Full Judgement
Calcutta High Court (Appellete Side)
Pranab Kumar Layek vs Eastern Coalfields Limited & Ors on 12 February, 2021
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:- Hon'ble Justice I. P. Mukerji
Hon'ble Justice Subhasis Dasgupta
FMA No. 4415 of 2016
Pranab Kumar Layek
Vs.
Eastern Coalfields Limited & Ors.
For the Appellants : Mr. Partha Ghosh,
Mr. Amal Kumar Datta, Advs.
For the Respondents : Mr. Bijoy Kumar, Adv.
Judgment on : 12.02.2021
I. P. MUKERJI, J.-
The appellant joined the service of the first respondent, Eastern
Coalfields Ltd. (the respondent) on 14th October, 1977 as a trainee. On
21st November, 1979 he was appointed in the post on probation for six
months.
He had secondary level school qualification having obtained it in 1978.
Almost 10 years after his appointment in service the respondent raised a
dispute regarding the appellant's age. They did not accept the age as
shown in the admit card of the West Bengal Secondary Board. By its
letter dated 19th June, 1989 they communicated this to the appellant.
By a letter dated 25th August, 1992 they directed the appellant to appear
before the Apex Medical Board at the Regional Hospital Pantanagar,
Pandaveswar area on 27th August, 1992 at 9.00 A.M with his identity
card, a photocopy of the service excerpt along with a duly attested passport size photograph for the purpose of determination of his date of
birth.
The Medical Board opined that the appellant would be between the age
40 to 45 as on 27th August, 1992 and determined his date of birth as
27th February, 1950.
Against its decision, the appellant filed a writ application in this court
[WP 15396(W) of 2005] (Pranab Kumar Layek Vs. Eastern Coalfields Ltd.
& Ors.). It was disposed of on 16th September, 2015 by directing the
General Manager (Personnel) of the respondent to consider the
representation to be made by him for age correction, within six weeks of
such representation.
In pursuance of the said order of this court, the General Manager (P&IR)
made his decision on 13th November, 2015 which is the impugned
decision in the instant writ [WP 5572(W) of 2016].
On 11th April, 2016 this writ was dismissed at the motion stage by a
learned single judge of this court.
The reasons advanced by the learned judge for dismissing the writ
application were that in the identity card issued to the appellant in 1999,
after assessment of his age by the Medical Board, his date of birth was
shown as 27th February, 1950. The appellant did not take any steps
against this insertion. He obtained a certificate dated 25th March, 2003
from Raniganj High School, also much later, recording his date of birth
as 25th October, 1959. The court did not believe this certificate. The court
proceeded on the basis that the appellant had accepted the declaration of
his age in the identity card.
The writ application was dismissed at the motion stage.
Hence, this appeal.
Mr. Kumar, appearing for the respondents at the outset submitted that
an opportunity should be given to him to file an affidavit-in-opposition to
2 the stay petition. He said that an affidavit-in-opposition is necessary
because such an affidavit was not filed before the court below. We did
not allow him to do so for two reasons. We noticed from the records that
on 20th September, 2016 a division bench of this court had directed
hearing of the appeal after the puja vacation. On 25th January, 2021
another division bench of this court directed that the appeal and the said
application would be heard on 1st February, 2021. No prayer had been
made by Mr. Kumar on either of the two days for filing an affidavit-in-
opposition to the said petition.
Mr. Ghosh, learned Advocate for the appellant was right when he
submitted that in the earlier writ of 2005 the respondent had filed a
detailed affidavit-in-opposition which is annexed to the stay petition.
That writ had been disposed of as stated earlier by directing the
respondent to consider the age correction matter by a reasoned decision.
No new facts have occurred.
Mr. Ghosh also submitted that the said affidavit-in-opposition was a
complete reflection of the defence of the respondents and the prayer for
filing a fresh affidavit-in-opposition was a mere formality and should not
be accepted by the court as it would delay hearing of the appeal.
We are in full agreement with such submission.
The said affidavit has been placed before us in detail and we have
considered it.
The appellant has relied on an admit card of the West Bengal Board of
Secondary Education where his date of birth is recorded as 25th October,
1959. We have also been shown a document described as excerpts from
the service record card of the said respondent where the educational
qualification of the appellant is described as Madhyamik.
