Telangana High Court

Erki Ramulu vs The Singareni Collieries Company ... on 10 August, 2021

Bench: Hima Kohli, B.Vijaysen Reddy

          HIGH COURT FOR THE STATE OF TELANGANA

         THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
                                 AND
         THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                  WRIT APPEAL No.161 of 2020


                              Date:10.08.2021
BETWEEN

Erki Ramulu.


                                                        ... APPELLANT
AND


The Singareni Collieries Company Ltd.
Kothagudem, Khammam District,
Rep. by its Chairman and Managing Director
and another.

                                                     ...RESPONDENTS

Counsel for the Appellant       : Ms. G. Sudha

Counsel for the Respondents     : Mr. J. Sreenivasa Rao
                                  SC for Singareni Collieries

The Court made the following:

JUDGMENT: (Per Hon'ble Sri Justice B. Vijaysen Reddy)

This writ appeal challenges the order of the learned Single Judge

dated 11.06.2019 in WP.No.2866 of 2018, whereby the writ petition

filed by the appellant was dismissed.

2. The parties herein are referred to as arrayed before the learned

Single Judge. The brief facts of the case are as under:

(a) The petitioner was initially appointed as a Badli Filler on

09.07.1981. He was promoted as a Timberman in Category IV on

01.07.1982 and further promoted to Category V on 01.07.1992.

In June 2009, the petitioner was declared medically unfit by the

medical officers of the respondent company in terms of a report

Ref.No.CRP/MED/C/049/2374 dated 13.06.2009. The case of the

petitioner was referred to the Corporate Medical Board as he was not

fit to carry on underground duties as a Timberman. On the request of

the petitioner, his case was referred to the Broad Based Corporate

Medical Board, who opined that he was unfit to work as a Timberman

but fit to work as a General Mazdoor on the surface. Accordingly,

the petitioner was posted as General Mazdoor vide order dated

04.11.2009. Since then the petitioner continued working as a General

Mazdoor on the surface in Ramagundam area.

(b) It is the case of the petitioner that in the year 1981 when he

joined the respondent company, there were no age determination

rules. Merely by looking at a person, the officials of the respondent

company would record his age and they did not give any opportunity

to the employee to submit the documents, as per the prevailing rules.

The age determination rules were framed by JBCCI (Joint Bipartite

Committee for the Coal Industry) in the year 1988. As per the said

rules, if an employee is in possession of a school leaving certificate,

wherein the date of birth is recorded, that will be taken into

consideration for a change of the date of birth. Prior to the JBCCI age

determination rules, there was no practice of looking into the records

for establishing the date of birth. The respondent company has not

considered the school leaving certificates at all. This issue was raised

several times by the Trade Union as well as the workmen in some

cases. On the suggestion of the Union, on 03.09.2012 the petitioner

had submitted an application for a change of his date of birth along

with a copy of his school leaving certificate which was earlier to his

joining duty and sought a change of his date of birth in the records.

petitioner was informed that in pursuance to the Circular

No.CRP/PAR/IR/A/51/1864 dated 16.08.2012, his application was

scrutinized but there was insufficient proof for covering him within the

purview of the JBCCI rules. As a result, his application was considered

and he was informed that the date of birth mentioned on the Notice

board would be enforced henceforth, as per the records

i.e., 06.06.1956. The petitioner submitted representations against the

said decision several times, but the Management did not consider his

case. The petitioner also sought necessary information from the

Management. Ultimately, he applied under the RTI Act on 23.02.2015

and received a copy of the Circular dated 16.08.2012, on 28.02.2015,

which is an interdepartmental Circular issued by the respondent

No.1/Management to all Mines and Departments calling upon them to

display the age/date of birth particulars of the employees on the

Notice board, to avoid age disputes and to collect back duly singed

EPR printouts, but the said Circular did not disclose as to what

documents were required for a change of the date of birth.

(d) On 28.02.2015, the petitioner filed another application

through RTI, to furnish him a copy of his service book. A Xerox copy of

the same was furnished to him vide Ref:RGII/OCP2/W-32/621 dated

14.03.2015. The petitioner claims that only then did he realize that

wrong entries were made in the records with regard to his date of birth

and the Management wanted to stick to the wrong entries, contrary to

the JBCCI rules.

(e) The petitioner stated that his father is a native of Allur

village, Ramagundam Mandal, Karimnagar District. He submitted his

school leaving certificate to the authorities and also obtained study,

conduct and date of birth certificate on 27.08.2013 to prove that his

date of birth was recorded therein as 04.07.1962. The same date of

birth was mentioned in his Transfer certificate. However, at the time of

his appointment, the petitioner's age was recorded as 25 years as on

06.08.1981, without calling for any document as proof for his date of

birth. The date of birth was recorded as 06.06.1956 based on the

assumption that the petitioner was born on the said date, month and

year. As per the said assumed date of birth, the petitioner was to

retire on 30.06.2016. But in fact, he was born on 04.07.1962, the

current date of birth recorded in the birth certificate issued by the

Registrar of Births and Deaths and the very same date of birth was

recorded in his School Transfer certificate No.012263 with Admission

No.2512, in terms of the certificates issued by the school authorities in

Godavari Khani. The petitioner had studied from Class II to VII

whereafter he dropped out because of his financial circumstances.

