Pranab Kumar Layek vs Eastern Coalfields Limited & Ors
2021 Latest Caselaw 1410 Cal

              IN THE HIGH COURT AT CALCUTTA
                  Civil Appellate Jurisdiction
                         Appellate Side


Present:-   Hon'ble Justice I. P. Mukerji
            Hon'ble Justice Subhasis Dasgupta


                     FMA No. 4415 of 2016

                     Pranab Kumar Layek
                              Vs.
               Eastern Coalfields Limited & Ors.



For the Appellants            :     Mr. Partha Ghosh,
                                    Mr. Amal Kumar Datta, Advs.

For the Respondents           :     Mr. Bijoy Kumar, Adv.

Judgment on                   :     12.02.2021



I. P. MUKERJI, J.-

The appellant joined the service of the first respondent, Eastern

Coalfields Ltd. (the respondent) on 14th October, 1977 as a trainee. On

21st November, 1979 he was appointed in the post on probation for six

months.

He had secondary level school qualification having obtained it in 1978.

Almost 10 years after his appointment in service the respondent raised a

dispute regarding the appellant's age. They did not accept the age as

shown in the admit card of the West Bengal Secondary Board. By its

letter dated 19th June, 1989 they communicated this to the appellant.

By a letter dated 25th August, 1992 they directed the appellant to appear

before the Apex Medical Board at the Regional Hospital Pantanagar,

Pandaveswar area on 27th August, 1992 at 9.00 A.M with his identity

card, a photocopy of the service excerpt along with a duly attested passport size photograph for the purpose of determination of his date of

birth.

The Medical Board opined that the appellant would be between the age

40 to 45 as on 27th August, 1992 and determined his date of birth as

27th February, 1950.

Against its decision, the appellant filed a writ application in this court

[WP 15396(W) of 2005] (Pranab Kumar Layek Vs. Eastern Coalfields Ltd.

& Ors.). It was disposed of on 16th September, 2015 by directing the

General Manager (Personnel) of the respondent to consider the

representation to be made by him for age correction, within six weeks of

such representation.

In pursuance of the said order of this court, the General Manager (P&IR)

made his decision on 13th November, 2015 which is the impugned

decision in the instant writ [WP 5572(W) of 2016].

On 11th April, 2016 this writ was dismissed at the motion stage by a

learned single judge of this court.

The reasons advanced by the learned judge for dismissing the writ

application were that in the identity card issued to the appellant in 1999,

after assessment of his age by the Medical Board, his date of birth was

shown as 27th February, 1950. The appellant did not take any steps

against this insertion. He obtained a certificate dated 25th March, 2003

from Raniganj High School, also much later, recording his date of birth

as 25th October, 1959. The court did not believe this certificate. The court

proceeded on the basis that the appellant had accepted the declaration of

his age in the identity card.

The writ application was dismissed at the motion stage.

Hence, this appeal.

Mr. Kumar, appearing for the respondents at the outset submitted that

an opportunity should be given to him to file an affidavit-in-opposition to

the stay petition. He said that an affidavit-in-opposition is necessary

because such an affidavit was not filed before the court below. We did

not allow him to do so for two reasons. We noticed from the records that

on 20th September, 2016 a division bench of this court had directed

hearing of the appeal after the puja vacation. On 25th January, 2021

another division bench of this court directed that the appeal and the said

application would be heard on 1st February, 2021. No prayer had been

made by Mr. Kumar on either of the two days for filing an affidavit-in-

opposition to the said petition.

Mr. Ghosh, learned Advocate for the appellant was right when he

submitted that in the earlier writ of 2005 the respondent had filed a

detailed affidavit-in-opposition which is annexed to the stay petition.

That writ had been disposed of as stated earlier by directing the

respondent to consider the age correction matter by a reasoned decision.

No new facts have occurred.

Mr. Ghosh also submitted that the said affidavit-in-opposition was a

complete reflection of the defence of the respondents and the prayer for

filing a fresh affidavit-in-opposition was a mere formality and should not

be accepted by the court as it would delay hearing of the appeal.

We are in full agreement with such submission.

The said affidavit has been placed before us in detail and we have

considered it.

