1N THE HIGH COURT OF CHHATTISGARH AT WRIT PETITION No. i lzké /2005 hankar Lal Nath Aged about 53 years S/o Late Shrendxa Nath hirimiri Opencast Mine ost Chmmm Colhery D1st Korea (CG) Petitioner Versus vigé 3%SPUR $3 Respondents South Eastern Coalfields Limited Through its Chairman—oum—Managing Director Seepat Road, Bilaspur (CG) — 495 006 Chief General Manager, South Eastern Coalfields Limited Chirirniri Area Post :‘ West Chirimiri ' Dist ; Korea — 497 773 Sub Area Manager Chirirniri Opencast Mine Post : Chirirniri Colliery, Dist : Korea (CG) (3) /’ /. Writ Petition under Article 226 of the Constitution of India. g w i ‘ ‘ HIGH COURI‘ OF CHHATTISGARH AT BILASPUR Writ Petition No. 1246 of 2005 Shankar Lal Nath —Versus-‘ S. E. C. L. & othels L Sd/- Satish K; Agnihotri Judge ‘ ’ " 1‘- WWMM m, ’?Wyw—Yn vr~N —1rv 7 Post for Older on 12th Septembsr, 2005. Sg-i: 7 ;:‘ _ir“<*v in" \ HIGH COURT OF CHHA’I'I‘ISGARH AT BILASPUR Writ Petiu'on No. 1246 of 2005 Shankar Lal Nath vVersus- S. E. C. L. 81. others Peiiu'oner by Shri Gax'y Mukhopadhyaya, Advocate. Respondents by Shri H. B. Agarwal, Senior Advocate with Miss Sangeeta Mishm, Advocate. ORDER (rz.9.2005) By Justice Sah'sh K. Agnihoiri. 1. The present peu'u‘on tiled under Arn‘cles 226 of the Constitution of India impugns the Letter — Ref. No. :- SECL/ CHRM(OCP)/ SAM/05] RET/ 17 16 dated 14. 1.2005 (Annexum P/ 1), issued by the Supdt. (ND/Manager, Chirimiri Open Cast Project, South Eastern Coalfields Limited, whereby the petitioner was directed to Ietire hom the service of the respondent/company on and hom 1.8.2005, having completed the age of superannuau'on i.e. 6O yeais ofage as on 31.7.2005. 2. The undisputed relevant facts, necessary for disposal of this ' petih'on, axe that the petitioner was appointed on 10.7.1963 in Chirimiri Colliexy under the erstwhile private owner. According to the letter dated 31.7.1987 (Annexme P/4) issued by the Dy. Personnel -Manager, Chirmiri Colliery, on the basis of the information available in the service records as well as the Nomination Form (Annexme P/S) concerning Coal Mines Provident Fund Account of the petitioner, his date of birth was recorded as 7.2.1946. 3. In the year 1973’Coa1 Mines were nah'onalized and Cirimiri Colliery was also taken over by the Coal India Ltd. Presently the & said mining ama is under contml of thc Respondent i.e. South Eastern Coal Fields Ltd. (hereinafter referred to as ‘SECL’). Learned counselfor the petih'oner submitted that the Govt. of India, in the year 1973 constituted a Committee called Joint Bipaitite Committee for the Coal india (hereinafter referred to as ‘JBCCD. The said committee comprised of representaiives mm INTUC, HMS, BMS, CITU, AI’I‘UC and representatives of Coal producing companies. The JBCCI held several meetings and nnally the agreement, which is called as ‘National Coal Wage Ageement’ (hereinafter referred as ‘NCWA’) was executed under the provisions of Section 2 (p) of the industrial Disputes Act, 1947. The several agreements were signed, which are as under:- Name of weement — Period of operation — Executed on ‘.\ As per NCWA agreement, Implementation Instruction No. 76 dated 25“: April, 1988, Procedure for determination/ ven'hcation of the age of the employees and for resolution of disputed cases of Service Records is provided. Clause (B)(ii) of this agreement provides that unless there is a very glaring and wrong entry brought to the notice of the management the case for review determination of the date of birth will not be opened. Clause (B) is quoted herein below:— NCWA-I l. 1. 1975 to 31. 12.1978 1 1.12.1974 NCWA—II 1. 1. 1979 to 31. 12.1982 11.8. 1979 NCWA-III 1. 1. 1983 to 31. 12. 1986 1 1. 1 1. 1983 NCWA-iV 1.1. 1987 to 30.6. 1991 27.7. 1989 NCWA—V t 1.7.1991 to 30.6.1996 14.12.1995 NCWA—VI 1.7. 