Bijay Kumar Thakur …… v. The Executive Director
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4121 of 2022 Bijay Kumar Thakur ……… Petitioner Versus The Executive Director (P & A), Bokaro Steel Plant, P.O.- Bokaro Steel Authority of India Limited Bokaro Steel Plant through the 1. Managing Director, P.O.-Bokaro Steel City, P.S.- Bokaro Steel City, P.S.- Bokaro Steel City, District-Bokaro Steel City-827001 2. Steel City, P.S.-Bokaro Steel City, District-Bokaro Steel City 827001 3. City, P.S.-Bokaro Steel City, District-Bokaro Steel City-827001 4. City, P.S. -Bokaro Steel City, District Bokaro Steel City-827001 The Chief Personnel Manager, Bokaro Steel Plant, P.O.-Bokaro Steel The Assistant Manager (P & M), Bokaro Steel Plant, P.O.-Bokaro Steel ……… Respondents CORAM: Hon’ble The Acting Chief Justice Hon’ble Mr. Justice Deepak Roshan -------- -------- For the Petitioner For the Respondents : Mr. Dhananjay Kr. Dubey, Advocate : Mr. Amitabh Prasad, Advocate --------. 14/ 05.01.2023
Legal Reasoning
Heard learned counsel for the parties. The instant writ application has been preferred for following 2. reliefs: a. For issuance of an appropriate writ(s)/order(s)/direction(s), in the nature of certiorari, for quashing of the order dated 19.07.2022 passed in O.A. No. 051/01099 of 2019 as contained in Annexure -11 whereby and whereunder, the grievance of the petitioner has been dismissed only on the ground of delay taking into the shelter of a judgment passed by the Hon’ble Apex Court which is bad in law in the facts and circumstances of the present case because the said judgment is not applicable in the case in hand; b. For issuance of an appropriate writ(s)/order(s)/direction(s), for quashing of the communication dated 08.02.2019 as contained in Annexure-8, whereby treating the date of birth of the petitioner as 05.05.1961 he has been asked to file the pension form which is bad in law in view of the fact that the date of birth as mentioned in the matriculation certificate is 12.02.1969 and the petitioner has passed the examination in the year 1985 and joined the service in the year 1998 as a Fitter Trainee on account of death of his father-Late Biswanath Thakur; c. For issuance of an appropriate writ(s)/order(s)/direction(s), directing the respondents to treat the date of birth of the petitioner as 12.02.1969 as mentioned in the matriculation certificate issued by the Bihar School Examination Board w.r.t. matriculation examination which the petitioner has passed in the year 1985; and further be pleased to direct the respondents to allow the petitioner to continue till the date of retirement as per the age mentioned in the Matriculation certificate and grant all the consequential benefits on that basis.” 3. The brief facts, as it appears from the recital of the writ application is that the petitioner was son of an ex-employee of Bokaro -2- Steel Plant, namely Biswanath Thakur, who died in harness on 06.10.1994. After death of his father, the petitioner joined the respondent organization as apprentice on 27.10.1998 and on 05.03.2001 he was given regular appointment to the post of Khalasi-cum-Junior Fitter in the pay scale of Rs.2,100/--2,600/- vide letter dated 05.03.2001 and since then he has been working in the department. The case of the petitioner is that at the time of joining he submitted his matriculation certificate in which his date of birth was recorded as 12.02.1969 but the Management forced him to declare his date of birth as 05.05.1961, which was recorded in the service record of his father. Learned counsel for the petitioner submits that in the year 1998 when the petitioner was posted in the Personnel Section, he came to know that his date of birth in the official record is 05.05.1961 and thereafter, he immediately requested the authorities to rectify his date of birth on the basis of his certificate submitted by him at the time of his joining. 4.
Legal Reasoning
Learned counsel for the petitioner submits that in the year 2019 he was surprised to receive a communication dated 08.02.2019, wherein his date of birth was mentioned as 05.05.1961 and by which letter he was asked to fill up pension forms. Learned counsel further tries to draw attention of his court towards Annexure 2 to the instant writ application and submits that in the year 1998 when he came to know that his date of birth has been wrongly recorded, he also submitted an affidavit before the authorities dated 20.10.1998. He lastly submits that the action of the respondents while issuing the letter dated 08.02.2019 directing the petitioner to file pension form by treating his date of birth as 05.05.1961 is illegal. As a matter of fact, the respondents were duty bound to consider the matriculation certificate which was part and parcel of the joining letter. He concluded his argument by submitting that the respondents may be directed to calculate his age of retirement by recording his date of birth as 12.02.1969 instead of 05.05.1961. In support of his contention with regard to change of date of birth he relied upon a recent judgment passed in the case of SHANKAR LAL Versus HINDUSTAN COPPER LIMITED AND OTHERS reported in (2022) 6 SCC 211. 5. Learned counsel for the Union of India reiterated the stand taken in the counter affidavit and submits that the petitioner declared -3- his date of birth as 05.05.1961 in the application submitted by him on 24.10.1998 for test/interview for dependent candidate. The petitioner also submitted a declaration regarding his date of birth on 24.10.1998 in which he mentioned his date of birth as 05.05.1961. Learned counsel contended that the affidavit as claimed by the petitioner for correction of date of birth is not found in personnel records, therefore, the onus of proof of submission lies on the petitioner. The petitioner joined the Bokaro Steel Plant as an apprentice on 27.10.1998, and later on as Khalasi on casual basis with Casual No. C49932. At the time of joining, the petitioner declared his date of birth as 05.05.1961 in the application submitted by him on 24.10.1998 for test/interview for dependent candidate. The petitioner also submitted a declaration regarding his date of birth on 24.10.1998 in which he mentioned his date of birth as 05.05.1961. It is further submitted that the petitioner was given regular appointment on the post of Khalasi-cum-Jr. Fitter vide letter dated 05.03.2001. After joining Bokaro Steel Plant, posting order was issued on 11.04.2001 in which date of birth of the petitioner has been mentioned as 05.05.1961. The copy of the posting order was also given to the petitioner. The petitioner who is son of Late Bishwanath Thakur, Staff No. 175556, Ex-Rigger, TIC & IPU Department, an ex-employee of Bokaro Steel Plant; in his personal file, his father recorded his date of birth as 05.05.1961. The petitioner has himself admitted in Paragraph 4.5 of his original application that his date of birth as recorded in his father’s personal file is 05.05.1961, and as such, the date of birth 05.05.1961 existed in this record of the Management and no further proof is required. In support of his contention, learned counsel for the Respondents relied upon the judgment passed in the Karnataka Rural Infrastructure Development Limited Versus T.P. Nataraja and Others reported in (2021) SCC Online SC 767. 