Jharkhand High Court
Shobhakant Mahato vs M/S Bharat Coking Coal Limited ... on 21 August, 2023
-1- L.P.A. No. 227 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 227 of 2022
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Shobhakant Mahato, aged about 48 years, Son of Late
Shishu Mahato, Resident of South Balihari Basti, P.O. -
Kusunda, P.S. - Putki, District-Dhanbad
... ... Appellant
Versus
1.M/s Bharat Coking Coal Limited through its C.M.D., Koyla
Bhawan, P.O.-Koyla Nagar, P.S. Saraidhela, District-
Dhanbad.
2.Director Personnel, M/s BCCL, Koyla Bhawan, P.O.-Koyla
Nagar, P.S. Saraidhela, District-Dhanbad.
3.General Manager, Katras Area, A.K.W.M.C, BCCL, P.O.
Katrasgarh, P.S. Katras, District-Dhanbad.
4.Project Officer, A.K.W.M.C, (AARC) BCCL, P.O. Katrasgarh,
P.S. Katras, District-Dhanbad.
... ... Respondents/Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Shekhar Prasad Sinha, Advocate
For the Respondents : Mr. Anoop Kumar Mehta, Advocate
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st
Order No. 05 : Dated 21 August, 2023
Per Sujit Narayan Prasad, J:
1. The instant intra-court appeal, under Clause 10 of the
Letters Patent, is directed against order dated
10.02.2022 passed by learned Single Judge in W.P. (S)
No. 901 of 2021, whereby and whereunder the writ
petition has been dismissed denying to interfere with
letter dated 13.01.2021 by which the respondents-
authorities declined to change the date of birth of the
petitioner, as mentioned at the time of joining.
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2. Brief facts of the case, as per pleadings made in the writ
petition reads as under:
The petitioner was initially appointed on
17.3.2011 as General Mazdoor, Category-1, AA Ram
Canali Unit, Katras Area under BCCL. It is the specific
case of the petitioner that at the time of joining, he
submitted all the educational certificates along with the
prescribed format of identification certificate, verification
roll and attestation form, in which, he has clearly
mentioned his date of birth as 04.02.1972. It has been
contended that in spite of the fact that in all the
testimonials, the date birth of the petitioner has been
mentioned as 04.02.1972, his age was assessed by the
Medical Board to be 47 years and 06 months as on
14.12.2010. Accordingly, date of birth of the petitioner
was recorded in the statutory documents as 14.06.1963.
3. Aggrieved thereof, the petitioner submitted his
representations on 05.04.2018 and also on 09.08.2018
requesting to change his date of birth as 04.02.1972 in
place of 14.06.1963, but it did not evoke any response
and finally the respondent-authority by impugned order
dated 13.01.2021 has declined to make any correction
in the date of birth of the petitioner and hence, the
petitioner approached this Court by filing writ petition
being W.P. (S) No. 901 of 2021 taking the ground that
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there was no occasion for the management of BCCL to
send the petitioner for assessment of his age before the
Medical Board since in all service excerpts and
educational testimonials his date of birth was recorded
as 04.02.1972 and once it has been accepted the same
ought not to be disputed and as such case of the
petitioner ought not to have been sent before Medical
Board.
4. The respondent has taken the ground that petitioner
along with other 75 had raised Industrial Dispute for
employment which was answered vide Award dated
14.08.2000. The said Award was challenged up-to
Hon'ble Supreme Court and thereafter it was given effect
to. It has been submitted that since there was no proof
of date of birth/age at the time of preparation of award,
the petitioner along with others were sent before the
Medical Board for assessment of age, wherein his age
was assessed as 47 years and 06 months as on
14.12.2010. It has further been contended that the
report of Medical Board was duly accepted by the
petitioner by putting his LTI and signature in vernacular
language and thereafter he was posted as General
Mazdoor in Category I at Katras Area of respondent-
BCCL, wherein his date of birth has been mentioned as
14.06.1963. Thereafter the Form B register was opened
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wherein also the date of birth of the petitioner was
recorded as 14.06.1963, which was acknowledged by
petitioner by putting his signature and after serving for
seven years the petitioner raised dispute regarding his
date of birth, which is not permissible in the eye of law.
5. The learned Single taking into consideration the
submissions advanced by learned counsel for the
parties as also the case laws laid down by Hon'ble Apex
Court dismissed the writ petition vide order dated
10.02.2022, which is the subject matter of instant intra-
court appeal.
6. Mr. Shekhar Prasad Sinha, learned counsel for the
petitioner-appellant has submitted that the learned
Single Judge has not appreciated the fact that once the
date of birth has been disclosed as 04.02.1972 on the
basis of educational qualification, there was no occasion
for the management to ask the writ petitioner to
participate in the process of assessment of age by the
Medical Board.
