NAZIRUDDIN Vs. BHARAT COKING COAL LIMITED AND ORS.

JUDGEMENT

(1.) In the accompanied writ application, the petitioner has inter alia, prayed for issuance of appropriate writ/direction commanding upon the respondents for quashing order dated 03.09.2010 (Annexure 5) of premature superannuation of the petitioner from services on the basis of the wrong entry made in service record i.e. New Form 'B' etc, and to allow the petitioner in service with effect from the date of premature superannuation w.e.f 01.10.2010 with all consequential benefits including the salary and continuity in service.

(2.) Bereft of unnecessary details, the fact in a nutshell, is that the petitioner was initially appointed on the post of Dumper Operator in the office of respondents on 04.05.1982 and his date of birth has been recorded as 01.05.1957 in old and original Form 'B', Service excerpt on the basis of age mentioned in School Leaving Certificate and Driving Licence, as evident from Annexure 1 series to the writ application. After five years of services the petitioner came to know that in the new form "B" his date of birth has been wrongly mentioned as 09.09.1950, as per Annexure 2. Thereafter the petitioner made several representations before the appropriate authority on 23.01.1987, 16.02.1987, 22.04.1987 and on 09.06.1992 (Annexure 3 series) for the purpose of correction of his date of birth, which has wrongly been recorded in new Form 'B'. But surprisingly the petitioner was informed on 08.03.2010 regarding his superannuation on 01.10.2010 on the basis of his date of birth recorded in service record. Thereafter, the petitioner requested the respondent for change of date of birth, on which, the respondents agreed to send him before Medical Board for assessment of his age and accordingly on 25.05.2010, the respondents sent the petitioner for assessment of his age before Medical Board, which after determining the age of the petitioner on the basis of forensic examination, orthopaedic examination and radiological examination assessed the age of the petitioner between 55-60 years on 08.07.2010 as evident from Annexure 4 series. It has been contended in the writ application that despite the age assessment made in the Medical Board, the respondents issued Office Superannuation Order dated 03.09.2010, as per Annexure 5 to the writ application and accordingly, the petitioner has been superannuated from services on 1.10.2010, prior to attaining original age of superannuation. Being aggrieved, the petitioner has approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances.

(3.) Per Contra, counter affidavit has been filed by the respondents controverting the averments made in the writ application. In the counter affidavit, it has been stated that the points raised in the writ petition are disputed questions of fact, which need not be decided by this Court in exercise of power conferred under Article 226 of the Constitution of India. Moreover, the petitioner is a workman within the meaning of Section 2 (s) of the Industrial Disputes Act, as such disputed questions of fact can be decided by the Industrial Tribunal upon a reference made to it by the appropriate Government. Apart from raising preliminary objection regarding the maintainability of the writ application, it has been submitted that the date of birth of the petitioner has been recorded differently in different records of the company. In the Coal Mines Provident Fund records and in Form 'B' register of Govindpur Colliery the date of birth of the petitioner is recorded as 09.09.1950 whereas in the Form 'B' of Kooridih Coliery, it is mentioned as 01.09.1957. Likewise, in service excerpt of the petitioner, initially date of birth has been recorded as 01.05.1957 and later after correction, it has been made as 09.09.1950 and Non-Executive Informative System (NEIS) i.e. computer records shows the date of birth of the petitioner as 09.09.1950. Photocopy of CMPF record, Form B of Govindpur Colliery, Form B of Kooridih Colliery, the service excerpt and NEIS are annexed as Annexure A, B, C, D and E respectively to the counter affidavit. It has further been stated that as there was glaring disparity in recording the date of birth of the petitioner, the petitioner was referred to the Apex Medical Board for assessment of age, which examined the petitioner medically on 07.07.2010 at Koyla Nagar Hospital. In the report, the Apex Medical Board has given its finding that his date of birth as recorded in CMPF and New Form B as 09.09.1950 is accepted, hence, the petitioner has rightly been superannuated on attaining the age of 60 years in September, 2010.