HABIB Vs. WESTERN COALFIELD LTD AND OTHERS

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed seeking to challenge the validity of order dated 9.3.2009 (Annx.P/7), by which the petitioner is communicated that he would be retiring on 30.6.2009, in accordance to the date of birth recorded in NEIS data and the retiral dues would be paid to him. For the said purposes, the petitioner is called upon to file relevant documents. It is contended that the date of birth of the petitioner has wrongly been mentioned to be 1.7.1949, whereas according to the petitioner, the date of birth recorded in his statutory service record was 1.7.1953. The petitioner contends that he is being prematurely retired against which he has made a representation, but the same is not being considered, therefore, the petitioner is required to file this writ petition. It is contended further that the Age Determination Committee is required to be constituted in case of disputed date of birth in terms of the policies of the respondents, but since the case of the petitioner has not been referred to the Age Determination Committee also, he is left with no option but to approach this Court.

(2.) Refuting the claims made by the petitioner, a reply has been filed by the respondents and it has been pointed out that initially the petitioner was appointed and was shifted from one colliery to the other, the last pay certificate was issued to him in which date of birth of the petitioner was categorically mentioned to be 1.7.1949. Even when subsequent declarations were submitted by the petitioner, he accepted his date of birth to be 1.7.1949. It is contended that in view of these facts, it was not to be treated that the date of birth of the petitioner was 1.7.1953. It is further contended that if there was any dispute with respect to the date of birth of the petitioner, he should have approached the appropriate Forum under the Labour Laws invoking the jurisdiction of the Labour Court under the Industrial Dispute Act. Having failed to do so, the petitioner is not entitled to any relief in this writ petition. It is further contended that there are disputed facts which could not be decided only on the basis of the affidavit and, therefore, a writ petition is not maintainable in such a claim. Thus, it is contended that the petition being misconceived is liable to be dismissed.

(3.) Though a rejoinder has been filed and certain more documents indicating the date of birth have been filed, but such documents are only certain descriptions given by the authorities only on the basis of declarations made by the petitioner and not authenticated documents like the certificate of educational qualification. This being so, it is to be seen whether such claim of the petitioner can be looked into in a proceeding under Article 226 of the Constitution of India or not.