SHANKAR LAL versus HINDUSTAN COPPER LTD. & ORS
[2022] 5 S.C.R. 704, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2022] 5 S.C.R. 704
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SHANKAR LAL
v.
HINDUSTAN COPPER LTD. & ORS.
(Civil Appeal No. 2858 of 2022)
April 20, 2022
[DR. DHANANJAYA Y. CHANDRACHUD AND
ANIRUDDHA BOSE, JJ.]
Service Law – Voluntary Retirement Scheme – Date of Birth –
Appellant-employee questioned validity of an order of respondent-
employer treating his date of birth as 21st September 1945 – 21st
September 1949 was recorded as appellant’s date of birth in his
“Service Books” whereas the statutory form, namely, “Form B”,
reflected it as 21st September 1945 – Date of birth was relevant for
computation of benefits accruing from Voluntary Retirement Scheme
(VRS), for which appellant applied and was granted – Appellant’s
stand was that his date of birth was 21st September, 1949 and thus,
his financial benefits from VRS should have been higher – Contention
of respondent-employer that in service books there was error in
recording the age of appellant, which had been subsequently
corrected – Writ jurisdiction of High Court invoked by appellant
was unsuccessful – On appeal, held: This is a case where respondent-
employer altered the records at the end of the career of appellant to
his detriment on taking unilateral decision that the date of birth
specified in appellant’s service book was erroneous, relying on a
date disclosed in a statutory form – Version of respondent-employer
that service book recordal was a mistake cannot be accepted –
Respondent, a public
sector unit is expected to act with certain
element of responsibility in maintaining the service records of their
workmen and to ensure 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 a long time – Further, appellant’s complaint
over the dispute was not 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 once application is accepted – Action of
respondent-employer lacked in authority of law on two counts –
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First, it failed 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 appellant – Moreover,
since in the own records of respondent-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 –
Respondent-employer proceeded on basis of age of the appellant
reflected in his service book during the latter’s service tenure and
cannot be permitted to fall back on Form “B” which would curtail
the VRS benefit of the appellant – Respondents directed to extend
benefits of VRS to appellant treating his date of birth as 21st
September 1949.
Allowing the appeal, the Court
HELD:1.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. [Para 12][715-C-D]
2.1. One of the factors that weighed with the High Court
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. This reasoning cannot be accepted 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.
[Para 15][716-C-D]
2.2. Though in the Form “B”, the appellant’s 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 appellant’s voluntary retirement benefits. In such
circumstances, the appellant’s failure to seek correction in the
Form “B” register could be condoned. [Para 17][717-B-C]
SHANKAR LAL v. HINDUSTAN COPPER LTD. & ORS.
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3. The employer has taken a stand that the date of birth
recorded of the appellant in the service book was an act by
mistake. This is a weak explanation. Several subsequent steps
were taken by the employer in relation to the appellant’s
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, the version of the employer that service book
recordal was a mistake cannot be accepted. 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 ought not to have had accepted “mistake” as
the cause for different entries in different documents.
[Para 18][717-D-G]
4. Further, it cannot be said that the appellant’s 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 employee’s application for voluntary retirement, the
employer takes any step that would reduce such benefit in
monetary terms, such step shall have to be taken under the
authority of law. The action of the employer is 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
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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. 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 latter’s 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. [Para 21]
[718-E-H; 719-A, C]
5. 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.
[Para 22][719-D-E]
6. In the circumstances, sustaining the view taken by the
High Court would result in depriving the appellant of his legitimate
benefits under the applicable Voluntary Retirement Scheme. The
respondent no.1 proceeded in the case of the appellant in an
erroneous manner in treating the appellant’s date of birth to be
21st September 1945. The respondents are directed to extend
the benefits of VRS to the appellant treating his date of birth as
21st September 1949. [Para 23][719-F, G]
SHANKAR LAL v. HINDUSTAN COPPER LTD. & ORS.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2858
of 2022.
From the Judgment and Order dated 08.12.2016 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal Writ
No. 1501 of 2011.
