Avoidance to rectify particulars of the petitioner is bad in law: Bombay High Court

 on 02 07 2021 on 22 03 wp 1315 21(j).odt 1 26 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURWRIT PETITION NO. 1315 OF 2021Prabhat Kumar Titus Aged 59 years Working as Senior OvermanMakardhokda mine no.1 Tq. Umrer District Nagpur 441 204: PETITIONER...VERSUS...1. Western Coalfields Limited through Chairman cum Managing Director Western coalfields Ltd. headquarters Coal Estate Civil Lines Nagpur 440 001.2. The General ManagerWestern Coalfields Ltd. headquarters Coal Estate Civil Lines Nagpur 440 0013. The Area Manager Umrer Sub Area PO Umrer Project District Nagpur 441204 : RESPONDENTS= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Shri M.M.Sudame Advocate for the petitioner.Shri A.M.Ghare Advocate for the respondents.= = = = = = = = = = = = = = = = = = = = = = = = = CORAM : SUNIL B. SHUKRE AND ANIL S.KILOR JJ. DATED : 30th JUNE 2021.ORAL JUDGMENT : Umrer published a notice on the noticeboard stating that as per the direction issued by the GeneralManagerthe objections regarding dateof birth should be submitted within the scheduled datementioned in the notice.4.7Accordingly the petitioner submitted hisobjections representations on 7th October 2011 pointing outthe clerical mistake committed in recording of his date ofbirth as 1st July 1961 while as per Matriculation Certificate itshould be 6th December 1961. The petitioner had alsoenclosed the copy of ‘Matriculation Certificate’ alongwith hisobjection representation in support of his request. 4.8.Thereupon a notice was published by Manager(Personnel) Umrer Sub Area on the notice board givingparticulars of the employees who had raised objections. In on 02 07 2021 on 22 03 wp 1315 21(j).odt 4 26 the said list the name of the petitioner appears at serialnumber 6 and against the name of the petitioner there wasan endorsement that the case of the petitioner will beexamined separately on the basis of Matriculation Certificate.4.9.Thereafter the date of birth of the petitioner wasgot verified from the Higher Secondary Board and whichultimately found as correct. Accordingly Umrer Sub Area Colliery Manager forwarded the case of the petitioner forcorrection of date of birth to the Sub Area Level Committeewho in turn has forwarded it with positive recommendationto the Area Committee. Consequently the Area Committeewho has also recommended for correction of date of birth ofthe petitioner.4.10.However as the petitioner did not receive anycommunication either rejecting or accepting his request forchange of date of birth he made a representation on 1st July 2019 requesting the respondents to take decision on hisrepresentation dated 7th October 2011.4.11.On 30th June 2020 the petitioner received a‘notice of retirement’ wherein considering date of birth of thepetitioner as 1st July 1961 the date of retirement was on 02 07 2021 on 22 03 wp 1315 21(j).odt 5 26 informed as 30th June 2020. The petitioner thereupon againmade a representation for reconsideration of his request forcorrection of his date of birth as 6th December 1961 viderepresentation dated 7th July 2020.4.12.However when the petitioner found that therespondents are not taking any decision on his application hefiled a writ petition namely Writ Petition No. 21920before this Court which came to be disposed of on 14thJanuary 2021 on a statement made by the respondents thatthey will pass a fresh order in respect of the application of thepetitioner for change of date of birth.4.13. Now in pursuance thereof the respondents issued impugned ‘Reasoned Order’ dated 2nd February 2021 rejecting the request of the petitioner made vide applicationdated 7th October 2011 for correction of date of birth.Hence this petition.5.We have heard the learned counsel for therespective parties.6.Shri Sudame learned counsel appearing for thepetitioner submits that the petitioner immediately on on 02 07 2021 on 22 03 wp 1315 21(j).odt 6 26 receiving knowledge about recording of wrong date of birth and on publication of notice by the respondents callingobjections as regard to date of birth submitted hisobjection representation on 7th October 2011 alongwithMatriculation Certificate which contained date of birth of thepetitioner as 6th December 1961. It is submitted that despitethe same the application was not decided for about 10 yearsand petitioner was required to approach to this Court by filingwrit petition no. 21920. He therefore submits thatthe respondents have acted contrary to the interest of thepetitioner and the implementation instruction no. 76.6.1.He submits that after submitting objection forcorrection of date of birth the respondents initiated theprocess for verification of correctness of the