6. Having heard learned counsel for the parties and after going through the impugned order and the relevant documents annexed with the respective affidavits and the averments made therein it appears that the petitioner is pursuing to change his date of birth at the fag end of his career. At this stage itself it is pertinent to mention here that the -4- petitioner heavily argued on the fact that he has submitted an affidavit at the very initial stage in the year 1998 itself the moment he came to know about the discrepancy in his date of birth, but the petitioner failed to bring on record any further document which will show that he ever agitated his grievance of date of birth during his entire tenure from the year 1998 till the year 2017 when he retired from service. 7. It further transpires from the impugned order that upon the direction of the learned Tribunal one Mr. Jai Kishan Sahu, Manager (Personnel/Works/Steel) came with the personal file of the petitioner and the learned tribunal has observed in paragraph 5 of its order as under: “5. In aforesaid backdrops of pleading the OA was on Board, on 9th May, 2022, for final hearing and after part hearing when in answer to some query, regarding facts, both counsel claimed ignorance, executants of WS was directed to remain present on following date and therefore Shri Jai KishanSahu, Manager (Personnel/Work/Steel), with personal file of the applicant appeared. We have had glance of the personal file of the applicant. The application form filled up for appointment by the applicant (Copy of which Annexure R-1) in original is available in the file. There is no such endorsement that date of birth has been verified from Matriculation Certificate, though in Para 7 of the application, which relates to educational qualification, it is mentioned therein “Matric BSL Higher Secondary-9 1985 Bokaro Steel City class IIIrd”. AtTop of this application some endorsement is there which is not thoroughly legible but whatever that may be, it cannot be inferred from this endorsement that date of birth has been verified from the matriculation certificate. In personal file of applicant some applications of him, for LTC leave under the signature of the applicant are there. In one application which relates to the leave period of from 26th June 2009 to 1st July 2009; and in this application age of the applicant has been stated as 48 years, which corresponds to his date of birth as of 05.05.1961. Another leave application is of block year 2011-13 and of leave period of June 2012 and in this application the age of the applicant has been mentioned as 43 years, which age corresponds to date of birth of 1969.” -5- Thus, the argument of the petitioner at this stage to call for original record so as to verify that he was regularly requesting for correction in his date of birth is not tenable in the eye of law. 8. The standpoint of the petitioner that in the application for appointment and declaration he was forced to record his date of birth as 05.05.1961 though his actual date of birth is 12.02.1969 is not accepted by this court in the background that the petitioner has failed to bring on record any such document to substantiate his claim, more so when the learned tribunal has examined the entire original record of the petitioner. The claim of the petitioner that he filed an affidavit way back in the year 1998 for correction of his date of birth is also not acceptable due to the fact that the said affidavit as claimed by the petitioner is not supported by any covering letter / receipt thereof and the said affidavit has been specifically denied by the respondents. Further, even admitting the argument of affidavit there is no any document in support of such argument put forth by the petitioner as between 1998 till the date of filing of the original application before the Tribunal, the petitioner has failed to show any chit of paper to the extent that he has ever requested the management for correction of his date of birth. Thus, this court holds that the petitioner is seeking to change his date of birth for his benefit at the fag end of his career. 9. The law is now no more res integra that an employee cannot raise his grievance of his date of birth at the fag end of his career. In this regard, reference may be made to the case of the Karnataka Rural Infrastructure Development Limited (Supra) wherein at Paragraph 22 the Hon’ble Apex court has held as under: “22. Considering the aforesaid decisions of this Court the law on even if there is cogent evidence, the same cannot be claimed as Application for change of date of birth can only be as per the change of date of birth can be summarized as under: (i) relevant provisions/regulations applicable; (ii) a matter of right; (iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.” The judgment relied upon by the petitioner is not applicable in the instant case, inasmuch as, in the case of Shankar Lal (supra) the -6- issue was that there cannot be any correction in the date of birth by the employer in service book as per form B unilaterally without hearing the employee at the fag end of his career. 10. At the cost of repetition, in the instant case, the application for the appointment/declaration made by the petitioner duly indicated the date of birth as 05.05.1961. The argument of the petitioner that he only made a signature in the declaration form is not tenable in the eye of law, inasmuch as, he was having every right to raise his grievance at that juncture itself and not at the fag end of his service. As indicated hereinabove, the affidavit which has been referred by the petitioner is also not in the records of the respondents and the respondents have categorically denied the same. 11. In view of the aforesaid discussions, no discrepancy has been found in the impugned order passed by the learned tribunal who have meticulously dealt with the issue and even gone through the original file of the petitioner during the course of proceeding and came to the conclusion that the claim of the petitioner is not tenable. 12. Consequently, the instant application is dismissed. (Aparesh Kumar Singh, A.C.J.) s.m.. (Deepak Roshan, J.)