Ashok Kumar Pandey vs M/S. Bharat Coking Coal Limited ...
2023 Latest Caselaw 849 Jhar

                                                1


               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P. (S) No.3495 of 2020
      Ashok kumar Pandey                  ...       ...              ...    Petitioner
                                          Vs.
     1.        M/s. Bharat Coking Coal Limited through its Chairman-cum-Managing
               Director, Koyla Bhawan, Koyla Nagar, Saraidhela, Dhanbad
     2.        The Director Personnel (Head Quarter), M/s. BCCL, Koyla Bhawan,
               Koyla Nagar, Saraidhela, Dhanbad
     3.        The General Manager, (P & IR) Headquarter, BCCL, Koyla Bhawan,
               Koyla Nagar, Saraidhela, Dhanbad
     4.        The General Manager, Bastacolla Area No.-IX, M/s. BCCL, Jharia,
               Dhanbad
     5.        The Project Officer, Golakdih Project, Bastacolla Area No.-IX, M/s.
               BCCL, Jharia, Dhanbad                      ...          Respondents
                                          ---------

               CORAM:       THE HON'BLE DR. JUSTICE S.N.PATHAK
      For the Petitioner           :      Mr. P.K. Mukhopadhyay, Advocate
      For the Respondents          :      Mr. A.K.Mehta, Advocate
                                          ---------
      C.A.V. on 22.12.2022                             Pronounced on 22.02.2023


Dr. S.N. Pathak, J. :-      The petitioner has approached this Court with a prayer for

a direction upon the respondents to correct the date of birth of the petitioner as 05.03.1966 in view of his school leaving certificate rather than 02.03.1960 as mentioned in NEIS. Further, prayer has been made for quashing of notice of retirement dated 03/09.10.2019 as contained in Letter No.BCCL/KOCP/PO/2019/375 (Annexure-5) issued by the Project Officer, Golakdih Project and also for quashing of letter dated 16.01.2021 (Annexure-11) as contained in Ref. No. BCCL/KOCP/2021/652 issued by the Project Officer, Golakdih Project, whereby the petitioner has been directed to vacate the company's quarter and also panel rent of Rs.6,000/- + other charges, total amounting to Rs.42,356/- for the period from 01.07.2020 to 31.12.2020 has been charged against the petitioner.

2. The case of the petitioner lies in a narrow compass. The petitioner was duly appointed by the respondent to the post of Shovel Operator (Trainee) vide letter dated 31.01.1989/02.02.1989 issued by the Deputy Chief Personnel Manager (MP & R), BCCL, Dhanbad. Thereafter,

the petitioner appeared in the medical examination held by the respondents and in the said medical report, the date of birth of the petitioner has not been mentioned. The Senior Director, BCCL vide letter dated 08.12.1988 directed the petitioner to appear in the interview on 19.12.1988 with all the documents in support of age, qualification, experience and residential status etc. In compliance thereof, the petitioner attended the interview and produced the school transfer certificate issued by the Headmaster, Middle School, Samlapur, Dhanbad, birth certificate and other documents, showing the date of birth of the petitioner as 05.03.1966. It is specific case of the petitioner that after his appointment, the petitioner was working to the satisfaction of the respondents, however, the petitioner became highly shocked and surprised when he received the notice of retirement dated 03/09.10.2019 as contained in Letter No. BCCL/KOCP/PO/2019/375 issued by the respondent No.5, wherein it was informed to the petitioner that according to his date of birth recorded in NEIS, he will be superannuated on 31.03.2020 on attaining the age of 60 years on 02.03.2020 and accordingly forced to retired on 31.03.2020, without considering the attestation form, which was prepared at the time of appointment, wherein his date of birth has been mentioned as 05.03.1966. Aggrieved by the same, the petitioner represented before the respondents several times, but no heed was paid and as such, he has been constrained to knock the door of this Court.

