AMARNATH KURRE Vs. SOUTH EASTERN COALFIELDS LTD.

JUDGEMENT

(1.) Challenge in the present petition is to the notice dated 22-6-2012 (Annexure P-1) issued by respondent No. 3 intimating to the petitioner that he would retire on 30-9-2013 after attaining the age of superannuation i.e. sixty years. The petitioner has also sought correction in his date of birth in the service excerpts as 1-1-1960 in place of 22-9-1953 on the basis of his mark sheet of Higher Secondary School Certificate Examination issued in the year 1980. Facts of the case in brief are that on 5-10-1983 the petitioner was appointed as General Mazdoor with respondent, the then WCL (now SECL) and was posted at the underground mines of Kurasia colliery within Chirmiri area. Initially he was promoted as helper in the year 1998 and then as Tub Mistry in the year 1994 and since then he is working on the said post. At the time of joining his services the respondent WCL did not ask him to submit any documentary evidence in relation to his date of birth and on the basis of assumption his age was recorded as 30 years in document of Annexure R-2. By virtue of bifurcation of WCL the petitioner was supplied with service excerpts Annexure P-2 and was asked to fill in the blank columns. Petitioner has pleaded that in this document his date of birth was shown as 22-9-1953 and he merely filled column No. 12 giving his family details. Petitioner's further case is that this form was given to him in the year 1987 and for the first time he came to know that his date of birth has been recorded as 22-9-1953. Thereafter he approached the authorities and made a request for correction in his date of birth and on 31-1-2000 vide Annexure P-3 he made a written representation requesting the respondents to record his date of birth as 1-1-1960. Representation of the petitioner was accompanied by a mark sheet of Higher Secondary School Certificate Examination issued in the year 1980 by Board of Secondary Education, Madhya Pradesh, Bhopal. He also enclosed the school leaving certificate obtained by him in the year 1984 showing his date of birth as 1-1-1960. In response to the representation of the petitioner letter Annexure P-5 was issued asking the petitioner as to why he did not produce the High School Certificate at the time of his appointment.

(2.) Counsel for the petitioner submits that on subsequent stages the petitioner also gave representations to the respondents, two of them being Annexures P-6 & P-8 and the last one was made in the year 2012. He submits that as per Clause B of Implementation Instruction No. 76 of National Coal Wage Agreement which has a binding effect in terms of Section 18 of the Industrial Disputes Act, 1947, in case of re-determination of date of birth of an employee, the date of birth entered into the mark sheet or matriculation certificate issued by the recognized Board has to be accepted provided such mark sheet is issued prior to the date of joining of service by the concerned employee. He submits that in the case of petitioner, mark sheet was issued in the year 1980 whereas the petitioner joined his services on 5-10-1983 i.e. three years after issuance of the mark sheet and therefore that said document is conclusive so far as determination of age of the petitioner is concerned. He further submits that if date of birth of the petitioner has wrongly been shown on the basis of assumption, same cannot be accepted. Referring to the return filed by the respondents it has been argued by the counsel for the petitioner that in Annexure R-2 i.e. medical examination report, his age has been shown as 30 years merely on the basis of assumption and no medical test/ossification test was conducted. He submits that in form B (Annexure R-3) date of birth of the petitioner has been shown as 22-9-1953 but this document was never signed by the petitioner. According to the counsel for the petitioner, against column No. 16 thumb impression has been shown but the same was never put by the petitioner as he always puts his signature in the documents and not the thumb impression. Similar is the position with Annexure R-4 i.e. the service register in which also signatures of the petitioner were not obtained. He submits that in the documents Annexure R-5 i.e. form PS-3 and Annexure R-6 i.e. form PS-4 his date of birth has been shown as 22-9-1953 and these documents were also signed by the petitioner. However, these documents were prepared only on 26-5-1998 and within one and a half year thereafter objection was raised by the petitioner seeking correction in the date of birth vide first report dated 31-1-2000. Counsel for the petitioner further submits that present is not a case where the dispute in relation to date of birth has been raised at the fag end of his service career but the petitioner raised the dispute before 13 years of his date of retirement and on the basis of marks sheet of Higher Secondary School Certificate Examination issued in the year 1980, his date of birth is required to be corrected. In support of his submissions, the reliance is placed on the decision of this Court in the matter of Amur Singh v. Sub Area Manager and others (WP No. 258/2004) which was confirmed in Writ Appeal No. 559/2011, decision of Supreme Court in the matter of Gendalal v. Union of India and others,2007 15 SCC 553 and the decision of Madhya Pradesh High Court in the matter of Ram Kumar Yadav v. South Eastern Coal Fields Limited, 2005 4 MPHT 371.

(3.) On the other hand, counsel for the respondents-SECL submits that while entering into the service, the petitioner had disclosed his date of birth as 22-9-1953 and based on this statement his age was recorded as 30 years in the medical examination report. He submits that while assessing his age in the medical examination report also, his age was recorded as 30 years which was never objected by the petitioner. He submits that in the form B date of birth of the petitioner was recorded as 22-9-1953 and a thumb impression was also put by him in column No. 16 of this document. He submits that similar is the position with service register in which also the thumb impression was put by the petitioner accepting his date of birth as 22-9-1953. He further submits that in the service excerpts date of birth of the petitioner is recorded by himself as 22-9-1953 and the same were duly signed by him after filling in the blank columns. He placed his strong reliance on forms PS-3 and PS-4 wherein also date of birth of the petitioner is recorded as 22-9-1953 and the same was signed by the petitioner. Counsel for the respondents submits that as the petitioner has put thumb impression on various documents and signature on some, he is bound by the same and cannot take u-turn.