.3 9 c^ IN mGH COURT OF JUDICATURE OF CHHATTISGARH, AT BILASPUR INTHEMATTEROF W.P.NO. 85 OF 200^' MOTIRAM, AGED ABOUT 59 YEARS, S/0. SHRI BHARATRAM, R/0. NEAR DURGA MANDIR, NEW KHURSIPAR, BHILAI, TEHSIL & DISTRICT DURG (C.G.). 1 .INDUSTRIAL COURT OF M.P. (NOW CHHATTISGARH) KRISHNA SADAN, 16 HIG COLONY, SHANKAR NAGAR, RAIPUR, PRESENTLY SITUATED AT GHARI CHOUK RAIPUR (C.G.). 2. STEEL AUTHORITY OF INDIA LTD., LODHI ESTATE, NEW DELHI PETITIONER VERSUS :^>y ^ ,-°^ ^ ^^- ^ 3. MANAGING DIRECTOR ^ BHILAI STEEL PLANT, ^' BHILAI, TEHSIL & DISTRICT DURG (C.G.). 4.UNION OF INDIA TFIROUGH SECRETARY TPIE DEPARTMNT OF STEEL &MINES, NEWDELHI RESPONJDENTS WRIT PETITION UNDER ARTILCES 22§/22f7 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF AN APPROPRIATE WRIT ORDER OR DIRECTION AS MAY BE DEEMED FIT. r-- HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0. 85 OF 2004 Motiram 1 F^ ,^^•^^s^ Versus Industrial Court of M.P. (Now Chhattisgarh) and Others L. Post for pronouncement of the judgment and order on 7A day of December, 2009 Sd/- Satish K. Agnihotri Judge fl3 HIGH COURT OF CHHATTISGARH : BILASPUR r;7 i i:.i PETITIONER RESPONDENTS WRIT PETITION N0. 85 OF 2004 Motiram Versus Industrial Court of M.P. Chhattisgarh) and Others (Now (Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Pradeep Saxena, Advocatefor the petitioner. Shri Ashish Surana, Advocate for the respondents No.2 & 3. Ms Fouzia Mirza, Assistant Solicitor General for the Union of India/respondent No.4. ORDER (Passed on this 7 day of December, 2009) 1. The facts, in nutshell, as projected by the petitioner, are that initially the petitioner was appointed as Mazdoor Grade - 1 on 10-10-1963. Thereafter, he was confirmed on the post of Khalasi in the foundry and pattern shop of the Bhilai Steel Plant on 1-7-1965. On having come to know ih the year 1987 that the date of birth of the petitioner was recorded in the service book as 16-11-1936, the petitioner obtained a certified copy of the transfer certificate from the school, wherein, which was exhibited before the Labour Court, also the date of birth of the petitioner recorded in the school register was 25-1-1944. The petitioner thereafter made an application in the year 1988 before the respondent authorities for change of his date of birth, fS R ww .i ja ^5@r^ ".1; ^\,.../ -" •••^^y^ ^T) i^- which was rejected by the respondent authorities in its meeting dated 21-9-1989, as is evident from Annexures - P/6-A and P/6-B. The same was communicated to the petitioner on 13-10-1989 (Annexure - P/7). Being aggrieved by the aforesaid action of the respondent authorjties, the petitioner filed an application under the provisions of Section 31 (3) read with Section 61 ofthe MP/CG Industrial Relations Act, 1960 (for short "the Act, 1960") before the Labour Court, Durg, in case No.52/MPIR/94. The respondent authorities filed its written statement denying all the averments of the petitioner herein contending that the petitioner was examined medically on 9-10-1963 and he declared his age as 26 years before the Industrial Health Officer and, as such, the date of birth of the petitioner was accepted as 16-11-1936. There is no error. The transfer certificate dated 29-2-1988 could not be accepted, as the proof of date of birth. The Labour Court by order dated 3-2-1998 (Annexure - P/11) examined the original admission register of the school as well as the transfer certificate and came to the conclusion that there was no reason not to believe the old original admission register maintained by the school in the year 1944 and held that the date of birth of the petitioner was 25-1-1944. Accordingly, a direction was made to the respondents for grant of consequential benefits. Being aggrieved by the order of the Labour Court, the respondent authorities herein, preferred an appeal before the Appellate Authority i.e. Industrial Court, Bench at Raipur. The Industrial Court by order dated 30-9-2002 (Annexure - P/20) set aside the award passed by \c'\ the Labour Court holding that there was no reason to record wrong date of birth at the time of entry into service by the petitioner and, as such, the transfer certificate and original records of the school could not have been accepted. There is no error and the date of birth recorded in the service book of the petitioner is final and conclusive. Accordingly, the appeal filed by the respondent-authorities was allowed. Thus, this petition. 5. Shri Saxena, learned counsel appearing for the petitioner, would submit that the petitioner did not know Hindi or English at the time of joining of service. His date of birth was recorded without any basis. Even in the attestation form, it appears, the date of birth of the petitioner was initially recorded as 7-10-1943, which was later on scored out by the employer and a new date i.e. 16-11-1936 was recorded against the column No.7 of the attestation form i.e. exact date of birth and against the present age it was recorded as 26 years 10 months 22 days. There is a clear manipulation in the attestation form. There is no other document, which indicates the date of birth of the petitioner as 16-11-1936. Thus, the Industrial Court committed grave error in accepting the attestation form, which was manipulated and filled up later on by the employer. The medical certificate cannot be held as conclusive proof. Before the Labour Court the transfer certificate and the original register of the school were exhibited properly. In both the documents there is a clear mention of date of birth ofthe petitioner i.e. 25-1-1944 and, as such, there was no need to take different stand by the Industrial Court. Thus, the petitioner prays for quashing of the order dated 30-9-2002 passed by the \c,i fe^^.