Calcutta High Court (Appellete Side)

Syed Samsad Ahmed Alias S. ... vs The Iisco Steel Plant (Sail) & Ors on 10 March, 2021

                    IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE


Present :     The Hon'ble Justice Shivakant Prasad

                            S.A.T. No. 599 of 2013

               Syed Samsad Ahmed alias S. Shamsaad Ahmed
                                      Vs.
                      The IISCO Steel Plant (SAIL) & Ors.



For the appellant                :     Mr. Pinaki Dhole
                                       Mr. Z. Rahaman

For the respondents              :     Mr. S. Pal
                                       Mr. L.K. Pal
                                       Mr. B.B. Bhuiya

CAV on                           :     04.03.2021

Judgment on                      :     10.03.2021


SHIVAKANT PRASAD, J.

This appeal is directed against the judgment and decree dated

19.6.2012 and 25.6.2012 respectively passed by learned Civil Judge

(Senior Division) at Asansol in Title Appeal No. 4 of 2012 setting aside

the judgment dated 26.9.2011 and decree dated 28.11.2011 passed by

learned Civil Judge (Junior Division), 3rd Court, Asansol in Title Suit No.

30 of 2008, inter alia, on the grounds that the Court of Appeal has failed

to appreciate that the condition precedent for application of the

provision of Section 2A of the Industrial Dispute Act, 1947 to the

'Individual Workman', is dismissal, termination of service, but in the

instant case the plaintiff-appellant has been wrongly superannuated

from the service before attaining the age of superannuation so the

provision of Section 2A has no manner of application in the facts and

circumstances of the case, and dispute as regard date of birth of an

individual workman is beyond the scope and ambit of the industrial

dispute being a Civil dispute amenable to the Civil Court. So on this

point finding of the learned Judge of the Court of Appeal below is

erroneous and as such the judgment and decree complained of is liable

to be set aside.

It is pointed out that the learned Appeal Court below has failed to

appreciate the finding of the learned Trial Judge of the Court below as

regards provision of Section 2K of the Industrial Dispute Act, 1947 and

to get round the same relied on Section 2A of the said Act, 1947 and

found the plaintiff-appellant even being 'Workman' is coming within the

purview of Section 2A of the said Act 1947 without appreciating scope

and ambit of the said Section in the case of dispute as regards date of

birth of an individual workman so the finding of the learned Judge of

the Court Appeal below discarding the finding of the learned Trial Judge

of the Court below is not sustainable in law and has failed to appreciate

that the certified Stading Orders of Steel Authority of India Limited

IISCO Steel Plant Burnpur has been framed under Section 7 of the

Industrial Employment (Standing Orders) Act, 1946 having a statutory

force and in Order No. 34 of the said Standing Order has specifically

laid down provisions as regard verification and recording the age in the

Service Book, but the learned Judge of the Court of Appeal below

without considering the same has relied on the provision of the

Industrial Dispute Act, 1947 and allowed the Appeal by setting aside the

judgment and decree passed by the learned Trial Judge of the Court

below, which is liable to be set aside.

It is further pointed out that the learned Court of Appeal below

has failed to appreciate that Order 32 of the said certified Standing

Orders provide for grant of certificate of service, in respect of discharge

or termination of service, resignations or retirement. In the instant case

the authority concerned has granted certificate to the plaintiff-appellant

for retirement from the service on attaining the age of superannuation

so the same cannot be treated as 'termination' 'discharge' from the

service so under this circumstances the plaintiff-appellnat not being

discharged/terminated from the service as penal measure cannot come

under the purview of the Industrial Dispute Act, 1947. It is out and out

a dispute as regard date of birth, which being an individual workman

dispute is amenable to the jurisdiction of the Civil Court. It is submitted

on behalf of the appellant that learned Court ought to have held that the

plaintiff-appellant has submitted all relevant original documents as

regards his date of birth in the year 1972 at the time of his initial

appointment to the post of Khalashi such as, Admit Card, Mark-Sheet,

School Leaving Certificate as per Order 34 of the said Standing Order

and in that event reliance on the Medical Report determining the age of

the plaintiff-appellant is violative of the provision of proviso (vii) of Order

34 of the said Standing Order which provides for determination of age

by the Medical Board in absence of submission of documents in support

of his age/date of birth, but it is claimed that the plaintiff-appellant had

all relevant documents aforesaid in support of his date of birth and were

produced at the time of entry into service.

It is further submitted that Medical Report as regard the age of

the appellant was neither produced nor proved before the learned Trial

Court and which has been discarded by the said trial Court under

Section 114(g) of the Evidence Act 1872 so the finding of the learned

Court of Appeal below relying on the Medical Report as regards the age

of the appellant suffers from non application of mind.

