Bombay High Court
Kapil Deo S/O Ram Naresh Shahi vs Chief General Manager, Nagpur ... on 18 July, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3528/2015
PETITIONER: Kapil Deo s/o Ram Naresh Shahi
Trip Man, NEIS No.18030452,
Form B No.1206 of Kamptee (OC)
Western Coal Field Ltd.,
R/o Kamptee Colliery, Post : Kanhan,
Tah. Parseoni, Dist. Nagpur.
...VERSUS...
RESPONDENTS: 1. Chief General Manager,
Nagpur Area, Western Coalfields Ltd.,
Jaripatka, Nagpur.
2. Sr. Manager (Min)/Supdt. of Mines
Kamptee (Open Cast) Mine,
Nagpur Area, Western Coalfields Ltd.,
Post. Kamptee Colliery,
Tah. Kamptee - 441401, Dist. Nagpur.
(Amendment carried out as per Registrar's
order dated 23.10.2015)
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Shri S.K. Pashine, Counsel for the petitioner
Shri M. Anilkumar, Counsel for respondents
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 18.07.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioner seeks a direction restraining
the respondent - Western Coalfields Limited from retiring the petitioner
from service w.e.f. 30/6/2015 by wrongly considering the date of birth of
the petitioner to be 6/6/1955 instead of 1/7/1960.
wp3528.15.odt
According to the petitioner, when he was about 20 years of
age he was appointed by the respondent - Western Coalfields Limited on
the post of loader in the year 1980-81. It is stated that the Age
Verification Committee had held that the date of birth of the petitioner
was not 6/6/1955 as recorded in the official record but the same was
1/7/1960. It is stated that in the year 2011 the petitioner made a
representation to the respondent-Western Coalfields Limited to correct
the entry pertaining to the date of birth of the petitioner in his service
record. Without considering the representation, the petitioner was served
with a notice of retirement dated 10/3/2015, that the petitioner would
retire from service w.e.f. 30.6.2015. The petitioner has challenged the
notice of retirement and has sought a restrainment order against the
Western Coalfields Limited from retiring the petitioner on the basis of the
wrongful recording of his date of birth as 6/6/1955.
Shri Pashine, the learned Counsel for the petitioner
submitted by placing reliance on the document at Annexure - VI that the
Age Determination Committee had held in the year 1991 that the age of
the petitioner was 29 years as on 27/7/1989. It is stated that on the basis
of the said office order dated 26.4.1991/2.5.1991 it was necessary for the
respondents to have corrected the date of birth of the petitioner in the
service record. It is stated that the date of birth of the petitioner was
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however not corrected accordingly and the notice of retirement was
served on the petitioner on 10/3/2015. It is submitted that in the
circumstances of the case, the petitioner is entitled to continue in service
till the age of 60 years by considering his date of birth to be 1/7/1960.
Shri Anilkumar, the learned Counsel for the respondents
submitted on the basis of the written submissions made on behalf of the
respondents that the date of birth of the petitioner was recorded as
6/6/1955 at the time of his entry in service. It is stated that the office
order dated 2/5/1991 at Annexure -VI on which great reliance has been
placed by the petitioner for canvassing that the date of birth of the
petitioner is 1/7/1960 is not to be found in the records of the respondent
- Western Coalfields Limited. It is stated that there is tampering and
overwriting in the service register pertaining to the petitioner. It is stated
that the corrections in the service register are stated to have been made
on 18/7/1991 whereas the office note shows the stamp bearing the date
8/11/1981 and the countersignature appears to be dated 9/8/1990
(1993). It is submitted that the typed copies of the documents placed by
the petitioner on record do not tally with the copies of the purported
originals. It is stated that since disputed questions of facts arise for
determination in this writ petition, this Court may not entertain and
decide the same and the petitioner may be relegated to the appropriate
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forum where the petitioner could ventilate his grievance. The learned
Counsel sought for the dismissal of the petition.
On hearing the learned Counsel for the parties, it appears
that though initially this Court had granted ad interim relief in terms of
prayer clause (c) by the order dated 25/6/2015 the writ petition was
dismissed in default by the order dated 2/5/2016. Though the writ
petition was restored and then admitted on 12/8/2016, this Court had
not continued the interim relief and had only directed that the hearing of
the writ petition be expedited. In the absence of any interim relief, the
Western Coalfields Limited has relieved the petitioner from service.
In the aforesaid circumstances, specially when there is a
serious dispute in regard to the date of birth of the petitioner, it would
not be proper for this Court to hold in exercise of the writ jurisdiction that
the date of birth of the petitioner was rightly determined by the Age
Verification Committee to be 1/7/1960 in the year 1991, as the issuance
of the office order dated 26.4.1991/2.5.1991 is itself disputed by the
respondents. There are some documents that show that the date of birth
of the petitioner is 6/6/1955 and some others that show that the date of
birth of the petitioner is 1/7/1960. The parties are free to prove their
respective cases pertaining to the date of birth of the petitioner before the
appropriate authority after tendering evidence. The petitioner may
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approach the Central Government Industrial Tribunal for the redressal of
his grievance, specially when the petitioner is relieved from service in the
absence of the interim order in favour of the petitioner after 2/5/2016.
Since there is a serious dispute on the issue pertaining to the correct date
of birth of the petitioner, it would not be proper for this Court to decide
the age-row in exercise of the writ jurisdiction. The petitioner is free to
avail the alternate remedy, if so advised.
In view of the aforesaid, the writ petition is dismissed with
no order as to costs. Rule stands discharged. The points raised in the
petition are however kept open.
JUDGE JUDGE
Wadkar
