Suresh Kumar Singh vs Central Coalfield Limited ...
2021 Latest Caselaw 400 Jhar

     THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S) No.7721 of 2006
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   Suresh Kumar Singh                             ..... Petitioner
                                 Versus

1. Central Coalfield Limited through its Chairman-cum-Managing Director, Ranchi

2. General Manager, Sirka Colliery, C.C.L., Hazaribagh

3. Senior Personnel Officer, Religare Colliery, C.C.L., District Hazarigbagh

4. Staff Officer (M) (A) Sirka Colliery, C.C.L., Hazaribagh ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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   For the Petitioner      :     Ms. M.M.Pal, Advocate
   For the Respondents :         Mr. Mukesh Bihari Lal, Advocate
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17/28.01.2021        Heard learned counsel for the parties through V.C.

2. The instant writ application was initially preferred by the petitioner praying for quashing and setting aside the order dated 11/12.04.2002 (Annexure-9) issued by Respondent No.4 whereby the petitioner has been demoted to the post of piece rated worker by way of punishment and also for quashing the appellate order dated 25.9.2004 (Annexure

11) whereby the appeal of the petitioner was rejected.

Subsequently, during pendency of this application, certain development took place; whereby an office order was issued under Memo No.CGM(A)/9/02/1394-1402 dated 26.4.2002, by which all concerned were directed to make correction in all statutory documents wherever required in the date of birth of the petitioner as 15.04.1958 in place of 05.2.1960. The said order was challenged by the petitioner vide an interlocutory application, being I.A. No. 950 of 2016; which was allowed and the said prayer has been incorporated in the main writ application.

Further, another interlocutory application has been preferred by the petitioner challenging the office order dated 20.11.2017, whereby the petitioner was directed to be relieved from service on 30.4.2018 considering his date of birth as 15.4.1958. The said interlocutory application, being I.A. No. 3381/2018 has also been allowed and became part of the instant writ application.

3. Ms. M.M. Pal learned Senior Counsel submits that the petitioner was initially appointed on the post of piece rated labour on 05.7.1978. She further submits that initially when the petitioner was appointed, his date of birth was recorded as 15.4.1958 on the basis of medical examination. Later on when the petitioner received his matriculation certificate; he requested the respondent authority to make correction with respect to his date of birth in his service register on the basis of the date of birth recorded in his matriculation certificate. Accordingly, his date of birth has been changed to 05.02.1960. He was also given promotion on the basis of his matriculation certificate.

All of a sudden in the year 1998, a charge sheet was issued against the petitioner alleging that his date of birth was determined as 15.04.1958 at the time of his initial appointment on the basis of medical examination and the same was duly recorded in his service-sheet but subsequently on the basis of a matriculation certificate produced by him his date of birth has been changed to 05.02.1960. The petitioner duly replied to the charge sheet. However, without considering his reply and without any second show-cause notice the punishment order was passed.

Learned Senior Counsel for the petitioner draws attention of this Court to the enquiry report, from which it clearly transpires that Charge No.2 and 3, relating to the allegation that the said matriculation certificate was of one Suresh Choudhary who is a different person, have not been proved, inasmuch as, the Inquiry Officer has categorically held that the said certificate produced by the petitioner in the name of Suresh Choudhary and claimed to be his own certificate was accepted by the respondent Authority and the said fact was also substantiated by the relevant documents and witnesses. She further contended that at the time of initial appointment, his date of birth was recorded on the basis of medical examination and medical fitness certificate was issued; however, the medical fitness certificate cannot

overrule the date of birth recorded in the matriculation certificate, which is full and final. She further contended that the moment petitioner received the matriculation certificate from the concerned Board; he immediately applied for correction of his date of birth. It is not a case of the respondent that the petitioner tried to challenge his date of birth in the service record at the fag end of service. In support of his contention she relied upon the judgment rendered by the Full Bench of this Court in the case of Kamta Pandey vs. B.C.C.L. Through Chairman-cum-Managing Director reported in (2007) 3 JLJR 726 and submits that the law is now no more res integra that date of birth recorded in the Matriculation certificate is a conclusive proof of age.

She reiterated her contentions that the charge with respect to matriculation certificate in the name of different person and the petitioner has used a forged certificate to take appointment has not been proved in the enquiry proceeding.

4. Mr. M.B. Lall, learned counsel for the respondents raised a preliminary objection to the extent that on one hand it is an industrial dispute as the petitioner is a workman as such, no writ is maintainable in this court and on the other hand there is a disputed question of fact with regard to the name of the petitioner. He further tried to defend the enquiry report to the effect that Charge No.2 has not been proved due to the reason that management witnesses during their cross examination had not substantiated that the matriculation certificate is of Suresh Choudhary-a different person. However, Mr. Lall could not ignore the categorical finding of the Inquiry Officer that the charge that matriculation certificate belongs to some other person namely Suresh Choudhary was not at all substantiated. In other words; the Inquiry officer after examination of the management witness came to the definite conclusion that Suresh Choudhary and the petitioner is one and the same person. Mr. M.B. Lall could not demonstrate that the disciplinary authority and the appellate authority differed with the findings of the Inquiry

Officer. However, he fairly submits that the matter may be remanded back to the competent authority to pass a fresh order after re-examining the documents as there is a disputed question of fact.

