JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the petitioner and learned standing counsel for the respondents.
2. The petitioner has filed this writ petition with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order of termination dated 20.9.1997 and the order dated 16.3.1998 (Annexures-6 and 20 to the writ petition respectively). The order dated 20.9.1997 is to the effect that the petitioner had unauthorisedly and illegally remained in employment with effect from 30.6.1993 to 19.9.1997 on the basis of Incorrect date of birth given at the time of entry into service. Annexure-20 is the order dated 16.3.1998 passed by the appellate authority dismissing the appeal of the petitioner arising out of the order dated 20.9.1997 passed by respondent No. 3 terminating the services of the petitioner.
3. The brief facts of the case are that the petitioner was initially appointed on 1.3.1960 in Cooper Alien Company, a Unit of B.I.C. where his date of birth was recorded as 1935. Cooper Alien Co. was taken over along with North West Tannery in the year 1969. The Corporation was nationalised and renamed as T.A.F.C.O. Later on, when the petitioner entered into service of T.A.F,C.O. In October, 1970, he gave the year of his birth as 1942. The petitioner retired from the service of the Corporation with effect from 29.9.1997 on the basis of the age recorded in the records of the Cooper Alien Company which had been taken over by the Corporation.
4. The contention of the petitioner is that he has furnished his date of birth at the time of entering into service of T.A.F.C.O. as 1942 which was not accepted by the Divisional Manager of the Company. The petitioner also filed Writ Petition No. 37402 of 1997 which was disposed of by the Court on the ground of alternative remedy and the respondents were directed not to evict the petitioner forcibly from the quarter occupied by him.
5. The contention of the respondents is that when the petitioner was appointed in Cooper Alien Co., he had given his date of birth as 1935 and thereafter when he came in the service of T.A.F.C.O., he gave his date of birth as 1942 which was later on got changed to 1946 and as such, the petitioner ought to have retired at the age of 58 years but on the basis of the fraud committed by him, he continued in employment beyond the age of superannuation. The age of retirement in T.A.F.C.O., was 58 years. It appears from the record that there was an agreement dated 7.7.1975 in Adjudication Case No. 242 of 1974 between the Trade Union and the Management of the Company regarding determination of age/date of birth of the workmen :
"12, Determination of age/date of birth of a Workman :
12.1. Every workman must declare on his first appointment, or when the corporation requires him to do so. his date of birth according to the Christian Era and produce confirmatory evidence like Matriculation or School Leaving Certificate or Birth Certificate as per records of Local Bodies accompanied by an affidavit sworn in by the workman.
12.2. If a workman Is unable to produce, for reasons beyond his control, documentary evidence of his age, he shall state his age and make a written declaration that the age stated by him is correct. He shall also submit a certificate about his age from a Registered Medical Practitioner in Allopath who should be an M.B.B.S. In case the age of the workman is not acceptable to the Management, the workman shall be examined by a Medical Board comprising of the Chief Medical Officer of a district.
Corporation's Medical Officer and another Medical Officer to be nominated by the Management. The decision of the Medical Board in regard to the age of a workman shall be final and binding. The age as recorded shall be final and binding. The age as recorded shall not thereafter be sought to be altered by the workman. Once the age has thus been determined no change will be acceptable.
12.3. In case where no date of birth is given by a workman but only the month or the year Is given, the date of birth in the former case shall be taken to be the first of that month until in the later case it shall be taken to be the 1st of July of that year.
12.4. In the case of those workman who have passed High School or any other examination recognised by the Government, their date of birth given in such examination certificate shall be the conclusive proof of age.
12.5. The age of superannuation for the workman of the Corporation shall be fifty eight years.
However, age of superannuation in the case of those workman, who are in the employment of the Corporation on the date of signing this settlement, shall be sixty years.
12.6. The age/date of birth of the existing workman on the basis of the records of the Corporation, will be notified by the Management on the Notice Board. Any workman aggrieved about his date of birth shall have a right to submit an appeal to the Management within a period of 30 days from the publication of the list on the Notice Boards, and the age/date of birth of the workman shall be finalised in terms of the provisions of the aforesaid Clause 12.
12.7. In all future cases, the determination of age/date of birth as per Clause 12.1 to 12.5 would be available to both the parties only during the period of probation of a workman. Once a workman has been confirmed and made permanent, it would be deemed that both the parties have agreed to their recorded date of birth/age as final and binding."
6. According to the workman this agreement did not give any right or power to the Management to reopen the question of date of birth as it would be in violation of the agreement. It is averred on behalf of the petitioner that in the service record and G.P.F., his date of birth has been recorded as 1946.
7. In view of the serious controversy regarding the date of birth given by the petitioner, a show cause notice dated 25.7.1997 was issued to the petitioner for filing proof in respect of his date of birth. By letter dated 23.8.1997, the Management of T.A.F.C.O., directed the petitioner to get a certificate of age verified from the Chief Medical Officer, Kanpur. The petitioner submitted a certificate of C.M.O., Kanpur, dated 8.9.1997 in which it is stated that according to the medical scrutiny and the construction of the body of Syed Ali Akbar, he appears to be of 55 years of age and that according to Sri Syed Ali Akbar also he is 55 years of age.
