Karma Mahto vs Management Of Tapin South ...
2021 Latest Caselaw 3571 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Civil Writ Jurisdiction)
                W.P. (L) No. 5494 of 2010
                         ........

Karma Mahto                              .... ..... Petitioner
                             Versus
Management of Tapin South Colliery of

M/s Central Coalfields Limited, Ranchi & Another .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Petitioner : Mr. Vikash Kumar, Advocate.

Mr. Vijay Kumar Gupta, Advocate.

For the Respondent No.1 : Mr. Bhaiya Vishwajeet Kumar, Advocate ........

11/23.09.2021.

Heard, learned counsel, Mr. Vikash Kumar on the instruction of learned counsel for the petitioner, Mr. Vijay Kumar Gupta and learned counsel for the respondent no. 1, Mr. Bhaiya Vishwajeet Kumar.

The petitioner has preferred this writ petition for quashing the order dated 21.04.2010 passed by the learned Presiding Officer, Industrial Tribunal, Dhanbad in Reference Case No.195 of 1997, whereby and whereunder the reference under Section 10(1) (d) (2A) of the Industrial Disputes Act, 1947 made by the petitioner has not been allowed and the action of the Respondent Management of Tapin South Colliery of M/s CCL in wrongfully superannuating the petitioner from the services of the Management w.e.f. 29.09.1995 has been justified by the learned Tribunal.

Learned counsel for the petitioner has submitted that the learned Central Government Industrial Tribunal No.1, Dhanbad has not considered the material brought on record while deciding the reference made under Section 10(1) (d) (2A) of the Industrial Disputes Act, 1947. The reference is "Whether the action of the management of Tapin South Colliery of M/s C.C.L. in superannuating Karma Mahto from the services of the management w.e.f. 29.09.1995 is justified? If not, to what relief is the workman entitled?"

Learned counsel for the petitioner has submitted that as per the case of the petitioner, he joined the management / respondent on 01.05.174 as Pump Khalasi and on the basis of date of birth,

disclosed by him, the same was entered into the service book as 29.09.1953 and pursuant thereto, the same has been mentioned in the CMPF record, which has been brought on record as Annexure-1 to the writ petition as well as in the identity card issued by the respondent authority, duly signed by the competent authority, which has been brought on record as Annexure- 1/1 to the writ petition. These two documents are without any interpolation in the date of birth column as in those documents date of birth of petitioner is clearly visible as 29.09.1953.

Learned counsel for the petitioner has further submitted that from perusal of the service excerpt of the petitioner, maintained by the respondent authorities, it would be apparent that his date of birth has been mentioned as 29.09.1953 on the date of appointment on 01.05.1974, which has been brought on record as Annexure-2 of the writ petition.

Learned counsel for the petitioner has submitted that he was served with a notice on 01.08.1995, which has been wrongly mentioned in paragraph-7 of the writ petition as 14.05.1995, whereby the petitioner has been intimated by the respondent no. 1, Management that he shall be superannuated from service of respondent w.e.f. 29.09.1995.

Learned counsel for the petitioner has further submitted that this fact can be verified also from the counter affidavit filed by respondent authority, whereby the said notice has been brought on record by way of Annexure -B.

Learned counsel for the petitioner has further submitted that the petitioner, who was working as "Pump Khalasi", under wrong advise, came before the High Court of Judicature at Patna, Ranchi Bench by preferring a writ petition vide C.W.J.C. No.2100/1995(R). The said writ petition was disposed of in terms of order dated 27.09.1995 with a direction that if the petitioner is so advised he may take recourse to the provision of Industrial Disputes Act, 1947, which has been brought on record as Annexure - 3 to the writ petition.

