1. The instant Interlocutory Application has been filed by the appellants-BCCL under Section 5 of the Limitation Act for condoning the delay of 415
days in preferring the appeal.
2. The ground has been agitated in the application about the cause of delay, which is due to procedure.
3. It has been submitted by learned counsel appearing for the appellants-BCCL that if the delay would not be condoned, the appellants would suffer
irreparable loss and injury and the lis would not be adjudicted and thereby the appellants will suffer irreparable loss and injury, therefore, the delay has
been prayed to be condoned.
4. This Court, after considering the stand taken in the Interlocutory Application as also taking into consideration the fact that instead of dismissing the
appeal on the ground of limitation, deem it fit and proper to decide the appeal on its merit and, therefore, consider the ground for condonation of delay
as sufficient and hence, the delay in filing the appeal is condoned.
5. Accordingly, I.A. No. 11446 of 2018 is disposed of.
L.P.A. No. 751 of 2018
1. The instant intra-court appeal has been filed under clause 10 the Letters Patent against the order/judgment dated 21.08.2017 passed in W.P. (S)
No. 3296 of 2008 by learned Single Judge, whereby and whereunder the decision as contained in letter dated 05.07.2006, vide Annexure 4 to the writ
petition and letter dated 04.05.2008 vide Annexure 5 to the writ petition, have been held to be illegal and unsustainable in the eye of law, accordingly,
the same have been quashed with a direction upon the respondents-BCCL (appellants herein) to treat the date of birth of the writ petitioner as
07.08.1955 instead of 24.10.1948 with a further direction upon the respondents-appellants to extend all the consequential benefits to the writ petitioner.
2. The brief facts of the case, which is required to be enumerated for proper adjudication of lis, are hereunder as:-
The writ petitioner was appointed as Fitter on 08.01.1972 at Kustore Area Office of appellants-Bharat Coking Coal Limited by disclosing his year of
birth as 1955. Accordingly, the same was recorded in the service excerpts of the writ petitioner at the time of joining. Later on, the date of birth of the
writ petitioner was assessed by the Medical Board on 07.08.1986, basing upon which, the age of the writ petitioner was recorded as 07.08.1955 in the
Service Excerpts/Identity Card/Form B Register/CMPF Accounts etc. It is further case of the writ petitioner that the respondents-BCCL vide its
communication dated 5/6.7.2006 has communicated that the age of the writ petitioner has been assessed as 57 years 6 months as on 24.04.2006
meaning thereby the date of birth of the writ petitioner has been re-assessed as 24.10.1948 instead of 07.08.1955. Accordingly, respondent no. 6 to the
writ petition served notice upon the writ petitioner of superannuation, dated 4/6.8.2008 treating his date of birth as 24.10.1948 instead of his actual date
of birth as 07.08.1955 as assessed by the Medical Board previously and entered in the service excerpts/statutory records of the writ petitioner.
3. In consequence thereof, the writ petitioner has approached writ Court by filing W.P. (S) No. 3296 of 2008, which the learned Single Judge has
allowed by quashing the order of notice of superannuation which was issued treating the age of the writ petitioner as 24.10.1948 with a direction to
release all consequential benefits to the writ petitioner treating the date of birth of the writ petitioner as 7.08.1955. The aforesaid order is the subject
matter of the present intra-court appeal.
4. Mr. Anoop Kumar Mehta, learned counsel for the appellants-BCCL has argued by assailing the impugned order passed by the learned Single
Judge, inter alia, on the following grounds:
(I). Occasion has arisen for re-assessment of the age of the writ petitioner on account of the fact that at the time of joining the writ petitioner who
was having 17 years of age and as such considering the fact that a person cannot be employed if he is less than the age of 18 years, decision was
taken by the authorities of the respondents to make re-assessment of the age of the writ petitioner, in which, the date of birth of the writ petitioner has
been re-assessed as 24.10.1948.
(ii). The dispute of date of birth since has been agitated by the writ petitioner after his superannuation and as such entertaining the writ petition will be
said to be contrary to the settled position of law that the at the fag end of service no dispute with regard to age can be agitated by the employee.
5. This Court, after hearing learned counsel for the appellants-BCCL and considering the pleadings of the writ petitioner made in the writ petition as
also the grounds agitated in the instant appeal and after going across the finding recorded by the learned Single Judge, deem it fit and proper to first
refer herein certain legal position.
