BIRALAL SHARMA Vs. MANAGING DIRECTOR MAHANADI COAL

JUDGEMENT

(1.) The petitioner has come with this writ petition for quashing the notice of superannuation vide letter No. MCL/OA/OC.3/SOM/Retirement/04/2738 dated 8.11.2004 and change of his date of initial entry into service from 1.1.1973 to 20.2.1968 and date of birth from 2.5.1945 to 23.7.1948.

(2.) THE grievance of the petitioner and his case as presented in this writ petition are that the petitioner originally belonged to village Dutta Pukur under Barasat Police Station in the District of 24 -Praganas of West Bengal and he was born on 23.7.1948. The father of the petitioner was working as a security guard of the market yard and after his birth his horoscope was prepared showing his date of birth as 23.7.1948 and since the time of his birth was during the post partition period there was uncertainty and tension in the locality of West Bengal and as such the petitioner was given admission in the local school little late and after completing Class -VII while he was reading in Class -VIII, due to family compulsion he gave up the studies to help the family in earning livelihood. After leaving his studies he obtained the transfer certificate from the school and thereafter approached the authorities of West Bengal Coal Mines Ltd. which was a private concern owned by Birlas, for a job. While applying through a formal application the petitioner had submitted his transfer certificate before the authority showing his qualification as well as his date of birth. The management after considering the application appointed him as Apprentice for one year and the petitioner joined the post on 16.1.1967 in Orient Colliery, Brajarajnagar in Orissa. After completion of his apprenticeship the petitioner was posted as general Mazdoor on 20.2.1968 in the Orient Colliery, Brajarajnagar. While the petitioner was continuing in this job as general Mazdoor, he was found suitable and eligible to undergo training for Mining Sirdar and he joined the Sirdar training which was for three years term as a trainee being in service which he joined in 1968 and he got salary and other benefits regularly during the period of the training. After completing the training of Mining Sirdar and before passing out the said examination, in the year 1973 the coalmines were nationalized and Orient Colliery was brought under Coal Mines Authority of India. The petitioner successfully completed the said training and passed the examination in the year 1974 which was conducted under the Mines Act, 1952 and Coal Mines Regulation, 1957 under the Director of Mines, Dhanbad and obtained certificate on 13.2.1975 (Annexure -1). In the said certificate the date of birth of the petitioner is recorded as 23.7.1948. After nationalization of the coal mines the Coal Authority of India was bifurcated into different zones and Brajarajnagar came under the Western Coal Fields Ltd. and the petitioner continued under the said management. Subsequently, the Western Coal Fields Ltd. was again bifurcated and South Eastern Coal Fields Ltd. came to existence and thereafter on further bifurcation it has become Mahanadi Coal Fields Ltd. The petitioner continued all along and served continuously under the different managements on bifurcation of the said Orient Colliery right from the date of his appointment in 1968 and he was absorbed by the Coal Mines Authority on nationalization of the Coal Fields Ltd. It is the case of the petitioner that at no point of time any service record was opened with a copy to the petitioner by any of the managements he had served and as such the petitioner was all along under the impression that the date of birth was recorded by the managements as per the date of birth recorded in the Sirdar Certificate. In the year 1997, to his utter surprise the petitioner came to know, when copy of Form P.S.3 and nomination form were submitted under the Coal Mines Pension Scheme, that his date of birth had been interpolated from 23.7.1948 to 2.5.1945 at one place and in the second place his correct date of birth i.e., 23.7.1948 is still available. After coming to know about the interpolation and change of date of birth without any show cause to the petitioner and giving any opportunity to explain the situation, the petitioner filed a representation (Annexure -2) to the previous management, i.e., South Eastern Coal Fields Ltd. stating that his date of birth had been wrongly changed and had been interpolated and his correct date of birth is 23.7.1948 and not 2.5.1945 and prayed for correction of the same accordingly. The previous management did not act upon the representation and it is stated that the management assured that his date of birth be corrected as per Mining Sirdar certificate and even after the bifurcation the management under which the petitioner came to serve and is serving at present had assured him orally that his date of birth be changed and he was lastly assured that it had already been corrected.