Kaushal Yadav, Nandlal Kumar Mishra, Ms. Mamta Rani, Dr.
Ajay Kumar, Ms. Akansha Rai, Ms. Apeksha Rai, Ms. Yashoda Katiyar,
Ms. Kritiya Pandey, Ms. Shweta Yadav, Sandiv Kalia, Ms. Reena Rao,
Nand Ram, V.G.R. Achary, Dr. Sushil Balwada, Advs. for the appellant.
Ms. Nandini Sen Mukherjee, Advs. for the respondents.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
1. The appellant is before us primarily questioning the validity of
an order of the employer (Hindustan Copper Limited - the first respondent
in this appeal) treating his date of birth as 21st September 1945. This
date has relevance for computation of his benefits accruing from a
Voluntary Retirement Scheme (“VRS”), for which he applied and was
granted. The appellant’s stand is that his date of birth is 21st September
1949. The appellant had invoked the writ jurisdiction of the High Court
of Judicature for Rajasthan at Jaipur (“the High Court”), but was
unsuccessful before a Single Judge and the Division Bench in sustaining
his case. If the latter date, i.e. 21st September, 1949 was accepted by
the employer to be his date of birth, his financial benefits from the said
scheme would have been higher, as he would have had longer service
tenure left. It appears that the tenure of service left was the basis on
which the VRS benefit was to be computed. We would like to point out
here that in the pleadings and copies of various other documents forming
part of the paperbook, there are overlapping dates claimed by the appellant
to be his actual date of birth. These are 20th September 1949 and 21st
September 1949. This variation, however, is insignificant so far as
adjudication of this appeal is concerned. In this judgment, we shall ignore
this variation and proceed on the basis that 21st September 1949 is the
date claimed by the appellant to be his birthdate.
2. The VRS was operational in the appellant’s case with effect
from 3rd October 2002. Admitted position is that 21st September 1949
was recorded as his date of birth in his service book. This was opened in
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1975. He had joined the organisation in the year 1971 and the Form “B”
reflects his date of birth as 21st September 1945. The appellant claims
that at the time of his voluntary retirement, he came to learn for the first
time that his date of birth was being changed to 21st September 1945.
He invoked the writ jurisdiction of the High Court in the year 2008 as his
representations for adhering to 21st September 1949 as his birthdate
failed to evoke positive response from the employer. That writ petition
(S.B. Civil Writ Petition No.5690/08) was disposed of by a Single Judge
with a direction to the appellant to make a fresh representation in light of
the recommendations made by a committee of the employer themselves
in his favour on the subject controversy. The competent authority was
directed, in the same judgment delivered on 15th July 2008, to consider
and decide on the same in accordance with law.
3. The appellant’s representation was rejected by the competent
authority-employer by an order passed on 13th October 2008 (“the
rejection order”). The appellant’s plea against the rejection order (S.B.
Civil Writ Petition No. 13195/2008) was dismissed by a learned Single
Judge of the High Court by an Order dated 24th November 2008 and his
appeal (D.B.Special Appeal Writ No.1501/2011) assailing the order of
dismissal before a Division Bench of the same High Court also failed.
The judgment of the Division Bench was delivered on 8th December
2016. It is this
judgment which is under appeal before us. The appellant
stakes his claim primarily on his service book maintained by the employer,
where his date of birth is shown as 21st September 1949. Mr. Kaushal
Yadav, learned counsel for the appellant has also relied on a Life
Insurance Corporation (“L.I.C.”) Policy in which the same date of birth
has been shown. This policy, however, was subscribed to by the appellant
in the month of May, 1980. The appellant’s counsel has brought to our
notice sample copies of his pay slips for the months of August 1994 and
August 2001. Both these pay slips carry the message, “Happy Birthday
***20.09.1949***”. The appellant has also relied upon certain clauses
of the Standing Orders of the employer in support of his claim. We shall
refer to the relevant clauses thereof later in this judgment.