The appellant has relied on an admit card of the West Bengal Board of

Secondary Education where his date of birth is recorded as 25th October,

1959. We have also been shown a document described as excerpts from

the service record card of the said respondent where the educational

qualification of the appellant is described as Madhyamik.

Mr. Ghosh, appearing for the appellant submits that the above admit

card for the Madhyamik examination was furnished to the respondent,

for recording the appellant's date of birth at the time of his said

appointment. He also says that in the service book under the remarks

column the appellant had entered the said date of birth which was never

disputed by the appellant.

We have also been taken through the document relating to Coal Mines

Provident Fund where under Sl. No. 138 the name of the appellant was

entered and his date of birth shown as 25th October, 1959.

Let us examine what the respondent said in their affidavit-in-opposition

to the earlier writ. They said that in the 'B' Form Register of the

respondent where the details of the employees were recorded, the age of

the appellant was stated to be 27th February, 1950. This was on the

basis of a "service excerpt" which was prepared in 1987. The unions

raised objections to such entry. Thereupon it was referred to the "apex

medical board" at Regional Hospital, Panthnagar, Pandeveshwar. This

Board assessed the appellant's age as between 40 to 45 years on 27th

August, 1992. Calculating his age to be the mean between 40 and 45

years the date of birth of the appellant was recorded as 27th February,

1950. The affidavit referred to the procedure for

determination/verification of the age of the employees contained in

Implementation Instruction No. 76.

DISCUSSION

The Implementation Instruction No. 76 are rules which govern the

determination or verification of age of the employees of the said

respondent.

Paragraph No. A(i) is relevant and most instructive. It is set out below:-

"A) Determination of the age at the time of appointment.

i) Matriculates.

In the case of appointees who have passed Matriculation or equivalent

examinations, the date of birth recorded in the said certificate shall be

treated as correct date of birth and the same will not be altered under

any circumstances."

Therefore, at the time of appointment of employees with the respondent,

with matriculate qualifications, the date of birth recorded there was

treated as sacrosanct and entered in the records. This clause makes it

absolutely plain that if so entered, it is not to be altered "under any

circumstances." In the excerpt from the service record furnished by the

respondent to the appellant, although the date of birth column was

blank, against the writing educational qualification, 'Madhyamik' was

entered. Again in the remarks column at Page 2 filled up by the

appellant, he stated that his date of birth was 25th October, 1959. He

wrote against it: "as per Madhyamik admit card 1978".

Mr. Ghosh submitted that the admit card of the West Bengal Board of

Secondary Education for the appellant for the Madhyamik Examination,

1978, recording his date of birth as 25th October, 1959 was submitted

with that document. There is nothing on record to suggest that there was

any contemporaneous objection to it, he argued.

The question involved in the instant writ and before us is whether the

decision made by the respondent on 13th November, 2015 in obedience to

the order dated 16th September, 2015 in the earlier writ was correct or

not. The learned single judge in the impugned judgment and order dated

11th April, 2016 upheld this decision and dismissed the writ.

When Implementation Instruction No.76 specifically stated that the date

of birth in the school leaving certificate would be deemed to be correct by

the respondent employer and would "not to be altered under any

circumstances", there was no occasion to subject the appellant to a

Medical Board examination for assessment of his age. A full bench of the

Jharkhand High Court in Kamta Pandey Vs. M/s. B.C.C.L. & Ors.

reported in 2008 LAB I. C. 2677 has opined in a similar voice:

"Paragraph - 16:- The above instruction, which is, admittedly,

binding upon the respondent company, would clearly indicate that in

the case of the existing employees, date of birth mentioned in the

Matriculation Certificate alone shall be treated as authentic and

correct date of birth. If it is found that the said certificate, which is

genuine, containing the date of birth, has been issued by the

recognized University or recognized Board of Education, it cannot be

altered under any circumstances. When the instruction found in the

agreement reflecting the scheme provided for implementation

envisaging the specific procedure for determination of date of birth

conclusively, it cannot be said that entries made in the service

register alleged to have been acknowledged by the employee would

nullify the effect or the object with which the Instruction No. 76 has

been introduced."

A division bench of this court has gone further in Gadadhar Konar Vs.

