Fulchand Beldar vs M/S Bharat Coking Coal Limited ...
2021 Latest Caselaw 338 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P. (S) No. 6214 of 2010

      Fulchand Beldar.                                 ...           ...        ...Petitioner
                                - Versus -
      1. M/s Bharat Coking Coal Limited through its Chairman cum Managing
         Director, having its Office at Koyla Bhawan, Koyla Nagar, P.O. & P.S.-
         Koyla Nagar, District-Dhanbad.
      2. The Director (Personnel), Bharat Coking Coal Limited, Koyla Bhawan,
         Koyla Nagar, P.O. & P.S. Koyla Nagar, District-Dhanbad.
      3. The General Manager, B.C.C.L. Kustore Area, P.O. Dumra, P.S. Bhaghmara,
         District-Dhanbad.
      4. The Deputy Chief Personnel Manager (MP&R), B.C.C.L., Koyla Bhawan,
         Koyla Nagar, P.O. & P.S. Koyla Nagar, District-Dhanbad.
      5. The Deputy Personnel Manager, Kustore Area, B.C.C.L., P.O. Dumra, P.S.
         Baghmara, District-Dhanbad.
      6. Project Officer, Simla Bahal Colliery, B.C.C.L., Kustore Area, P.O. Dumra,
         P.S. Bhagmara, District-Dhanbad.           ...      ...             ... Respondents
                                 ---------

      CORAM: -            HON'BLE MR. JUSTICE DR. S. N. PATHAK
                          (Through: Video Conferencing)
                                ---------
      For the Petitioner                    : Mr. Shekhar Prasad Sinha, Advocate.
      For the Respondents                   : Mr. Amit Kumar Sinha, Advocate.
                                ---------
09/ 22.01.2021        The petitioner has approached this Court with a prayer for direction to the

respondents to constitute a Medical Board in view of the Order dated 30.1.2009 passed in

W.P. (S) No. 6131 of 2005 by this Hon'ble Court for assessment of age of the petitioner.

2. As per factual matrix, the petitioner was employed as a Casual Minor

Loader in the year 1975 and since then the petitioner was regularly discharging his duty to

the full satisfaction of his Superiors and never any complaint or adverse remark was made

against the petitioner.

3. It is the case of the petitioner that he was served upon by the Respondents a

copy of Service Excerpt dated 17.11.87 wherein his date of birth has been mentioned as

sometime in the year 1949.

4. As per said service excerpt, the year of birth was to be taken as 1949 which

was based on the record of the respondents in original Form B after nationalization of the

collieries. In view of the date of birth mentioned in the Service Excerpt, the petitioner

ought to have retired sometime in the year 2009 whereas a notice of premature

superannuation contained in Memo No. BCCL/SBC/PD/Superannuation/2005/472 dated

16/17.06.2005 was issued to the petitioner by the respondents whereby it was

communicated to the petitioner that as per Form 'B' Register of erstwhile Ena Colliery

when the petitioner was initially appointed on 17.10.1971, his date of birth was recorded by

making assumption to be 28 years as on 17.10.1971, according to which, the petitioner

should have been superannuated on 17.10.2003 after having attained the age of 60 years

and as such the petitioner was superannuated on 16.06.2005 from the service. In view of

the premature superannuation, the petitioner has knocked the door of this Court.

5. Mr. Shekhar Prasad Sinha, learned Counsel appearing for the petitioner

submits that as per the Implementation, Instruction No.-76 of National Coal Wage

Agreement whereunder both the Management and the Union have arrived at a settlement

that in case of dispute regarding age of an illiterate workman, the same shall be determined

by constituting a Medical Board which cannot be altered in any circumstance and such

settlement is within the ambit of the definition of Section 2 (P) of Industrial Disputes Act,

1947 which is binding U/S 18 (3) of the Industrial Disputes Act, 1947.

6. Learned Counsel further argues that petitioner earlier moved this Court in

W.P. (S) No. 6131 of 2005 and this Court after hearing the parties was pleased to dispose of

the case holding therein that:

" In my view, the dispute with regard to date of birth to the petitioner requires to be enquired into by the employer after verifying the relevant records. Accordingly, the B.C.C.L. is directed to appoint a competent officer/authority to conduct an inquiry to verify the date of birth of the petitioner after giving an appropriate notice fixing a date of his appearance along with required documents and evidence, in support of his claim. The petitioner may if so required can be examined by a Medical Board also at the instance of the employer. The employer shall also be at liberty to adduce material in support of its claim and thereafter the inquiry officer on consideration of relevant records shall take decision in the matter within whole, which shall be binding on the parties.

With this observation, this application is being disposed of.

7. In view of the direction and observation of this Court in W.P. (S) No. 6131

of 2005 it was binding on the Management of B.C.C.L. to constitute a Medical Board and

in absence of the same, the petitioner ought not to have retired in 2005 rather his date of

superannuation could have been fixed in 2009.

