HON’BLE SRI JUSTICE R. KANTHA RAO
WRIT PETITION NO. 13428 OF 2014
Date:05-08-2014
Between:
Mididoddi Purushotham …Petitioner And The SCC Ltd. , Kothagudem Rep. by its C & MD, Hyderabad and another …Respondents
ORDER:
HON’BLE SRI JUSTICE R. KANTHA RAO
WRIT PETITION NO. 13428 OF 2014
This writ petition is filed seeking issuance of writ of mandamus declaring the impugned notice issued by the respondents in Ref.No.RGI/GDIK2&2A/W-14/2830 dated 18.07.2013 reducing the service of petitioner by five years one month as on 31.07.2014 under the guise of superannuation as illegal termination of petitioner’s service, contrary to NCWAII – JBCCI, age determination rules, violative of Section 9A, 12(3) of the Industrial Disputes Act and Articles 14, 19 of Constitution of India, illegal arbitrary and consequently direct the respondents to rectify the error by incorporating the date of birth 04.08.1959 and continue the petitioner in service up to 03.08.2019 basing on the certificate issued by Head Mistress/Principal of Pradhamika Pathasala, Julapalli, Kamalapur mandal, Karimnagar District.
2. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents-Company.
3. The brief facts relevant for considering the issues involved in the writ petition may be stated as follows:
4. The petitioner was initially appointed by the first respondent company as Badli filler in the year 1979 and later made as permanent employee. The petitioner studied up to 4th class in Government School, Karimnagar from 1971 to 1973 under admission No.211 and in the school records, the date of birth was recorded as 04.08.1959. According to the petitioner, the recruiting officilas sent him for medical examination to know whether he is medically fit for carrying on duties in the underground mines and having found that he is fit for discharging duties, he was appointed as Badli Filer in the year 1979. At the time of joining duty as per the provisions of the Mines Act, the first respondent Company officials obtained all his finger impressions as well as signatures in a blank book stating that they would fill up later, but they had never shown him the said book till date and he was under the bona fide impression that the respondents company officials have recorded all particulars correctly including the date of birth.
5. It is submitted by the petitioner that when the respondent issued the impugned notice dated 18.07.2013 for the first time he came to know that the respondents company had wrongly recorded his age as ’25’ years instead of his actual date of birth and it is not as per the school records and continued the same, basing on the said error in all records without his knowledge.
6. It is further submitted by the petitioner that in the year 1980 as a Trainee candidate in IV category he was posted at GDK 10 incline mine and later he was transferred to GDK 11-A in 1989 to GDK 10A in March,1990 and GDK-2A in December,2002 wherein he is currently working as Munshi. According to the petitioner, his date of birth is 04.08.1959 as per the certificate issued by the Head Mistress/Principal of Pradhamika Pathasala, Julapalli, Kamalapur mandal, Karimnagar District. In normal course, he has to be continued in service till 03.08.2019 which is his superannuation date and the respondents have no right whatsoever basing on wrong entry of ‘25’ years to superannuate him five years in advance i.e. by 31.07.2014 without making correction as it is a clerical mistake.
7. The respondents apart from controverting material facts stated in the affidavit filed in support of the writ petition, contended specifically that as per Identity & Service Card, the age of the petitioner was 25 years as on 31.07.1979 and the educational qualifications of the petitioner was recorded as nil. It is further submitted by the respondents that the petitioner did not submit any study certificate and date of birth certificate at the time of appointment and the petitioner has signed on service and identity card as a token of his acceptance of the age recorded therein. As per the date of birth recorded in service and identity card, the petitioner will be retired on superannuation after working hours of 31.07.2014 as per company records.
8. The version of the respondents is that as per the Company Rules in case of illiterates, the age assessed/determined by the Medical Officer of the respondents-company at the time of initial medical examination in accordance with the Mines Rules under Mines Act, 1952 would be taken into consideration with the consent of the appointee and will be recorded in all the service records. It is stated that the petitioner did not submit any documentary proof of his age, as such his age was assessed at the time of initial appointment by the then Colliery Medical Officer as 25 years as on 31.07.1979 i.e. DOB 31.07.1954 and accordingly he will be retired from company services after working hours of 31.07.2014.
9. Thus, according to the respondents, whenever there is any variation of date of birth in the service records maintained by the respondents-Company, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the management. Contending as above, the respondents sought to dismiss the writ petition filed by the petitioner as not maintainable.
10. The law now is well settled that if the employee seeks any change in the date of birth, he has to make an application as soon as possible after securing employment. I n COMMISSIONER OF COLLEGIATE EDUCATION, HYDERABAD AND ANOTHER v. NARAYANA REDDY
[1] AND ANOTHER
, the Division Bench of this Court held that long service of 36 years and silence regarding date of birth being maintained all through, alteration of date of birth in service record cannot be permitted even though there is no statutory period of limitation prescribed for correcting the date of birth.
11. In the instant case, the petitioner was initially appointed as Worker Trainee on 29.08.1979 at GDK-10 Incline, subsequently promoted as Munshi and presently working at GDK-2A Incline, RG.I.Area.
12. The learned counsel appearing for the respondents relied on M/S.
BHARAT COKING COAL LTD. AND OTHERS v. CHHOTA BIRSA [2] URANW . In the said case, the Hon’ble Supreme Court expressed the view that claim for correction of date of birth cannot be rejected on technical ground of being belated claim and the claim of the employer that other non-statutory documents like school leaving certificate should not be given precedence over service record cannot hold good. The Hon’ble Supreme Court said that even if the certificate was issued after joining service but on the basis of school record containing date of birth, it cannot be disregarded as one issued after joining service.
