EASTERN COALFIELD LTD Vs. MULCHAND YADAV

JUDGEMENT

(1.) The present appeal is directed against judgment and order dated 05.02.2010 read with order dated 01.03.2010 passed by learned single Bench of this Hon'ble Court In Writ Petition No. 478 of 2009. By the said order the Hon'ble single Judge has in substance allowed the prayer of the petitioner for correction of his date of birth from 01.07.1949 to 07.10.1956 and set aside the notice of superannuation dated 21.04.2009 issued against the writ petitioner on the basis of his earlier recorded date of birth as 1st July, 1949. The Hon'ble single Judge was also pleased to direct that the writ petitioner be forthwith reinstated as 'pit clerk' as before and will be entitled to work as such at the colliery belonging to the respondent employer as before. He will, however, retire from service on the basis of his corrected date of birth as 1st July, 1956 upon attaining the age of superannuation and will also be entitled to receive arrear salary for the period from 1st July, 2009 till his reinstatement in service in terms of the aforesaid order. It was further directed that such arrear salary has to be paid positively within a period of three weeks from the date of communication of the order and reinstatement of the writ petitioner made by the employer Eastern Coalfields Limited positively within two weeks from the date of communication of the order, if not earlier. Being aggrieved by and dissatisfied with such order the instant appeal has been preferred by the respondent/appellant. M/s. Eastern Coalfields Limited contending inter alia, that the writ petitioner is a 'workman' under section 2(s) of the Industrial Disputes Act which provides prescribed mode for redressal of grievances and as such the instant writ petition is not maintainable in law. It is further contended that at the time of initial appointment on 08.05.1972 the writ petitioner has declared his age as 24 years. In course of his reappointment on 03.06.1982 he declared his year of birth as 1949 and the said date of birth has been duly recorded in all the statutory records like Form B Register as per Mines Act, 1952 and Rules framed thereunder. The writ petitioner endorsed all such records with his LTI without any objection. The first record of this employee was also not duly considered by the learned trial Judge. In fact, for his misconduct the petitioner was earlier dismissed on 27.02.1982 and was subsequently reinstated in service on 03.06.1982 and transferred to Pandabeswar Colliery. It is further contended that on 13th April, 1987 Important Service Excerpt was issued by the Agent/Manager of the colliery with counter signature of Senior Personnel Officer/ Welfare Officer. At that time also the writ petitioner did not raise any objection. As per sections 17(1) and 18 of the Mines Act, 1952 the Manager /Agent is the sole authority in case of affairs of the mines. In fact, the writ petitioner fraudulently procured the second Important Service Excerpt dated 03.06.1988 without signature of the Manager/Agent which is still blank and as such the said document has no legal value whatsoever. The petitioner was asked to submit his matriculation certificate or any other authentic document in support of his date of birth on 5th February, 2009 and 15/16th May, 2009 respectively by the appellants but he did not give any reply. The petitioner has submitted one School Leaving Certificate dated 20.02.2009 without disclosing the name of the school and as such the said document is invalid. Learned trial Judge has also not considered the actual date of birth of the writ petitioner and wrongly accepted his claim of date of birth as 7th October, 1956. This would be a negation of truth and at the time of his appointment on 01.12.1972 his age would be 16 years 2 months and he was a minor disentitling him to be appointed. There is a specific provision of appointment of any person below 18 years of age in terms of Section 45 of the Mines Act, 1952 which was not applied in his case as per record. Therefore, under no stretch of imagination it could be lawfully presumed that the appellant/ respondent appointed the minor in 1972 in violation of the aforesaid statutory provision. It has also escaped the notice of the learned trial Judge that at a most belated stage the writ petitioner has come up for correction of his date of birth only 20 days before his superannuation which is not in conformity with the normal human conduct. Therefore, the said order of the learned trial Judges is not sustainable in law and is liable to be set aside.

(2.) Learned Lawyer for the respondent No. 1 on the contrary has contended that the learned trial Judge has rightly decided the matter and allowed the prayer for correction of his date of birth on the basis of documents and other materials on record to protect the service career of the respondent/writ petitioner in accordance with law and as such there is no merit in this appeal which is liable to be dismissed.

(3.) From the rival submissions of both the parties and the averments made by them it appears that the following fact emerges for determining the merit of the case.