claim of thepetitioner and on satisfaction that the claim of the petitioneris valid the authorities namely the Sub Area Level Committeeand the Area Committee had favourably recommended forchange of date of birth of the petitioner. However onfrivolous reasons the request of the petitioner for change ofdate of birth came to be turned down. on 02 07 2021 on 22 03 wp 1315 21(j).odt 7 26 6.2.Shri Sudame learned counsel for the petitionerpoints out that after transfer of the petitioner from KanhanArea to Umrer his date of birth was recorded as 6th December 1961. Similarly after clearing examination for the post of‘Sirdar’ and ‘Overman’ the date of birth of the petitioner wasrecorded as 6th December 1961. He also points out that afterjoining the post of promotion i.e. ‘Senior Overman’ his dateof birth was recorded as 6th December 1961 in Form “B”. He therefore submits that except Form “B” which was filled in bya clerk of office of Mine Manager at the time of joining dutiesin the year 1984 other official record supports the claim ofthe petitioner. 6.3.Shri Sudame learned counsel for the petitionerdraws attention of this Court to the Employment ExchangeRegistration Card issued by the Secretariat Employment andTraining Madhya Pradesh which contained the date of birthof the petitioner as 6th December 1961. He further submitsthat the petitioner was called for interview throughEmployment Exchange and he was asked to submit the‘Registration Card’ of Employment Exchange at the time ofinterview as per the condition stipulated in the interview callletter issued to the petitioner by the respondents. on 02 07 2021 on 22 03 wp 1315 21(j).odt 8 26 6.4Further it is submitted that it is not the case ofthe respondents that the Matriculation Certificate of thepetitioner containing the date of birth as 6th December 1961 is dubious or not genuine. Thus he submits that denial tocorrect the date of birth of the petitioner in service record isarbitrary.6.5.Shri Sudame learned counsel for the petitionersubmits that the implementation instructionno. 76 whichcame into existence in the year 1988 when the petitioner wasin service permits the respondents to review and determinethe date of birth in respect of existing employees. It issubmitted that as per the II No.76(B)(i)(a) in case of theexisting employee Matriculation Certificate or HigherSecondary Certificate issued by the recognized Universities orBoard or Middle Pass Certificate issued by the Board ofEducation and or Department of Public Instruction and admitcards issued by the aforesaid bodies should be treated ascorrect provided they were issued by the saidUniversities Boards Institutions prior to the date ofemployment. It is submitted that in this matter theMatriculation Certificate which was issued prior to the date of on 02 07 2021 on 22 03 wp 1315 21(j).odt 9 26 appointment of the petitioner is valid for review anddetermination of date of birth of the petitioner.6.6.It is further pointed out that as per II no. 76where there is no variation in records such case will not bere opened unless there is a very glaring and apparent wrongentry brought to the notice of the Management. It issubmitted that the case of the petitioner falls in the categoryof glaring and apparent wrong entry.6.7.Shri Sudame learned counsel for the petitionerhas placed reliance on the judgment of the Hon’ble SupremeCourt of India in a case of Bharat Coking Coal Ltd. andothers Vs. Chhota Birsa Uranw reported in 2014SCC 411.iii.Kapil Deo S o Ram Naresh Shahi Vrs. Chief GeneralManager Nagpur Area Western Coalfields Ltd. Nagpur inWrit Petition No. 35215 delivered on 18th July 2017.iv.Bhola Matru Harde Nagpur Vrs. Chief GeneralManager Nagpur Area Nagpur and another in Writ PetitionNo. 38517 delivered on 19th January 2018 v. Mandhata Ram Suresh Ram Vrs. Dy. General Manager(M) Sub Area Manager and another in Writ Petition No. 2113of 2019 delivered on 23rd July 2019.8.To consider the rival contentions of the parties we have carefully perused the record and also gone throughthe relevant judgments. on 02 07 2021 on 22 03 wp 1315 21(j).odt 12 26 9.In this matter on 19th March 2021 this Court hasissued notice for final disposal and on 20th April 2021 interimprotection was granted in favour of the petitioner on a condi tion that in case the petition is dismissed the petitioner shallrefund the salary which would be paid to him from 1st July 2021 and onward.10.The respondents filed their affidavits in reply op posing prayers made in the petition. After going through thepetition and the reply it is revealed that the following factshave not been disputed by the respondents:a)In the matriculation Certificate of the petitioner issuedon 23rd June 1981 by the Higher Secondary Board the