B.Ashok Kumar vs The Singareni Collieries Company ...
2022 Latest Caselaw 6508 Tel

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No. 15687 of 2016
Between:
B.Ashok Kumar
                                                ... Petitioner
                           And

The Singareni Collieries company Ltd and others
                                              ... Respondents

       JUDGMENT PRONOUNCED ON: 06.12.2022

    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers    :    yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?       :    yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?      :    yes




                                   ____________________
                                    SUREPALLI NANDA, J
                                                         WP_15687_2016
                               2                                 SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 15687 of 2016
% 06.12.2022

Between:

# B.Ashok Kumar
                                                 ... Petitioner
      and
$ The Singareni Collieries company Ltd and others
                                             .....Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner   : Sri C.Vikram Chandra


^Counsel for the Respondents: Standing counsel for
                              respondents



? Cases Referred:
                                                                WP_15687_2016
                                3                                       SN,J




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 15687 of 2016
ORDER:

Heard learned counsel for the petitioner and learned

Government Pleader for Labour.

2. This writ petition is filed to issue a writ or writs more

particularly one in the nature of Writ of Mandamus declaring

the action of the respondents in not rectifying its mistake of

not incorporating the correct date of birth 05.04.1960 as per

the Transfer Certificate issued by the ZPCC school

Mandamarri as per JBCCI rules and continuing the wrong

entry of 03.07.1957 in service records and basing on wrong

entries issuing impugned order ref.No.RG3/OC2/W/30, dated

14.02.2013 is illegal, arbitrary and against the principles of

natural justice and violative of Articles 14, 16, 19(1)(g) of the

Constitution of India consequently permit the petitioner to

continue in service till 30.04.2020.

3) The case of the petitioner, in brief, is as follows:

a) The petitioner was initially appointed in the 1st

respondent company as casual employee on 01.08.1978. In WP_15687_2016 4 SN,J

the year 1994-95 after acquiring knowledge to work on

dumpers, the petitioner was promoted as Dumper Operator

and posted at RG3 OCP 2 and was awarded 'A' Grade wage

since 2010.

b) The petitioner belongs to Madiga S.C. community, and

is born on 05.04.1960, and failed X class in the year 1976.

The petitioner passed 7th class Board examination in the year

1973-74 and date of birth was mentioned as 05.04.1960.

c) The 2nd respondent issued notice to all workmen, if

there is any discrepancy in their age as per records, to make

representation with necessary documentary proof. While

travelling the petitioner lost marks memo and transfer

certificate and hence, applied for duplicate and obtained. The

petitioner came to know in the year 2013 that in the another

service book, his age was recorded by the respondents as 20

years and date of birth is 03.03.1977.

d) The petitioner made a representation in the month of

January, 2013 to the respondents to rectify the mistakes that

had rept in the B register. Instead of rectifying the mistake,

the respondents issued impugned order ref WP_15687_2016 5 SN,J

No.RG3/OC2/W/30, dated 14.02.2013 that his date of birth is

03.05.1957 and the petitioner is retiring on 31.07.2017.

e) The petitioner filed application under RTI Act on

11.03.2016 and obtained copy of service record along with

covering letter dated 04.04.2016. Instead of furnishing

original service record prepared on 03.07.1977, the

respondent officials furnished service record prepared on

18.08.1987, wherein the respondent officials entered wrong

date of birth. Hence, the present writ petition is filed.

4. The counter affidavit filed by the respondents, in

brief, is as follows:

a) At the time of initial appointment, the petitioner did not

submit any documentary evidence in proof of his age/date of

birth, and as such, his age was assessed by the then Colliery

Medical Officer as 20 years as on 03.07.1977 in the initial

medical examination report, which was converted as his date

of birth as 03.07.1947 and the same was recorded in the

service records of the petitioner.

b) Once the age or date of birth recorded in the service

records basing on the age as assessed by the then colliery

Medical Officer in the initial medical examination report, the WP_15687_2016 6 SN,J

same is authentic and final. Therefore, the date of birth

already recorded in the authentic records, cannot be changed

just basing on the educational qualification certificates.

c) The respondent company is bound to follow the

guidelines/instructions issued from time to time by the

Central and State Governments and other governmental

bodies constituted like the Joint Bipartite Committee for Coal

Industry. Therefore, the writ petition is liable to be

dismissed.

PERUSED THE RECORD :

5. A bare perusal of the order impugned dated

14.02.2013 of the 2nd respondent reads as under :

"This is to inform that as per Service and Identity Card (Service Book) your Date of Birth/Age is recorded as 03.07.1957. As such you will retire from the Company's Services w.e.f. 31.07.2017 as per the Company's Rules".

6. Paras 8, 9 and 10 of the Counter Affidavit reads as

under :

Para 8 : It is submitted that the Petitioner, Sri B.