^s^s^ Industrial Court and restoring the order dated 3-2-1998 passed by the Labour Court. 6. On the other hand, Shri Surana, learned counsel appearing for the respondents No.2 & 3, while supporting the order passed by the tndustrial Court, would submit that the petitioner has not raised the dispute with regard to his date of birth for a long period i.e. 25 years, as the petitioner joined in the service in the year 1963 and raised the objection in the year 1988. The manipulation was notdone by the employer and it is well settled law that recording of date of birth in the service book is final andconclusive. 7. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 8. The circular No.87 dated 2-8-1974 (Annexure - P/2) provides for examination of date of birth as under: "2. The above difficultieshave been considered and in continuation to the earlier instructions, it has been decided that: 1. Wherever the date of birth/age of employee has already been established on the basis of any valid documents once produced, such as Educational Certificate, Grama Panchayat Certificate or Service Certificate from the previous employer etc., the same should not be changed at all. 2. If age/date of birth has already been declared by the employee (s) during the course of his service in the company at any stage by way of recording in the authentic documents, such as, Personal Data, Service Book, Attestation Form, application for admission to CPF, etc., duly signed by the employee and accepted by the Management, ^S3 9. the same should be treated as final and no more change be allowed at a subsequent stage. When a doubt exists due to different dates being given in different documents, the issue may be decided in consultation with Central Personnel Department. 3. In the absence of any documentary proof as indicated above, if the individual comes up with request for determination of his date of birth, the same may be examined strictly in accordance with the instructions contained in the circulars on the subject and the case decided accordingly. 4. Where the date of birth of employee has not been established at any stage, the department may ask such employees to produce any. of the documentary proofs as already specified within a reasonable period. If he does not produce the required documents, he should be referred to the Medical Officer of the company i.e. Sr. IMO for medical examination and date of birth decided on that basis. 5. No change in the date of birth should be allowed if such requests are received during the last five years of the service of emptoyee for any reason whatsoever. The above instructions may be followed strictly in all pending cases. The cases already settled need not be re-opened. Sd/- (N.K. Singh) Personnel Manager" Rules for determining the date of birth of employee of the company provides that: v \^ 4.0 Procedure/Rules: 4.1 Every employee must declare his date of birth in the application or the prescribed from, before his first appointment and must produce confirmatory evidence in support of his declaration as mentioned hereunder. No person should be allowed to join the sen/ices of the company without his date of birth having been declared/ recorded as prescribed. 4.2 The company resen/ed the right to ask at any time on employee to produce documentary evidence about his date of birth. 4.3 Each person entering the services of the company shall, in support of declaration of the date of birth, submit matriculation/ school final examination certificate or equivalent examination or school leaving certificate. 4.4 In case of those who have not passed matriculation/school final examination/ equivalent examination at the time of entering the service, the following documents containing his date of birth may be accepted as evidence of age, in the order in which they are enumerated below (in other words evidence of (4) will be accepted only if evidence at (a) is not prescribed, and so on. (a) School certificate from the education institution where the candidate/employee studied. (b) Service record/service certificate issued by previous employer, in case of candidates/employees who had been in the employment under public sector enterprises/ government departments or a local body prior to join in SAIL. \^s '^^w^^5^m^m (c) Attested extract from the register of Birth & Death maintained by the Panchayats, Municipality, Municipal Corporation, Town/notified or an appropriate authority. (d) Baptism certificate from Church in case of Christian employee/ horoscope in case of Hindu employees. (e) Certificate of birth from Government hospitals where the candidate/ employee was born. 4.9 Once the date of birth is accepted and recorded in accordance with provisions of para 4.4 at the time of joining or thereafter or as determined as per provisions of para 4.6 it shall become final and binding. 4.10 In respect of those employee whose date of birth has already been recorded in the descriptive roll/declaration form/ service book of the employee and signed/thumb impressed by him, the date so recorded shall be deemed as final and binding." 