(f) The petitioner contended that the respondent-company has

adopted a discriminatory approach and failed to correct his date of

birth. In an arbitrary manner, the respondent/company proceeded to

retire the petitioner on 30.06.2012, vide proceedings No.RG3/OP-

2/W.O/P/014/1542 dated 08.06.2015. Claiming that the action of the

respondent/company is violative of Articles 14, 16 and 19(1) of the

Constitution of India and Section 12(3) of the Industrial Disputes Act,

the petitioner filed the writ petition.

(g) In the counter affidavit filed by the respondents, it was

stated that there is no violation of any statutory rule or a regulation

having any statutory force for invoking the jurisdiction of this court

under Article 226 of the Constitution of India. The petitioner did not

submit any documentary evidence as proof of his date of birth, as per

the JBCCI rules. In the Initial Medical Examination, the then Colliery

Medical Officer had assessed the age of the petitioner as 25 years, as

on 06.06.1981, which is an authentic document and the same

age/date of birth was incorporated in his service records, duly

acknowledged as correct by the petitioner in token of acceptance of

the entries made therein. It was averred that the petitioner was to

attain the age of superannuation on 06.06.2016. The Management has

issued a Circular dated 16.08.2012, to display the details of the date

of birth/age and date of retirement etc. in respect of the employees on

the Notice boards of the respective mines and departments, so as to

make them aware of their service details and to appeal for correction

of errors if any, as per the set procedure and guidelines of the

company.

(h) In response thereto, a representation dated 03.09.2012 was

submitted by the petitioner requesting for a change of his date of birth

as 04.07.1962, instead of 06.06.1956. The petitioner was intimated

vide proceedings No.RG.3/W26/1181 dated 19.05.2013 that his

representation was duly examined and it was opined that there was no

merit in his claim for a change of his date of birth, as per the JBCCI

guidelines. The date of birth of the petitioner displayed on the Notice

board, in pursuance to the Circular dated 16.08.2012, remains in

force. It was stated that vide order dated 21.03.2001 passed by the

Supreme Court in a Civil Appeal No.1720 of 1999 in HINDUSTAN

LEVER LIMITED v. S.M. JADHAV, it has been held that employees

cannot raise a dispute at the fag end of their service about the age

recorded the service record, maintained by the employer.

3. After hearing the parties, the learned Single Judge opined that

the application submitted by the petitioner for correction of his date of

birth during the month of September 2009, was duly considered by the

respondents and was rejected on 19.05.2013. But the petitioner did

not choose to challenge the rejection orders. It was only in January

2016, that the petitioner filed the writ petition knowing fully well that

the respondents were taking steps to retire him on 03.06.2016.

The petitioner had approached the Court at the last minute, seeking

correction of his date of birth. Though the respondents had considered

his case and rejected the same, the said proceedings were not

challenged by the petitioner till the eleventh hour, thus disentitling him

to any relief.

4. Learned counsel for the appellant submitted before us that the

action of the respondents is arbitrary and unconstitutional. The

petitioner had produced his school record, an authentic public

document to prove that his age and date of birth had been wrongly

recorded in the official records of the respondent/company, but the

same was ignored. It was asserted that the petitioner's application for

correction of his date of birth cannot be treated as belated.

5. On the other hand, the learned Standing counsel for the

respondent/company supported the impugned judgment and

submitted that there is no merit in the writ appeal. The petitioner has

approached the authorities at the fag end of his career. His date of

birth was entered in the records, in accordance with the JBCCI rules,

which was never objected to by the petitioner at any point of time.

Therefore, there is no merit in the writ appeal.

6. Before dealing with the submissions made by learned counsel

for the parties, it would be apt to refer to two recent judgments of the

Supreme Court on this subject wherein it has been categorically held

that an application filed by an employee for correction of his date of

birth at the fag end of his career, cannot be entertained and even if

there is good evidence to establish that the recorded date of birth is

erroneous, a correction cannot be claimed as a matter of right.

7. In FACTORY MANAGER KIRLOSKAR BROTHERS LTD. v.

LAXMAN1, the Supreme Court held as under:-

"4. The affidavit filed by the employee indicated that he was well aware that his date of birth had not been corrected by the employer on the basis of representation that was allegedly filed in the year 2003. Thus, it was not open to him to have waited for ten years i.e. till his date of retirement and to file a representation again and to approach the Labour Court. He slept over his right and it is also doubtful whether he had submitted representation. Even if he has submitted his representation, he could not have waited for ten years for seeking correction in the date of birth after his retirement. A perusal of the record also indicated that once the Respondent himself had declared his date of birth as 01.01.1956. There is no document in service book indicating that he has ever declared his date of birth as 01.12.1956."

(2020) 3 SCC 419

8. In BHARAT COKING COAL LTD. v. SHYAM KISHORE

SINGH2, the Supreme Court has made the following observations:-

"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. v. Gorakhnath Sitaram Kamble [(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 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

(2020) 3 SCC 411

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. v. 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]."

(emphasis added)

9. As is evident from the record, in the present case the application

of the appellant for correction of his date of birth was submitted on

03.09.2012, for seeking a change of his date of birth to 04.07.1962,

instead of 06.06.1956. Vide proceedings dated 19.05.2013, the

appellant was intimated that there was no merit in his claim for a

change in his date of birth, as per the JBCCI guidelines and that his

date of birth was displayed on the notice board in pursuance of the

Circular dated 06.08.2012 that remains in force. After receiving a

response from the respondent/company on 19.05.2013, rejecting his

claim, the appellant did not choose to seek any legal recourse and only

at the fag end of his career, did he elect to file a writ petition in the