(3.) THE opposite parties have filed counter affidavit through one Ram Shankar Sharma, Area Personnel Manager, MCL (O.P. No. 3) stating that the said superannuation notice (Annexure -8) has been issued by the Superintendent (M) (O.P. No. 4) taking into account the date of birth of the petitioner recorded in Form B register which was prepared in the year 1973 when the coal mines were nationalized under the Coal Mines Nationalization Act, 1973. It is stated that in the declaration submitted by the petitioner himself as to his date of birth in the said Form B register is 2.5.1945 vide Annexure -A/1. After preparation of the Form B register by the authority the company prepared service book of the petitioner on the declaration given by the petitioner in Form B and the authority recorded the date of birth as 2.5.1945 in the service register/book vide Annexure -A/2 and the petitioner accepted the date of birth so recorded by putting his LTI. After appointment by the company the petitioner appeared for Sirdar Certificate Examination on 6.12.1974 and obtained the certificate from the Chairman of the Board of Mining Examination on 13.2.1975 and since this Sirdar certificate has been obtained by the petitioner after 1973 when he entered into the service of this management, the date of birth recorded in the Sirdar certificate as 23.7.1948 is not correct and the date of birth given in the Form B register and the service book is correct. As regards the averments of the petitioner that he had passed Ciass -VII in the village school, there is no document to that effect. At the time of preparation of Form B and service book the petitioner did not submit any certificate before the authority and the statement in the petition of the petitioner claiming his date of birth to be 23.7.1948 is based on no document produced by him before the authority. According to the O.Ps. as per Form B and the service register the petitioner had joined under the O.Ps. on 1.1.1973 and his claim otherwise is not at all correct. It is specifically stated in paragraph 8 of the counter that the Sirdar certificate (Annexure -1) was obtained by the petitioner only in the year 1975 during the service period under the O.Ps. which is after the preparation of the service register/book and Form B and as such the claim of the petitioner that his date of birth is 23.7.1948 as per Annexure -1 is also incorrect. Apart from that, the claim of the petitioner that his performance was satisfactory is negated on the face of the service book Annexure -A/2 which reveals that he has acted against the standing instruction of the company. In paragraph 10 of the counter it is stated that in 1998 the O.Ps. introduced pension scheme for the employees as third benefits and after the scheme was introduced all the employees including the petitioner submitted Forms P.S.3 and P.S.4 (Annexure -A/3 series) before the authority and in the said forms the petitioner had given his date of birth as 23.7.1948 and when it was verified by the authorities it was corrected to 2.5.1945 which is his date of birth recorded in the service book. It is further averred by the O.Ps. that prior to submission of Forms P.S.3 and P.S.4 on 19.10.1995 the petitioner signed Form -0 (Annexure -A/4) before the Medical Officer that he has rendered twenty -two years of service under the O.Ps. and his age was fifty years. After verifying the Form -O the petitioner put his signature. As regards the representation about which the petitioner has stated, the O.Ps. denied to have received any representation vide Annexure -2 and in this connection it has been categorically stated by the O.Ps. that no oral assurance was given by the authorities to the petitioner for correction of his date of birth or date of entry into the service. It is further stated that the petitioner was the office bearer of Brajarajnagar Coal Workers Union and the General Secretary of the Union vide his letter dated 3.4.1998 requested the O.Ps. to correct the date of appointment of the petitioner and the O.Ps. examined the documents and rejected the claim of the petitioner and communicated the same to the General Secretary of the Union vide Annexure -A/5. It is stated in paragraph 13 of the counter that for obtaining medical book the petitioner has declared his date of birth as 2.5.1945 submitting the medical book form (Annexure -A/6). It is finally stated that as per the circular under Implementation Instruction (in short -ll) 1.1.76 of National Coal Wage Agreement it was mentioned in Clause -11 that the declaration of age by the determination committee/medical board will be binding and final for all the employees and the date of birth mentioned in Form B service record and CMPP record is final and as such the allegation of the petitioner on the basis of date of birth recorded in the Sirdar certificate which he obtained subsequent to the preparation of his service record cannot be accepted as it does not show the correct date of birth. Besides, it is stated that the petitioner at the fag end of his service is claiming that the date of birth recorded in his service register is not correct which plea does not deserve any consideration and in this connection the O.Ps. have relied on the decision of the apex Court reported in AIR 2001 SC 72 (G.M., Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors.) and have averred that determination of date of birth is a question of fact which appears on evidence either orally or documentary and the High Court in writ petition cannot make an enquiry into such disputed question of fact and the proper course for the petitioner would be to get a declaration from the competent Court of law regarding the date of birth.