counsel for the petitioner submits that the reasoned order
Decision
Annexure-12 of the writ petition. He submits that in the entire service records, the date of birth of the petitioner is recorded as 29.11.1964, but the petitioner has been made to retire on 31.10.2020 by taking his date of birth as 16.10.1960. The learned counsel submits that if the date of birth is taken as 29.11.1964, the petitioner would retire on 31.11.2024. 4. The learned counsel has referred to the various documents particularly the service excerpts as contained in Annexure-6 which was prepared in the year 1993 and he submits that even in the service excerpts, the date of birth has been recorded as 29.11.1964. He has referred to the chart which has been given in the reasoned order wherein at different columns the date of birth has been recorded as 29.11.1964. The appointment letter of the petitioner has also been placed on record which does not mention the age/date of birth of the petitioner but against the column appointment letter in the chart given in the reasoned order, it has been mentioned as “30 years as on 16.10.1990 as per medical report i.e. 2 16.10.1960” . He submits that neither the appointment letter mentions the date of birth nor the medical report is available to support the aforesaid fact stated in the impugned order. 5. The learned counsel submits that the reasoned order also reflects that the service excerpts was corrected and the date of birth of the petitioner was corrected as 16.10.1960 but any such correction or interpolation in the service excerpts at the back of the petitioner is not sustainable in the eyes of law. As per the counter-affidavit also, no notice was given to the petitioner to change the entry made in the service excerpts. 6. The learned counsel submits that in spite of aforesaid facts, the reasoned order has recorded that the date of birth of the petitioner is to be taken as 16.10.1960 and not 29.11.1964. 7. Learned counsel appearing on behalf of the respondents has submitted that since the petitioner was non-matriculate, a medical examination was conducted and the petitioner was found to be 30 years as on 16.10.1990 and therefore his date of birth was 16.10.1960. However, upon a query made by this Court, the learned counsel has fairly submitted that the medical report which has been mentioned in the reasoned order is not traceable in the records of the respondents. 8. The learned counsel has also submitted that though it is not in dispute that the date of birth of the petitioner in the service excerpts was changed without giving any notice to him but it was within his knowledge and therefore he had filed a representation as back as in the year 2001 for correction of his date of birth and therefore the petitioner is not entitled for any relief and he has approached this Court after about 19 years from 2001 by filing the earlier writ petition being W.P. (S) No. 3421 of 2020 . 9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the petitioner had moved earlier before this Court in W.P. (S) No. 3421/2020 challenging the letter dated 15.05.2020 issued by the respondents wherein it was stated that the date of retirement of the petitioner would be 31.10.2020 and it was asserted by the petitioner that the date of birth of the petitioner is 29.11.1964 and not 3 16.10.1960. The petitioner had filed a representation against the letter dated 15.05.2020 and consequently the writ petition was disposed of vide order dated 08.09.2022 with a direction upon the respondent-General Manager (P & IR), BCCL to decide the claim of the petitioner within a stipulated period. Pursuant thereto, the petitioner appeared before the authority and ultimately the reasoned order dated 05.12.2022 has been passed. 10. In the impugned reasoned order, the details regarding date of birth in the record has been mentioned in a chart, which is as follows: - “The details of DOB recorded in different records in respect of Vijay Sharma, Peon, P. No. 0124084, E&M Department, HQ are as under: - Sl. 01 02 03 04 05 06 Name of record Date of Birth Appointment letter 30 yrs. As on 16.10.90 as per Medical report i.e. 16.10.1960 Attestation Form 29.11.64 Verification Roll 29.11.1964 SRE 29.11.1964 corrected as 16.10.60 As per MP&R register information obtained on 02.01.93 ID Card register 29.11.64 ID Card 29.11.64 11. From perusal of the reasoned order, it is apparent that there are two entries which indicate that the date of birth of the petitioner was 16.10.1960; 1st is with regard to his appointment letter ( Sl. No. 1) and 2nd is with regard to service excerpts (Sl. No. 4) . 12. So far as the appointment letter is concerned, the same has been annexed with the writ petition which does not disclose the age/date of birth of the petitioner. However, the basis of taking the age as 16.10.1960 has been mentioned against the column of appointment letter by referring to medical report. Admittedly, the medical report is not traceable and therefore recording of date of birth by referring to the medical report itself indicates non- application of mind and reliance on medical report to record the age of the petitioner to be 30 years as on 16.10.1990 in the reasoned order is apparently perverse and cannot be sustained in the eyes of law. 4 13. Further, it is not in dispute that initially the date of birth of the petitioner in the service excerpts of the year 1963 was recorded as 29.11.1964 and it is the case of the respondents that correction was made in service excerpts of the petitioner and the date of birth was changed to 16.10.1960 but the same was admittedly done without issuing any notice to the petitioner. This Court is of the considered view that change made in the service record with respect to the date of birth adversely affecting the petitioner without giving any notice to the petitioner is an arbitrary exercise of power on the part of the respondents which cannot be sustained in the eyes of law. 14. In view of the aforesaid findings, both the aforesaid disputed entry with regards to the date of birth of the petitioner cannot be relied upon by the respondents to sustain the impugned order. 15. So far as the other records are concerned including attestation form, verification roll, ID Card etc., the date of birth was recorded as 29.11.1964. This is apparent from the aforesaid chart in the impugned order. 16. So far as the stand of the respondents that the petitioner was aware of the mismatch in connection with his date of birth in view of his own representation filed in the year 2001 is concerned, this Court is of the considered view that such objection is not tenable in the eyes of law in view of the fact that the respondents from their own records are not in a position to substantiate their claim that the date of birth of the petitioner was 16.10.1960. The sole basis for such claim is apparently the medical report, but the medical report is not traceable at the hand of the respondents for which the petitioner cannot be held responsible. 17. This Court also finds that the notice of retirement was issued to the petitioner and immediately thereafter the petitioner approached this Court; further, the petitioner has not yet attained the age of superannuation, if his date of birth is taken as 29.11.1964. 18. Considering the aforesaid facts and circumstances, this Court finds that as per the own record of the respondents at many places including the original service excerpts of the year 1993, attestation form, ID Card etc., the date of birth of the petitioner has been recorded as 29.11.1964 and there are no 5 materials on record to substantiate the date of birth of the petitioner as 16.10.1960 except the medical report which is not available with the respondent. 19. As a cumulative effect of the aforesaid findings, the reasoned order declaring the date of birth of the petitioner as 16.10.1960 is perverse, which is hereby set-aside. 20. It is held that the date of birth of the petitioner is to be taken as 29.11.1964 and accordingly the petitioner would attain the age of superannuation on 30.11.2024. 21. This Court is of the considered view that the petitioner has been kept out of service for no fault on his part and at the same time, the petitioner has not worked during this period. Consequently, the ends of justice would be met if the petitioner is given 50% of wages during which the petitioner remained out of service and with continuity of service. 22. The respondents are directed to forthwith give the joining to the petitioner upon receipt of a copy of this order. 23. This writ petition is accordingly disposed of with the aforesaid observations and directions. 24. Pending I.A., if any, is closed. Mukul/AFR (Anubha Rawat Choudhary, J.) 6