Case: SHANKAR LAL Vs. HINDUSTAN COPPER LTD. &amp; ORS

recorded of the appellant in the service book was an act by mistake. This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellants employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted mistake as the cause for different entries in different documents. 19. The other point on which argument has been advanced on behalf of the employer is on the aspect of delay on the appellants part in questioning the mistake in the Form B. It has been urged by the respondents counsel that they had extended the sum as per the VRS package computed on the basis of 21st September 1945 as his date of birth and complaint on that count was raised by the appellant after receiving such benefits. It is their case that the anomaly was discovered sometime in July--August 2002 and the appellant was asked to appear before a higher authority, which he did on 16th October 2002. The note sheet of the appellants meeting with the Assistant General Manager on 16th October 2002 has been annexed to the respondents counter-affidavit marked as R1. The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject- dispute is concerned. Fact remains that this note--sheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form B entry for computing his age. 20. The said document came into existence after the appellant was released from his service on 3rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26th October 2002. Thus, the process of fixing of the appellants date of birth had continued beyond the date on which he was released from his service. 21. We do not think the appellants complaint over the dispute was belated so as to non--suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employees application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latters service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant. 22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form B is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. The appellant had joined the said organisation as a miner on completion of his one--month training in the temporary job. Communication to that effect was issued on 8th September 1971. We have already referred to different documents emanating from or maintained by the employer themselves where his date of birth was shown to be 21st September 1949. In the computation sheet of his estimated VR benefit also the same date of birth was reflected. By that time, the post the appellant was holding was that of drifter operator (a copy of the estimate sheet forms part of the paperbook, at page 38). The appellant was relieved from his service on 3rd October 2002. The appellants case is that he came to know that his date of birth was being altered only after he was relieved from service. From the materials available on record, we find reference to his date of birth as 21st September 1945 for the first time in a form issued by the employer on 22nd March 2003. The top portion of this form (a copy of which appears at page 47 of the paperbook) carries an endorsement made by the Assistant Manager of the first respondent: - Date of birth: 21.09.1945 as per B Form. Immediately below this sentence there is recordal that D.O.B: 21.09.1949 as per H.O. Application. Rest of the said form contains other particulars of the appellant, which also includes his date of birth, filled in as 20th September 1949. The appellant, however, had knowledge of his date of birth being taken by the employer as 21st September 1945 earlier, but according to him, he had noticed this only after being relieved from service. In his service certificate issued on 29th October 2002, 21st September 1945 was shown as his birthdate.12. The stand of the employer, thus, is that in his service book there was error in recording the age of the appellant as 26 years in 1975 and we ought not to give any credence to such recordal. The respondents had only corrected an error and such recordal in service book cannot be treated to be acceptance of the appellants date of birth as 21st September 1949.We, however, find that the authorities proceeded in this matter in a rather mechanical manner and embarked on a unilateral exercise of correcting the age entry in the service book on their perception that an error was being corrected. This exercise was conducted without giving any opportunity of hearing to the appellant and at the fag end of his service tenure. Otherwise, various documents including the L.I.C. policy consistently reflect 21st September 1949 to be the appellants birthdate.13. Clause 5 of the Standing Order on which reliance has been placed by the employer does not treat the entry in the Form B recording date of birth of a miner to be the conclusive proof of his or her age. Any doubt on a workmans age at the time of joining service also could be verified by a medical board. We accept that an entry in the Form B possesses high probative value, but they are not conclusive proof of what is contained therein. The competent authority proceeded on the basis that since the appellant did not question the entry in Form B, he ought not to be permitted to question the same at the time of his voluntary retirement.14. The committee report prepared by three deputy general managers of the respondent no.1 has raised doubt of the correctness of the medical report as the same was not a report of a medical board set up specifically for age determination. It appears to have been a general observation in course of health check--up. There does not appear to have had been any other medical board constituted for that purpose. The Division Bench, in the judgment under appeal, has held that the respondents had referred the appellants case to a medical board which had again confirmed the entries made in the Form B register. We do not find from the counter affidavit that any further medical board was constituted. Moreover, the finding of the Division Bench that opinion of the medical board confirmed the entries made in the Form B register and service book is erroneous as in the service book prepared in the year 1975, the year of birth of the appellant has been treated to be 1949. Moreover, the rejection order does not deal with the committees observation that the medical opinion on the appellants age was a routine medical report and not the opinion of a medical board constituted to determine the age of an employee. Subsequent pay--slips, the sample copies of which have already been referred to in a preceding part of this judgment also repeated 1949 to be the appellants year of birth. The L.I.C. policy subscribed to by the appellant also carries the same date of birth.15. One of the factors that weighed with the Division Bench was that there was no challenge to entry in the service book, which should have been done within five years as per the DPE guidelines. We are unable to accept this reasoning as the service book contained 21st September 1949 as his date of birth and this was prepared in 1975. Thus, no occasion arose for approaching the employer for making any correction in the service book till 2002.16. This is not a case where a workman is seeking to change his date of birth to his benefit at the end of his career. This is a case where the employer is altering the records at the end of the career of the workman to his detriment on taking unilateral decision that the date of birth specified in the appellants service book was erroneous, relying on a date disclosed in a statutory form. Turning to Clause 5 of the Standing Order, we have already expressed our view on the evidentiary value of the entries in Form B as regards date of birth of a workman.17. Though in the Form B, the appellants age in 1971 was given as 26 years (the date of birth shown as 21st September 1945), in the subsequent documents the date appearing in service book had been reflected and it was the date reflected in the service book which formed the basis of the pay--slips as also the estimate statement of the appellants voluntary retirement benefits. In such circumstances, the appellants failure to seek correction in the Form B register could be condoned.This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellants employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted mistake as the cause for different entries in different documents.The note sheet of the appellants meeting with the Assistant General Manager on 16th October 2002 has been annexed to the respondents counter-affidavit marked as R1. The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject- dispute is concerned. Fact remains that this note--sheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form B entry for computing his age.20. The said document came into existence after the appellant was released from his service on 3rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26th October 2002. Thus, the process of fixing of the appellants date of birth had continued beyond the date on which he was released from his service.21. We do not think the appellants complaint over the dispute was belated so as to non--suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employees application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latters service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant.22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form B is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.