HI6M COURT OF JUbICATURGATSILASWK(C.&) WRrr pFnnoN N0.2860 OF 2003 PETITtONER: RESPON&ENTS! Bankelal, S/o'Shri Bhulm. Aged afaout 52 years, Motor Driver, Category - 6, Sub Area - Kaiyoni, Post- Bhatgaon, District: Sarguja (Chhhtrttisgarh). VersiK 1. 2. 3. The Choirman cum Managing Oirector, South Eastern Coal Fields Ltd. Seepat Road, Bilaspur, (€.©.). The ©eneralMancger, S.E.C.L. Bhat9aonAreo, P.0, Bhatgoon, bistt.; Sar94Ja The Sub-Apea Manager, 5.E.C.L. Kalyani, Bhatgaon ^rea, Post Bhtttgaon, C>i3tr-ict;Ssr3uja Chhattisgarh. POST FOR ORDER ON 29t11 SEPTEMBER. 2003 Sd/- LC.Bhados Judge F-^ sS3' Hl&l COURTOF JUNCATURE AT BILASPUR fC.S.Y WRFT PFnTEON N0.2860 OF 2003 PETITEONER: RESPONDENTS: Bankelal, S/o-Shri Bhulsi, Aged about 52 years, Motor Oriver, Category - 6, Sub Area - Kalyani, Post- Bhatgaon, bistrict! Sarguja (Chhho'ttisgarh). Versus 1. 2. 3. The Chairman cum ^cnayry t>irector, 5outh Eastern Coal Fields Ltd. Seepat Road, Bilaspur, (C.&.). The Seneral Mancger. S.E.C.L. Bhcrt^gaon Area, P.0. Bhatgaon, Oistt.: Sarguja The Sub-Ar-ea Maneger. S.E.C.L. Kalyani, Bhlttgaon Area, Post Bhatgaon, District:Sarguja ChhattiS9arh. Present;- Shri Praful! N. Bhar-at, Advocats: Shri P. S.Ko3hy,©ovt.Advocate! For the petitioner For the r-espondents iefore: Hon'ble Shrl L.C. Bhadoo. J ORDER (Passed on 29th September, 2003) The petitioner has preferred this writ petition under Articles 226/227 of the Constitution of India by which he has chailenged the decision of the Sub Area Maneger, S.E.C.L Kalyani Bhotgaon Area, District Sarguja dated 28/29-8-2003 by which a decision has been taken to retire the petitioner- w.e.f. the last date of September* 2<X)3. The petitioner's petition is that he was qspointed on 25-6-72 as general mazdoor throiyh a general interview/ fresh oppointment. At the time of appointment he submitted a school leaving certificate showing his date of birth as 1-9-51 which was issued to him on 15-7-6; 3© -;-. ..(•' 4. Annexure-P/1. After joining-the service, the petitioner's date of birth was recorded in the relevant records as 1-9-51. Amexur'e-P/Z is the copy of the pay slips of the petitioner in sAJch tke petitioner's date of bir-tli has been shown as 1-9-51. Later on, he'weis promoted to the post of Motor Driver ond posted at West Chirmiri areo. On 29-1-99, vide Annexure-P/3, the petitioner wcs transferred to Bhatgaon orea on the same post. After joining at Bhotgcun area the patitioner eame to know that his date of birth is being shown as 14-9-43. After coming to know about this fact the petitioner immediirt'ely represented on 3-5-99 to correct the date of birth. Copy of the same is Annexure-P/4. Wien nothing was heard frons the respondents, the petitioner again made a representation. Copy of the same is Annexure-P/5. Thereafter responderrts wrote a letter on 2-9-2002 to the Kegional Commissioner, Coal Mines Provident Fund Jobalpur about the grievances raised by the petitioner' and enquired regarding the date of birth of the petitioner. Copy of the same is Annexure-P/6. The office of Regional Commissioner vide letter dated 30 &eceniber 2002 intimated respondent No.2 Ihat the dcte of birth as recor'ded in forro 'A' is l-9-1951. Copy of thesame is Annexure-P/7. Vide letter dated 16-8-2003 •the beputy Chief Personnel -Manoger, Bhatgcon Area referred the mertter to the Adrninistrotion Department regarding the finalization of the case of the petitioner. A Joint Bipartite Cofflmittee for the Coal Industry met and on 25-4-88 came with National Coal Wage Agreement III which was numbered as Instnjetion No. 76. The aforesaid agreement was in respect to the procedure/verification of the age of the employees for resolution of disputed cases of service records. In view of the above Instruction No. 76, respondent No.2 requested respondent No.l to place the cose of the petitioner before Age&etemiination Committee but nooction was taken on the said request. On 3-9-2003, a notice was served upon the petitioner regarding the retirement of the petitioner with effect from 1" October 2003 which is Annexure-P/10. Ultimately, the petitioner has requested for declaring the Annexure-P/10 as illegatond arbitrary ond for referring the matter of the petitioner be'for'e the Age Determination Committee. t •/ 6. 7. Return has been filed on behalf of respondents in which it has been mentioned that the petitioner ought to have approached the Industr'ial Dispute Court instead of filing the writ pefition befor-e this Court. The petitioner has raised disputed questions of faet which cannot be (adjudicated without proper appreeiation of the evidence. It is denied that the date of birth of the petitioner was recorded as 1-9-1951. The date of birth of the petitioner is 14-9-1943 which is based on form 'B', register No. 3887 maintained at Chirmiri Area and subsequently his lost pay cer'tificate was issued b/ the West Chirmiri Colliery on his tronsfer to Bhatgaon area in trfiich also his date of birth wos mentioned as 14-9-43. Hisservice register wvs prepored at Chirmir'i Area in the year 1987 in which also he has declared his date of birth as 14-9-43. Onjoining of the petitioner at Kalyani