Employer In Relation To The ... vs Their Workman - Shahdeo Das
2021 Latest Caselaw 4051 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Civil Writ Jurisdiction)
                W.P. (L) No. 2866 of 2021
                         ........

Employer in relation to the Management of Katras Area of M/s Bharat Coking Coal Limited, Dhanbad .... ..... Petitioner Versus Their Workman - Shahdeo Das ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioner              : Mr. Amit Kumar Das, Advocate.
For the Respondent              : Mr. Sachi Nandan Das, Advocate.
                                 ........
05/28.10.2021.

Heard, learned counsel for the petitioner, Mr. Amit Kumar Das and learned counsel for the respondent, Mr. Sachi Nandan Das.

The Employer in relation to the Management of Katras Area of M/s Bharat Coking Coal Limited, has preferred this writ petition against the award dated 30.09.2020 passed by learned Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 01 of 2019, whereby the Reference made by the Central Government, Ministry of Labour vide order No. L- 20012/94/2018-IR(CM-I) dated 06.12.2018 in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, has been affirmed in favour of Workman - Shahdeo Das regarding "Whether the action of the management of Salanpur Colliery under Katras Area IV of M/s Bharat Coking Coal Limited in denial to record the date of birth of Sri Shadeo Das (personnel No. 02860252) as per the Admit Card of the Matriculation Examination is justified. If not, to what relief the concerned workman is entitled to."

Learned counsel for the petitioner, Mr. Amit Kumar Das has referred that as per the admitted fact Workman Sahdeo Das was a permanent employee, having designation as SDL Operator of Salanpur Colliery, under the management of M/s BCCL, Katras Area and his actual date of birth as mentioned in matriculation certificate and admit card is 05.01.1972 but as per record of the Management in Form 'B' Register at the time of appointment age has been written as 30 years on 18.09.1990 in place of his actual date of birth in his

Form 'B' Register and other records. The concerned workman had submitted an application for correction of his date of birth on 31.10.2015, before the Project Officer of Salanpur Colliery as well as before other officials of BCCL, but the Management did not pay any attention towards his application for making correction of his date of birth in the Form 'B' Register and other records. The concerned workman had raised a dispute before the Assistant Labour Commissioner, Dhanbad on 14.12.2016 and when the matter was not settled in the conciliation proceeding, the same was referred to the Ministry of Labour and Employment resulting reference of this matter as stated above.

Learned counsel for the petitioner has submitted that though the Management has not denied the Certificate of the concerned workman but under the provisions of I.I. No. 76 dated 05.01.1972, even then correction in the date of birth at the fag end of service in the service record / Form 'B' Register and other records of M/s BCCL is not permissible.

Learned counsel for the petitioner has placed Implementation Instruction No. 76 i.e. "Procedure for Determination" and "Verification of Age of Employees.", which is quoted hereunder:-

Under paragraph 'A' the manner of determination of age at the time of appointment is laid down. Under paragraph 'B' are laid down the procedures to be followed in cases of determination of date of birth in respect of existing employees. Under sub-paragraph (i) of Paragraph 'B' the case of the existing employee having a Matriculation Certificate or Higher Secondary Certificate issued by the recognised University or Board or Middle Form Certificate issued by the Board of Education and/or Department of Public Instruction should be treated as the correct date of birth provided the documents are issued by the University/Board prior to the date of the employment. Under sub-paragraph (i)

(b) of paragraph B it is provided that mining sirdarship, windup engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic. Provided that where both the documents mentioned in (i)(a) and (i)(b) above are available the date of birth in (i)(a) will be treated as authentic. In clause (ii) of para B it is specifically stated that where ever there is no variation in records such cases will not be re-opened unless there is a very glaring and apparent wrong entry brought to the notice of the

Management. The Management, after being satisfied on the merit of the case will take appropriate steps for corrections through the Age Determination Committee/Medical Board. In 'C', 'D' and 'E' the procedures to be followed by the Age Determination Committee/Medical Board for determination of age of an employee are laid down. The provisions read as follows:

"C) Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the company, namely, form B register, CMPF Record and Identify Cards (untempered) will be treated as final, provided that where there is a nomination in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for determination of Age.