1996 to 30.6.2001 14.12.2000 ‘(B) Review determination of elm? of birth in respect of adsang employees. i) (a) In the case of the existing employees Mairimlation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Depamnent of Public Instruction and whit? cards issued by the aforesaid Bodies should be treated. as correct provided they were issued by the said Universities/Boards/Instimn'ons prior to the date of employment. i} (b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certifcates where the Manager had to certify the date of birth will be treated as authentic Provided that where both documents mentioned in (i) (a) and (i) (b) above are available, the date of birth recorded in (i) (a) ‘ will be treated as authentic ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through Determination Committee/Medical Board " Learned counsel for the petitioner further submitted that there was no occasion to mopen the case of the petih'oner for varying the date of birth of the petitioner which was recorded in the service book and other related documents. Learned counsel further submitted that Section 40 of The Mines Act, 1952 provides for employment of the persons in any [mine or part thereof on attaining the age of 16 years. When the petitioner was appointed on 10.7.1963, the Mines Act 1952 was applicable and the petitioner was rightly appointed after having attained the age of 16 years. 7. Learned counsel for the petin'oner next submitted that the date of birth recorded in the mark sheet of the Higher Secondary School Certihcate as on 1.7.1950 was not correct, for the m x7, ‘ @ reason, the date of birth of the petitioner being 1.7.1950, he would not have been appointed in the mines, as at that point of l‘ e the ,petiiioner would have been only 13 years of age. As such, his date of birth so recoxded in the Higher Secondary School eel lilicaie as 1.7.1950, should not be taken .into consideration for varying the date of birth of the petitioner. Had the petitioner’s date of birth been 1.7. 1950 the petitioner would have retired in July, 2010 on attaining the age of superannuation i.e. 60 yeais of age nom 1.7.1950. In the present case the respondents have taken the date of birth of the petitioner as 10.7.1945 (vide order dated 23.5.2000’Annexure P/6) while retiring the petitioner on attaining the age of 6O years mm 1.8.2005. Learned counsel for the petitioner relied on the decisions of Supreme Court in State of U.P. & another Vs. Shiv Namin Upadhyaya, (2005) 6 SCC 49, Hindustan Lever Ltd. Vs. S.M.Jadhav 8s another,k(200 1) 4 SCC 52, and Saijoo Pmsad Vs. The General Manager 8s another, AIR 1981 SC 1481 to contend that at the fag end of career of an employee, change in the date of birth, which has become conclusive on the basis ‘of the date of birth recorded in the service book, provident fund booklet, annual reports of the company, is not permissible. The petitioner further submitted that no show cause notice was given to the petitioner before reviewing his date of birth at the fag end ofhis career. Mr. H. B. Agarwal, learned senior Advocate with Miss Sangeeta Mishra, Advocate appearing for the respondents, on the contrary, submitted that the petitioner is not the only person but the cases of date of birth of 98 persons, including the petitioner, have been reviewed and varied wherein glaring defects were found. Learned counsel for the res ents submitted that in the pmsent case the Higher Secondary School Cextiiicate 1966 clearly mentions the date of birth of the peh'u'oner as 1.7.1950, as such 1.7.1950 was accepted as the date ofbirth of the petitioner and accordingly the petitioner was directed to retire mm service mm the Company on and nom 1.8.2005 having completed 6O years of age on 31.7.2005. Lealned counsel for the respondents also relied on Implementation Instruction No. 76 (B) (ii) to derive the power by the management to reopen the case and make conections in date of birth. Thus, learned counsel for the respondents submitted that the pen'tion be dismissed aeconiingly. After having heard learned counsel for both the parties and perusing the records, it is established that the date of birth recorded in service book, Provident Fund booklets and other documents is consistent with the date of birth recorded in the service book ie. 7.2.1946. The Higher Secondary School Certincate 1966, wherein the date of birth is recorded as 1.7.1950 does not seem to be correct as the petitioner was already in employment after attaining 16 years of age, as it was permissible under Section 40 of The Mines Act, 1952 at the time when the petitioner was appointed as apprentice to work in the mines. If ‘1.7.1950’ is accepted as the date of birth of the petitioner, he would have been, only 13 years of age, as such he would not have been permitted to work in mines as an apprentice in the year 1963 under the provisions of The Mines Act, 1952. Section 40 