3. During the pendency of the writ petition, the respondents have issued a Letter dated 16.01.2021 as contained in Ref. No. BCCL/KOCP/2021/652 issued by the Project Officer, Golakdih Project, whereby the petitioner has been directed to vacate the company's quarter and also informed that penel rent of Rs.6,000/- +other charges, total amounting to Rs.42,356/- for the period from 01.07.2020 to 31.12.2020 has been charged against the petitioner and in case of non-payment of the aforesaid amount, the same will be deducted from his retiral benefits.

4. Mr. P.K. Mukhopadhyay, learned counsel for the petitioner assailed the impugned notice of retirement as well as Letter dated 16.01.2021 on the ground that the respondents cannot make the petitioner to retire/superannuate 6 years prior to attaining the age of 60 years on the basis of entry made in NEIS and other records, wherein wrong entry of his date of birth has been made. The respondents are bound to consider the

date of birth as mentioned in the school leaving certificate and other documents, which were produced at the time of appointment, wherein his date of birth is mentioned as 05.03.1966 and the same has been affirmed and accepted by the respondent in attestation form issued by the Personnel Department of M/s. BCCL. He further submitted that the respondents had never communicated the petitioner about the date of birth entered in the service record and no confirmation was done by the petitioner in terms of Clause 35 & 36 of the Certified Standing Order of M/s. BCCL, which is mandatory provisions for employer. The respondents are duty bound to follow the mandate of Implementation Instruction No.76 of NCWA-III, while recording the age of an employee at the time of initial appointment. He further submitted that the petitioner has illegally made to retire prematurely on 31.03.2020 and also the terminal dues of the petitioner has not yet been paid to him and in the meantime, the impugned letter dated 16.01.2021 has been issued to the petitioner to vacate the company's quarter and for charge of panel rent, which is illegal and arbitrary and as such, impugned Notice of retirement as well as impugned letter dated 16.01.2021 are liable to be quashed and set aside and the petitioner is entitled for continuity of his service without any break and since the petitioner has already superannuated, he is entitled for salary and other allowances for that period. Learned counsel places heavy reliance on the following judgments:-

I. Lal Mohan Singh Vs. The Bharat Coking coal Ltd. & Ors. passed in W.P.(S) No.5901 of 2007 II. Ram Naresh Singh Vs. Bokaro Steel Ltd. & Ors., passed in SLP (C) No.30325/2014

5. Per contra, counter-affidavit has been filed.

6. Mr. A.K. Mehta, learned counsel for the respondent-BCCL vehemently opposed the contention of the learned counsel for the petitioner and submitted that writ petition is not maintainable since the petitioner is a workman, within the meaning of Section 2 (s) of t he Industrial Disputes Act, 1947 and as such, remedy available with the petitioner is first to invoke the provisions of the ID Act, 1947. However, on merits, he submitted that in Statutory form-B Register, the date of birth of the petitioner is recorded as 02.03.1960 and the petitioner has acknowledged the said entry in the Form B Register by putting his

signature in the relevant column of the said Form-B and as such, rightly he was superannuated on 31.03.2020. In the service book also, the date of birth of the petitioner was recorded as 02.03.1960, which was also acknowledged by the petitioner. In view of the above, the petitioner has attained 60 years of age on 02.03.2020 and as such, superannuated on 31.03.2020. He further submitted that this writ petition was filed after six months of the superannuation and it is settled principles of law that dispute relating to date of birth cannot be raised at the fag end of service. He further submitted that Implementation Instruction No.76 of NCWA-III is not applicable in the instant case as the petitioner has duly acknowledged his date of birth mentioned in Statutory form, by putting his signature. He further submitted that after retirement, the petitioner has retained the company's quarter for more than 10 months and as such, impugned letter dated 16.01.2021 has rightly been issued. Learned counsel places heavy reliance on the following judgment:-

• Bharat Coking Coal Limited Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411 • Steel Authority of India Ltd. Vs. Raghbendra Singh & Ors., reported in 2020 SCC Online 1063.