8. Learned Counsel further argues that a direction be given to the respondent-

B.C.C.L. for constitution of a Medical Board for determination of the age of the workman

as per the earlier direction of this Court as also in consonance with the Implementation,

Instruction No.-76 of National Coal Wage Agreement.

9. Mr. Amit Kumar Sinha, learned Counsel appearing for the B.C.C.L.

vehemently opposes the contention of the learned Counsel for the petitioner and submits

that there is no illegality in the order of the Management-B.C.C.L. in retiring the petitioner

in 2005 itself.

10. Learned Counsel further argues that the appointment of the petitioner-

workman is not in dispute rather the date of appointment has been admitted by both the

parties. The date of birth entered in the statutory Form B was to be taken into consideration

and as such treating the date of birth mentioned in Form B an order was passed by the

Management of B.C.C.L. Learned Counsel draws the attention of the Court towards earlier

order passed in W.P. (S) No. 6131 of 2005 dated 30.01.2009 wherein it was specifically

mentioned that ample opportunity should be given to the petitioner to produce required

document and evidence in support of his claim but the petitioner failed to produce the

same. The direction regarding constitution of a Medical Board was not mandatory rather

the Court had used the term "if so required". In absence of any evidence or any supporting

document in favour of the petitioner there was no requirement to constitute a Medical

Board and as such the same was not constituted.

11. Learned Counsel further argues that the Management-B.C.C.L. has fully

complied the order passed by this Court and as per the date of birth mentioned in the

statutory Form B no interference was required and moreover the petitioner upon his

retirement applied for release of gratuity and the same was also received by him, therefore,

the petitioner cannot be said to have any grievance against the Management.

12. Learned Counsel further submits that in Form B register the date of birth of

the petitioner has been recorded as 28 years as on 17.10.1971 and therefore he ought to

have been superannuated on 17.06.2003 and not on the basis of what has been recorded in

the Service Excerpt.

13. Be that as it may, having gone through the rival submissions of the parties,

this Court is of the considered view that no interference is warranted in the instant writ

application for the following facts and reasons:-

i. The appointment of the petitioner in the year 1971 is not in dispute and the same has been accepted by the petitioner-workman as well as the Management as per the date of birth entered in the statutory Form B register and the same has been taken into consideration and as such there is no illegality in the order passed by the Management B.C.C.L. It has been held in catena of decisions by the Hon'ble Apex Court as well as this Court that Form B is a statutory Form which has force of law and it cannot be a matter of dispute.

ii. The petitioner raised his grievance regarding his date of birth after 34 years of his appointment at a belated stage and at this stage the same cannot be entertained. The petitioner has not raised any Industrial Dispute regarding his date of birth and as such the argument of the petitioner that the Implementation, Instruction No.-76 of National Coal Wage Agreement is binding on the Management regarding constitution of a Medical Board is not acceptable to this Court and Section 18 (3) of the I.D. Act is not attracted in this case. The petitioner was fully aware of the date of birth in the service record and it was only in the year 2005 after 34 years from the date of appointment an application has been made for correction in the date of birth.

14. In plethora of judgment the Hon'ble Apex Court as well this Court it has

been held that the request of change of date of birth in the service record at the fag end of

service career is not sustainable rather not maintainable in the eyes of law. In case of "State

of T.N. vrs. T.V. Venugopalan", reported in (1994) 6 SCC 302 the Hon'ble Apex Court

was of the view that the Government Servant should not be permitted to correct the date of

birth at the fag end of his service career. The Court in very strong term observed as under:-

".....The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the

correctness of the entries in the service register."

15. Further, the Hon'ble Apex Court reiterating the same view, in case of State

of M.P. v. Premlal Shrivas, reported in (2011) 9 SCC 664 has held as under:-

"8. It needs to be emphasized 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 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.

12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book."

16. Similar view has been reiterated in the case of "Bharat Coking Coal Ltd.

& Ors. Vrs. Shyam Kishore Singh", reported in (2020) 2 Supreme Today 189, wherein

the Hon'ble Apex Court has held that, "request for change of the date of birth in the

service records at the fag end of service is not sustainable."

17. The Hon'ble Apex Court in case of "Nedungadi Bank Ltd. vrs. K.P.

Madhavankutty & Ors.", reported in (2000) 2 SCC 544, dealing with the issue relating to

stale claim, has held that, reference of the said dispute at a belated stage is bad in eyes of

law both on the grounds of delay as well as on non-existence of an industrial dispute.

18. As a sequitur to the aforesaid observation, Rules, Guideline, legal

proposition and judicial pronouncements no interference is warranted in this writ petition

and the same is hereby dismissed.

[Dr. S. N. Pathak, J.] P.K.S.