13. The facts before the Supreme Court are entirely different from the facts of the present case. In the said case, the employee joined the service in the year 1973 and in the year 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought for rectification of the date of birth soon thereafter, the Hon’ble Supreme Court therefore was of the view that it cannot be said that the rectification was sought at the fag end of his service.
14. But, in the instant case, the petitioner came to know that the respondents wrongly recorded his age as 25 years instead of the correct date of birth as per the school records by impugned notice dated 18.07.2013 directing him to retire.
15. Further, in the aforementioned judgment, the Hon’ble Supreme Court held specifically that the correction of date of birth in service record ought to be made as per rules applicable, it being a question of fact, has to be decided by appropriate forum, but not by a writ Court.
16. Having regard to the unique facts and circumstances of the case before the Supreme Court, the above referred judgment was rendered and he same cannot be made applicable to the facts of the present case.
[3]
17. In STATE OF T.N. v. T.V.VENUGOPALAN the Supreme Court h e l d that the date of birth recorded after entering service and countersigned by Government Servant, it would not be permitted to be challenged by the government servant at the fag end of his service.
18. In BURN STANDARD CO.LTD. AND OTHERS v. DINABANDHU
[4] AMJUMDAR AND ANOTHER
the Supreme Court held “that the date of birth entered in service and leave record on the basis of voluntary declaration made by the employee at the time of appointment, authenticated by him and never objected to up to the fag end of service (about two years before superannuation), writ petition seeking correction of date of birth filed at such stage ordinarily not entertainable. The Supreme Court was of the view that the extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant for enabling the employees of government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employees, placing reliance on the so-called newly-found material. The fact that an employee of government or its instrumentality who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches.”
19. In STATE OF MADHYA PRADESH AND OTHERS v. PREMLAL
[5] SHRIVAS
, the Supreme Court took the view that the government servant cannot claim as a matter of right correction of date of birth in service record after lapse of time fixed by the employer, even if he has good evidence to establish erroneous entry.
20. In G.M., BHARAT COKING COAL LTD. WEST BENGAL v. SHIB
[6] KUMAR DUSHAD AND OTHERS
the Supreme Court held that where question regarding correctness of date of birth as entered in service record raised by employee long after his joining the service and the employer decided the question following the procedure prescribed by statute, statutory rules or instructions, held, in absence of any arithmetical or typographical error apparent on the face of the record, High Court should not interfere with such decision of the employer in exercise of its extraordinary jurisdiction under Article 226. The Supreme Court further was of the view that whether certificates produced by the employee showing his date of birth different from that entered in his service record is a disputed question of fact and the High Court in exercise of its jurisdiction under Article 226 should not undertake an inquiry into such question.
21. The facts of the present case have to be examined in the light of the principles enunciated by the Supreme Court in the aforesaid judgments. The normal rule is that when the employee disputes the date of birth which is entered in the service record and produces the same as documentary evidence showing a different date of birth, it is a disputed question of fact which cannot be adjudicated by this Court in exercise of its jurisdiction under Article 226 of Constitution of India. Further, this Court to exercise its judicial discretion under Article 226, has to take into account the conduct of the parties. If there is inordinate delay in approaching the Court for the relief, and there are laches on the part of the petitioner, the Court normally would not interfered to grant the relief prayed for in the writ petition. The general rule is that after joining service, the employee if at all disputes the date of birth which is entered in the service record, has to make an application for correction of the same soon-after he joining service or at least within a reasonable time. Further, after rendering services for over a period of decades, the employee cannot plead ignorance of his date of birth entered in the service records. If at all, the employee contends that he was not made aware of the date of birth entered in service record by preventing access to the records maintained by the management, he has to establish the said fact by adducing reliable and convincing evidence.
22. As rightly contended by the respondents the petitioner was appointed as Badli Filler which does not require any educational qualifications. Hence, there is no need to submit educational qualifications at the time of initial appointment. Therefore, the petitioner was subjected to initial medical examination in accordance with Mines Rules, 1955 and the petitioner did not submit any documentary evidence supporting his age and the age assessed by the then Colliery Medical Officer as 25 years as on 31.07.1979 was taken into consideration and his date of birth was recorded as 31.07.1954 by the company in all the service records of the employee; such as, Form ‘B’ Register, Identity & Service Card, EPR, PS-3, PS-4 and MVTC training certificates which are statutory records.
23. Having regard to the facts and circumstances of the case, I am of the considered view that the petitioner cannot claim that he produced the containing date of birth at the time of his appointment. Since no educational qualification was required for the initial appointment of the petitioner, production of date of birth certificate was absolutely unnecessary. Even otherwise, if really the petitioner produces the date of birth certificate at the time of his initial appointment, there is no reason as to why the officials refused to enter the said date of birth in the concerned records.
24. The petitioner is therefore not entitled for the relief as prayed for in the writ petition.
25. The writ petition, therefore, fails and accordingly it is dismissed without any order as to costs. Miscellaneous petitions, if any, filed in this writ petition shall stand closed.
R.KANTHA RAO, J Date:05.08.2014 Ccm THE HON’BLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION NO. 13428 OF 2014
Date:05-08-2014
[1] 2006 (5) ALD 492 (DB)
[2] 2014 LAB.I.C. 2364
[3] (1994) 6 SCC 302
[4] (1995) 4 SCC 172
[5] (2011) 9 SCC 664
[6] (2000) 8 SCC 696