7. Be that as it may, having gone through the rival submissions of the learned counsel for the parties and on perusal of the records, no interference is warranted in the instant case for the following facts and reasons:-

I. Admittedly, the date of birth entered in Statutory Form B Register is 02.03.1960 and same was duly acknowledged by the petitioner, by putting his signature.

II. In the entire service career, the petitioner never raised grievance rather accepted the same and it was only after six months of retirement for the first time, the dispute was raised, by filing this writ petition.

III. The law is well settled that if a particular date of birth is entered into the service record, the request for change of date of birth cannot be entertained at the fag end of service & even while in service, the same has been duly accepted by the employee also after accepting the same to be correct during the entire service career.

IV. In the instant case, the date of birth entered in the Statutory Form B Register is 02.03.1960 which was also reflected in NEIS and other office records. If the petitioner is aware of the date of birth mentioned in the School Leaving Certificate, he would have not to put his signature in the Statutory Form B Register if a wrong entry was made in the Statutory Form B, which is binding upon the employee as well as employer. A person putting his signature in the Form B Register is fully aware of the details, which is prepared and communicated to him.

V. It is not the case of the petitioner that in a plain paper, his signature was taken by the respondents and thereafter details were filled.

VI. The Implementation Instruction No.76 of NCWA is not attracted in the instant case as the petitioner has duly acknowledged his date of birth mentioned in the Statutory Form 'B', by putting his signature.

VII. Similar issue fell for consideration before the Hon'ble Apex Court in case of Union of India Vs. Harnam Singh [(1993) 2 SCC 162], the Hon'ble Apex Court has held that, "No Court or the Tribunal can come to the aid of those who sleep over their rights". VIII. Further, in case of U.P., Madhyamik Shiksha Parshad Vs. Raj Kumar Agnihotri, reported in (2005) 11 SCC 465, the Hon'ble Apex Court considering a number of judgments observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of service career.

IX. Further, in case of State of Uttaranchal Vs. Pitamber Dutt Semwal, reported in (2005) 11 SCC 477, wherein a 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, the Hon'ble Apex Court observed that the High Court ought not have interfered with the decision after almost three decades. X. Further, in case of State of Maharashtra Vs. Gorakhnath Sitaram Kamble, reported in (2010) 14 SCC 423, it was held that ' the request for change of the date of birth in the service records at the fag end of service is not sustainable.

XI. Further, the Hon'ble Apex Court in case of State of M.P. Vs. Premlal Shrivas, reported in (2011) 9 SCC 664, clearly observed that 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.

XII. Further, this Court also in case of Ajit Singh Vs. M/s. Tata Iron & Steel Co. Ltd., Jamshedpur vide its order dated 05.10.2020, considering the catena of judgments of Hon'ble Apex Court has expressed his view that no interference can be made in the date of birth at the fag end of service.

XIII. Recently, the Hon'ble Apex Court in case of Bharat coking Coal Limited & Ors. Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411 after taking into consideration the several judgments rendered by the Hon'ble Apex Court, has clearly held that no interference is warranted regarding correction in date of birth at the fag end of service.

8. Regarding, retaining the company's quarter by the petitioner on the ground of pending litigation and non-receipt of terminal benefits is concerned, this Court is of the view that reliance of the petitioner on aforesaid cases particular in case of Ram Naresh Singh (supra) is no help to him as the contention of the petitioner is duly misconceived as it was clearly held by the Hon'ble Apex Court in case of Steel Authority of India Vs. Raghbendra Singh & Ors., reported in (2020) SCC Online SC 1063 relying on the judgment of Secretary, ONGC Ltd. Vs. U.U. Warrier, reported in (2005) 5 SCC 245 that case of Ram Naresh Singh Vs. Bokaro Steel Plant dated 31.03.2017 is misplaced as it is not even a judgment but an order in the given facts of the case. Accordingly, the impugned notice dated 16.01.2021 is justified and respondents are free to adjust the penal rent from the retiral benefits of the petitioner.

9. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, writ petition having no merit fails and is hereby dismissed.

(Dr. S. N. Pathak, J.) Punit/-