Union of India & Ors. reported in 2011 (3) CLJ (Cal) 157 and said that

even if the assessment by the Medical Board was otherwise, the date of

birth recorded in the school leaving certificate should be considered as

"conclusive proof of age of the appellant/petitioner"

"Considering the report of the Medical Board, we find that the said

Medical Board was of the opinion that the age of the

appellant/petitioner was between 40 to 45 years on 12th October,

1993. Therefore, the age Determination Committee was not definite

in respondent of the actual age of the appellant/petitioner. In any

event, in the present case, the school leaving certificate issued by

the Headmaster of the school concerned on the basis of the

admission register cannot be ignored under any circumstances. The

school leaving certificate issued by the Headmaster of the school on

the basis of the admission register should have been considered as

conclusive proof of age of the appellant/petitioner apart from the

other valid documents viz., the last pay certificate issued by the

competent authority of the respondent Coal Company."

A single bench of this court in Sukumar Dawn vs. Coal India Limited

reported in 2013 (4) CHN (CAL) 112 followed the full bench judgment of

the Jharkhand High Court and directed Coal India Ltd. to record the

correct date of birth of its employee according to the admit card issued in

the school final examination.

Great importance is attached to the date of birth as recorded in the

school leaving certificate as would be evident from the judgment of the

Supreme Court in Ms. Bharat Coking Coal Ltd. and Ors. Vs. Chhota

Birsa Uranw reported in AIR 2014 SC 1975, where the Supreme Court

remarked:-

"We have further noticed that Implementation Instruction No.76

clause (i)(a) permits rectification of the date of birth by treating the

date of birth mentioned in the school leaving certificate to be correct

provided such certificates were issued by the educational institution

prior to the date of employment........................ A school leaving

certificate is usually issued at the time of leaving the school by the

student, subsequently a copy thereof also can be obtained where a

student misplaces his said school leaving certificate and applies for

a fresh copy thereof. The issuance of fresh copy cannot change the

relevant record which is prevailing in the records of the school from

the date of the admission and birth date of the student, duly entered

in the records of the school"

The appellant was appointed in the post on 21st November, 1979. The

admit card related to the school leaving matriculate examination of 1978.

Hence, his date of birth had been recorded by the school prior to his

appointment in the post on 21st November, 1979 and the admit card

issued by it.

The respondent is bound by its own rules. As long as it follows

Implementation Instruction No. 76, it cannot travel outside it. It appears

from the evidence on record, including the said service excerpt that the

admit card issued by the West Bengal Board of Secondary Education

recording the date of birth of the appellant as 25th October, 1959 was

furnished by him and taken on record by the respondent at the time of

commencement of his employment on confirmation. Furthermore, there

is no contemporaneous correspondence by the respondent denying the

existence of this admit card in their records.

The Supreme Court in M/s. Bharat Coking Coal Ltd. and Ors. Vs.

Chhota Birsa Uranw reported in AIR 2014 SC 1975 has said that the

date of birth, to be valid and admissible should be recorded by the school

prior to an employee's joining the employment. Whether the certificate is

issued at a later point of time is immaterial.

In those circumstances, the admit card tendered by the appellant while

joining the service of the respondent was a valid document. Since the

respondent was following Implementation Instruction No. 76, it had no

option but to accept the date of birth mentioned in the admit card as

correct. The opinion of the Medical Board or a determination made by the

respondent on the basis of the opinion of this Board should have no

impact. The date of birth as disclosed with the admit card issued by the

Board has overriding effect. The respondent is clearly wrong in not acting

on the date of birth recorded in this document.

In those circumstances, we set aside the impugned decision of the

respondent dated 13th November, 2015. We also set aside the impugned

judgment and order dated 11th April, 2016. We direct the respondent to

record the date of birth of the appellant as 25th October, 1959. On this

basis, his date of superannuation is to be notionally computed. He will

be deemed to have been in service up to the notional date of retirement.

The decision of the respondent superannuating the appellant stands

annulled. The appellant shall be entitled to salary from the date of his

actual retirement till the date of his notional retirement less any

retirement benefit received. The appellant will also be entitled to retiral

benefits, both arrear and current, less any benefit already received. The

appeal is allowed to the above extent, compliance by the respondent

within 3 months from date.

No order as to costs.

Certified photocopy of this order, if applied for, be supplied to the parties

upon compliance with all requisite formalities.

I agree,




(SUBHASIS DASGUPTA, J.)                                (I. P. MUKERJI, J.)