Jharkhand High Court
Panchu Bhuiya Aged About 69 Years vs Bharat Coking Coal Limited on 9 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 301 of 2019
with
I.A No.3584 of 2019
Panchu Bhuiya aged about 69 years, Son of Late Bihari Bhuiya, Resident of
Qr. No.H-150, Damodar Colliery, B.C.C.L., P.O. & P.S-Karmatand, District
Bokaro, State-Jharkhand. ...... Appellant
Versus
1. Bharat Coking Coal Limited, Koyla Bhawan, P.O. & P.S. Dhanbad,
District-Dhanbad through its Chairman-cum-Managing Director.
2. Director (Personnel), Bharat Coking Coal Limited, Koyla Bhawan, P.O.
& P.S. Dhanbad, District-Dhanbad.
3. General Manager, Bharat Coking Coal Limited, Damodar Colliery, P.O.
& P.S. Dhanbad, District-Dhanbad.
4. Deputy Chief Personnel Manager (IR), Bharat Coking Coal Limited,
Koyla Bhawan, P.O. & P.S. Dhanbad, District-Dhanbad.
5. Project Officer, Bharat Coking Coal Limited, Damodar Colliery, P.O. &
P.S. Dhanbad, District-Dhanbad.
6. Deputy Mining Engineer, Bharat Coking Coal Limited, Damodar
Colliery, P.O. & P.S. Dhanbad, District-Dhanbad.
7. Personnel Officer, Bharat Coking Coal Limited, Damodar Colliery, P.O.
& P.S. Dhanbad, District-Dhanbad.
8. Personnel Manager, Bharat Coking Coal Limited, Damodar Colliery, P.O.
& P.S. Dhanbad, District-Dhanbad. ..... ..... Respondents
---------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
----------
For the Appellant : Mr. Rajesh Kumar, Advocate
For the Respondents : M/s Indrajit Sinha & Arpan Mishra, Advocate
-----------
Oral Judgment:
Order No.4/Dated: 09th February, 2021
1. With consent of the parties, hearing of the matter has been done
through video conferencing and there is no complaint whatsoever regarding
audio and visual quality.
I.A. No.3584 of 2019
2. Heard the parties.
3. This interlocutory application has been filed for condoning the delay
of 11 days, which has occurred in preferring the present appeal.
4. Having regard to the facts and circumstances as mentioned in the
application and also considering the facts that no counter affidavit has been
filed opposing the interlocutory application by the respondents, we are of the
opinion that the appellant was prevented by sufficient cause from preferring
the appeal within the period of limitation.
5. Accordingly, the delay of 11 days in preferring the present appeal is
hereby condoned and this application stands allowed.
L.P.A. No.301 of 2019
6. This instant intra-court appeal under Clause 10 of the letters patent, is
directed against the order/judgment dated 05.02.2019 passed by the learned
Single Judge of this Court in W.P.(S) No.17 of 2009, whereby and
whereunder the writ petition has been dismissed, refusing to interfere with
the notice dated 27.08.2003 by which the writ petitioner was informed about
his retirement from service with effect from 29.02.2004 and also refused to
interfere by correcting his date of birth as 08.03.1952.
7. The brief fact of the case, which requires to be referred herein, reads
hereunder as:
The writ petitioner was appointed in service on 22.03.1972 at
Damodar Colliery as 'Loader' under the respondent-Bharat Coking Coal
Limited (in short 'B.C.C.L'). The grievance of the writ petitioner is that his
date of birth has wrongly been mentioned in the service book as 08.02.1944
and taking the said plea he was forced to superannuate with effect from
29.02.2004. His further case is that as per the Sirdar Certificate issued under
Coal Mines Regulation Act, 1957 his date of birth is recorded as 08.03.1952
but the authority without appreciating the date of birth recorded in the said
certificate, has wrongly issued the notice for superannuation with effect from
29.02.2004. His further case is that even as per the School Leaving
Certificate, his date of birth is 08.03.1952 but even the said document has
not been considered by the respondent authorities of the B.C.C.L. The writ
petitioner, in the backdrop of this factual aspect, had represented before the
authority way back in the year 1980 but no decision has been taken for
correcting his date of birth as recorded in the service book as 08.02.1944 to
correct it as 08.03.1952 and as such, he is compelled to file writ petition
before this Court being W.P.(S) No.17 of 2009.