10. The Assistant Manager (P-FPS&S), Steel Authority of India Limited, Bhilai Steet Plant, in his order dated 8-9-1988" has stated that the petitioner clearly mentioned his date of birth as 16-11-1936 and shown his educational qualification as Nil. Thus, the request made by the petitioner for correcting his date of birth after 25 years was rejected. 11. On perusal of the transfer certificate, it appears that the said certificate was original and the date of birth of the petitioner was recorded as 25-1-1944. In support of the certificate, original \^ ^m^i^Sg^^' 12. admission register was also produced by the petitioner before the Labour Court wherein the date of birth of the petitioner was shown as 25-1-1944. Initially in the attestation form the date of birth and age of the petitioner was recorded as 7-10-1943 and 20 years, which was later on scored out by the employer and changed to 16-11-1936 and 26 years 10 months 22 days. There is no signature of either fhe employee or the employer. Thus, the same creates doubt that the correction was done subsequently, which is in the nature of manipulation. Therefore, the contention ofthe respondent authorities that the date of birth recorded in the service book and attestation form is final cannot be accepted, as the original date of birth recorded in the attestation form was changed by manipulation without signature. In absence of proper date in the attestation form, the reliance has to be placed on the school leaving certificate and the admission register maintained by the school way back in the year 1944. In Secretary & Commissioner, Home Department & Others v. R. Kriubakaran1, the Supreme Court observed as under: "7. An application for correction of the date of birth should not be dealt with by the tribunal or the hligh Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public sen/ant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time 1994 8upp(1)8cc 155 lt>7 .,.»...•..-^^<^^^ ^ISlSN®^^^^ many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases arenot unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect,which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausibte....." 13. The Supreme Court in State of U.P. and Others v. Gulaichi (Smt.)2 observed as under: ^s-s-a^^.^ "8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records.But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about thejr records, by eitherinvoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not." 14. In G.M. Bharat Coking Coal Ltd. West Bengal v. Shib Kumar Dushad and Others , the Supreme Court observedas under: "17. The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of 2 (2003) 6 SCC 483 3 (2000) 8 SCC 696 10 \s^ ISifi^t^t-^-^^-^^ retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should bear in mind that a change of the date of birth long after joining sen/ice, particularly when the employee is due to retire shortly, will upset the date recorded in the semce records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature. We are constrained to make this observation as we find that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the courts are indined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialise, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement ofthe senior." 15. In Hindustan Lever Ltd. v. S.M. Jadhav and Another4, the Supreme Court observed that the employee cannot be allowed to raise a dispute with regard to the date of birth at the fag end of his service career. 16. It is trite that no request for change of date of birth may be entertained at the fag end of the sen/ice career of an employee in normal circumstances. In the same line clause 2 (5) of the circular dated 2-8-1974 provides that no change in the date of birth should be ^ bl 4 (2001) 4 SCC 52 d ^^y^:^ ./!^^"'%: (^ '%. 11 & ^w^1'1 \^J Ci S-i^"-^--^- Igtlt^^f?^^^" J-^^-^~^i^^^s^^:^^ atlowed if such requests are received during the last five years of the service of employee for any reason whatsoever. 17. In the case on hand, the petitioner was made to retire from his service on 16-11-1994 treating the date of birth of the petitioner as 16-11-1936. The application for change of date of birth was made by the petitioner before 5 years of his retirement, not within 5 years. 18. A common thread running into all the decisions cited above is that unless a clear case on the basis of materials may be made as conclusive in nature, the Court should not issue a direction for change of date of birth. In the instant case, the date of birth recorded in the attestation form and other places is not conclusive, as there is a clear manipulation unsigned by an authority or employee, as it was initially recorded as 7-10-1943, but thereafter it was changed as 16-11-1936. The petitioner has proved his case by school admission register and transfer certificate, which can be held conclusive in nature. Thus, in the facts of the case the order passed by the Labour Court is unexceptionable. 19. In view of foregoing, the order dated 30-9-2002 passed by the Industrial Court is set aside and the order dated 3-2-1998 passed by the Labour Court is restored. 20. In the result, the writ petition is allowed. No order asto costs. Gowri Sd/- Satish K. Agnihotri Judge