dateof birth of the petitioner was recorded as 6th December 1961.b)In the Registration Card issued to the petitioner by theEmployment Exchange the date of birth of the petitioner wasrecorded as 6th December 1961. c)The petitioner was called for interview through Employ ment Exchange and he was asked to submit his RegistrationCard issued by the Employment Exchange at the time of inter view as per the condition stipulated in the interview call letterissued by the respondents. on 02 07 2021 on 22 03 wp 1315 21(j).odt 13 26 d)The petitioner was appointed in the year 1984 and inthe B Form filled in by a Clerk of Mine Manager he hadrecorded the date of birth as 01st July 1961.e)Though the thumb impression of the petitioner was ob tained on the said “B” Form the petitioner was totally un aware that the wrong date of birth was recorded.f)On 15th September 2011 the Deputy GeneralManagerof Umrer Area published a notice andthereby called objections as regards date of birth of the exist ing employees.g)The petitioner preferred anobjection representation on 7th October 2011 pointing outthat as per the Matriculation Certificate the correct date ofbirth is 6th December 1961 and not 1st July 1961 as recordedat the time of entry of the petitioner in service.h)The notice was published by the Manager(Personnel) on the notice board giving particulars of theemployees who had raised objections and in the said list thename of the petitioner appeared at serial No.6 and againstthe name of the petitioner there was an endorsement that the on 02 07 2021 on 22 03 wp 1315 21(j).odt 14 26 case of the petitioner will be examined separately on the basisof Matriculation Certificate. i)The petitioner s matriculation certificate was gotverified by the respondent No.4 through the HigherSecondary Board Bhopal Madha Pradesh.j)At the time of joining of the petitioner as ‘Sirdar’and ‘Senior Overman’ the date of birth of the petitioner wasrecorded as 6th December 1961. k)The case of the petitioner was recommended bythe Sub Area Level Committee and the Area Committee forcorrection of date of birth.l)The respondents rejected the request made by thepetitioner for correction of his date of birth vide applicationdated 7th October 2011 i.e. after about nine years and fourmonths vide impugned ‘Reasoned Order’ dated 2nd February 2021. 11.In the aforesaid backdrop we proceed to considerthe contention of the respective parties. on 02 07 2021 on 22 03 wp 1315 21(j).odt 15 26 12.As regards the maintainability of the presentpetition it is a well settled law that though the existence ofalternate remedy is not an absolute bar but it is acircumstance which the Court takes into consideration whileexercising its power of issuing writs. In this case looking tothe undisputed facts referred above such factual situationdoes not inhibit us from entertaining the present writ petitionthough a suitable efficacious alternate remedy may beavailable as suggested by the respondents. 13.Moreover looking to the duties and responsibilityof ‘Overman’ enumerated in the notification issued by theMinistry of Labour and Employment dated 27th November 2017 it is apparently clear that such duties andresponsibilities are Supervisory in nature. However withoutgoing into the aspect of whether the duties are supervisory ornot in view of discussion made in foregoing paragraph weare of the opinion that on the ground of alternate remedy thispetition cannot be thrown out. Hence we proceed further todeal with the contentions of the parties on merit.14.We are conscious of well settled law that theCourts or Tribunal shall not interfere with the matter where on 02 07 2021 on 22 03 wp 1315 21(j).odt 16 26 an employee of Government or its instrumentality whoremained in service for over decades with no objectionwhatsoever raised to his date of birth accepted by theemployer as correct when all of a sudden comes forwardtowards the fag end of his service career before the Court orTribunal seeking correction of his date of birth in his servicerecord.15.In this matter it is an undisputed fact that therespondents called objections vide notice dated 15thSeptember 2011 and in pursuance thereof the petitioner hadsubmitted his objection on 7th October 2011 i.e. 10 yearsbefore his date of retirement. Thereupon the genuineness ofMatriculation Certificate was examined by the respondentsand on satisfaction that the certificate in valid one the Sub Area Level Committee and the Area Committee recommendedthe case of the petitioner for correction of date of birth.16.However for long period of 9 years and 4months no decision was communicated to the petitioner though the reminder letter was issued by the petitioner on 1stJuly 2019. In the above facts and circumstances we are at a