of The Mines Act, 1952 reads as ‘ under: - ‘ “40. Ewloyment ofpersons below eighteen years of age ¥ (1) After the commencement of the Mines (Amentbnen!) Act, 1983,no person below eighteen years of age shall be allowed to work in any mine or part thereof (2)Notwithstanding anything contained in sub-section (1) apprentices and other trainees, not below sixteen year of age, ‘ may be allowed to work, under proper supervisions, in a mine or part thereofby the manager? Pmm'ded that in the case of trainees, other than apprentices, prior‘approval of the Chief Inspector or an Inspector shall be obtained before they are allowed to work. Ewlanation; In this section l‘apprentice’ means apprentice as dejined in clause (a) of Section 2 of the Apprentices Act, 1 961 . Clause B(ii) of the Implementation Instruction No. 76 provides for mopem'ng of cases when any glaring and wrong enny has been brought to the notice of the management. Here, admittedly, it is not the case of the petitioner alone Where the management came to the notice that in the higher secondary school certihcate examinah'on the stated date of bilth of the petitioner was 1.7.1950. The management on its own without there being any specihc defect brought to the notice of the management, had considered cases of 98 employees, who have completed 42 years of service as‘ on 1,1.2000. In the verihcation, this was noticed that there was Higher Secondary School Certincate which stated dih'emnt date of birth other than recorded in the service book and other documents of the service of the petitioner. The implementation Instruction No. '76 Review determination of date of birth does not provide for over all verihcation of the existing employees Without there being any specihc information of glaring mistake, with regard to the date of birth of a paru'cular employee. Learned counsel for the respondents have no explanation as e why the petitioner’s date of birth was taken as 10.7.1945 ‘¥ mtin'ng the petih'oner &om 1.8.2005 on attaining the age of 60 years. This is a case where the petitioner could have taken the advantage of his date of birth xecorded in the High Secondary School Ce1 Lilicate as 1.7. 1950, for the purpose of mh'rement in July 2010, on attaining the age of superannuation. However, the petitioner is nrm and consistent on the date of birth that has been recorded in service record i.e. 7.2. 1946. The petitioner was also not ad'orded an opportunity of healing which is comer stone of the principles of natural justice on that account also, in the opinion'of this Court, the impugned letter deserves to be quashed. In the case of Sarjoo Prasad (Supra), cited by the petitioner, the Supreme Court has held that the change of date of birth Without show cause notice and without g‘ving opportunity of hearing, involves civil consequences. The order correcting the date of birth of the serving employee and retiring emploYee on that basis was liable to be set aside on that basis. In the case of ‘Hindustan Lever 'Ltd.(Supra), cited by the petitioner, the Supreme Court has held that it is settled law that at the fag end of career of an employee a party cannot be allowed to raise a dispute regarding date of birth. In the case of State of UP. 8r. another Vs. Shiv Narain Upadhyaya(Supra) it is held that the date of birth as recorded in the service book should be decisive. In the present case not only the service book but other entries of date of birth in other documents are also consistent with the date of birth recorded in the service book. No glaring error has been found keeping in view the date of 8 .k appointment and the minimum age requimd for appointmeQn mines, the date of birth recorded in service book and Coal Mines Provident Fund is conclusive. 15. For the reasons stated above, the impugned order] letter dated 14.1.2005 (Annexme P/ 1) is quashed and the respondents are dilected to minstate the petih'oner 1n service and allow him to work till he attains the age of superannuation i.e. 60 yeaxs of age on the basis ofhis date ofbirth i.e. 7.2.1946 recorded in the service records. The petitioner will be entitled to consequential benems of arrears of Wages for the period he was out of service i.e. &om 1.8.2005 till the date of reinstatement. 16. In the result, the pen'tion is allowed. No order as to costs. ,-r\~ X d/. ’ Satish K; Agnihotri Judge ta /