6. The Coal India Limited has entered into an agreement with the Union known as 'National Coal Wage Agreement'. The said agreement has been
entered not in course of conciliation rather as per provision as contained in Section 18(1) of the Industrial Disputes Act. For ready reference, Section
18(1) of the Industrial Disputes Act is referred hereunder as:
18.Persons on whom settlements and awards are binding. -- (1) A settlement arrived at by agreement between the employer and workman
otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
It is evident from the provision of Section 18(1) of the Industrial Disputes Act, 1947 that if any agreement would be entered into other than
conciliation, the same will have its binding effect since it will have statutory fervour.
7. This fact has been taken into consideration by Hon'ble Apex Court in the case of Mohan Mahto vs. Central Coalfiled Ltd. and others reported in
(2007) 8 SCC 549 wherein it has been held that the National Coal Wage Agreement has its statutory force.
8. At the time of issuance of NCWA-III, one instruction, namely, Implementation Instruction No. 76 dated 25.04.1988 has been issued, which is also
the part of the agreement, which provides procedure for determination/verification of the age of the employees and for resolution of disputed cases of
Service Records.
The Annexure-1 to the Implementation Instruction No. 76, which provides procedure for determination/verification of age of employees, is in two
parts; the first part, part (A) deals with the provision for determination of the age at the time of appointment whereas the second part, part (B) deals
with the provision for review/determination of date of birth in respect of existing employees.
The provision, as contained in second part, i.e. part (B) is relevant herein since it is a case of existing employee.
The relevant portion of part (B) is quoted hereunder as:
(B) Review determination of date of birth in respect of existing employees.
i) a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised Universities or Board or
Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies
should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the date of employment.
i) b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be
treated as authentic.
Provided that where both documents mentioned in (i) (a) and (i) (b) above are available, the date of birth recorded in (i) (a) will be treated as
authentic.
ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the
notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through
Determination Committee/Medical Board.
It is evident from the aforesaid provision that in the case of existing employees, Matriculation Certificate of Higher Secondary Certificate issued by
the recognised Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit
cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the
date of employment. Likewise, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of
birth will be treated as authentic, provided that where both the documents mentioned in (B) (i) (a) and (B) (i) (b) are available, the date of birth
recorded in (B) (i) (a) will be treated as authentic. It further provides that wherever there is no variation in records, such cases will not be reopened
unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits
of the case will take appropriate action for correction through Determination Committee/Medical Board.
The age Determination Committee/Medical Board will be constituted by the management in the case of employees whose date of birth cannot be
determined in accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) of Annexure 1 to the Implementation Instruction No. 76.
9. The date of birth recorded in the records of the company, namely, Form B Register/CMPF Account/Identity Card (untampered) will be treated as
final provided that where there is a variation in the age recorded in the records mentioned above, the matter will be referred to the Age Determinaiton
Committee/Medical Board constituted by the management for determination of age.
10. This Court has proceeded to examine the factual aspect on the basis of aforesaid fact and legal position.
It is the admitted case of the appellants-BCCL that the writ petitioner was appointed on 08.01.1972. The writ petitioner was examined by the Medical
Board on 07.08.1986, which assessed his age as 31 years and as such his date of birth was assessed as 07.08.1955, which has been recorded in his
service excerpts.
But, again the writ petitioner was sent for medical examination for re-assessment of his age. Now this time, the date of birth of the writ petitioner has
been assessed as 24.10.1948, based upon which, a notice of superannuation has been issued. Therefore, it is admitted fact that the date of birth that is
07.08.1955 has been recorded on the basis of assessment of age by the medical board on 07.08.1986. The appellant thereafter has taken decision to
refer the writ petitioner for re-assessment by the medical board, but no such decision said to have been taken is available on record neither before the
writ Court or before this Court, stating the reason for sending the writ petitioner for re-assessment of his age by the Medical Board once the date of
birth has been assessed by the Medical Board as 07.08.1986, basing upon which, the date of birth of the writ petitioner has been recorded as
7.08.1955, which is still lying on the service record, without any tampering.
11. Learned counsel for the appellants-BCCL has submitted that the reason for sending the writ petitioner for re-assessment of his age as he has
been found to be appointed in the year 1972 and since it is less than the minimum age of appoinment, therefore, the decision has been taken for re-
assessment by the Medical Board, but the question herein is that admittedly the writ petitioner was appointed on 08.01.1972, which is prior to
nationalization of the coal companies on 01.05.1973 by enactment of Coal Mines (Nationalization) Act, 1973.
