Letters Patent Appeal No.591 Of 1995 Against the judgment and order dated 3.2.1995 passed by a Single Bench of this Court in C.W.J.C.No. 7182 of 1993. BIHAR STATE SUGAR CORPN.LTD. & anor.--------------------Appellants Versus MAHENDRA PRASAD SINGH & ANR----------------------------Respondents For the appellants : Mr. Nikesh Kumar, Adv. For the respondent no.1: Mr. Amber Nath Banerjee,Adv. For the State : Mr. Ranjan Kumar, J.C. to AAG IV. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE JUSTICE MRS. REKHA KUMARI Shiva Kirti Singh & Rekha Kumari,J.J., Heard the parties. 2. The appellants, Bihar State Sugar Corporation Limited (hereinafter referred to as „ the Corporation‟) and its Managing Director have preferred this Letters Patent Appeal against the judgment and order dated 3.2.1995 passed in C.W.J.C.No. 7182/1993 whereby the Hon‟ble Single Judge accepted the claim of respondent no.1 (writ petitioner) that his date of birth is 29.3.1941 and therefore, he would superannuate on 28.3.2001 and that the writ petitioner was wrongly made to superannuate with effect from 31.7.1993 by treating his date of birth as 31.7.1933. 3. From the records it appears that earlier this appeal was dismissed by the judgment and order dated 21.5.1997. The appellants challenged the said judgment of the Division Bench before the Hon‟ble Supreme Court. Their appeal bearing Civil Appeal No. 3517/1998 was allowed on 24.7.1998 and the Apex Court after setting aside the judgment and order of the Division Bench of this Court remitted the matter for hearing of the appeal afresh on the basis of the observations made by the Hon‟ble Supreme Court. That judgment and order of the Supreme Court is on record as Annexure 5 to I.A.No. 1607/1999. A perusal of that order shows that the view of this Court in L.P.A. that a document described as Form „A‟ containing a declaration by the writ petitioner should not be taken into 2 consideration at the stage of appeal, was not approved by the Apex Court. The Apex Court observed that Form „A‟ was an important piece of evidence and it was not proper for the High Court to prevent the appellant from bringing it on the record of the case. It was further observed that if that document is accepted as genuine then it will prove the contention of the appellant that the correct date of birth of the respondent is 31.7.1933 and not 29.3.1941. 4. After remand this Court has passed an order on 12.5.1999 to the effect that the original Form „A‟ filed by the appellants alongwith the supplementary affidavit will be kept under sealed cover and made available at the time of hearing. The copy of Form „A‟ is already available on record as Annexure 3 to the Memorandum of this Letters Patent Appeal. 5. It has been submitted on behalf of the appellants that the Writ Court placed strong reliance on a transfer certificate said to have been issued by the Headmaster of Sri Ganesh B.K.Sahu H.E.School, Warisaliganj, Gaya in 1960 to accept the claim of the writ petitioner that he was born on 29.3.1941. According to the learned counsel for the appellants in the said transfer certificate which is annexed as Annexure 6 to the rejoinder affidavit filed on behalf of the writ petitioner the name of the student is described as Mahendra Prasad Sinha and not Mahendra Prasad Singh, which is the name being claimed by the writ petitioner. It has further been submitted that according to the said certificate the student left the school as a student of Class XI in the year 1957 but surprisingly the petitioner, who admittedly joined the service in Mohini Sugar Mills, Warisaliganj on 16.12.1957, did not claim date of birth to be 29.3.1941 as would appear from Form „A‟, a declaration given by the petitioner at the time of joining the service in Mohini Sugar Mills when it was a private owned enterprise. According to the entries in the relevant columns of Form „A‟ the name of the petitioner is described as Mahendra Prasad Singh with the same address and parentage as is claimed by 3 him in the writ petition and the date of birth is recorded as 31.7.1933. It contains details of his family connections as well as friends or relatives working in the said organization and against column no.5 showing experience the declaration is NIL. Hence, the declaration appears to have been given at the time of entry into service when experience of the petitioner was NIL. 6. It has further been submitted on behalf of the learned counsel for the appellants that in the writ petition the petitioner did not disclose about his earlier service prior to 1974 but ultimately admitted the same when the facts were disclosed in the counter affidavit. Learned counsel has highlighted that the claim of the petitioner in respect of his date of birth being 29.3.1941 appears to have seen light of the day only after 1974 when Mohini Sugar Mills, Warisaliganj which had remained closed since 1969 after being run by a Co-operative for some time under a different name was revived in 1974 at the initiative of the State Government and was taken over by the Government in 1976. He has submitted that in 1974, as would appear from Annexure 1 to the writ petition, the writ petitioner secured fresh appointment on account of priority given to the past workers and it was since then that he changed the date of birth contrary to records maintained in regular course of business in Mohini Sugar Mills where he had been contributing to the provident fund scheme and in connection with the same his details alongwith the details of other employees had been communicated by the mill. In the said records available with the provident fund authorities age of all the ex-employees of Mohini Sugar Mills/ Warisagliganj Co-operative Sugar Mills have been calculated against their account numbers, as existing on 1.8.1956. The said list, which is Annexure 5 to this L.P.A., shows that the entries in respect of age are in hand against a column introduced by hand between column nos. 2 and 3 which runs as follows : “ As on 1.8.1956” 4 7. According to the learned counsel for the appellants the name of the writ petitioner appears at serial 78 and his age was calculated to be 23 years as on 1.8.1956. He has submitted that the date 1.8.1956 has no relation to the date of entry into the service but has been used for a different purpose because the employees provident fund scheme was introduced with effect from that date. He has further submitted that even if the date 