on 02 07 2021 on 22 03 wp 1315 21(j).odt 17 26 loss to understand as to how the petitioner could be non suited on the ground of delay and laches.17.On the contrary if there is any delay it is on thepart of the respondents in deciding such representation orobjection of the petitioner for correction of his date of birth for such a long period of nine years and four months. Thus for the fault on the part of the respondents in not deciding theapplication for such a long period the petitioner cannot beasked to suffer.18.Had the representation objection dated 7thOctober 2011 of the petitioner been decided immediately andadverse to his interest the petitioner would have approachedto this Court years before for redressal of his grievances.Thus the delay on the part of the respondents in deciding therepresentation objection of the petitioner will not come in theway of the petitioner.19.In the circumstances the contentions of therespondents that the petitioner has approached to this Courtafter 30 years of his service at the fag end of his servicecannot be accepted and the same is rejected. on 02 07 2021 on 22 03 wp 1315 21(j).odt 18 26 20.The Hon’ble Supreme Court of India in the caseof Secretary & Commissioner Home Department and othersVs. R. Kirubakaran reported in 1994 SuppSCC 155 hasobserved that unless a clear case on the basis of materialswhich can be held to be conclusive in nature is made out bythe respondent the Court or the Tribunal should not issue adirection on the basis of materials which make such claimonly plausible. Before any such direction is issued the Courtor the Tribunal must be fully satisfied that there has been realinjustice to the person concerned and his claim for correctionof date of birth has been made in accordance with theprocedure prescribed and within the time fixed by any rule ororder. If no rule or order has been framed or made prescribing the period within which such application has to befiled then such application must be filed within the time which can be held to be reasonable. The applicant has toproduce the evidence in support of such claim which mayamount to irrefutable proof relating to his date of birth.Whenever any such question arises the onus is on theapplicant to prove about the wrong recording of his date ofbirth in his service book. on 02 07 2021 on 22 03 wp 1315 21(j).odt 19 26 21.In the backdrop of above referred touchstone werevert back the contentions of the respective parties.22.At this juncture we are of the opinion that it isnecessary to refer to relevant II No.76 which is reproducedhereunder:"(B) Review determination of date of birth inrespect of existing employees. In the caseof the existing employees matriculation certificateofhigher secondary certificate issued bythe recognised universities of Board or middlepass certificate issued by the cards issued by theaforesaid bodies should be treated as correctprovided they were issued by the saiduniversities Boards Institutions prior to the dateof employment.(I) b)….ii) Wherever there is no variation in records suchcases will not be reopened unless there is a veryglaring and apparent wrong entry brought to thenotice of the management. The managementafter being satisfied on the merits of the case willtake appropriate action for correction throughDetermination Committee Medical Board”23.The impugned order states that when thepetitioner was appointed the II No.37 was in force and it hasbeen replaced by II no.76. It further states that because thepetitioner did not raise any dispute regarding date of birthprior to 25th April 1988 the case of the petitioner was treatedas undisputed case and therefore it cannot be reopened. on 02 07 2021 on 22 03 wp 1315 21(j).odt 20 26 24.The aforesaid ground cannot be accepted in viewof the judgment in the case of Bharat Coking Coal Ltd. andothers Vs. Chhota Birsa Uranw reported in 2014permits rectification ofthe date of birth by treating the date of birthmentioned in the school leaving certificate to becorrect provided such certificates were issued bythe educational institution prior to the date ofemployment.