ASHOKE KUMAR CHATTERJEE Vs. EASTERN COALFIELDS LIMITED

JUDGEMENT

(1.) This appeal is directed against an order dated 24th December, 2019 passed in a writ petition filed by the appellant challenging an order of superannuation on the basis of the date of birth recorded in his service record. The petitioner was an employee of the Eastern Coal Fields Limited. On 15th October, 2015 the writ petitioner made a representation to several officers of the respondent coal company alleging that on 13th October, 2015 he came to learn from one of his colleagues of the concerned department that the year of birth of the petitioner mentioned in the service record is 1956 and on enquiry it was found that such date was an incorrect recording. The writ petitioner alleged that it was a prevalent practice in the company that all the employees were to sign in the blank format of the service record which is subsequently filled up by the personnel department. The appellant did not notice earlier about the incorrect recording of the date of birth and it was only during October, 2015 he could ascertain that the service record did not reflect the correct date of birth. The said representation, however, does not disclose the circumstances under which he had ascertained such facts but we presume for the time being that he was told that his service would be superannuated on and from 1st July, 2016 and he could have been invited to fill up certain forms in order to enable his employer to complete the formalities in the meantime. The final order of 24th December, 2019 was preceded by two orders passed on 29th June, 2016 and 3rd August, 2016. We would refer to the said two orders later as we feel that it is also necessary for us to indicate the facts in a nutshell so as to find out if at all the writ petitioner could claim such reliefs irrespective of the quality of orders preceding the final order. The petitioner joined the service of the Eastern Coal Company Limited (hereinafter referred to as ECL) on 1st April, 1980. Based on the information furnished by the writ petitioner, appointment letter was issued on 1st April, 1980 in which it has been specifically stated that his superannuation age would be 60 years. The writ petitioner during his course of employment had executed various documents for availing the service benefits. Under Section 48 of the Mines Act, 1958 ECL, as employer, is required to maintain a register of persons employed and relevant entries of such employees to be duly authenticated by their signature or thumb impression, as the case may be. Form-B register is a statutory record which is maintained under the Mines Act, 1952. The service record of the employee is also created on his appointment and it is continued till the cessation of employment. Photo identity cards are also issued by the employer for identification or giving proper identity to the employees. During 1987 there was an effort by ECL to provide important excerpts of service record to the employees inviting their comments about such information. The employee concerned was also given two copies of such service record excerpts and the employee is required to return the said copies after filling up the details including the date of appointment and the date of birth. In the year 1998-1999 for the existing employees on roll as on 1st April, 1998 and who were members of the Coal Mines Family Pension, 1971 in terms of paragraph 5(1) of Coal Mines Pension Scheme, 1998, an employee is required to submit his family declaration in Form no.PS-3 and nomination in Form no.PS-4. The Form-B disclosed by the employer in the proceedings before the learned Trial Judge bears a signature of the petitioner in which the petitioner has recorded his date of birth as 1956 and has duly signed the said form as an acceptance of the statements and/or declarations contained in the said forms. His date of commencement of employment was recorded on 28th October, 1978 and his date of retirement was recorded as 2016. The service register of the petitioner also records his date of appointment as 28th October, 1978 and his date of birth as 1956 duly signed by him as token of acceptance. In Form PS-3 and PS-4, the date of birth of the petitioner is recorded as 1st July, 1956 duly declared by him with the signature of the petitioner. The Coal Mines Provident Fund Account of the petitioner was opened sometimes in the year 1978-79. The Regional Commissioner, Provident Fund, Asansol by letter dated 6th August, 1979 had sent relevant information and records with regard to provident fund account of the petitioner. The coal company had also paid a sum of Rs.235.84 in the Coal Mines Provident Fund of the petitioner for the financial year 1979-80.

(2.) In the proceeding before us the writ petitioner has relied upon the admit card issued to him in the year 1981 and also the identity card issued to him on 1st September, 2006. The contention of the writ petitioner is that the said two documents would conclusively prove that he was born in 1961 and accordingly his year of superannuation would be 2021. Significantly, the documents showing his date of birth as 1956 in large number of documents and declaration forming part of the service record of the writ petitioner was not given due importance while passing the interim orders and in directing medical examination of the writ petitioner. One of the learned Single Judges hearing the matter had directed medical examination of the writ petitioner in order to do substantial justice and on consideration if it is found on medical examination that there was an error or a genuine error committed by the petitioner in not ventilating his grievance earlier, the service of the writ petitioner may not be terminated taking into consideration the unblemished service record of the writ petitioner. It appears that on 29th June, 2016 at the time when the writ petition was moved Justice Banerjee, while noticing that the writ petitioner had approached the Court at the last month, stayed the notice of superannuation upon accepting the submission of the writ petitioner that he was not aware of the existing record where his age was incorrectly recorded as 1956 prior to October, 2015 and as is reflected from Justice Banerjee's order when His Lordship has observed 'when the petitioner claims that he had no whiff of the mistake and came to be aware thereof only after receiving the notice of superannuation, the facts need to be looked into.' However, the petitioner was restrained from reporting to duty after 12th July, 2016. On 3rd August, 2016 the matter was heard by Justice Dipankar Datta. Although His Lordship has recorded that the petitioner had approached the Court belatedly, however, following the decision of the Hon'ble Division Bench in M/s. Eastern Coalfields Ltd. vs. Chandmoni Majhin dated 20th June, 2016, directed determination of the age of the petitioner in accordance with instruction 76 of the procedure for determination/verification of age of employees. The writ petitioner invited the Court to pass the aforesaid order having an impression that the said decision would be beneficial to him. The writ petitioner did not object to constitution of the medical board in terms of instruction-76 although it was known to him that the medical board would be constituted of the medical officers who are also in employment of ECL.

(3.) The medical board returned the finding which goes against the contention of the petitioner that he would not be 60 years old in 2016. The appellant/writ petitioner took exception to the said report and in support thereof had relied upon two reports of two medical practitioners who claimed to have given the report after examining the writ petitioner showing that the writ petitioner would be between 45 and 50 years on the date of examination.