1.8.1956 was not very relevant, as a fact the age of all the ex-employees of Mohini Sugar Mills, Warisaliganj is correctly indicted in Annexure 5 to the L.P.A. and it is supported by the age of the writ petitioner as given out by him in the declaration in Form „A‟ which bears his signature. According to the learned counsel for the appellants, the documents relied upon by the writ petitioner have been created at a later date only to support his subsequent claim that he was born on 29.3.1941 and hence, those documents which have been discussed and relied upon by the writ Court are not safe and reliable and the writ Court should not have given a firm finding that the date of birth of the writ petitioner is 29.3.1941 and not 31.7.1933. According to him, there was no sufficient reliable material to interfere with the decision of the employer regarding date of birth of the writ petitioner on the basis whereof he was informed by the communication dated 1.7.1993 (Annexure 4 to the writ petition) that he would superannuate with effect from 1.8.1993. 8. On the other hand, learned counsel for respondent no.1 has submitted that Form „A‟ which is now required to be considered by this Court pursuant to the order of the Supreme Court, is not a reliable document because the signature of the writ petitioner describes his name as Mahendra Prasad Sinha and not Mahendra Prasad Singh which is his actual name. He has further submitted that the calculation of age in the records of the Regional Provident Fund Commissioner, Bihar, Patna, which has been annexed as Annexure 5, is not reliable unless it is found that the date of birth of the writ petitioner given in Form „A‟ is correct and reliable. 5 9. In the facts of the case and in view of rival contentions, it is clear that the issue falling for decision in this appeal is whether the writ petitioner has succeeded in establishing that the authorities of the Corporation have erred in treating his date of birth as 31.7.1933 and further whether he has succeeded in establishing by reliable materials that his date of birth is 29.3.1941. 10. So far as the documentary evidence adduced on behalf of the appellants are concerned, they are definitely of an earlier period when the writ petitioner was an employee of Mohini Sugar Mills, Warisaliganj whereas documents relied upon by the writ petitioner are either of later date or have seen the light of the day much later. This Court further finds that if the declaration contained in Form „A‟ is found to be that of the writ petitioner then there is no scope from the conclusion that his date of birth is 31.7.1933 and the decision of the Corporation in the impugned order contained in Annexure 4 of the writ petition is correct and requires no interference. On perusal of Form „A‟ it is clear that the signature discloses the name of the employee as Mahendra Prasad Sinha but in column no.1 the name given is Mahendra Prasad Singh with address and parentage matching with that of the writ petitioner. The sheet anchor of the writ petitioner‟s claim i.e. the transfer certificate contained in Annexure 6 to the rejoinder filed on behalf of the petitioner in the writ application discloses the name of the student as Mahendra Prasad Sinha and hence, it completely demolishes the main objection raised on behalf of the petitioner in respect of Form „A‟ that it has been signed by a different person named as Mahendra Prasad Sinha. He has himself claimed the transfer certificate to have been issued in his favour. Hence, it is clear that the writ petitioner in fact uses his surname as „Singh‟ and also as „Sinha‟ on different occasions. On a careful comparison of the petitioner‟s signature on Form „A‟ particularly his first name with his signature available on other documents 6 admittedly bearing his signature in English, this Court is convinced that the signature on Form „A‟ is in the pen of the writ petitioner. 11. The aforesaid finding is sufficient to dislodge the claim of the writ petitioner as raised by him in the writ petition. However, it will be useful to refer to another document dated 12.7.1993 which is a representation filed by the writ petitioner before the General Manager of the Corporation in respect of the impugned communication dated 1.7.1993 and has been annexed as Annexure 10 to a supplementary affidavit filed on behalf of the petitioner on 1.2.1995. In paragraph 4 of that representation (Annexure 10) the writ petitioner has claimed that after his fresh appointment on 19th July,1974, by a communication dated 24.9.1975 the management had asked him to furnish his date of birth, educational qualification and experience certificate etc., which had been furnished by him and on that basis information had been sent by the office to the Provident Fund authorities and in that on 25.7.1974 his age was shown to be 35 years. He has written 35 in letters as well as in figures and thereafter he has claimed that on the basis of that age he should be superannuated in 1999. This document clearly demolishes the claim raised by the writ petitioner in the writ petition that he was born on 29.3.1941 and therefore, he be allowed to superannuate on 28.3.2001. It is clear that the writ petitioner has been taking shifting stands in respect of his date of birth. In the original writ petition he had totally concealed his past service in Mohini Sugar Mills and he admitted the same only after the relevant facts were disclosed in the counter affidavit. 12. In view of the aforesaid facts we find sufficient force in the submissions advanced on behalf of the appellants that the authorities of the Corporation were justified, on the basis of the records and materials to intimate the writ petitioner that he would superannuate on 1.8.1993 on completing 60 years of age. The documents produced on behalf of the writ petitioner are not of 7 impeachable quality and do not persuade or to accept his claim that his date of birth is 29.3.1941. 13. As a result, we have no option but to reverse the judgment of the writ Court and allow the appeal. The appeal is allowed with a cost of Rs.1,000/-. We have not awarded appropriate cost only because the writ petitioner has retired from service. If the retiral dues of the writ petitioner have not been paid on account of this litigation then the same should be paid to him without any delay. ( Shiva Kirti Singh,J.) ( Rekha Kumari,J.) PATNA HIGH COURT Dated 17th April,2008 Surendra/ NAFR.