….”25.It is pertinent to note that in the case of BharatCoking Coal Ltd. and others Vs. Chhota Birsa Uranwand Bharat CokingCoal Limited and others Vrs. Shyam Kishore Singh reportedin 2020(3) SCC 411 relied upon by the respondents there isno dispute about the principal of law laid down in both thesaid judgments however both the judgments aredistinguishable on facts and therefore the said judgments arenot of any help to the petitioner in this matter.32.The judgment relied upon by the respondents inthe case of Satishkumar S o Hardayal Pashine Vrs. WesternCoalfields Ltd. and others in Writ Petition No. 22898delivered on 19th September 2016 Kapil Deo S o RamNaresh Shahi Vrs. Chief General Manager Nagpur Area Western Coalfields Ltd. Nagpur in Writ Petition No. 3528 of2015 delivered on 18th July 2017 and Bhola Matru Harde Nagpur Vrs. Chief General Manager Nagpur Area Nagpurand another in Writ Petition No. 38517 delivered on on 02 07 2021 on 22 03 wp 1315 21(j).odt 25 26 19th January 2018 are also of no help to the respondents inthis matter as the said judgments are distinguishable on facts.33.In view of the observations and findings recordedabove and having found merits in the present petition wepass the following order.ORDERi.The Writ Petition No.13121 is allowed ii.The respondents are directed to correct the date of birthof the petitioner as 6th December 1961 in the service record ofthe petitioner iii.No order as to costs. JUDGE JUDGELater on34.Shri Ghare learned counsel for the respondentsmakes a request for suspending the effect and operation of thejudgment.35.The prayer is staunchly opposed by Shri Sudame learned counsel for the petitioner contending that if theprayer is granted it may adversely affect the right of thepetitioner and may also lead to defeating of his claim. on 02 07 2021 on 22 03 wp 1315 21(j).odt 26 26 36.Considering the law governing the field we donot know that the apprehension expressed by the learnedcounsel for the petitioner has any basis. Ultimately the finalresult of the Special Leave Petition or the Appeal that therespondents may prefer before the Hon ble Apex Court wouldgovern the rights and liabilities of both sides but just in case the case proposed to be put forward by the respondentsbefore the Hon ble Apex Court is to be accepted it may resultin some complications as regards recovery of the salary thatmay have been paid to the petitioner during the interregnum.Therefore we are inclined to grant the request of the learnedcounsel for the respondents. The effect and operation of thisjudgment are hereby suspended for a period of two weeks. JUDGE JUDGEsknair nd.thawre 

Summary: A company cannot show avoidance when an individual has approached them to correct his details and particulars in the company data documents. A division bench of SUNIL B. SHUKRE AND ANIL S.KILOR, JJ, while adjudicating the matter in Prabhat Kumar Titus v. Western Coalfields Ltd; [WRIT PETITION NO. 1315 OF 2021], dealt with the issue of the change of particulars of a Badli Loader. The petitioner was appointed as a Badli loader in the respondent WCL. Though, his date of birth in Matriculation Certificate reflects as 6th December, 1961, it was recorded as 1st July, 1961 in the Form ‘B; maintained by the respondents. The petitioner had thereafter on 28th November, 1992 cleared an examination for the post of ‘Sirdar’ and at that point of time his date of birth was recorded as 6th December, 1961. The petitioner, thereafter, was transferred from Kanhan area to Umrer area, and at that moment his date of birth was recorded as 6th December, 1961. The petitioner had cleared the examination for the post of ‘Overman’ on 3rd July, 2008 and while joining as ‘Overman’, his date of birth was recorded as 6th December, 1961. Thereafter, the petitioner was promoted as ‘Senior Overman’ on 29th September, 2017, and since then he is working as ‘Senior Overman’. On 15th September, 2011, the Deputy General Manager (Personnel), Umrer published a notice on the notice board stating that as per the direction issued by the General Manager (Industrial Relation), the objections regarding date of birth should be submitted within the scheduled date mentioned in the notice. Accordingly, the petitioner submitted his objections/representations on 7th October 2011, pointing out the clerical mistake committed in recording of his date of birth as 1st July, 1961, while as per Matriculation Certificate it should be 6th December, 1961. The petitioner had also enclosed the copy of ‘Matriculation Certificate’ along with his objection / representation in support of his request. Thereupon a notice was published by Manager (Personnel), Umrer Sub Area, on the notice board giving particulars of the employees who had raised objections. In the said list the name of the petitioner appears at serial number 6, and against the name of the petitioner there was an endorsement that, the case of the petitioner will be examined separately on the basis of Matriculation Certificate. However, when the petitioner found that the respondents are not taking any decision on his application, he filed a writ petition, namely Writ Petition No. 2195 of 2020 before this Court, which came to be disposed of on 14th January, 2021 on a statement made by the respondents that they will pass a fresh order in respect of the application of the petitioner for change of date of birth.