D) Age determination of the age, Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or

E) Medical Board constituted for determination of Age will be required to manage the age in accordance with the requirement of Medical Jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately."

Learned counsel for the petitioner has thus submitted that it is nowhere submitted by the Workman that in any other service record including Form 'B', there is any variation in the date of birth of the Workman, rather dispute has been raised for the first time after 25 years of the service on 31.10.2015, before five years of superannuation of the Workman. The Management has rightly did not interfere with the same under I.I. No. 76 dated 05.01.1972.

Learned counsel for the petitioner has placed reliance upon the judgment passed by the Apex Court in the case of Bharat Coking Coal Limited and Others Vs. Shyam Kishore Singh reported in (2020) 3 SCC 411 and has extraneously argued the case relying upon para-7 to 15 of the said judgment, which are profitably quoted hereunder:-

7. The fact that the respondent had joined the services of the appellants on 01.03.1982 is the accepted position. Though the respondent relies on the

matriculation certificate to indicate that the date of birth stated therein is 20.01.1955, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by the appellants will disclose that the date of birth indicated in the document is 04.03.1950 which had been furnished by the respondent himself as the relevant forms under his signature contain the said date. Though the learned counsel for the respondent contended that the High Court had noticed certain alteration of the date of birth as indicated in Form "B" the relevance of the said document cannot be considered without reference to the other documents in the service records. The very fact that the respondent through his representation made in the year 2009 was seeking for change of the entry relating to date of birth will indicate that what was contained in the service records is 04.03.1950, which was the position from 27.02.1982.

8. In the above background it is to be noticed as to whether the consideration as made by the High Court is justified. The learned counsel for the respondent with specific reference to para 10 in the order of the learned Single Judge referred to the aspect wherein the learned Single Judge has taken note of the representation made by the respondent in the year 2009 and the verification that was secured by the appellants from the Bihar School Examination Board. Though such reference is made, in our opinion, the same was not appropriate in the present facts when three decades had elapsed from the date of employment. The position 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. In the instant facts the position is that the respondent entered service on 01.03.1982. The date of birth entered as 04.03.1950 has remained on record from the said date. The requirement to submit the nomination form indicating the particulars of the family and the nominee was complied and it was submitted by the respondent on 25.05.1998. In the said Nomination Form the date of birth of the employee was required to be mentioned, wherein the respondent in his own handwriting has indicated the date of birth as 04.03.1950. Apart from that fact, the learned Additional Solicitor General would also point out that since there was a change in the method of maintaining the service register, all the employees were provided an opportunity to verify and seek for change in the service record in the year 1987. At that stage also the respondent did not seek for any change. Therefore, in that circumstance, when the opportunity available at the first instance in 1987 had not been availed and thereafter on 25.05.1998 when the respondent himself in the Provident Fund Nomination Form had indicated the date of birth as 04.03.1950 which

corresponds to the date of birth entered in the service register as on the date of commencement of the employment, merely because a verification was made from the Bihar School Examination Board and even if it was confirmed that the date of birth was 20.01.1955 such change at that stage was not permissible.

9. This 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. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:

"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 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."

10. This Court in fact has also held 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 fixed 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] ).

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."

11. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.25922593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder:

"6. Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.

7. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier."

12. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer namely, the appellants herein in the case of Bharat Coking Coal Ltd. & Ors. vs. Chhota

Birasa Uranw (2014) 12 SCC 570 wherein this Court with reference to the earlier decisions of this Court has upheld the order of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, father's name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him.

13. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified.

14. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable.

15. In the result, the impugned order is set aside and the appeal is allowed with no order as to costs. Pending applications if any, shall also stand disposed of.

Learned counsel for the petitioner has thus submitted that in view of the judgment passed by the Apex Court, whereby the judgment passed by the Division Bench of this Court has been set aside by the Apex Court holding that the correction cannot be claimed as matter of right and the application filed by the respondent

after 25 years of induction into service, by no standards, can be held to be reasonable, when not a feeble attempt was made to explain the said delay.