Per contra, it is contended on behalf of the defendant-respondents

that the age of the plaintiff-appellant has been ascertained by Medical

Examination as he did not produce any document in support of proof of

his age.

The Court of Appeal below has clearly observed that plaintiff-

appellant put his left thumb impression instead of signature which gave

rise to misgiving in the mind of the Court as to the intension of the

plaintiff-appellant towards suppressing material facts as being a School

Final passed in 1968 otherwise he ought to have put his signature in

1972 while entering in service.

It is submitted on behalf of the appellant that the Medical Report

in respect of the examination of the appellant in proof of his age has not

been produced before the Court and it means the plaintiff-appellant was

referred to a single Medical Officier and not before any Medical Board

and as such the Medical Examination Report on which the defendant-

respondent has relied to contend that the age of the plaintiff-appellant

was 24 years as on 15.02.1972 cannot be accepted.

At the time of admission of the appeal the following substantial

questions of law were framed:-

1. Whether Section 2A of the Industrial Disputes Act 1947 is

applicable in the case of superannuation of individual workman

when it is not a case of dismissal or termination from service.

2. Whether the medical test of an individual workman can be a

determining the age of superannuation of an employee attaining

the age of 60 years without considering the date of birth of an

employee recorded in the Admit Card of the School Final

Examination, School Leaving Certificate which are authentic

admissible document as regard the age.

3. Right to superannuation on attaining the age of 60 years on the

basis of the date of birth recorded in the Admit Card of School

Final Examination and School Leaving Certificate as an

authentic document and cannot be determined on the age on

medical test which is not authentic but more presumptive, which

deprive of the appellant from his actual date of retirement on

March 15, 2011 on the basis of his date of birth on March 15,

1951 instead of May 20, 2008.

4. Whether age dispute of an individual workman can be

determined under the priovision of Industrial Disputes Act, 1947

as an when the order No. 34 of the certified standing order for

the Steel Authority of India Ltd. IISCO Steel Plant Burnpur

framed under Section 7 of the Industrial Employment (Standing

Order) Act, 1946.

It is submitted on behalf of the defendant-respondent that a

contract of a personal service cannot be enforced in a Civil Court and

the appellant being a workman alleging dispute as to his date of birth in

the service record, such dispute comes within the mischief of definition

clause 2K of Industrial Dispute Act. In my view in the given facts of the

case for correction of date of birth in the service record of the plaintiff-

apppellant and suit for declaration thereof before a Civil Court is not

maintainable as the defendant-respondent is a State Instrumentality as

enshrined in Article 12 of the Constitution of India and a writ Court has

already decided the case of the plaintiff-appellant holding that the

prayer of the plaintiff-appellant would not be maintainable when he

approached the Court at the fag end of his career for direction upon the

defendant-respondent for correction of date of birth. Therefore, the writ

Court directed the plaintiff-appellant to seek alternative remedy if

available. Ergo, I am of considered view that the provision of Section 2A

of the Industrial Disputes Act 1947 would be attracted because the case

relates to a dispute as to the termination of the plaintiff-appellant upon

notice of superannuation and for correction of date of birth disputing

the notice of superannuation issued by defendant-respondent.

The moot question of law germen to the instant appeal is whether

the plaintiff-appellant can invoke the jurisdiction of the Civil Court for

declaration with regard to his date of birth in his service record

challenging the notice of superannuation, not to be given effect to.

It emerges from the material placed on record and from the

judgment impugned that the plaintiff-appellant entered into the service

of the respondent company and was appointed as khalasi on

15.02.1972. In this regard it is reiterated on behalf of the respondent

that the plaintiff-appellant did not produce any certificate as proof of his

age or date of birth whereas on the date of entry into service, he had put

his thumb impression on the interview slip Exhibit-B and no date of

birth was disclosed by him as such age of the plaintiff-appellant was

ascertained through medical examination and he was found to be 24

years of age as on 15.02.2972 and accordingly, the said fact has been

recorded in his Service Record Card (S.R. Card) Exhibit-A and his age

was ascertained as per the Order no. 34 of Standing Orders of IISCO

Steel Plant Burnpur which provides for verification and recording of age.