12. The Hon'ble Apex Court in the case of Ramkanali Colliery of BCCL Vs. Workmen & Anr. reported in (2001) 4 SCC 236 considering Section 14
of the Coal Mines (Nationalization) Act, 1973 has been pleased to observe that the employees (including former employees whose services were
terminated) will continue to hold such employment as if nationalization had not taken place.
13. It has also not been brought on record that even at the time of appointment of the writ petitioner that is on 08.01.1972, there was any embargo in
appointment by the private owners of BCCL of any person having the age less than 18 years, prescribing minimum age for recruitment.
Minimum age for consideration of appointment has been fixed by the Government, either by the Central Government or State Government, but the
question herein is that when the writ petitioner was appointed prior to the nationalization of the coal companies and further on effect of the
nationalization, the coal companies are being taken over by the Central Government/Undertaking on 'as on as is basis' and since the petitioner was
working prior to the date of nationalization, even though at the age of 17 years will be treated be on employment as if no Nationalization Act has come
and further, no such reason has been assigned either in the counter affidavit filed by the appellants-BCCL in the writ petition or in the memo of appeal
showing the reason which led the appellants-BCCL to take a decision for re-assessment of the age of the writ petitioner by the Medical Board, no
interference can be made.
14. Even accepting the oral argument, which has been advanced by learned counsel for the appellants-BCCL, to this effect, even then also, the said
issue cannot be allowed to be agitated for two reasons;
Firstly, when the writ petitioner was already appointed by the private owners of the coal companies and once the decision for nationalization of the
coal companies has been taken by the Central Government by an enactment, namely Coal Mines (Nationalization) Act, 1973, no adverse decision can
be taken by the Central Government for dispensing with the services on any grounds whatsoever, save and except, the ground of misconduct but
certainly not on the ground that if on presumption it has been found by the coal companies after nationalization one or the other employees have been
appointed below the age of 18 years.
Secondly, for the reason that the writ petitioner has already been asked to go for the medical examination, which was conducted on 07.08.1986, basing
upon which the date of birth of the writ petitioner has assessed as 07.08.1955. Hence, there was no occasion for the appellant-management to again
re-open the issue as per Instruction 76 of the NCWA-III, if Condition No. (B) shall be read along with Clause (C). Clause (C) of Implementation
Instruction No. 76 stipulates that question of re-assessment will come only wrong entry is made in the service record. The clause (C) also contains
about the authentic document, which is Form-B register/CMPF record and Identity Card (untampered).
15. It is admitted case of the appellants-BCCL that in the service excerpts, the date of birth of the writ petitioner has been mentioned as 07.08.1955
without any tampering and as such the conditions, as stipulated in Clauses (B) and (C), read co-jointly, there was no occasion to send the writ
petitioner for re-assessment by the Medical Board. This is also for the reason that the entry made in the service excerpts, which is part of the Form-B
register (untampered) is treated to be conclusive document for assessment of the date of birth.
16. The learned Single Judge, after taking into consideration the entire aspects of the matter in detail, has considered the fact and came to the
conclusive finding that raising the issue of date of birth at the fag end of service of the employee, since is to be applicable equally upon the employee
and the employer, and since the management has already authenticated the date of birth of the writ petitioner by the Medical Board on 07.08.1986
recording the date of birth of the writ petitioner as 07.08.1955, was not available to the appellants-managment to raise the issue at the time of
superannuation and as such the question of raising the issue of date of birth at the fag end will be applicable to the appellants-management.
17. It is further required to refer herein that the condition no. (B)(b)(ii) provides that wherever there is variation in records, such cases will not be
reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management, but admittedly no such wrong entry is
available since it has not been brought before the writ Court or before this Court.
18. According to considered view of the Court, since Implementation Instruction No. 76 dated 25.04.1988 is the part of NCWA-III and it has got
statutory fervour and the said Implementation Instruction is only way for re-assessment of age by the medical board, therefore, its applicability, if it is
applicable, then only the question of re-assessment by the medical board will arise, but as has been dealt with herein above, no such occasion is there
for sending the writ petitioner for re-assessment by the Medical Board.
19. This Court, therefore, is of the view that the learned Single Judge while quashing the communication dated 05.07.2006 whereby petitioner has
been communicated that his age has been re-assessed and notice of superannuation dated 05.07.2006 and 04.05.2008, issued vide Annexure 4 and 5
to the writ petition respectively, in consequence thereof direction has been issued upon the respondents-management to extend all the consequential
benefits, has committed no illegality and cannot be faulted with.
20. In the result, the appeal fails and is, accordingly, dismissed.