Ashok Kumar, E.P. Operator, EC No.2265664, RG-OC-2, RG-III Area, was initially appointed in the Respondent Company on 01.08.1978. It is submitted that the since the Petitioner did not submit any documentary evidence in proof of his age/date of birth at the time of appointment, treating him as illiterate, his age was assessed by the then Colliery Medical Officer as 20 years as on 03.07.1977 in the Initial Medical WP_15687_2016 7 SN,J

Examination Report, which was converted as his Date of Birth as 03-07-1957 and the same Age/Date of Birth was carried out in all the Service Records of the petitioner. Accordingly, the petitioner retired from the Company's services on attaining 60 years of superannuation age by end of July,2017. The contentions of the petitioner that at the time of appearing for Interview he had submitted the original Transfer Certificate obtained from ZPSS, Mandamarri as proof of his date of birth and educational qualifications in which his date of birth was mentioned as 05.04.1960 and that officials of respondent company recorded his personal particulars including educational qualifications and that he continued his service having unblemished service record, are not true and correct and hence denied and the petitioner is put to strict proof of the same. It is pertinent to mention that the petitioner was actually dismissed from the Company's service due to unauthorized absenteeism under Company's Standing Orders 16(16), vide Lr.No.P/MM/53/150/80/503, dated 22/24.11.1980. However, on the representation of the Union, the case of the petitioner was considered and reappointed vide Lr.No.PMR/3/81/252, dated 09.10.1981.

Para 9 : It is reiterated that the Petitioner had not submitted any educational qualification certificates containing his date of birth at the time of initial appointment and hence his age was assessed as 20 years as on 03.07.1977 by the then Colliery Medical Officer in the Initial Medical Examination Report and the said age as assessed in the IME Report is authentic and final. Any other certificates/ documents containing the DoB as 05.04.1960. subsequently obtained and submitted by the petitioner and also basing on which the DOB of the petitioner entered in the service records, cannot at all be taken into consideration for change of date of birth as against the age assessed in the IME Report. The contention of the petitioner that while travelling he lost his marks memo and transfer certificate so he applied once again to the educational authorities and obtained duplicate and submitted the same to rectify the mistake in service records, is baseless and hence denied and the petitioner is put to strict proof of the same:

WP_15687_2016 8 SN,J

Para 10 : It is submitted that in response to the Circular No.CRP/PER/IR/A/51/1864, dated 16.08.2012, the Petitioner has submitted an application dated 05.09.2012 for change of date of birth in the company records. It is submitted that the application submitted by the petitioner was examined and he was intimated vide Lr.No.RG.3/W26/1173, dated 19.05.2013 that considering his application for change of date of birth, is not covered under the JBCCI guidelines and hence the date of birth displayed on the notice board stands continued.

DISCUSSION AND CONCLUSION :

7. According to the averments made by the

petitioner in the affidavit filed in support of the writ

petition, the petitioner joined the respondent company

as casual employee on 01.08.1978 and was allotted

E.C.No.2265664 and posted at Mandamarri KK1CSP and

further the petitioner at the time of appearing for the

interview had submitted the original transfer certificate

obtained from ZPSS School, Mandamarri as proof of

petitioner's date of birth and educational qualifications

in which the petitioner's date of birth is mentioned as

05.04.1960, but petitioner however, came to know the

mistake in the entries only in the year 2013 and

realized that the respondent had recorded petitioner's WP_15687_2016 9 SN,J

age as 20 years as on 03.03.1977 and thereafter,

petitioner approached the respondents for correction.

But the above referred contention of the Petitioner is

seriously disputed at paras 8, 9 and 10 of the counter

affidavit filed by the respondents extracted above. Even

according to the petitioner, it is only in the year 2013

that the petitioner realized about the mistake which

had crept in the petitioner's service record. In response

to petitioner's application dated 05.09.2012 the

Superintendent of Mines vide Ref. No.R.G.3/W26/1173,

dated 19.05.2013 passed orders observing as follows :

"Ref.No.R.G.3/W26/1173, dt. 19.05.2013, Sri B. Ashok Kumar, Designation : EP Operator, E.Code : 2265664, OC.2, As per the Company Circular No.CRP/PAR/IR/A/51/1864, dt. 16.08.2012, we are giving an opportunity, if there is any correction in your Date of Birth in our company records kindly make an application to our office, for the same you have made an application for the correction of Date of Birth on 05.09.2012 and the same was verified.

In this matter we are not considering your application due to not having proper evidences under the terms of JBCCI. We are herewith taking into your notice that your Date of Birth has been continued further same as above in the company records".

8. In the present case the petitioner did not submit

any educational qualification certificate containing the

Date of Birth at the time of initial appointment and WP_15687_2016 10 SN,J

hence the Petitioner's age was assessed as 20 years as

on 03.07.1977 by the then Medical Officer of the

respondent company.

9. The various Judgments relied upon by the Counsel

for the Petitioner are given below :

(i) Order passed in W.P.No.19645/2018 in the High Court for the state of Telangana.