Project of Bhatgaon Ares, his form 'B'as psr- the provisions of Mines Act wos prepared on the bcsis of documents/details received from West Chirmiri Colliery his pravious place of posting/appointment. The date of birth of the petitioner hss been correctly mentioned as 14-9-43 based on the form 'B' which was prepared at Chirmiri and Bhatgaon, the release order of the petitioner on his transfer to Bhatgoon shows the date of birth of the petitioner as 14-9-43. In the L.P.C. issued by the Chirmiri Area the dote of birth of the petitioner was mentioned as 14-9-43 and service register prepared at Chirmir'i Area in the year 1987 also shows tha petitioner's date of birth <s 14-9-43, therefore, there is no substance in the petition of the petitioner and the sonte may be dismissed. I have heard the learned counsel for the parties. TTie iearned counsel for the petitioner submitted that the school leaving certificate shows his date of birth as 1-9-1951 and the initia! pay slips also show his date of birth as 1-9-81. The petitioner is an illiterate person ond his date of birth has been changed without his knowledge. Mot-eover*. when the pstitioner came to know about this fact, he immediately represented before the respohdents. In view of the dispute raised by thepetitioner, the respondents oight to hme referred the matter to the Age Datermination Cofflrnittee, but they -~^.' ••^/. have arbitreirily in spite of the documents in fqvour of the petitioner rejected the prayer of the petitioner. 8. On the other hand, the learned counsel for respondents argued that ^- the petitioner himself signed formi'B' in wftich the date of birth has been mentioned as 14-9-43 which are Annexures-R/1 and R/3, therefore; the petitioner cannot challenge at the fag end of the career and he relied upon the deeision of the Hon'ble Apex Court reported in (2003) 6 Supreme Court- Cases 483 in the matter of State of U.P. andothersVs.6ulaichi(Smt). Ihwe gone through the judgment. The Hon'bte Apex Court has held that" at the fag end of coreer correction can bs sought within a period, if prescribed under stotutory ruies or in absence thereof, under administrative instructions, should be followed and in absence of such rules or instructions, correction should be sought at least within a reasondble time. Or.us on the employee to proye, by adducing evidence, wrong recording of date of birth. 9. In the light of the above judgment, if we look into the petitioner's case the school leaving certificate submitted by the petitioner shows that his date of birth was'1-9-1951 ond the pay slips issued by respondents at the initiat stage of appointment also show his date of birth as 1-9-51 and declaration filed by the patitioner- Annexure-P/7 shows his dateof birth as 1-9-51 when the petjtioner in the year 1999 came to know about the change of his date of birth in the record. he started representing before respondents. A perusd of Annexures-R/1 and R/3 (For-m-'B') rsveals thot these forms were filled up only in the year 1999 when he was tronsferred to Bhatgaon. When the petitioner was appointed in the year 1972 he submitted his school lewing cer-tificate and based on that his date of birth was recorded as 1-9-51 and the pay slips issusd to the petitioner are also showing his date of birth as 1-9-51 and declaration Amexure-P/7 also shows 1-9-1951. The photo- state eopy submitted by respondents of the service register does not show when it wess filled. 10. After hearing the learned counsel for the parties and perusal of the record, it is clear that the reasoncble and piewsible dispute was rdsed by the petitioner by makjng r'epr'esentation in the year 1999 about th^. correctness of his date of.birth recorded in the service record which is evident from the school leavirg certificate, the pey slips issued by respondents and declaration Annexure-P/7. In the given situation, proper course for the respondents was that on account of the difference of date of birth in the schooi lewing certificate, pay slips of the petitioner and fopm- 'B' respondents oight to have referr'ed the matter as per clause B-(ii) of Instruction No. 76 which the respondents have not done. Therefore, in my opinion, the proper* course for respondsnts is that Ihey should t-efer the matter of the petitioner before the Age &etermination Committee. 11. As far as the question of mointainability of this petition is concerned, the learned counsel for respondents has not submitted anythirg on this. Even otherwise, laarned counsel for the petitioner could not point out anything that how the writ petition is not maintainable whereas. the respondents have not -followed the procedure envisaged in Instruction No. 76 and violcted the principle of natural justice, therefore, in my opinion the writ petition is maintainable. 12. In the result, the petition of the petitioner is allowed and respondents we direeted to refer the matt'er of the petitioner before the Age &etet'mination Committee and to implement as psr the decision communicated by the Age Determination Committee. 13. With these observations, the writ petition is disposed of. ^arve I* Sd/- LC.Bhados judge w