Learned counsel for the petitioner has further submitted that the petitioner went before the Industrial Tribunal, where Reference Case No.195/1997 has been registered and after recording the evidence, learned Presiding Officer has dismissed the claim of the petitioner on the ground that there is no certificate to show his date of birth as 29.09.1953 and though the concerned workman is literate because he has signed From 'B' register in which the date of birth has been mentioned as 29.09.1935, so the claim of the concerned workman to change his date of birth from 29.9.1935 to 29.09.1953 is without any basis. It shows that with the connivance of the officials of the management, the date of birth of the concerned workman has been changed in Form 'B' register from 29.9.1935 to 29.9.1953 without any basis. Moreover, in Form 'B' register, Ext. M-2, it has been mentioned that this 25.09.1953 has been changed as per C.M.P.F. Record. This also shows manipulation because of the fact that in C.M.P.F. Record, the date of birth has been shown on the basis of Form 'B' register. In the C.M.P.F. Register, the date of birth, which is mentioned there is on the basis of Form 'B' Register of the employee. The learned Presiding Officer has considered that there is very hit argument on behalf of the management, that the date of birth from 29.9.1935 to 29.9.1953 has been changed with the connivance of his co-worker. Another argument advanced on behalf of the management that if his date of birth 29.9.1953 be treated to be correct then it is not possible to get employment just when he has not even completed 21 years of age on the date of his employment on 01.05.1974. The Tribunal has hold that concerned workman is not entitled to any relief.

Learned counsel for the petitioner has submitted that it is true that on the date of employment of the petitioner on 01.05.1974, petitioner has not completed 21 years, but he was definitely 20 years 9 months and at that time in the year 1974, the employment as a Pump Khalasi was not so difficult rather it was made by such procedures, where such persons below the age of 21 years, were appointed, as such, the presumption, which has been taken by the

learned Tribunal is not correct approach as during the period of 1974 the employment was not such a big problem for the public, rather the employment was given on Class-III and Class-IV posts in a casual manner by considering the capability of the person.

Learned counsel for the petitioner has further submitted that the learned Tribunal has not taken this in right perspective as if the date of birth is considered to be 29.09.1935, then at the time of appointment on 01.05.1974, the petitioner was 39 years old and overaged.

To butress his argument, learned counsel for the petitioner has further submitted that Form 'B' is a initial documents, where date of birth of the petitioner has been mentioned as 29.9.1953 and on the basis of that, the Coal Mines Provident Fund paper (Annexure-1) was prepared on 07.07.1975, where the date of birth has been mentioned as 29.9.1953.

Learned counsel for the petitioner has submitted that if the presumption, which has been taken by the learned Tribunal is considered to be true that if date of birth of the petitioner is considered to be 29.9.1953 then at the time of his appointment on 1.5.1974 his age was 20 years 9 months i.e. below 21 years, but if his date of birth is considered to be 29.9.1935 then at the time of his appointment on 01.05.1974, his age was 39 years, which is also overage, as such, the learned Tribunal ought to have taken recourse of the Implementation Instruction 76 of the N.C.W.A. by sending the petitioner for medical examination, which the respondent - authorities have deliberately not done, though in the writ petition vide C.W.J.C. No.2100/1995(R), the petitioner has prayed "for issuance of an appropriate writ in the nature of certiorari for quashing the office order No. TSC/FO/ESTT/Superannuation/ 95- 1476-86 dated 1/8/95 passed by the respondent no. 3, whereby it has been communicated to the petitioner that his superannuation date is 29.09.95 as the petitioner attains the age of 60 years as on 29.09.95 but this fact is contrary to the records to be shown hereinafter and it amounts to premature superannuation of the petitioner as long as 18

years before the actual date of superannuation which is malafide and colourable exercise of power by the respondent no. 1 being a statutory body and for issuance of a writ of mandamus directing the respondent to treat the date of birth of the petitioner as 29.09.1953. Petitioner has made representation dated 4.8.1995 before the respondent authority prior to his post-retirement soon after receiving the letter of intimation on 01.08.1995 with a prayer that the respondent can examine the petitioner." The photocopy of the writ petition along with the annexures have been produced by learned counsel for the petitioner in the court and the copy of the same has also been served upon learned counsel for the respondent no. 1.

