B S GHOSH Vs. BHARAT ELECTRONICS LTD

JUDGEMENT

(1.) This writ petition filed by the ex-Assistant Personnel Officer of B.E.L. Ltd. raises certain interesting facets of the law relating the finality of an employee's date of birth as reflected in the company's records. The law with regard to this aspect of the matter is now reasonably well defined and has been crystalised to a position whereby the Courts have held that it will not he permissible to permit an alteration of the date of birth of an employee at a point of time when he is on the verge of his service coming to an end. The important principle underlying this decision is that the employment was secured on the basis of a clear-cut representation with regard to the date of birth which employment could possibly not have been secured by the petitioner for a variety of reasons had that date been different. It is, therefore, that the Courts have held that it would be impermissible to plead mistakes or a host of other reasons and ask for variation and that an employee will be pinned down to the representations made at that point of time. In amplification of these principles, the Supreme Court in the decision in Secretary and Commissioner. Home Department v. R. Kirubakaran, (1994-I-LLJ-673) had occasion to hold that the Courts and Tribunals should not permit such belated applications and more importantly, that interim reliefs normally will not be granted in such cases because of the consequences which are irreversible vis-a-vis the organisation and department and more importantly the other employees who are immediately behind the litigant. Apart from this case, one of the latest decisions of the Supreme Court very clearly lays down that interim relief should not be granted in such proceedings even if for exceptional reasons, the court were to embark upon an enquiry in relation to the matter. It is basically, the rule of finality that underlines these decisions. Interestingly enough, the petitioner's learned Advocate has canvassed that very principle in support of his plea that has arisen in rather interesting circumstances.

(2.) The petitioner joined the services of B.E.L. after some earlier stints of employment in the year 1973 and the records that have been produced by the company clearly indicate that he gave his date of birth as November 5, 1936. Two years later, the petitioner appears to have asked one of the Officers to correct the date of birth and pursuant to this date of birth on the basis of a rule that existed at that point of time whereunder in cases of doubt relating to the date of birth the company was required to go by the medical opinion, the matter was referred to the Medical Officer who opined that the petitioner was 35 years old which would effectively bring his date of birth to July 8, 1941. The petitioner's contention was that his date of birth was November 5, 1941, and by virtue of his position in the personnel department the record was altered to show the petitioner's date of birth as November 5, 1941, in the year 1994, the company had occasion to re-examine the records and found that on the petitioner's own admission in several documents including the verification statement that has been secured from his earlier employer and references to the Court records that his date of birth was shown as November 5, 1936 and this fact was brought to the notice of the petitioner pointing out thereby that he was due for retirement. The petitioner contested this position and in order to be fair to the petitioner, the company instituted a fact-finding enquiry. The petitioner participated in this enquiry and the Enquiry Officer conclusively held that the documentary evidence on record indicated that the petitioner's date of birth must be held to be November 5, 1936, as was the date reflected in the original documents of 1978. Consequently, the petitioner was asked to retire with effect from November 30, 1994, and it is this decision that was challenged by the petitioner through the present petition.

(3.) As indicated by me earlier, the principle, canvassed by the petitioner was that even accepting the rule of finality, that in the present instance it was the company that was bound by the date of birth as reflected in its own records that it was impermissible for the company to do violence to the principle of finality by seeking to reopen the issue just on the verge of the petitioner's retirement. Notice was issued to the respondent-company and since the petitioner was on the verge of retirement, an interim order was passed whereby in the unusual circumstances of this case this Court directed that the petitioner be allowed to continue provided he files an undertaking to the effect that in the event of the decision of of this Court going against the petitioner that he will refund to the company the emoluments paid to him after November 30, 1994. It appears that there was some error in the affidavit filed in so far as the undertaking as indicated by this Court was not reflected therein as a result of which, once that was condition precedent, the interim order did not become effective and the petitioner was relieved from service on November 30, 1994. The respondents contend that they also appointed another person to that position with effect from December 1, 1994. The pleadings have been completed, the matter has now come up for hearing.