Telangana High Court

Issampalli Chandraiah Ec ... vs The Singareni Collieries Company ... on 31 January, 2023

Bench: K. Sarath

          THE HON'BLE SRI JUSTICE K.SARATH

             WRIT PETITION No.20199 of 2020

ORDER:

This Writ petition is filed seeking the following

relief:

"....to issue a writ, order or direction, more in nature of Writ Mandamus declaring the action of the 4th respondent in retiring the petitioner from service prematurely, as illegal, and arbitrary and set aside the impugned proceedings No.MMR/KK.1/W/2020/1382 dated 21.03.2020 issued by the 4th respondent; consequently to direct the respondents to continue the petitioner in service up to 30.06.2023, duly granting all other consequential and attendant benefits......"

2. Heard Sri Kalvala Sanjeev, Learned Counsel

appearing for the petitioner and Sri P.Sriharsha Reddy,

Learned Standing Counsel appearing for respondents.

3. The Learned Counsel appearing for the petitioner

submits that the petitioner was appointed as Floating

Badli Filler and posted work at KK-1-Incline on

SK,J W.P.No.20199 of 2020

26.09.1986 and subsequently promoted he was

promoted as Lineman. As the petitioner has no birth

certificate at the time of initial appointment his age

was assessed by the Medical officer and basing on that

the respondent-corporation issued Office Order in

proceedings No.P.Bpa/261.IV/3370 dated 26.09.1986

recording the date of birth of the petitioner as

30.06.1963, as such the petitioner's date of birth is

being treated as 30.06.1963. The same date of birth

was entered in all the service records of the company

including B-Register, Service and identity card,

employee personal record and as per date of birth of

the petitioner he has to continue in service up to

30.06.2023. While it being so, surprisingly the 4th

respondent issued impugned proceedings on

21.03.2020 stating that the petitioner's age is a

dispute and the same case has been examined by the

Apex Medical Board and it has confirmed the age of

the petitioner as 60 years as on 18.03.2020 and he

SK,J W.P.No.20199 of 2020

was compelled to retire from service with effect from

31.03.2020 prematurely thereby depriving more than

three years of service.

4. The Learned Counsel for the petitioner further

submits that the contention of the 4th respondent that

the petitioner's age was confirmed as 60 years as on

18.03.2020 in the medical examination is factually

incorrect. The various records from the date of initial

appointment till the date of issuance of impugned

order clearly and clinchingly establish that the date of

birth of the petitioner is being treated as 30.06.1963.

However, ignoring all those records, without issuing

any notice to the petitioner and without affording any

opportunity, the impugned order was issued basing on

some fabricated record. Merely because the personal

record and statutory records of the petitioner are in

the custody of respondents they cannot arbitrarily

SK,J W.P.No.20199 of 2020

fabricate the same, thereby putting the petitioner to

untold hardship.

5. The Learned Counsel for the petitioner further

submits that, on many occasions this Court as the

Hon'ble Apex Court held that the dates of birth of the

employees cannot be arbitrarily modified, that too, at

the fag end of one's career and in support of his

contention relied on the judgment of this Court in

Rasakatla Madanaiah Vs Singareni Collieries

Ltd.,1

6. The Learned Standing Counsel appearing for

Respondents, basing on the counter, submits that as

per as per implementation instructions No.76 issued

by the Joint Bi-Partite Committee for Coal (JBCCI-IV),

where there is variation in the age recorded in the

records, such cases will be referred to the Age

1. Unreported Judgment in WP No.6972 of 2011 of High Court of Andhra Pradesh dated 26.03.2012

SK,J W.P.No.20199 of 2020

Determination Committee/Medical Board consisting of

the General Manager/Chief Personnel Manager and

Medical officer-In charge of the area. The Learned

Standing Counsel further submits that, the petitioner

was issued Office Order appointing him as Floating

Badli Filter, but inadvertently the date of birth of the

petitioner was recorded as 23 years as on 30.06.1986

instead of 28 years, due to typographical error, and

the same was recorded in service book employee

personal record, B-Register etc. As per implementation

of the instruction No.76 issued by the JBCCI, as there

is variation in age recorded in various records of the

petitioner, the case of the petitioner was referred to the

Apex Medical Board at Kothagudem on 18.03.2020

and the petitioner appeared before the Apex Medical

Board and the said Board, after recording the

statement of the petitioner, have determined the age of

the petitioner as 60 years as on 18.03.2020 and

accordingly the same was entered in the company

SK,J W.P.No.20199 of 2020

records and the same was communicated to the

petitioner, and the petitioner was directed to retire

from service on 01.04.2020. The petitioner has not

approached the Mines Authorities for settlement of his

terminal benefits as on date and requested to dismiss

the writ petition.

7. After hearing both sides, this Court is of

considered view that at the time of initial appointment

the age of the petitioner was recorded as 23 years as

on 30.06.1986 in the Office Order dated 26.09.1986

and the same has been recorded in all the records.

While it being so, in the month of March, 2020 the

respondents asked the petitioner to appear before the

Apex Medical Board without issuing any notice to him

and admittedly in the material record filed along with

the counter shows no notice served to the petitioner

for alteration of date of birth and that the petitioner

has not signed in the age assessment report, and

SK,J W.P.No.20199 of 2020

disputing his appearance before the Medical Board.

This Court and the Hon'ble Apex Court time and again

held that the date of birth of the employee mentioned

in the record cannot be modified, that too, at the fag

end of the career of the employee. In the instant case

also, admittedly the petitioner served in the

respondent-corporation for more than 33 years.

8. This Court in P.Pochamma vs. Principal

Secretary, Technical Education, Govt. of Andhra

Pradesh and others2, wherein at para No.8, 10 and

11 held as follows:

"8. There are various other judgments referred to by the learned Counsel for the petitioner to claim of employees for change of date of birth and it has been consistently held by the Supreme Court that date of birth as entered in the service register should not be ordered to be changed unless there is unimpeachable evidence. The same principle

2. 2004 (4) ALT 156 (DB)

SK,J W.P.No.20199 of 2020

apply to the employer who wants to change the recorded date of birth an employee".

10. ".....whereas in the present case the writ petitioner was not retired on the accepted date of birth as entered in her service register, whereas in the present case the writ petitioner was not retired on the accepted date of birth as entered in her service register, but on the basis of date arrived at by the respondents on the basis of a forensic expert which was not even ever put to the petitioner. The petitioner was not even given a chance to show cause as to whether the report of the forensic expert obtained in 19994 should be relied upon or not. She was not even given a chance to show that the certificate issued in her favour in 1983 by the Sarpanch, Gram Panchayat, Chintakunta village was genuine.

11. For these reasons we allow the writ appeal set aside the order of the learned Single Judge and direct that the writ petitioner shall be reinstated into service with all consequential benefits. No order as to costs.

9. In view of the law laid down by the Hon'ble Apex

Court as well as this Court in P.Pochamma Vs.

Principal Secretary, Technical Education,

SK,J W.P.No.20199 of 2020

Government of Andhra Pradesh, (supra 2) and in the

instant case the respondents without giving any notice

to the petitioner issued present impugned orders of

retirement of the petitioner and the impugned order

passed by the respondents is liable to be set aside and

accordingly the same is hereby set aside.

10. Accordingly, this writ petition is allowed and the

impugned proceedings No.MMR/KK.1/W/2020/1382