Learned counsel for the petitioner has thus submitted that the impugned order may be set aside, as the learned Tribunal has not considered the same.

Learned counsel for the respondent - Workman, Mr. Sachi Nandan Das has argued the case, that the case of Shyam Kishore Singh (Supra) is not applicable in the present case, as the said case arising out of a order passed under writ jurisdiction under Article 226 of the Constitution of India, whereas in the present case, the writ petition filed by the petitioner- BCCL is for issuance of writ in the nature of certiorari.

Learned counsel for the respondent has placed reliance upon the judgment passed by the Apex Court in the case of M/s Parry and Co. Ltd. Vs. P.C. Pal, Judge on the Second Industrial Tribunal, Calcutta and others reported in AIR 1970 SC 1334 and relevant para-11 is taken note of:-

"11. The grounds on which interference by the High Court is available in such writ petitions have by now been well- established. In Basappa v. Nagappa(1) it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra(2) this Court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Art. 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in the State of Andhra Pradesh & Ors. v.S. Sree Ram Rao(3) this Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and

capricious that no reasonable person can ever have arrived at that conclusion interference under Art. 226 would be justified. The question for our determination, therefore, is whether the learned Single Judge was within the aforesaid well recognised limits when he set aside the award. Before, however, we examine that aspect of the case we may first consider the scope of the Tribunal's jurisdiction in cases of retrenchment arising under sec. 25F of the Act."

Learned counsel for the respondent has submitted that under the writ jurisdiction mere wrong decision cannot be corrected by a writ of certiorari, as that would be used as the cloak of an appeal in disguise but to manifest error apparent on the fact of the proceedings based on a clear ignorance or disregard of the provisions of law or in absence or excess of jurisdiction can be so corrected, when shown as such, this Court cannot issue writ of certiorari in the present matter, when the BCCL has never doubted the documents of the petitioner as reflected in para-24 of the impugned order.

After hearing learned counsel for the petitioner, Mr. Amit Kumar Das and learned counsel for the respondent - Workman, Mr. Sachi Nandan Das and the judgment relied by both the sides, it appears that the admitted facts are as follows:-

The workman Shahdeo Das was inducted into service on 18.09.1990 at the age of 30 years as mentioned in Form 'B'. Till 2015, workman Shahdeo Das has never raised any dispute nor filed any representation, though on 31.10.2015, he has relied upon the certificate and admit card issued by Bihar School Examination Board of the year 1987, showing his date of birth to be 05.01.1972, the respondent - Workman has denied his signature and LTI on Form 'B' during his cross-examination, but no application has been filed for correction by producing such documents by the respondent - Workman. In other words, if the workman Shahdeo Das has no knowledge that what was his date of birth / age mentioned in Form 'B', he has no occasion to file such application on 31.10.2015, meaning thereby before filing such application on 31.10.2015, the workman Shahdeo Das has every knowledge, that his age has been assessed to be 30 years in Form 'B' i.e. at the time of appointment,

but during intermediate period, he was having such certificate, but he has not produced the same.

Under the aforesaid circumstances, in view of the judgment passed by the Apex Court in the case of Kirloskar Bros. Ltd. Vs. Laxman reported in (2020) 3 SCC 419 as well as State of of M.P. Vs. Premlal Shrivas reported in (2011) 9 SCC 664, the application filed by the respondent - workman after 25 years of his induction into service, by no standards, can be held to be reasonable, in the absence, when not a feeble attempt was made to explain the said delay and as a matter of right, correction cannot be allowed at such belated stage or at the fag end of the service, as prayed by the workman - Shahdeo Das.

Accordingly, the impugned order dated 30.09.2020 passed by learned Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 01 of 2019 is set aside.

The writ petition is allowed.

I.A. No. 5901/2021 is hereby closed.

(Kailash Prasad Deo, J.) Sunil/-