7. It has further been submitted that requirement to ask
the one or the other candidate to participate in the age
assessment before the Medical Board is to be followed
on the basis of Instruction No. 7 , which has statutory
force in view of Section 18(1) of the Industrial Dispute
Act, 1947. It has been submitted that said instruction
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says that only in absence of matriculation certificate or
educational certificate, the age of one or the other
existing employee is to be assessed by the Medical
Board. In the case at hand, the petitioner had submitted
educational certificate but ignoring those documents in
defiance of Statutory Instruction No. 76, the petitioner
was sent before Medical Board where his date of birth
has been assessed as 14.06.1963 instead of 04.02.1972.
Therefore, very constitution of the Medical Board itself is
illegal being in the teeth of Implementation Instruction
No. 76 of the NCWA hence sending the writ petitioner
before Medical Board instead of relying upon his
education qualification for assessment of age is arbitrary
exercise of power exercised by the management but the
learned Single Judge without appreciating these facts
into consideration since has passed the impugned order
which needs to be interfered with.
8. While on the other hand, Mr. Anoop Kumar Mehta,
learned counsel appearing for the respondents-BCCL
has submitted that it is not available for the writ
petitioner to question the age assessed by the Medical
Board as he appeared before the Board without any
demur and accepted the age assessed by it by putting
his signature thereon and also put his signature on
Form B Register which has got statutory fervor wherein
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his age was recorded as 14.06.1963. Further contention
has been raised that the age assessed by the Medical
Board has not been challenged by the petitioner and
after lapse of about 7 years and at the fag end of service
by filing representation on 05.04.2018 the petitioner
disputed the date of birth recorded by the Medical Board
which was rejected vide order dated 13.01.2021, the
same was challenged by filing writ petition. The learned
Single Judge taking into consideration the aforesaid fact
if has dismissed the writ petition by refusing to interfere
with the impugned order dated 13.01.2021 the same
cannot be said to suffer from error. Hence the instant
intra-court lacks merit and is liable to be dismissed.
9. We have heard learned counsel for the parties, perused
the documents available on record as also the finding
recorded by learned Single Judge in the impugned
order.
10. The undisputed fact herein is that the petitioner
along with 75 others had raised Industrial Dispute for
employment which was awarded vide Award dated
14.08.2000. The said award was challenged up-to
Hon'ble Supreme Court and thereafter it was given effect
to. It is case of the management since there was no
proof of age of the concerned workmen in whose favour
award was passed, the management referred the
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petitioner along with others before the Medical Board for
assessment of age where the age of the petitioner was
assessed as 47 years and 6 months as on 14.12.2010
and accordingly his date of birth was recorded as
14.06.1963 in all service excerpts including statutory
Form B Register wherein the petitioner consciously put
his signature and after lapse of about 7 years of service,
the petitioner has raised the grievance before the
respondent-Management that as per his educational
certificate his date of birth is 04.02.1972, which was
rejected. Hence the petitioner is before this Court for
redressal of his grievance.
11. Contention has been raised by the petitioner that
the Implementation Instruction No. 76, which has got
statutory force, deals with determination/verification of
age of existing employee which says that in absence of
matriculation certificate or educational certificate, the
age of one or the other existing employee is to be
assessed by the Medical Board and in the case at hand,
as per educational certificates the date of birth of the
petitioner is 04.02.1972, as such there was no occasion
for the Management to send the petitioner for
assessment of his age before Medical Board.
12. It is not in dispute that Implementation Instruction
No. 76 has got statutory force as per Section 18(1) of the
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Industrial Disputes Act, 1947. Further, the Coal India
Limited has entered into an agreement with the Union
known as 'National Coal Wage Agreement'. The said
agreement has been entered not in course of conciliation
rather as per provision as contained in Section 18(1) of
the Industrial Disputes Act. For ready reference, Section
18(1) of the Industrial Disputes Act is referred
hereunder as:
"18.Persons on whom settlements and awards are
binding. --(1) A settlement arrived at by agreement between
the employer and workman otherwise than in the course of
conciliation proceeding shall be binding on the parties to
the agreement."
13. It is evident from the provision of Section 18(1) of
the Industrial Disputes Act, 1947 that if any agreement
would be entered into other than conciliation, the same
will have its binding effect since it will have statutory
fervour.
14. At the time of issuance of NCWA-III, one
instruction, namely, Implementation Instruction No. 76
dated 25.04.1988 has been issued, which is also the
part of the agreement, which provides procedure for
determination/verification of the age of the employees
and for resolution of disputed cases of Service Records.
The Annexure-1 to the Implementation Instruction No.
