IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 31986 of 1998 Between: Sandanala Yellaiah, S/o. Rayalingu, R/o. Mandamarri in Adilabad District. ..... PETITIONER AND 1 The Singareni Collieries Company Limited, Rep. by its General Manager, Regd.Office at Kothagudem Collieries, Bhadrachlalm Road, Kothagudem. 2 The Geneeral Manager, Singareni Collieries Company Limited, Mandamarri, KALYAN KHANI P.O., Adilabad District. 3 The Superintendent of Mines, KK-5, Incline, Singareni Collieries Company Limited, Mandamarri, Kalyan Khani P.O., Adilabad District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for the records from the 3rd respondent and issue appropriate writ, order or direction, more particularly one in the nature of WRIT OF MANDAMUS declaring that the retirement order issued by the 3rd respondent in proceedings No.K5/98/5/3733 dated.31.10.1998 is illegal, unjust, contrary to law, arbitrary and discriminatory, in violation of principles of natural justice, amounts to unfair labour practice and violative of Articles 14,16 and 21 of the Constitution of India and grant all consequential benefits. Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondents: MR.K.SRINIVASA MURTHY The Court made the following ORDER: THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.31986 OF 1998 ORDER : In this writ petition, the petitioner, who has retired as a Coal Filler from Singareni Collieries Company Limited, seeks a Mandamus, declaring the action of respondents in issuing the impugned retirement orders in proceedings No.K5/98/5/3733, dated 31.10.1998, as illegal and arbitrary. By the said order, the petitioner was intimated by the respondents that he was attaining the age of superannuation on 31.10.1998, on completion of 60 years. 2. The petitioner is an illiterate. He entered into the service of Singareni Collieries Company Limited, a Government Company, on 08.10.1976 as a Badili Worker. As his date of birth has not been furnished by acceptable documents, he was referred to medical examination for assessment of his age. The record shows that the Senior Medical Officer, Colliery Hospital at Bellampalli has examined the petitioner and assessed his age as 38 years on the date of medical examination i.e., on 08.10.1976. Though there is no separate service record for the employees of this category, the respondents are maintaining a book showing the service particulars, which is called the Identity and Service Card. As per the entries in the Service Card, as on 08.10.1976, the age of petitioner was mentioned in figures as 28 years, but in words, it was mentioned as 38 years. Further, in B-Register, which is maintained as per the Mines Rules, 1955, the age of the petitioner was mentioned as 28 years as on 08.10.1976. It is the case of the petitioner that though his age was mentioned as 28 years in the Service Card, without giving an advance notice as required under various circulars issued by the Singareni Collieries Company Limited, the respondents have issued the impugned proceedings, mentioning the date of his superannuation as 31.10.1998, which is illegal and arbitrary. It is his case that as his age was mentioned as 28 years in the Service Card and also in B-Register, there is no reason or justification in retiring him by the impugned proceedings, at the age of 50 years. 3. After filing this writ petition, at the stage of admission, this Court granted interim orders directing the respondents to continue the petitioner in service. In view of the said interim orders, it is stated that the petitioner was continued in service and that on attaining the age of superannuation even if his age was taken as 28 years as on 08.10.1976, he was retired from service on 31.10.2008. 4. In the counter affidavit filed on behalf of the respondents, it is stated that the petitioner has entered into the service of the respondent-Company on 08.10.1976. As he was illiterate, his age was assessed by referring his case to the Medical Officer, who has assessed his age as 38 years, but not 28 years, as on 08.10.1976. It is also stated that even in the Service Card, in words, it was mentioned as 38 years, but not 28 years. However, it is admitted that in cases, where an apparent wrong entry is there, such of the cases are to be referred to the Age Determination Committee/Medical Board and the decision thereupon is final. 5. Heard Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, and Sri K.Srinivasa Murthy, learned Standing Counsel appearing for the respondents. 6. It is submitted by Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, that inasmuch as the age of the petitioner was assessed at the entry level, and his age was shown as 28 years on the date of medical examination i.e., on 08.10.1976, there is no authority or jurisdiction to the respondents to issue the impugned proceedings, retiring the petitioner w.e.f., 31.10.1998. In support of his argument, he placed reliance on a judgment of this Court in the case of Kotte Rajam v. Singareni Collieries Company Ltd., Kothagudem, Khammam District[1], and also on a judgment of the Supreme Court in Mohd.Yunus Khan v. U.P.Power Corporation Limited[2]. 