8. From the above, it is clear that the doctor opined that the applicant at the time of his medical examination appeared to be of 55 years of age which would bring the year of his birth to 1942. The opinion of the C.M.O. In the certificate issued by him to the petitioner is not infallible. The assessment by the C.M.O. In the certificate is nothing but merely an opinion. The 'opinion evidence' by its very nature is weak' in reference to medical tests in medical jurisprudence where it has been laid down that unless ossification test of bones is conducted, by the doctor, the opinion about the age is not acceptable, and even in case the age is determined by conducting ossification test of bones, the margin of error is plus-minus two years.
9. Thus, the medical science itself recognised the fact that age determined even by medical test is tentative and as such the assessment made by the doctors cannot be said to be infallible. In the present case, where the C.M.O. has made assessment on the basis of statement of the petitioner, it cannot be relied upon. It appears that the Management was not satisfied with the certificate issued by the C.M.O. because ossification test of bones was not conducted by the C.M.O. No other document was filed by the petitioner in his reply dated 9.9.1997 to the show cause notice dated 25.7.1997.
10. The respondent company vide letter dated 15.7.1997 also got the age of the petitioner verified from the Gram Pradhan of the village of the petitioner in which the Gram Pradhan of village-Gosari, Post-Nandaon, district Azamgarh, by registered letter dated 17.7.1997 verified the family details of the petitioner and informed that his date of birth was 1932. The aforesaid letter was also signed and authenticated by the elder brother of the petitioner Sri Ali Akbar. Since information about the date of birth of the petitioner in this letter was contradictory, the District Magistrate, Azamgarh was requested to get an investigation made through his office and inform, about the genuine date of birth. No reply was received. In these circumstances, the petitioner was directed by the Management to appear before the Medical Board consisting of C.M.O., the company doctor and another doctor nominated by the Company. The petitioner did not get his age verified by the Medical Board. The C.M.O. also had not conducted any ossification test to determine his age, as such the certificate issued by the C.M.O. would not be relied upon as it is based on the statement of the petitioner that he is aged about 55 years. The correct age cannot be determined by mere looking at the body construction of the petitioner. The certificate issued by the C.M.O. cannot be said to be incorrigible proof of the age of the petitioner and was not acceptable to the Company/Management. Vide another letter dated 5.8.1997, the same Gram Pradhan again informed that the date of birth of the petitioner is 1942. He was also given an opportunity of personal hearing in the appeal and enquired about his educational background. The petitioner stated that he had not studied in any School but his education is limited to Madarsa only. He denied having served in the Cooper Alien C. (BIC) in 1970. The Management relied upon the service record of M/s. Cooper Alien Co. transferred to it in respect of the petitioner in which his date of birth is given as 1935 and his letter dated 10.10.1972 addressed to the Management wherein he has stated that he had studied upto Matric standard and he was a Science Student and further that he had appeared in the Matriculation examination.
11. The appellate authority after considering the facts and record in his personal file found that the petitioner had been misleading the corporation regarding his date of birth, which resulted in recording incorrect year of birth in various papers and records. The appellate authority relying upon the documents/service record inherited from its erstwhile organisation M/s. Cooper Alien Co. rejected the appeal by the impugned order. The appellate authority held that the petitioner had deliberately not produced the school record and suppressed material information, although he appeared in Matriculation examination and that the date of birth of the petitioner is 1935 as recorded on his first employment in 1960 with the Cooper Alien unit of BIC.
12. It has not been denied by the petitioner that after his fresh appointment in T.A.F.C.O., the Deputy Labour Commissioner had vide letter dated 7.10.1970 informed the company that petitioner was erstwhile employee of M/s. Cooper Alien Company.
13. The Apex Court has in catena of cases constantly held that date of birth recorded in the service record should be taken as reliable proof of age. In Chief Medical Officer v. Khadeer Khadri, 1995 (71) FLR 9, a Division Bench of the Apex Court held that recording of incorrect date of birth was found neither bonafide nor clerical and the subsequent and belated attempt to rectify it was to take wrong advantage and was not bona fide and liable to be rejected.
14. In Union of India v. Harnam Singh, 1993 (67) FLR 262, the Supreme Court has held :
"The date of birth entered in the service records of a civil servant, is thus of utmost importance for the reason, that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course not precluded from making a request later on for correcting his age......................if he is in possession of irrefutable proof relating to his date of birth."
The petitioner has not submitted any incorrigible or irrefutable proof of his date of birth. On the contrary, he did not appear before the Medical Board for determination of his age and tried to suppress and mislead the authorities/employer by stating that he studied in madarsa which was against the record and his own letter dated 10.10.1972 as well as letter dated 7.10.1972 of the Deputy Labour Commissioner. These lead to doubts about the correctness of the certificate of the C.M.O.
15. In our opinion, the findings of fact given by the appellate authority do not suffer from any Illegality or infirmity. The respondents have given cogent reasons for rejecting the appeal of the petitioner. The petitioner cannot have any advantage of date of birth given subsequently on his appointment in T.A.F.C.O. The date of birth in the facts of the case cannot be any other than 1935 which he had given at the time of entry in service in Cooper Alien Co.
16. For the reasons stated above, this writ petition fails and is dismissed. The petitioner is not entitled to any reliefs claimed in this writ petition and is directed to hand over the peaceful possession of the quarter allotted to him by the company. If the possession of the quarter is not handed over within a week from today, he will be evicted by police force, and further proceedings for recovery of rent may be initiated against him in accordance with law.
17. No orders as to costs.