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
SHANKAR LAL v. HINDUSTAN COPPER LTD. & ORS.
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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 appellant’s 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.
5. Stand of the respondents, represented by Ms. Nandini
Sen
Mukherjee, learned counsel, is that at the entry point, he had given his
age to be 26 years, and that was the age reflected in the Form “B”. That
is a statutory form required to be maintained under The Mines Act,
1952. It has also been submitted by her that at that point of time, the
medical practitioner during a health check-up had also assessed his age
to be about 25 years, which would take his year of birth closer to 1945.
In the year 1975, his service book was prepared. In such records, the
appellant’s age was entered as 26 years by mistake, repeating his age as
it was at the time he joined the organisation. That is how the inconsistent
recordal of the appellant’s birthdate is sought to be explained by the
employer. She has also emphasised that the appellant had raised the
complaint after receiving all the VRS benefits computed on the basis of
his age as reflected in the Form “B”.
6. It appears that there had been disputes over age in respect of
other employees also in the same organisation, and a three-member
committee was constituted by an Order passed on 7th September 2004
by the General Manager, Khetri Copper Complex of the first respondent.
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The committee considered the case of the appellant also, and their report
went in his favour. Relevant extract from this report has been annexed
at page 54 of the paperbook (Annexure P13). In Clauses 3, 4 and 5 of
this report, background has been given in relation to recordal of date of
birth of an employee. We quote below the said three clauses from that
report:-
“3. As per the company’s certified standing orders, the basis for
determining the date of birth of an employee will be:-
a)
Birth Certificate
b)
School Leaving Certificate
c)
Insurance Policy
d)
Horoscope
e)
Medical Report
In the standing orders followed in KCC, it is no where written
that the ‘B’ Form will be basis for the determining the age.
4. In one of the court case (Durga Ram Vs. HCL Case No.2427/
1990) for age anomaly, the Hon’ble High Court, Rajasthan has
declined to accept the ‘B’ Form Register as the basis for age/
date of birth determination where the Hon’ble High Court had
quoted “when ‘B’ Form entries have not been made by the
petitioner in his own hand-writing and the entries have been made
in ‘B’ Form in a language which the petitioner could not have
understood, entries made in ‘B’ Form could not have been made
basis for effecting the retirement of the petitioner.
5. During construction period of KCC there was no proper system
of recording the particulars of an employee like date of birth, age
etc. Most of the workmen were engaged as “daily rated monthly
paid basis” and there was
no proper system of recording the exact
date of joining, date of birth etc. During this period employees so
engaged were never asked for documents etc. in support of their
age. Only after the Gopal Das Narayan Award in 1971, all these
“daily rated monthly paid” workmen were regularized and their
date of initial joining in the company were taken into account,
service book was introduced and particulars of these employees
were maintained.”
(quoted verbatim from the paperbook)
SHANKAR LAL v. HINDUSTAN COPPER LTD. & ORS.
[ANIRUDDHA BOSE, J.]
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7. In relation to the appellant, the recommendation of the committee
was to the following effect: -
“6. Shri Shankar Lal Saini, Code No.36145, Ex-employee.
Shri Shankar Lal joined the company on 21.9.1971. His age was
recorded as 26 years in the ‘B’ Form Register at the time of his
initial joining. Accordingly, his date of birth comes to 21.9.1945.
However, his date of birth was not recorded in his service book.
His service book was filled up in the year 1975 where his date of
birth was recorded as 21.9.1949 counting 26 years from the year
1975 (year of filling up the service book).