Mr. Ghosh, appearing for the appellant submits that the above admit
card for the Madhyamik examination was furnished to the respondent,
for recording the appellant's date of birth at the time of his said
3 appointment. He also says that in the service book under the remarks
column the appellant had entered the said date of birth which was never
disputed by the appellant.
We have also been taken through the document relating to Coal Mines
Provident Fund where under Sl. No. 138 the name of the appellant was
entered and his date of birth shown as 25th October, 1959.
Let us examine what the respondent said in their affidavit-in-opposition
to the earlier writ. They said that in the 'B' Form Register of the
respondent where the details of the employees were recorded, the age of
the appellant was stated to be 27th February, 1950. This was on the
basis of a "service excerpt" which was prepared in 1987. The unions
raised objections to such entry. Thereupon it was referred to the "apex
medical board" at Regional Hospital, Panthnagar, Pandeveshwar. This
Board assessed the appellant's age as between 40 to 45 years on 27th
August, 1992. Calculating his age to be the mean between 40 and 45
years the date of birth of the appellant was recorded as 27th February,
1950. The affidavit referred to the procedure for
determination/verification of the age of the employees contained in
Implementation Instruction No. 76.
DISCUSSION
The Implementation Instruction No. 76 are rules which govern the
determination or verification of age of the employees of the said
respondent.
Paragraph No. A(i) is relevant and most instructive. It is set out below:-
"A) Determination of the age at the time of appointment.
i) Matriculates.
4 In the case of appointees who have passed Matriculation or equivalent
examinations, the date of birth recorded in the said certificate shall be
treated as correct date of birth and the same will not be altered under
any circumstances."
Therefore, at the time of appointment of employees with the respondent,
with matriculate qualifications, the date of birth recorded there was
treated as sacrosanct and entered in the records. This clause makes it
absolutely plain that if so entered, it is not to be altered "under any
circumstances." In the excerpt from the service record furnished by the
respondent to the appellant, although the date of birth column was
blank, against the writing educational qualification, 'Madhyamik' was
entered. Again in the remarks column at Page 2 filled up by the
appellant, he stated that his date of birth was 25th October, 1959. He
wrote against it: "as per Madhyamik admit card 1978".
Mr. Ghosh submitted that the admit card of the West Bengal Board of
Secondary Education for the appellant for the Madhyamik Examination,
1978, recording his date of birth as 25th October, 1959 was submitted
with that document. There is nothing on record to suggest that there was
any contemporaneous objection to it, he argued.
The question involved in the instant writ and before us is whether the
decision made by the respondent on 13th November, 2015 in obedience to
the order dated 16th September, 2015 in the earlier writ was correct or
not. The learned single judge in the impugned judgment and order dated
11th April, 2016 upheld this decision and dismissed the writ.
When Implementation Instruction No.76 specifically stated that the date
of birth in the school leaving certificate would be deemed to be correct by
the respondent employer and would "not to be altered under any
circumstances", there was no occasion to subject the appellant to a
5 Medical Board examination for assessment of his age. A full bench of the
Jharkhand High Court in Kamta Pandey Vs. M/s. B.C.C.L. & Ors.
reported in 2008 LAB I. C. 2677 has opined in a similar voice:
"Paragraph - 16:- The above instruction, which is, admittedly,
binding upon the respondent company, would clearly indicate that in
the case of the existing employees, date of birth mentioned in the
Matriculation Certificate alone shall be treated as authentic and
correct date of birth. If it is found that the said certificate, which is
genuine, containing the date of birth, has been issued by the
recognized University or recognized Board of Education, it cannot be
altered under any circumstances. When the instruction found in the
agreement reflecting the scheme provided for implementation
envisaging the specific procedure for determination of date of birth
conclusively, it cannot be said that entries made in the service
register alleged to have been acknowledged by the employee would
nullify the effect or the object with which the Instruction No. 76 has
been introduced."
A division bench of this court has gone further in Gadadhar Konar Vs.