5. Having heard learned counsel for the parties and on perusal of the documents and averments made in the respective affidavits, it appears that following charges were imposed upon the petitioner:

"1) That at the time of your appointment as a Coal Cutter on 5.7.1978 against the voluntary retirement of your father Sri Ramswarup Singh, your age as determined at the initial medical examination i.e. 15.4.1958 was recorded in your service sheet which was accepted by you by means of putting your LTI in the service sheet. That later on, you produced a matriculation certificate, stating to be that of yours and got your date of birth changed as on 15.4.1958 to 5.2.1960 on the basis of the date of birth recorded/mentioned therein i.e. Matriculation certificate.

2) That in fact, the said matriculation, as produced by you stating to be that of yours, belonged to one Shri Suresh Choudhary.

3) That again on the basis of aforesaid false and forged matriculation certificate produced by you, you managed to get your services regularised as Asstt. Store Keeper w.e.f. 25.1.1981.........."

At the outset, it is pertinent to mention here that the charge sheet has been issued after 20 years of service of the petitioner, whereas the petitioner had submitted his matriculation certificate with the management way back in the year 1978-79.

Now, coming to the charges, it appears from the enquiry report that charge no.2 and 3 have not been proved; however, the Inquiry Officer stated that Charge no.1 was proved. At this stage, it is relevant to mention that Charge

No.1 does not appear to be any offence rather it is a fact, inasmuch as, initially the petitioner was appointed and his date of birth was mentioned in the service sheet taking into account medical examination and medical fitness certificate and the moment the petitioner received the matriculation certificate; he applied for correction of his date of birth. Thus, the said application by the petitioner was not made at the fag end of his service; rather at the first instance the petitioner had requested the management to correct his date of birth as 05.02.1960 in place of 05.04.1958 and accordingly, his date of birth has been changed to 05.02.1960 and was also given promotion on the basis of his matriculation certificate.

From the counter affidavit filed by the respondents it appears that Annexure C is the service sheet and in the service sheet also corrected date of birth is incorporated.

With respect to the second charge, the main ground of the respondents is that it is a disputed question of fact as in the matriculation certificate the name of the petitioner appears to be Suresh Choudhary. However, the Inquiry Officer, after due examination of the Management witness came to a conclusive finding that Management witness during his cross examination could not substantiate that the matriculation certificate which was in the name of Suresh Choudhary; was of a different person and/or Suresh Choudhary and Suresh Kumar Singh-Petitioner are two different person. It has been categorically held by the Inquiry Officer that it has not been established that the matriculation certificate belonged to some other person named Suresh Choudhary. From these two categorical findings with respect to Charge No.2 it is amply clear that Suresh Kumar Singh and the Suresh Choudhary is one and the same person. Thus, it does not remain a disputed questioning of fact any more.

Further, so far as charge no.1 is concerned; the sole charge which has been proved against this petitioner, this Court is of the view that the same is admitted fact and cannot

be termed as offence. Now law in this regard is no more res integra that date of birth recorded in the matriculation certificate by a Board is a conclusive proof of age. Paragraph 22 of the judgment passed by the Full Bench in the case of Kamta Pandey (Supra) is quoted herein below.

"22. According to the petitioner, when he came to know that the date of birth was not corrected and was wrongly mentioned as 16.7.1948, he immediately sent a representation on 5.1.2004 mentioning all the above details and as well as requesting for correcting the date of birth as 1.7.1951 as reflected in the Matriculation Certificate. It is not the case of the respondents that the Matriculation Certificate is not genuine. It is not the case of respondent that the Matriculation Certificate was not issued by the recognized Board. It is not also the case of the respondents that the Matriculation Certificate was obtained after his employment. When the Matriculation Certificate was issued by the recognized Educational Board and when the Matriculation Certificate was obtained by the petitioner even before the appointment, which has been reflected in the identity card issued by the Company, immediately after the appointment, we are at a loss to understand as to how the respondent Company can claim that only service register should be taken note of for determining the date of birth, even though Instruction No. 76, which is a product of the bilateral agreement is binding on the company."

Now coming to the impugned orders, whether it is the order of punishment or the appellate order, both the orders are non reasoned orders. No reason, whatsoever, has been assigned while imposing the punishment and/or rejecting the appeal.

Learned counsel for the respondents has argued that this is an industrial dispute, as such the writ is not maintainable. In this regard, I am not in agreement with the learned counsel for the respondent B.C.C.L. for the sole reason that the instant writ application has been filed in the year 2006 and after lapse of 15 years no fruitful purpose will be served in directing the petitioner to approach the Labour Court which will be a futile exercise in the background of the facts that the Inquiry Officer has deliberated with every charge and came to a conclusive finding that Charge No. 2 & 3 has not been proved.

6. In view of the aforesaid findings and the law laid down by this court in Kamta Pandey (Supra), since the

petitioner has already retired from service and has crossed the age of 60 years, he is entitled for all consequential benefits.

7. Consequently, the instant writ application is allowed and the impugned order of punishment as well as the appellate order and all subsequent orders, are hereby, quashed and set aside. The Respondents are directed to give all consequential benefits to the petitioner in accordance with law and company rules considering his age as 05.02.1960 instead of 15.04.1958 which has been denied to him pursuant to the impugned orders within a period of twelve weeks from the date of receipt/production of copy of this order.

8. With the aforesaid terms, the instant writ application stands disposed of.

(Deepak Roshan, J.)

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