76, which provides procedure for
determination/verification of age of employees, is in two
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parts; the first part, part (A) deals with the provision for
determination of the age at the time of appointment
whereas the second part, part (B) deals with the
provision for review/determination of date of birth in
respect of existing employees. The provision, as
contained in second part, i.e. part (B) is relevant herein
since it is a case of existing employee. The relevant
portion of part (B) is quoted hereunder as:
"(B)Review determination of date of birth in respect of
existing employees.
i) a)In the case of the existing employees Matriculation
Certificate or Higher Secondary Certificate issued by the
recognised Universities or Board or Middle Pass Certificate
issued by the Board of Education and/or Department of
Public Instruction and admit cards issued by the aforesaid
Bodies should be treated as correct provided they were
issued by the said Universities/Boards/Institutions prior to
the date of employment.
i) b)Similarly, Mining Sirdarship, Winding Engine or similar
other statutory certificates where the Manager had to certify
the date of birth will be treated as authentic.
Provided that where both documents mentioned in (i)
(a) and (i) (b) above are available, the date of birth recorded
in (i) (a) will be treated as authentic.
ii) Wherever there is no variation in records, such
cases will not be reopened unless there is a very glaring and
apparent wrong entry brought to the notice of the
Management. The Management after being satisfied on the
merits of the case will take appropriate action for correction
through Determination Committee/Medical Board."
15. It is thus evident from Implementation Instruction
No. 76 that the Matriculation certificate or Higher
Secondary Certificate is the conclusive proof of age and
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in absence thereof if there is variation in records, the
management after being satisfied on the merits of the
case will take appropriate action for correction through
Determination Committee/ Medical Board. But herein it
is not the case as the appellant at the time of
appointment or during preparation of Award did not
produce valid proof of his age as such the Management
send the petitioner along with 75 others for
determination of age before the Medical Board wherein
his age was assessed 47 years and 06 months as on
14.12.2010 and accordingly, date of birth of the
petitioner was recorded in the statutory documents as
14.06.1963 where the petitioner consciously put his
signature and remained silent for seven years and at the
fag end of service he raised the dispute of date of birth.
16. It is admitted case that the writ petitioner
participated before the Medical Board without any
demur and not only that he has accepted the age
assessed by the Medical Board by putting his signature
thereon and later on his date of birth as assessed by
Medical Board was recorded in Statutory Form B
Register wherein also he put his signature without any
protest. The writ petitioner after acceptance of date of
birth as assessed by Medical Board continued to remain
in service fairly for a long period of seven years and only
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at the fag end of service he raised the dispute regarding
his date of birth.
17. The question herein, as has been raised on behalf
of appellant, is that the writ petitioner ought not to have
referred before the Medical Board is not acceptable to
this Court at such a belated stage that too when the writ
petitioner has participated before the Medical Board
without any protest and accepted the report of the
Medical Board who has assessed his date of birth to be
47 years and 06 months as on 14.12.2010 and
accordingly, date of birth of the petitioner was recorded
in the statutory documents i.e, Form B as 14.06.1963
where also he put his signature without making any
protest. The writ petitioner since has accepted the date
of birth as mentioned in service excerpts on the basis of
age assessed by the Medical Board, it is not available for
the petitioner to take a 'U' turn and challenge the same
that too after lapse of seven years.
18. So far as the sending the writ petitioner before the
Medical Board is concerned that cannot be considered
to be correct as per the argument advanced on behalf of
appellant, this Court is of the view that if that be so
then the writ petitioner ought to have raised objection
when he was sent for medical examination for
assessment of his age but he consciously has
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participated in medical examination and accepted the
age assessed by it by putting his signature. Therefore,
this Court is of the view that once the writ petitioner has
not disputed the age assessed by the Medical Board it is
not available for the petitioner to question the same
after lapse of about 7-8 years that too at the fag end of
service.
19. This Court, on consideration of the rival
submissions, as discussed above, is coming to the order
passed by the learned Single Judge wherefrom it is
evident that the learned Single Judge has considered
the acceptance of date of birth by the writ petitioner as
also has taken into consideration that the issue of date
of birth cannot be raised at the fag end of service,
relying upon the judgment rendered by Hon'ble Apex
Court in the case of State of Tamil Nadu Vs. T.V.
Venugopalan [(1994) 6 SCC 302]; State of
Maharashtra Vs. Gorakhnath Sitaram Kamble
[(2010) 14 SCC 423] and State of M.P. Vs. Premlal
Shrivas [(2011) 9 SCC 664] has denied to interfere with
impugned order dated 13.01.2021 by which
representation of the petitioner for correction has been
refused to be interfered with, requires no interference by
this Court.
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20. Accordingly, the instant appeal fails and is
dismissed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Alankar/