7. On the other hand, it is submitted by the learned Standing Counsel appearing for the respondent-Company that though the age of the petitioner is clear from the medical certificate itself, which was prepared at the time of entry of the petitioner into service, and which shows that he was aged about 38 years, there was a mistake in entering the numerical figures in the Service Card with regard to the age of the petitioner. It is submitted that in the Service Card also, it was clearly mentioned as 38 years in words. In that view of the matter, there is no illegality in issuing the impugned proceedings, retiring the petitioner w.e.f., 31.10.1998. 8. At the time of arguments, the learned Standing Counsel appearing for the respondents has placed the original Service Card relating to the petitioner. A perusal of the same discloses that when the petitioner has entered into service in the year 1976, he was referred to Medical Officer, who assessed the age of the petitioner as 38 years, but not 28 years. However, in the Service Card, it was mentioned as 38 years in words, but somehow, it was mentioned as 28 years, in figures. In that view of the matter, it is a clear case of apparent discrepancy in the records with regard to the age of the petitioner. 9. Though as per the circular instructions, an advance notice is required to be issued to the petitioner, intimating the date of retirement, for the reasons best known to the respondents, the impugned proceedings were issued just on the date of retirement of the petitioner, which made him rush to this Court, and in view of the interim orders passed by this Court, he was continued for about 10 long years and retired from service on 31.10.2008. 10. In view of the fact that the petitioner had completed full service, taking into account his age as 28 years as on the date of his entering into service, the only aspect which requires consideration at this stage is, as to what is the age of the petitioner, whether 28 years or 38 years; as on 08.10.1976, for the purpose of extending the retiral benefits. 11. The petitioner was continued in service beyond 31.10.1998 and was also paid salary for the said period. The question of recovery of arrears of salary cannot be allowed, at this stage. Though the learned counsel for the petitioner has placed reliance on the judgment of this Court i n Kotte Rajam v. Singareni Collieries Company Ltd., Kothagudem, Khammam District (supra 1), the same is not applicable to the case on hand having regard to the fact situation in the present case, for the reason that in the Service Card itself, there is a discrepancy with regard to the age of the petitioner in figures and words. Further reliance was placed on the judgment of the Supreme Court in Mohd.Yunus Khan v. U.P.Power Corporation Limited (two supra), where there is an application by the employee of U.P.Power Corporation Limited, seeking correction of entry in the Service Record and it was held that there was left over service of four years and the Management has conceded for correction by entertaining his application. In the contextual facts of the case on hand, even the said ratio is not helpful to the case of the petitioner. 12. Inasmuch as the petitioner was continued in service for about 10 years even beyond 31.10.1998, and he was paid salary for that period, and even as per the circular instructions, when there is apparent discrepancy in the date of birth, the matters are required to be referred to the Age Determination Committee or the Medical Board, this Court is of the view that this is one such case to be referred to the Medical Board for resolving the dispute as to the age of the petitioner. 13. In the circumstances, the respondents are directed to refer the case of the petitioner to the Medical Board for age determination, so as to arrive at the conclusion as to whether he was aged 28 years or 38 years as on the date of entry into service i.e., 08.10.1976, by assessing the present age of the petitioner, within a period of four weeks from the date of receipt of a copy of this order and take steps accordingly. As it is mentioned that the retiral benefits have not been paid to the petitioner so far, it is needless to mention that determination of age of the petitioner shall be done as expeditiously as possible, within a maximum time limit of three months from today. It is also clarified that irrespective of the decision of the Medical Board, the salary paid to the petitioner for his service rendered beyond 31.10.1998 shall not be recovered. In case, the Medical Board confirms the age of the petitioner as 38 years as on 08.10.1976, the service rendered by the petitioner beyond 31.10.1998 shall be treated as a just service. 14. The writ petition is allowed to the extent indicated above. No order as to costs. _____________________ R.SUBHASH REDDY, J Dt.23.03.2009 VGB [1] 2008 (6) ALD 668 [2] (2009) 1 SCC (L&S) 83