Bombay High Court
Satishkumar Hardayal Pashine vs Western Coalfields Ltd. & 2 Others on 19 September, 2016
Bench: V.A. Naik
1 judg.wp 2289.98.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2289/1998
Satishkumar s/o Hardayal Pashine,
Aged about 57 years, Occupation-Service,
Resident of 156, Shankar Nagar, Nagpur-10. PETITIONER
.....VERSUS.....
1] Western Coalfields Ltd.,
through its Chairman-cum-Managing Director,
Coal Estate, Civil Lines, Nagpur-1.
2] General Manager (Personnel),
Western Coalfields Ltd.,
Coal Estate, Civil Lines, Nagpur-1.
3] The Chairman,
Coal India Ltd, (Appellate Authority)
Calcutta. R
ESPONDENTS
Shri M.M. Sudame, Advocate for the petitioner.
Shri S.C. Mehadia, Advocate for the respondent no.1.
Coram : Smt. Vasanti A Naik &
Kum. Indira Jain, JJ.
Dated : 19
September, 2016.
th
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J.)
By this Writ Petition the petitioner has challenged the notice of his
retirement, dated 09-06-1997 and the order of punishment dated 29-11-1997.
The petitioner has challenged the action on the part of the respondent-Western
Coalfields Limited in changing the recorded date of birth of the petitioner from
05-10-1941 to 25-11-1939. The petitioner has sought a direction against the
respondents to continue the petitioner in service till he completes the age of
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58 years by considering his date of birth to be 05-10-1941.
The petitioner applied to the National Coal Development Corporation
(hereinafter referred to as the 'N.C.D.C.' for the sake of brevity) for
appointment on the post of Additional Labour Welfare Officer. The petitioner
was appointed on the post of Additional Labour Welfare Officer on
07-03-1973. According to the petitioner, the petitioner tendered certain
certificates, as per the requirements of the N.C.D.C. at the time of
appointment. In the year 1975, the staff of the N.C.D.C. was allocated to the
respondent-Western Coalfields Limited. On 23-12-1995, the petitioner was
served with a charge-sheet as according to the respondent-Western Coalfields
Limited the petitioner had misled the department in the matter of the date of
his birth. According to the respondent-Western Coalfields Limited, though the
date of birth of the petitioner as per the Secondary School Certificate was
25-11-1939, the petitioner depicted by referring to the birth certificate that the
date of birth of the petitioner was 05-10-1941. According to the petitioner, the
petitioner was entitled to continue in service till the age of 58 years by
considering his date of birth to be 05-10-1941. The departmental enquiry was
concluded and after the charge levelled against the petitioner was held to be
proved, a minor penalty of Censure was passed. According to the petitioner,
though the date of birth of the petitioner was recorded in the records of the
N.C.D.C. and the W.C.L. as 05-10-1941, the petitioner became aware in the
year 1997 that his date of birth was changed to 25-11-1939. In this petition,
the petitioner has challenged the action on the part of the respondent-Western
Coalfields Limited in changing his date of birth and retiring him from service
3 judg.wp 2289.98.odt
by considering his date of birth to be 25-11-1939. The petitioner has also
challenged the action on the part of the respondent-Western Coalfields Limited
of censuring the petitioner.
Shri Mehadia, the learned Counsel for the respondent-Western
Coalfields Limited raises a preliminary objection to the tenability of the Writ
Petition. It is submitted that the petitioner had initially filed Writ Petition No.