In the medical report dated 22.9.1971 also his age was assessed
as 25 years, which comes nearer to 1945 and not of 1949. The
date of birth recorded in the service book was not disputed for a
long time. However, in the year 2002, when the anomaly was
noticed the case was processed for rectification but in the
meantime, Shri Shankar Lal has submitted V.R. and subsequently
released from the committee’s service on 3.10.2002. His V.R.
payment was released considering his date of birth as 21.9.1949
and not as 21.9.1949(which was recorded in his service book) as
the Finance Department did not agree to accept the date of birth
as 21.9.1949. After receiving the payment the ex-employee made
several request to release the balance amount of V.R. benefit
considering his date of birth is 21.09.1949. The committee observed
that the ex-employee joined
this complex on 21.9.1971. Since he
was only literate, a ‘B’ register was filled up at that time where
his age was recorded as 26 years. In the year 1975 a service
book was filled up where date of birth was recorded as 21.9.1949,
counting 26 years from the year 1975. There was a medical report
dated 22.9.1971 where his age was assessed as 25 years which
makes the date of birth as 22.9.1946 but this medical report cannot
be considered as this was a routine medical report and no medical
board was set up specifically for age determination. The committee
felt that the date of birth as 21.9.1949 was recorded in the service
book in the year 1975, which was never disputed thereafter.
Moreover, the same date of birth was mentioned in his pay-slip
ever year which was also published by the committee. His LIC
record also indicates the same date of birth. Only at the time of
his release of payment in the year 2002 his date of birth was
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considered from 21.9.1949 to 21.9.1949 which is against the DEP’s
guidelines dated 9.2.2001. The committee, therefore,
recommended to maintain his date of birth as 21.9.1949.”
(quoted verbatim from the paperbook)
8. This recommendation was rejected by the employer, which
resulted in the appellant filing the writ petition before the High Court.
We have referred to this writ petition and directions issued by the High
Court on 15th July 2008 earlier in this judgment.
9. The recommendation of the committee was not accepted by
the employer in the rejection order, relying on Clause 5 of the Standing
Order. The relevant extract from this clause has been quoted in para
(iv) of the rejection order made by the competent authority. We reproduce
below the said clause, as it appears in the rejection order: -
“iv) ….. However, in case of Mining workmen, declaration of
age by the individual workman in the ‘B’ Form Register as per
the Mines Act/Rules may be relied upon subject to confirmation
by the Company’s Medical Officer whenever considered
necessary.”
(quoted verbatim from the paperbook)
10. In the rejection order, reference was also made to the guidelines
of the Department of Public Enterprises, Government of India. In Clauses
(v), (vi) and (vii) of the said order, it is recorded:-
“v. The department of Public Enterprises, Government of India in
its guidelines dated 9th February, 2001 states that the date of birth
declared by an employee and accepted by the
appropriate authority
shall not be altered unless the same is represented against with
adequate proof/justification within 5 years of joining the service.
vi. Whereas, Shri Shankarlal never disputed the date of birth
recorded in ‘B’ Form, which is the primary document for the
purpose of recording date of birth of employee working in Mines
as per the Mines Act and as well as the Standing Orders of the
Company, until his release from the services of the Company on
voluntary retirement on 03.10.2002 i.e. after 31 years of service.
vii. The competent authority has taken note of the recommendation
of the Committee, which was appointed in 2004 to examine
SHANKAR LAL v. HINDUSTAN COPPER LTD. & ORS.
[ANIRUDDHA BOSE, J.]
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anomalies in dates of birth of certain number of employees. It is
seen that while examining this case, the committee had somehow
failed to consider and record the importance of Clause No.5 of
the Standing Order applicable in case of mining workmen as
referred above. The competent authority has therefore not
accepted the recommendations of the said committee.”
(quoted verbatim from the paperbook)
11. In the appellant’s writ petition seeking invalidation of the
rejection order, the High Court found the stand taken by the authorities
in rejecting the appellant’s plea for treating his date of birth as 21st
September 1949 to be justified. The Single Judge of the High Court
considered the fact that no documentary evidence was available on
record to support his date of birth to be 21st September 1949. The
appellant’s writ petition was dismissed. Against the judgment of dismissal,
the appellant approached the Division Bench of the same Court. The
Division Bench also primarily relied upon the entry in the Form “B”
register and dismissed the appeal. The Division Bench, inter alia, held:-
“(5) There shall be a presumption of correctness with regard to
entries regarding date of birth made as far back as 1971 in the
statutory Form ‘B’ register under the Mines Act. If the Appellant
seeks to challenge entries in a statutory register duly signed by
him also, the onus lies on him to prove how it was wrongly made.
