IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 OP.No. 8516 of 2003(L) ---------------------- PETITIONER: ------------ K.C.CHACKO, S/O. CHACKU, AGED 52, KIDANGEL HOUSE, NILEESWARAM P.O., KALADY, WORKING AT SLR WORKER, M.I.SECTION, KALADY. BY ADV. SRI.P.SANTHALINGAM SMT.K.USHA RESPONDENTS: ------------- 1. EXECUTIVE ENGINEER, MINOR IRRIGATION KAKKANAD, ERNAKULAM. 2. ASST.EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION, ALUVA. 3. ASST.ENGINEER, MINOR IRRIGATION SECTION, KALADY. BY GOVERNMENT PLEADERSRI.K.SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.14826 OF 2003 IN OP.NO.8516 OF 2003-L DISMISSED 4.2.2008. SD/= P.N. RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF COMMUNICATION NO.KM.1/99/99 DTD 23.11.99 ISSUED BY R1. EXT.P2 COPY OF LETTER OF THE PETITIONER DTD 17.12.99 FURNISHING THE DOCUMENTS. EXT.P3 THE SENIORITY LIST OF THE PETITIONER AS A CLR WORKER AUTHENTICATED BY THE RESPONDENTS. EXT.P4 COPY OF JUDGMENT IN OP.NO.6276/01 DTD 23.2.2001. EXT.P5 REPRESENTATION DTD 1.1.02 SUBMITTED BY THE PETITIONER. EXT.P6 COPY OF THE COMMUNICATION NO.A4-862/01 DTD 14.6.02 ISSUED BY R1. EXT.P7 COPY OF BIRTH CERTIFICATE ISSUED BY THE VICAR OF ASSUMPTION MONASTERY CHURCH, NEELEESWARAM. EXT.P8 COPY OF THE ELECTION IDENTITY CARD SHOWING THE AGE OF THE PETITIONER AS 49 YEARS AS ON 1.1.1997. EXT.P9 A COMMUNICATION DATED NIL ADDRESSED TO THE PETITIONER AS SLR WORKER BY R3. EXT.P10 COPY OF LETTER NO.4411/A2/02 DTD 3.1.2004. EXT.P11 COPY OF AFFIDAVIT DTD 3.5.04 SUBMITTED BY THE PETITIONER. EXT.P12 COPY OF COMMUNICATION NO.KMI/99/99 DTD 15.5.04. EXT.P13. COPY OF AFFIDAVIT DTD 16.6.04 SUBMITTED BY THE PETITIONER. EXT.P14 COPY OF THE LETTER NO.4411/A2/02/WRD DTD 3.1.2004 ISSUED BY THE WATER RESOURCES DEPARTMENT TO THE PETITIONER. EXT.P15 COPY OF THE LETTER NO.9334/A2/06/WRD DTD 12.6.06 ISSUED BY THE WATER RESOURCES DEPARTMENT TO THE PETITIONER. EXT.P16 COPY OF THE LETTER IN PEN-06/DA/PENA/789/06-07 DTD 15.9.07. /TRUE COPY/ cl P.N. RAVINDRAN, J. --------------------------------------------------------------- O.P.NO.8516 OF 2003-L -------------------------------------------------------------- Dated this the 4th day of February, 2008. JUDGMENT The petitioner, a S.L.R worker since 20.11.1999, has filed this original petition aggrieved by the denial of salary from 20.11.1999 onwards on the short ground that he did not furnish proof of his date of birth. 2. According to the petitioner, his date of birth is 2.5.1948. He has stated in the original petition that he joined the Minor Irrigation Department as a H.R.Worker in the year 1982. It is submitted that he subsequently became a CLR worker and was later absorbed as a SLR worker on 20.11.1999. Ext.P3, the seniority list of SLR workers produced along with the original petition shows that the petitioner's date of birth is 5.4.1948. However, by Ext.P1 letter dated 23.11.1999, for the purpose of regularisation as SLR worker, the 3rd respondent directed the petitioner to produce besides other documents a certificate to prove his age. The petitioner states that he had along with Ext.P2 letter dated O.P.No.8516/2003 . 2 17.12.1999 produced a copy of the voter I.D Card issued by the Election Commission of India to prove his age. Since the petitioner was not paid wages/salary after 20.11.1999, he filed O.P.No.6276/2001 in this Court. By Ext.P4 judgment delivered on 23.2.2001 this Court directed the third respondent therein to consider the grievances set out by the petitioner in his representation and to pass appropriate orders thereon within a period of three weeks from the date of receipt of a copy the judgment. It is stated that the first respondent thereafter issued Ext.P6 letter dated 14.6.2002 informing the petitioner that he was not regularised in service as a SLR worker in the absence of proof of his date of birth and that he is not entitled for payment of wages. The petitioner was also informed that his case will be considered as and when the concerned document is produced. The petitioner had in the meanwhile submitted Ext.P5 representation to the Honourable Minister for irrigation. The State Government considered the said representation in consultation with the Chief Engineer and directed the petitioner in Ext.P10 letter dated 3.1.2004 to produce proof of age as required by Rule 143(1)(ii) of Part III K.S.R. The Superintending Engineer communicated Ext.P10 to the respondents herein with a direction to redress the petitioner's grievances in the O.P.No.8516/2003 . 3 event of the petitioner producing proof of his date of birth in terms of Rule 143. The petitioner states that thereafter he submitted Ext.P13 affidavit sworn to by his father on 16.6.2004 before M. Ramamchandra Menon, Notary, wherein the petitioner's father had affirmed and declared that the petitioner's date of birth is 2.5.1948. 3. The learned counsel for the petitioner submitted that on the basis that his date of birth is 2.5.1948 the petitioner retired from service during the pendency of this original petition on attaining the age of superannuation on 1.5.2003. This submission is opposed by the learned Government Pleader appearing for the respondents on the ground that the respondents do not admit that the petitioner had worked continuously from 20.11.1999 onwards as SLR worker and that he was not regularised as SLR worker. 