(ii) Order passed in W.A.No.23/2020 in confirming order in WP No.19645/2018 in the High Court for the State of Telangana.

(iii) 2014 (6) SCC 434

(iv) 2014 (6) ALD 80

(v) 2015 (5) ALD 233

(vi) 2013 (6) ALD 306

(vii) 1992 (2) ALT 198

10. This court opines that the above referred

judgments do not have any application to the facts of

the present case, because in the present case it is not

the case that the respondents herein had unilaterally

changed the Date of Birth of the petitioner and in fact,

the medical report dated 03.07.1977 clearly indicates

petitioner's undertaking as follows :

"As I am unable to furnish the documentary proof of my age, I accept the aged fixed by the Medical Officer".

Accordingly the age of the Petitioner was fixed as 20 years as on 03.07.1977.

11. A bare perusal of the material documents filed by

the petitioner in support of the present Writ Petition WP_15687_2016 11 SN,J

which is a declaration by the Petitioner employed in the

Coal Mine and the same shows the Petitioner's Date of

Birth as 05.04.1960. The Transfer Certificate of the

Petitioner also indicates the Date of Birth of the

Petitioner as 05.04.1960. The 7th Class Marks

Memorandum issued by the ZPCC School (Boys), Head

Master, Mandamarri also reflects the Petitioner's Date

of Birth as 05.04.1960. The Register of the Employees

maintained by the Respondents shows Petitioner's

name at Sl.No.967 and Petitioner's Date of Birth as

05.04.1960. But a bare perusal of the proceedings

dated 19.05.2013 vide Ref.No.RG3/W26/ 1173 of the

Superintendent of Mines, indicates clear consideration

by the Respondents herein for correction of Petitioner's

Date of Birth in response to Petitioner's application but

however, proper evidences under the terms of JBCCI

were not before the Respondent Authority at the time

of taking a decision on Petitioner's application dt.

05.08.2012 and the Petitioner eventually retired from

service on 31.07.2017.

                                                             WP_15687_2016
                             12                                      SN,J

12. As per circular instructions dated 01.08.1988 vide

Ref.No.P49/ 4702/IR/1270 of the Singereni Collieries

Company Limited, there is a clear procedure prescribed

for determination/verification of the age of the

employee and for resolution of dispute cases of Service

Record. Curiously however, in the present case the said

procedures had not been resorted to solve the dispute

of the Petitioner.

13. Taking into consideration of the fact that the

Petitioner realised the mistake of date of birth even as

per the Petitioner's own averment made at Para 6 of

Petitioner's affidavit that is after a period of more than

35 years and the Petitioner retired from company

services on attaining 60 years of superannuation age

by the end of July 2017 and further taking into

consideration the fact that vide Ref.No.RG3/W26/1173,

dated 19.05.2013 the Superintendent of Mines of the

respondent company in fact informed the Petitioner

that the Petitioner's application could not be

considered since the Petitioner did not submit proper

evidences under the terms of JBCCI. It is also strange WP_15687_2016 13 SN,J

that the in house mechanism in determining the age

was also not exhausted in the present case. The JBCCI

has passed implementation instructions No.76 to

resolve the age disputes which had a provision for

existing employees as well, but however, the same also

was not resorted to resolve the age dispute of the

petitioner.

14. Taking into consideration the above referred facts

and circumstances and the specific averments made at

paras 8, 9 and 10 of the counter affidavit and also in

view of the fact that the petitioner also superannuated

by the end of July 2017 itself, the prayer of the

Petitioner for setting aside the order impugned dated

14.02.2013 of the 2nd respondent herein vide Ref.

No.RG3/OC2/W/30, can be limited only to the extent of

the benefits which the petitioner would eventually get

in the event the petitioner would succeed in favourably

resolving the dispute of date of birth on due enquiry to

be conducted by the respondent authority, therefore,

the order impugned dated 14.02.2013 of the 2nd

Respondent vide Ref.No.RG3/OC2/W/30, is set aside WP_15687_2016 14 SN,J

and this Court, however, makes it clear that it has not

expressed any opinion in so far as the merits of the

claim of the Petitioner that the Petitioner's date of birth

is 05.04.1960 and not 03.07.1957 as entered in the

Service Records is concerned. Though the impugned

order is dated 14.02.2013 yet, the respondents are

however, directed to reconsider the whole issue by

giving due opportunity to the petitioner in compliance

with principles of natural justice and take a decision

afresh in the matter, within a period of 4 weeks from

the date of receipt of the copy of the order, in

accordance to law, duly communicating the said

decision/reasoned order to the petitioner and thereby,

resolve the dispute of the petitioner pertaining to the

issue of date of birth of the Petitioner.

15. Accordingly, the writ petition is disposed of.

However, there shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_________________ SUREPALLI NANDA, J Date: 06.12.2022 Note : L.R. copy to be marked b/o kvrm