2993 of 1997 with identical prayers. It is stated that the petitioner had
withdrawn the Writ Petition in view of the statement made on behalf of the
respondent-Western Coalfields Limited in regard to the preparation of the
report in the departmental proceedings conducted against the petitioner. It is
stated that though a prayer was made by the petitioner for a declaration in
regard to the wrongful change of date of birth from 05-10-1941 to
25-11-1939, the petitioner did not seek liberty to file a petition for seeking the
said relief. It is stated that the petitioner was granted liberty to adopt
appropriate proceedings in accordance with law as the enquiry report was
being served on the petitioner within one week from 10-11-1997. It is
submitted that the petitioner has not approached this Court with clean hands,
inasmuch as, the petitioner had suppressed the order passed in Writ Petition
No.2993 of 1997 as also the fact that the petitioner had not tendered the
S.S.C. certificate at the time of his appointment on 07-03-1973 or even
thereafter, for nearly 20 years, despite the issuance of several communications
by the respondent-Western Coalfields Limited. It is submitted that the
matriculation certificate was tendered by the petitioner after more than 20
years from his appointment and on the basis of the said document, the date of
4 judg.wp 2289.98.odt
birth of the petitioner was changed to 25-11-1939 in the records of the
respondent-Western Coalfields Limited. It is stated that the petitioner has
acknowledged the receipt of the notice of the change of date of birth in the
year 1995 and a false statement is made in the Writ Petition that the
petitioner was not made aware about the change of date of birth in the records
of the respondent-Western Coalfields Limited till the year 1997. It is stated
that the petitioner has not approached this Court with clean hands and the
discretionary relief under Article 226 of the Constitution of India may not be
granted in favour of the petitioner. It is stated that an age row cannot be
decided in exercise of the Writ jurisdiction, specially in the case like the one in
hand, where some of the documents, including the S.S.C. certificate shows
that the date of birth of the petitioner was recorded as 25-11-1939.
On hearing the learned Counsel for the parties, we are inclined to
uphold the objection raised on behalf of the respondent-Western Coalfields
Limited in regard to the tenability of the Writ Petition. The petitioner had filed
the previous Writ Petition with the said prayers.
"(i) to quash and set aside the notice of
retirement dated 9.6.1997 at Annexure E herewith
proposing to retire this petitioner from afternoon of
30.11.1997.
(ii) to restrain respondents from changing
recorded date of birth 5.10.1941 of this petitioner
5 judg.wp 2289.98.odt
without any notice to and opportunity to him and
further to restrain them from treating 25.11.1939 as
a date of birth of this petitioner till holding and
completion of enquiry in this respect."
Identical prayers are made in this Writ Petition also. Writ Petition No.
2993 of 1997 is disposed of by this Court by the order dated 10-11-1997
which reads thus :-
"Shri Mehadia, the learned counsel
appearing on behalf of the respondents makes a
statement that the enquiry report in respect of
disciplinary proceedings initiated against the
petitioner is ready and the same will be served
upon the petitioner during the course of this week.
On application made by
Shri Dharmadhikari appearing on behalf of the
petitioner, petitioner is permitted to withdraw the
petition with liberty to adopt appropriate
proceedings in accordance with law."
It is apparent on a reading of the prayers made in Writ Petition No.2993
of 1997 and the order made therein that the petitioner was permitted to
withdraw the petition with liberty to adopt appropriate proceedings against
the adverse action. Since the petitioner was served with a notice of retirement
6 judg.wp 2289.98.odt
in the year 1997, there was no reason for the petitioner to withdraw the Writ
Petition on 10-11-1997, if the petitioner was of the view that the challenge
made by the petitioner to the date of his retirement subsisted. After the
petitioner filed the departmental appeals and they were dismissed against the
imposition of the minor penalty of Censure, the petitioner has filed the present
Writ Petition with identical prayers. Though the order dated 10-11-1997 in
Writ Petition No.2993 of 1997 records that the petitioner was permitted to
withdraw the Writ Petition on an application made by the Counsel appearing
on behalf of the petitioner, no such application is brought to the notice of this
Court by the Counsel for the petitioner in this case to substantiate that the
petition was withdrawn with liberty to adopt appropriate proceedings, even in
respect of challenge to the date of retirement.