The terms of order 34 (a) (vii) enjoins that Admit Card issued by

any recognized University/Board issued before the employee joined the

Company's services; the age/date of birth so verified on the basis of any

of these documents shall be recorded in the Service Record of the

employee concerned by the Personnel Department of the Company.

provided that if an employee is unable to produce any of the above

mentioned documents, he/she may produce any other document in

support of his/her age/date of birth, which may be accepted at the

discretion of the management, as the authentic proof of his/her

age/date of birth and the same shall be recorded in the Service Record

of the employee concerned by the Personnel Department of the

Company and provided further that in any case where the employee

concerned is not satisfied with the decision of the management in this

regard, or in a case where the employee concerned is not in a position to

produce any document in support of his/her age/date of birth, his/her

age shall be determined by a Medical Board to be constituted by the

company for the purpose. The age of the employee concerned so

determined by the Medical Board shall be recorded in the Service Record

of the employee concerned by the Personnel Department of the

Company.

Adverting to the aforesaid Standing Order, it is contended that

since the plaintiff-appellant at the time of his appointment had not

submitted any document of proof of his age for recording his date of

birth in S.R. Card (Exhibit-A), the appellant was examined by the

Medical Board and this fact is noted in the said S.R Record that the

appellant was aged 24 years as on the date of appointement on the

basis of the Medical Examination.

It is further pointed out that the appellant has relied on Admit

Card (Exhibit-6) and School Leaving Certificate (Exhibit-8) in proof of his

age that the appellant's date of birth was on 15.03.1951 and has

claimed as such on the basis of Exhibit-6 to 11 but it would appear that

duplicate copy of Admit Card No. 1370 of West Bengal Board of

Secondary Education issued on 29.9.2004 and School Final

Examination of the appellant was commenced on 11.03.1968. That is to

say, at the time of appointment on 15.02.1972 the appellant must be in

possession of the said Admit Card but he did not produce it at the time

of joining his post as Khalasi. Therefore, the age of the appellant was

assessed by medical examination as 24 years as on 15.02.1972.

It is also submitted on behalf of the respondent that the plaintiff-

appellant has claimed date of birth as on 15.03.1951 and also claimed

his date of birth on 01.01.1953 as per gate pass issued by CISF Exhibit-

14 and P.F. Certificate issued by P.F. Authority and such date of birth

was on the self declaration by the appellant. It would appear that the

date of birth as per the Admit Card of the appellant is not as per the

admission register.

Now, it would be profitable to take note of the settled principle of

law that an employee has no legal right to maintain a suit for

declaration as to his date of birth who knocks the door of Court or the

tribunal for such declaration at the fag end of his career.

As discussed above, S.R. Card of the appellant shows his Identity

Card no. 24829 and that he was appointed as khalasi on 15.02.1972

which has been certified by the authority of the respondent company

with effect from 01.8.1972 and since he had not produced the

documents in proof of his age, medical examination was conducted to

ascertain his age pursuant to the proviso to the Order 34 of Standing

Order of respondent. It means that the appellant had not submitted any

document of age proof on the date of entry into the service.

In the case of Kamta Pandey vs. M/s BCCI & Ors. [2007 (3) JLJR

726] it has been observed, it is well established that if a particular date

of birth is entered in the service register, a change sought cannot be

entertained at the fag end of service after accepting the same to be

correct during entire service.

The Hon'ble Supreme Court has consistently held that the request

for change of the date of birth in the service records at the fag end of

service is not sustainable and in the case of State of Maharashtra and

Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 a

series of the earlier decisions of the Hon'ble Apex Court were taken note

and was held as under:

"16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC Page 9 of 16 465 : 2006 SCC (L&S) 96] . In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.

17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158- 59, para 7)

"7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. ... According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. ... the onus is on the applicant to prove the wrong recording of his date of birth, in his service book."

Now, it is also a settled principle of law that even if there is good

evidence to establish that the recorded date of birth is erroneous, the

correction cannot be claimed as a matter of right. In that regard, in

State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as

hereunder;

"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has

been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time Gxed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] )."

The Hon'ble Apex Court in the case of Secretary and

Commissioner, Home Department Vs. R. Kirubakaran reported in

1993 AIR 2647, 1994 SCC Supl. (1) 155 held that an application for

correction of the date of birth should not be dealt with by the tribunal or

the High Court keeping in view only the public servant concerned and

any such direction for correction of the date of birth of the public

servant concerned as a chain reaction, inasmuch as others waiting for

years, below him for their respective promotions are affected in this

process. Some are likely to suffer irreparable injury, inasmuch as,

because of the correction of the date of birth, the officer concerned,

continues in office, in some cases for years, within which time many

officers who are below him in seniority waiting for their promotion, may

lose their promotions for ever. Cases are not unknown when a person

accepts appointment keeping in view the date of retirement of his

immediate senior.