4. Instruction I to Rule 143 of Part III K.S.R reads as follows: “The entry in the Service Book regarding date of birth should indicate on what evidence the date of birth was accepted. The following documents shall be considered as satisfactory proof of date of birth. O.P.No.8516/2003 . 4 (i) In the case of persons who have attended a recognised School/College the School Leaving Certificate or an authenticated extract of the admission register of the School or College where the employee last studied. (ii) In the case of others an authenticated extract from the birth register or Baptismal Register or a certificate issued from a Muslim Jama-at, the correctness of which is certified by a Gazetted employee or a certificate by a Magistrate or other well known or trustworthy person in the town or village or original copy of horoscope, or correspondence at the time of birth supported by a declaration before the Head of the Office or an affidavit of the parent of the person or a close relative who has knowledge of the approximate date of birth of the person, signed before an officer who is competent to administer oath. (Emphasis supplied) These documents shall also be accepted in the case of persons who have attended a School/College but whose date of birth cannot be proved by the School or College records by reason of the fact that the relevant records of the School or College have after due enquiry been found destroyed.” 5. The petitioner has admittedly not attended school and hence he is not in a position to produce the school records in proof of his age. Instruction 1 to Rule 143 of Part III KSR extracted above stipulates that documents referred to therein can also be accepted in the case of persons who have attended schools/colleges in certain O.P.No.8516/2003 . 5 contingencies. The respondents have not disputed the fact that the petitioner has produced the original of Ext.P13 affidavit sworn to by his father and attested by a Notary on 16.6.2004. Hence, the only question that now remains to be considered is whether the affidavit sworn to by the petitioner's father and attested by a Notary is one that satisfies the requirement of Instruction I to Rule 143 of Part III KSR. A reading of Instruction I to Rule 143 of Part III KSR discloses that an affidavit of the parent or a close relative who has knowledge of the approximate date of birth of the person concerned, signed before an officer who is competent to administer oath, can be accepted as proof of the date of birth of the concerned employee. 6. I shall now consider whether Ext.P13 affidavit sworn to by petitioner's father and attested by a Notary is one which satisfies the said requirement. Section 8 of the Notaries Act, 1952, (hereinafter referred to as the Act) sets out the functions of a Notary. Section 8(1) (d) makes it clear that a Notary is empowered to administer oath or to take affidavit from any person. On a plain reading of Instruction I to Rule 143 of Part III KSR and Section 8(1) (e) of the Notaries Act, 1952, it is clear that Ext.P13 is an affidavit O.P.No.8516/2003 . 6 sworn to and singed before an officer competent to administer oath. 7. In the view that I have taken, I direct the respondents to accept the original of Ext.P13 and to act on it and to release the salary/wages payable to the petitioner in accordance with law and at the applicable rates. Needless to say the retirement benefits if any payable to the petitioner shall also be fixed and paid to him. Arrears of salary and arrears of pension shall be paid to the petitioner based on the service rendered by him and he shall also be given the benefit of revision if any in the wages/salary effected after 20.11.1999. The respondents shall take steps to fix and pay the salary and retirement benefits payable to the petitioner within a period of three months from the date of receipt of a copy of this judgment. However, I make it clear that I have not expressed any opinion on the claim of the petitioner that he has been in continuous service since 20.11.1999 till his retirement on 1.5.2003 and the rival submission made by the learned Government pleader that he was not continuously in service. In order to enable the respondents to comply with the directions contained in this judgment, the petitioner shall produce a certified copy of this judgment before the third O.P.No.8516/2003 . 7 respondent, who shall immediately on receipt of the same initiate proceedings to comply with the directions issued herein. I make it clear that if the benefits payable to the petitioner in terms of the directions issued herein are not disbursed within the time fixed herein, the petitioner shall also be paid simple interest on the monetary benefits that he is found entitled to at the rate of 9% per annum. The amount, if any, paid to the petitioner by way of interest shall be recovered from the officers responsible for the delay in complying with the directions contained herein. With the above directions, the original petition is disposed of. No costs. P.N. RAVINDRAN, JUDGE. cl O.P.No.8516/2003 . 8 P.N. RAVINDRAN, J. O.P.NO.8516 OF 2003-L JUDGMENT 4th February, 2008.