Learned counsel for the petitioner has referred Paragraph-21 to 23 of the present writ petition, whereby relevant extract of the Implementation Instruction-76 of N.C.W.A.-III has been quoted. Para-21 to 23 of the writ petition may profitably be quoted hereunder:-

"21. That here it would be relevant to make reference to the Implementation Instructions No. 76 of the N.C.W.A.-III which mentions about the procedure of Determination/ Verification Date of Birth of the Employees. The relevant extract of the said Instructions reads as follows:-

(A) Determination of the age at the time of appointment

(iv) Illiterate

In cases of appointees not covered under the foregoing clauses, the Date of Birth will be determined by the Colliery Medical Officer keeping in view any documentary and other relevant evidence as produced by the appointee. Date of Birth as determined shall be treated as correct Date of Birth and the same will not be altered under any circumstances.

Thus, from the bare perusal of the aforesaid provision it is clear that once the said exercise was done and the correct entry of date of birth of the Petitioner was made in the I.Card register, C.M.P.F. records and suitable correction was already made on that basis into the Form B Register, the Petitioner would not have been made to retire in the year 1995.

22. That as per the said Implementation Instructions - 76 there are three records that are considered as authentic in determining

the Date of Birth of the existing workmen, they are: Form 'B' register (untampered)

-CMPF Records (untampered)

-Identity Card (untampered)

Here it may be relevant to note that the CMPF Record and Identity card (untampered) of the Petitioner mentions the date of birth of the Petitioner as 29.09.1953 and the correction made by the Respondents themselves in the Form 'B' Register had been on that basis itself.

23. That there are provisions under the Implementation Instructions of the N.C.W.A.III which in cases of such uncertainty enumerates the following steps to be undertaken by the Respondent. The Instructions are as follows:

(C) Age Determination Committee/ Medical Board 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), the Date of Birth recorded the records of the Company, namely Form 'B' Register, C.M.P.F. Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/ Medical Board by the Management for determination of age.

Thus, even from the above it is clear that the Respondent Management has arbitrarily and illegally superannuated the Petitioner without even referring the matter to the Age Determination Committee/ Medical Board."

Learned counsel for the petitioner has thus submitted that since the petitioner only knows to put his signature, it does not mean that he is acquainted with all the words and procedures of the management to consider him literate and if the document kept in the office of the Management is interpolated, then it is the Management, who has to explain that how such things has occurred in their office, but admittedly CMPF record (Annexure-1) and Identity Card (Annexure-1/1) issued by Management duly signed by the competent authority clearly shows the date of birth of the petitioner is 29.9.1953, but the learned Tribunal has wrongly considered that if

the date of birth of the petitioner is considered to be 29.9.1953 then on the date of joining on 01.05.1974, the petitioner was less then 21 years, it is true that petitioner was 20 years 9 months, but if the date of birth is considered to be 29.9.1935 then on the date of employment i.e. 01.05.1974, the petitioner was admittedly overage i.e. 39 years old, as such, such presumption cannot be taken adverse against the interest of the petitioner, when respondent has not followed the Implementation Instruction No.76 of NCWA-III, as such, impugned award may be set aside and the petitioner may be directed to be medically examined by the respondent authorities and if is found that his claim is correct, then he may be monetarily compensated for the laches on the part of the respondent.

Learned counsel, Mr. Bhiaya Vishwajeet Kumar appearing for the respondent no. 1 has submitted that a large number of cases of such interpolation at the verge of retirement of worker have been detected by the C.C.L., but Form 'B' is the basic document with regard to entry of date of birth and date of appointment of the worker. From perusal of Form 'B' Register of employee, which has been brought on record as Annexure-A to the counter affidavit, it appears that at column no.4 (Age and Sex), it has been entered as 29.09.1935, which was circled subsequently and 29.09.1953 has been added on 7/7 without disclosing the year by some officials, who was in league with petitioner and thus petitioner has claimed his date of birth to be 29.9.1953, as such, this Court may not interfere in such finding recorded by the learned Tribunal as the petitioner was under age on the date of appointment, as claimed by the petitioner, on 01.05.1974.