Be that as it may, even otherwise also, we are not inclined to consider
the case of the petitioner on merits and decide the dispute pertaining to the
date of birth in exercise of the Writ jurisdiction, specially when the petitioner
has not approached this Court with clean hands. Though an averment is made
by the petitioner in the amended portion of the Writ Petition as also the
rejoinder that the petitioner had tendered the Secondary School Certificate at
the time of his appointment in the year 1973, the said fact stands falsified by
the averments made by the petitioner in the unamended Writ Petition. The
petitioner had in paragraph 4 of the Writ Petition specifically averred that the
N.C.D.C. did not demand the matriculation certificate for verifying the date of
birth of the petitioner and the date of birth of the petitioner was recorded as
05-10-1941 on the basis of the birth certificate issued by the Municipal
7 judg.wp 2289.98.odt
Corporation in favour of the petitioner. The petitioner has clearly averred in
paragraph 4 that the petitioner mentioned his date of birth as 05-10-1941 and
the N.C.D.C. did not demand the matriculation certificate for verifying the
date of birth. It is averred in paragraph 4 that a birth certificate was
demanded by the N.C.D.C. and the same was supplied by the petitioner. After
the reply was filed by the respondent-Western Coalfields Limited showing that
the petitioner had not tendered the Secondary School Certificate at the time of
his appointment and that he was time and again asked by the communications
dated 03-10-1984, 05-03-1985, 28-08-1992, 28-09-1992, 01-10-1992 and
13-11-1992 to submit the same, the petitioner informed the W.C.L. vide
communication dated 25-11-1992 that the matriculation certificate was not
traceable and he would submit a duplicate copy of the same as soon as he
finds it. It is stated in the affidavit in reply filed on behalf of the respondent-
Western Coalfields Limited that the petitioner submitted the duplicate
matriculation certificate on 20-10-1993 and it is apparent from the said
certificate that the date of birth of the petitioner is 25-11-1939. It appears
from the affidavit in reply filed on behalf of the respondent-Western Coalfields
Limited that the petitioner was informed about the change of date of birth in
the official record on 21-10-1995 and the petitioner has acknowledged the
said document on the same day, though a false statement is made in the Writ
Petition that the petitioner became aware of the change of date of birth only in
the year 1977. It is apparent from the documents annexed by the respondent-
Western Coalfields Limited to the affidavit in reply, that are not disputed by
the petitioner that the petitioner has not approached this Court with clean
hands. It is apparent that the petitioner did not tender the Secondary School
8 judg.wp 2289.98.odt
Certificate at the time of his appointment in the year 1973. Though in the
unamended Writ Petition, the petitioner had admitted the said position, a false
statement is made in the rejoinder that the petitioner had tendered the
Secondary School Certificate at the time of his appointment in the year 1973.
The documents on record show that several reminders issued by the
respondent-Western Coalfields Limited to the petitioner from 1984 onwards
that the petitioner should submit the Secondary School Certificate and the
petitioner informed the respondent-Western Coalfields Limited in the year
1992 that the said certificate was not traceable and he would submit the same
as soon as he secures it. The petitioner submitted the Secondary School
Certificate only in the year 1984, and on the basis of the same, the date of
birth of the petitioner was changed from 05-10-1941 to 25-11-1939. We find
that the petitioner has not approached this Court with clean hands. The
petitioner had not disclosed about the order passed in Writ Petition No.2993 of
1997, in this Writ Petition and has also not disclosed about the failure on the
part of the petitioner to submit the Secondary School Certificate for several
years despite the reminders on the part of the respondent-Western Coalfields
Limited to submit the same. It is rightly submitted on behalf of the
respondents that an age row cannot be decided in exercise of the Writ
jurisdiction. Apart from the settled position of law that an age row cannot be
decided in exercise of the Writ jurisdiction, we are not inclined to decide the
Writ Petition on merits as we have already held that the petitioner has not
approached this Court with clean hands and has suppressed the material facts
while seeking the relief.
9 judg.wp 2289.98.odt
In view of the aforesaid, we dismiss the Writ Petition with no order as to
costs. Rule stands discharged.
JUDGE JUD
GE
Deshmukh
10 judg.wp 2289.98.odt
C E R T I F I C A T E
"I certify that this Judgment uploaded is a true
and correct copy of original signed Judgment."
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P.A. to the Hon'ble Judge.