Obviously the age
mentioned was not a figment of imagination by
the Respondent evident from the order of appointment which states
that it was based on his own statement
(6) The service book of the Appellant was opened in the year
1975. There was no challenge to entry in the same also. According
to the DPE guidelines any request for correction in the date of
birth in the service book was required to be made within 5 years.
If there was a prescription of time limit, the question of raising
any controversy much after that period and acceptance of VRS
2002 simply does not arise.
(7)  The Appellant accepted the benefits of the VRS and then
raised the dispute. The Respondents in all fairness referred his
case to a Medical Board which again opined in confirmation of
the entries made in the Form ‘B’ register and the service book.
The contention of the Appellant with regard to his date of birth
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being 21.09.1947 becomes a disputed question of fact which cannot
be inquired in the writ jurisdiction quite apart from the fact of it
having been raised very belatedly.”
(quoted verbatim from the paperbook)
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 appellant’s 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 appellant’s 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 workman’s 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 appellant’s 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
SHANKAR LAL v. HINDUSTAN COPPER LTD. & ORS.
[ANIRUDDHA BOSE, J.]
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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 committee’s
observation that the medical opinion on the appellant’s 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 appellant’s 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 appellant’s 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. In the
committee report, the DPE’s guidelines dated 9th February, 2001 has
been referred to, which deals with alteration of the date of birth of an
employee. The report records: -
“1. As per the DPE’s guidelines dated 9.2.2001, an alteration of
date of birth of an employee may be considered with the sanction
of the Board of Directors, if
(a) request in this regard is made within 5 years of his entry into
the service of the Public Sector Undertaking
(b) It is clear established that a genuine bonafide mistake had
occurred.
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(c) and date of birth so altered should not make him ineligible to
appear in any school/University in which he had appeared or for
entry in Public Sector Service on the date on which he first
appeared at such examination or on the date on which he entered
the Public Sector Services.”
(quoted verbatim from the paperbook)
17. Though in the Form “B”, the appellant’s 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 appellant’s
voluntary retirement benefits. In such circumstances, the appellant’s
failure to seek correction in the Form “B” register could be condoned.
18. The employer has taken a stand that the date of birth 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 appellant’s 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 appellant’s 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
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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 appellant’s meeting with the Assistant General Manager on
16th October 2002 has been annexed to the respondent’s 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 appellant’s date
of birth had continued beyond the date on which he was released from
his service.
21. We do not think the appellant’s 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 employee’s 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
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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 latter’s 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.
23. In these circumstances, we are of the opinion that the Division
Bench as also the Single Judge of the High Court did not appreciate the
materials available in their proper perspective. We do not think that the
view taken by the Division Bench was a possible view. Sustaining such
view would result in depriving the appellant of his legitimate benefits
under the applicable Voluntary Retirement Scheme. The materials relied
upon by the appellant were ignored altogether. We thus set aside the
judgment of the Division Bench. As a consequence, the judgment of the
Single Judge also would stand set aside. The rejection order dated 13th
October 2008 of the competent authority shall stand quashed. The
respondent no.1 proceeded in the case of the appellant in an erroneous
manner in treating the appellant’s date of birth to be 21st September
1945. We accordingly direct the respondents to extend the benefits of
VRS to the appellant treating his date of birth as 21st September 1949.
Such benefits shall be extended to him within a period of four months,
upon deducting therefrom the sum already paid to him. The differential
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amount shall carry simple interest at the rate of seven percent (7%) per
annum to be computed from 3rd October 2002, being the date on which
he was released from service, till the date of actual payment to him in
terms of this judgment.
24. The appeal is allowed accordingly.
25. Pending application(s), if any, shall stand disposed of.
26. There shall be no order as to costs.
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Neha Sharma, LCRA)