Learned counsel for the respondent no. 1 has further submitted that from perusal of the Reference No. 195 of 1997, it is apparent that the matter was referred under Section 10 (1)(d)(2A) of the Industrial Disputes Act with regard to "Whether the action of the management of Tapin South Colliery of M/s C.C.L. in superannuating Karma Mahto from the services of the management w.e.f. 29.09.1995 is justified? If not, to what relief is the workman

entitled?", but no reference has been made by the learned Tribunal with regard to following the Implementation Instruction No. 76 of NCWA-III, for sending the petitioner for medical examination to ascertain the age, as such, this Court cannot move beyond the ambit of reference even in the writ jurisdiction.

Learned counsel for the respondent no. 1 has further submitted that under the writ jurisdiction, this Court has not to act as a appellate authority to the award passed by the learned Tribunal, as such, the writ petition may be dismissed as this Court has limited scope under Article 226 of the Constitution of India in the matter of award.

Learned counsel for the respondent has placed reliance upon the judgment in the case of Sawarn Singh & Anr. Vs. State of Punjab & Ors. reported in 1976 2 SCC 868. Paras-12-13 of the aforesaid judgment may profitably be quoted hereunder:-

"12. Before dealing with the contentions convassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well-settled that Certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts of tribunals. A writ of Certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case, "this limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact, however grave it may appear to be."

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of Certiorari can be issued only if in recording such a finding the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends, only to cases where orders are pissed by inferior courts or tribunals in excess of their jurisdiction or

as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

Learned counsel for the respondent no. 1 has thus submitted that this Court may not interfere with the finding recorded by the learned Tribunal, which is based on proper appreciation of evidence and there is no perversity in the award passed by the learned Tribunal.

After hearing learned counsel for the parties and on the basis of materials brought before this Court as well as photocopy of writ petition, CWJC No. 2100/1995 (R) sent by the petitioner showing Annexure-6 filed on 04.08.1995 before the respondent authorities. The learned Tribunal has considered two aspects of the matter; first, that Form-B Register shows the date of birth of the petitioner to be 29.09.1935 and date of appointment to be 01.05.1974 contrary to that no certificate has been produced by the petitioner to show that his date of birth is 29.09.1953 and further considered that the workman is literate as because he has signed Form-B Register, in which his date of birth has been mentioned as 29.09.1935, so the claim of the workman is without any basis and secondly, if the date of birth is considered to be 29.09.1953, then on the date of appointment i.e. on 01.05.1974, the petitioner has not attained the age of 21 years. This Court has examined the entire document brought on record by the petitioner as well as by the respondent and also the Implementation Instruction No. 76 of N.C.W.A. prevalent at that time as well as Annexure-6 to the writ petition bearing C.W.J.C. No. 2100/95(R).

From perusal of Annexure-1, though it is a document of Coal Mines Provident Fund, which is on the basis of Form-B of the Employer. This document shows the date of birth mentioned at the time of opening of this document on 07.07.75 to be 29.09.1953. From bare perusal of this document, it appears that there is no overwriting, cutting or doubt about entry made with regard to date of birth as 29.09.1953, which is apparent from page nos. 22 & 23 of the writ petition. Apart from that, the respondent have issued Identity Card duly signed by the authorized and competent person,

where CMPF Number is mentioned as R/27-782 and this document also shows the date of birth to be 29.09.1953.

Apart from that, from perusal of counter affidavit particularly, Annexure-A, it seems that date of birth in Form-B has been mentioned as 29.09.1935 which was subsequently corrected on 7/7 without disclosing the year, which was again written as 29.09.1953. This document is kept in the custody of the respondent authorities, as such, it was incumbent upon the respondent authority to verify the initial record that who are the officers at that time when such interpolation has been made. A vacuous proceeding initiated against the Officer is not going to justify the act of the Management nor any benefits to a workman whose date of birth has been changed at the verge of his superannuation. This communication was made on 01.08.1995 and as such, this Court is of the opinion that in view of the representation filed by the petitioner before the respondent no. 1 on 04.08.1995 for his medical examination, it was incumbent upon the CCL authorities to follow Implementation Instruction No. 76 of N.C.W.A. by sending the petitioner for medical examination, which reads as follows:-