The respondent-B.C.C.L has appeared and contested the case on the
ground that there cannot be any correction in the date of birth at the fag end
of service. Further ground he has taken that there is no manipulation in the
service record of the writ petitioner.
The learned Single Judge after considering the rival submissions of
the parties and also taking into consideration the fact that the writ petitioner
has even accepted the retiral benefits, has filed writ petition after five years
from the date of retirement i.e. 29.02.2004 and hence dismissed the writ
petition, which is the subject matter of the present intra-court appeal.
8. Mr. Rajesh Kumar, learned counsel appearing for the appellant-writ
petitioner has submitted by questioning the order passed by the learned
Single Judge, on the ground that the writ Court has not considered the
certificate issued by the Mining Sirdar as also the School Leaving Certificate
where the date of birth is recorded as 08.03.1952 and merely on the ground
that the writ petition has been filed after five years from the date of
retirement has dismissed the same, hence the order passed by the learned
Single Judge, is not sustainable in the eye of law.
9. Mr. Arpan Mishra, learned A.C to Mr. Indrajit Sinha, learned counsel
on record, submits that there is no infirmity in the impugned order since the
writ petitioner has approached the writ Court after five years from the date of
retirement, raising question for making correction in the date of birth.
According to him, the law is settled that at the fag end of the career, there
cannot be any correction in the date of birth and the learned Single Judge
after taking into consideration this aspect of the matter, has dismissed the
writ petition.
10. We have heard learned counsel for the parties, perused the documents
on record as also the finding recorded by the learned Single Judge in the
order impugned.
Admittedly, the writ petitioner had joined service on
22.03.1972. His service record reflects his date of birth as 08.02.1944, basis
upon which, notice for superannuation had been given on 27.08.2003 for his
superannuation with effect from 29.02.2004. The case of the writ petitioner
is that his date of birth as has been mentioned in the Mining Sirdar
Certificate is 08.03.1952 so also the date of birth is mentioned in the School
Leaving Certificate and hence recording of date of birth in the service record
as 08.02.1944 cannot be said to be correct. When the writ petitioner came to
know about the same, an objection was made but the same has not been
decided.
Even accepting the contention of the learned counsel for the writ
petitioner that he had raised an objection in the year 1980 but even though
no decision has been taken by the authority, the writ petitioner even
after issuance of notice for superannuation, has not chosen to approach
before any Court of law rather he filed writ petition after five years from the
date of retirement i.e. on 06.01.2009 while he has retired from service on
29.02.2004.
It is settled position of law that the issue pertaining to date of birth
cannot be allowed to be questioned at the fag end of service, as has been
decided by the Hon'ble Apex Court in the case of Bharat Coking Coal
Limited and Ors. vs. Shyam Kishore Singh reported in (2020) 3 SCC 411,
wherein the Hon'ble Apex Court has been pleased to hold that at the fag end
of service, the issue of date of birth cannot be allowed to be raised.
The respondent of the said case was appointed in the year 1982 and at
the time of filling of nomination form the respondent had indicated his date
of birth as 04.03.1950 and had further reiterated the same at the time of
filling of nomination form which was filled in the year 1998. It is only after
30 years from the date of his joining service, for the first time in the year
2009 he had made the representation. The respondent did not avail judicial
remedy thereafter before retirement. He retired from service in the year 2010
and even thereafter the writ petition was filed in the year 2014 i.e. after four
years from the date of his retirement. Taking into consideration this aspect of
matter, the Hon'ble Apex Court has declined to consider the case of the
respondent.
Further judgment of the Hon'ble Apex Court in the case of Factory
Manager, Kirloskar Brothers Limited vs. Laxman reported in (2020) 3 SCC
419 wherein the prayer for correction in the date of birth at the fag end has
declared impermissible.
Here also, the fact of the case is that the writ petitioner, claimed to
have made protest in the year 1980 but he had not chosen any judicial
remedy rather when he received the retirement notice after lapse of 20 years
from the date of filing of so called representation and also retired on
29.02.2004, he approached this Court after five years from the date of
retirement (i.e. 06.01.2009) on acceptance of retiral benefits.
11. The learned Single Judge taking into consideration this aspect of the
matter has dismissed the writ petition.
12. This Court on consideration of the factual aspects involved in this case
as also the reason assigned for dismissal of the writ petition, is of the view
that no error has been committed by the learned Single Judge by dismissing
the writ petition.
13. Accordingly, we find no merit in the instant appeal, as such, the
instant appeal is dismissed.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saket/-
N.A.F.R.