Union of India & Ors. reported in 2011 (3) CLJ (Cal) 157 and said that
even if the assessment by the Medical Board was otherwise, the date of
birth recorded in the school leaving certificate should be considered as
"conclusive proof of age of the appellant/petitioner"
"Considering the report of the Medical Board, we find that the said
Medical Board was of the opinion that the age of the
appellant/petitioner was between 40 to 45 years on 12th October,
1993. Therefore, the age Determination Committee was not definite
in respondent of the actual age of the appellant/petitioner. In any
event, in the present case, the school leaving certificate issued by
the Headmaster of the school concerned on the basis of the
6 admission register cannot be ignored under any circumstances. The
school leaving certificate issued by the Headmaster of the school on
the basis of the admission register should have been considered as
conclusive proof of age of the appellant/petitioner apart from the
other valid documents viz., the last pay certificate issued by the
competent authority of the respondent Coal Company."
A single bench of this court in Sukumar Dawn vs. Coal India Limited
reported in 2013 (4) CHN (CAL) 112 followed the full bench judgment of
the Jharkhand High Court and directed Coal India Ltd. to record the
correct date of birth of its employee according to the admit card issued in
the school final examination.
Great importance is attached to the date of birth as recorded in the
school leaving certificate as would be evident from the judgment of the
Supreme Court in Ms. Bharat Coking Coal Ltd. and Ors. Vs. Chhota
Birsa Uranw reported in AIR 2014 SC 1975, where the Supreme Court
remarked:-
"We have further noticed that Implementation Instruction No.76
clause (i)(a) permits rectification of the date of birth by treating the
date of birth mentioned in the school leaving certificate to be correct
provided such certificates were issued by the educational institution
prior to the date of employment........................ A school leaving
certificate is usually issued at the time of leaving the school by the
student, subsequently a copy thereof also can be obtained where a
student misplaces his said school leaving certificate and applies for
a fresh copy thereof. The issuance of fresh copy cannot change the
relevant record which is prevailing in the records of the school from
the date of the admission and birth date of the student, duly entered
in the records of the school"
7
The appellant was appointed in the post on 21st November, 1979. The
admit card related to the school leaving matriculate examination of 1978.
Hence, his date of birth had been recorded by the school prior to his
appointment in the post on 21st November, 1979 and the admit card
issued by it.
The respondent is bound by its own rules. As long as it follows
Implementation Instruction No. 76, it cannot travel outside it. It appears
from the evidence on record, including the said service excerpt that the
admit card issued by the West Bengal Board of Secondary Education
recording the date of birth of the appellant as 25th October, 1959 was
furnished by him and taken on record by the respondent at the time of
commencement of his employment on confirmation. Furthermore, there
is no contemporaneous correspondence by the respondent denying the
existence of this admit card in their records.
The Supreme Court in M/s. Bharat Coking Coal Ltd. and Ors. Vs.
Chhota Birsa Uranw reported in AIR 2014 SC 1975 has said that the
date of birth, to be valid and admissible should be recorded by the school
prior to an employee's joining the employment. Whether the certificate is
issued at a later point of time is immaterial.
In those circumstances, the admit card tendered by the appellant while
joining the service of the respondent was a valid document. Since the
respondent was following Implementation Instruction No. 76, it had no
option but to accept the date of birth mentioned in the admit card as
correct. The opinion of the Medical Board or a determination made by the
respondent on the basis of the opinion of this Board should have no
impact. The date of birth as disclosed with the admit card issued by the
Board has overriding effect. The respondent is clearly wrong in not acting
on the date of birth recorded in this document.
8 In those circumstances, we set aside the impugned decision of the
respondent dated 13th November, 2015. We also set aside the impugned
judgment and order dated 11th April, 2016. We direct the respondent to
record the date of birth of the appellant as 25th October, 1959. On this
basis, his date of superannuation is to be notionally computed. He will
be deemed to have been in service up to the notional date of retirement.
The decision of the respondent superannuating the appellant stands
annulled. The appellant shall be entitled to salary from the date of his
actual retirement till the date of his notional retirement less any
retirement benefit received. The appellant will also be entitled to retiral
benefits, both arrear and current, less any benefit already received. The
appeal is allowed to the above extent, compliance by the respondent
within 3 months from date.
No order as to costs.
Certified photocopy of this order, if applied for, be supplied to the parties
upon compliance with all requisite formalities.
I agree,
(SUBHASIS DASGUPTA, J.) (I. P. MUKERJI, J.)
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