Jheku inkfËkdkjh egksn;] rihu lkmFk dksyh;jh lsok fuo`fr ds laca/k esa] egk'k;] lsok esa fuosnu gSa fd eq>s ,dk,d i= la[;k IFC/FL/CS TT/Superannuation/95/1476-86-1.8.095 fnukad 1-8-95 dks ikdj eSa vpafHkr gks x;k fd eq>s lsok fuo`r fnukad 29-09-95 dks dSls dj fn;k tk jgk gSA tcdh esjh lgh tUe frfFk fnukad 29-09-53 gS bl tUe frfFk ds vk/kkj ij esjh ukSdjh vHkh 18 (vBkjg) lky ls vf/kd ckdh gSA bl laca/k esa esjs ikl fuEufyf[kr dkxtkr (1) Service Excerpts (dksM ua0 ,l-,-tsM&14 dk okyk yky dkMZ) (2) Form ACMPF (3) ifjp; i= gSA ftl ij lHkh lsok ds mfpr inkf/kdkjh dk gLrk{kj ,oa frfFk vafdr gS tks izekf.kr djrk gS fd esjk tUe frfFk 29-9-1953 gS ,oa lsok lacaf/kr lHkh dkxtkr fjdkWMZ esa Hkh esjk lgh tUe frfFk 29-9-1953 gS ftl ij lHkh l{ke inkf/kdkjh dk gLrk{kj ,oa frfFk vafdr gSA

vr% bl laca/k esa Jheku~ ls eq>s vkxzg djuk gS fd esjh lgh mez vHkh 40 (pkylh) o"kZ ds yxHkx gS ftldk tkaWp ,oa ifj{k.k djk;k tk ldrk gS ,oa eq> xjhc dks vkxs 18 (vBkjg) ogh ukSdjh djus dk volj fn;k tk,A vr% Jheku~ ls uez fuosnu gS fd mi;qZDr ckrksa dk /;ku esa j[kdj ,d eq> xjhc ifjokj dk eq[;ky; esa vkdj ckr crkus dk ekSdk fn;k tk,A blds fy, vkidk vkHkkjh jgw¡xkA vkidk fo'oklh ¼djek egrks½ CMPF No. R/47-732

Id. Card - 255468 Tapin South Colliery

izfrfyfi& ¼1½ Jheku funs'kd] dkfeZd CCL, Ranchi ¼2½ egkizcaËkd - J.R./M.P., Kargali ¼3½ eq[; egkizcaËkd Charhi Hazaribagh ¼4½ jkTksUnz izlkn flag - MLA

Even the subsequent ground which has been taken by the learned Tribunal is itself not possible because if the date of birth of the petitioner is considered to be 29.09.1935, then at the time of appointment on 01.05.1974, the petitioner was overage, approximately 39 years old. If the Management has appointed an overage person then why this Court will not consider that Management has appointed this petitioner at the age of 20 years 9 months in the year, 1974 when such appointment was not a difficult task for CCL and other Institutions.

So far the judgment relied upon by the learned counsel for the respondent is concerned, it appears that the matter was related to revenue and not to date of birth, as such the judgment passed in Swaran Singh (Supra) is not applicable in the present case, as such, this Court set aside the impugned award and directs the CCL authorities to medically examine the petitioner under Implementation Instruction No. 76 of the NCWA, so as to ascertain his present age for considering the date of birth of the petitioner as 29.09.1935 or 29.09.1953 and shall consider the monetary compensation in accordance with law.

Accordingly, the writ petition is hereby allowed. The Photocopy of writ petition i.e. C.W.J.C. No. 2100/1995 (R) which has been sent by petitioner to the respondent no. 1 and also to this Court be kept on record.

(Kailash Prasad Deo, J.) Sunil/-