1. The appellant/writ petitioner herein has preferred this appeal from the judgment and order dated 21st June, 2002 passed by the learned Single Judge in the writ petition, being CO. No. 7791(W) of 1992, whereby and whereunder the said learned Single Judge dismissed the writ petition filed by the appellant herein. While dismissing the aforesaid writ petition, the learned Single Judge specifically observed that the Writ Court cannot decide the disputed question as to the correct age of any person and following the earlier decision of the Division Bench of this Hon''ble Court also observed that right to get the date of birth corrected is not a legal right.
2. The learned Single Judge specifically held while deciding the said writ petition that the stale claim should not be entertained under Article 226 of the Constitution of India.
3. It has been urged on behalf of the appellant/writ petitioner that the respondent-company asked the appellant to retire from service before attaining the actual date of superannuation. It has been specifically submitted on behalf of the appellant/writ petitioner that the impugned order of retirement was issued by the respondent-company to the writ petitioner without mentioning the actual date of birth of the said writ petitioner.
4. In the present case, the concerned employee, namely, the appellant/writ petitioner herein never requested the competent authority of the Company to correct his already recorded date of birth in the service book. From the records, it transpires that the Chief Personnel Manager of the respondent-company by written communication dated 28th October, 1990 requested the writ petitioner to furnish the relevant documents in respect of his qualification in order to update the official record. The appellant/writ petitioner herein by written communication dated 15th January, 1992 supplied the relevant documents in relation to his qualification and date of birth. Thereafter, the said appellant/writ petitioner sent the reminders to the Chief Personnel Manager for taking necessary steps to update the service record of the said appellant upon recording the date of birth.
5. Ultimately, the Chief Personnel Manager by written communication dated 12th May, 1992, informed the appellant/writ petitioner that on the basis of the records of the company the said writ petitioner would attain the age of retirement on 30th June, 1992. Upon receipt of the aforesaid intimation from the Chief Personnel Manager regarding attainment of the age of superannuation, the appellant/writ petitioner herein by written communication dated 29th May, 1992 informed the said Chief Personnel Manager that his date of birth is 1st October, 1934 and therefore no notice can be served upon the appellant for superannuation from the service of company with effect from 30th June, 1992.
6. The appellant/writ petitioner herein thereafter, filed a writ petition before this Hon''ble Court as the competent authority of the Burn Standard Company Ltd. did not cancel and/or withdraw the earlier decision as mentioned in the written communication dated 12th May, 1992 issued by the Chief Personnel Manager regarding the date of retirement of the writ petitioner.
7. The learned Advocate of the Burn Standard Company Ltd. produced the service record of the writ petitioner wherefrom it appears in the actual date of birth of the appellant/writ petitioner was not recorded that the service book maintained by the company. Furthermore, the entries of the service book were not made by the appellant/writ petitioner in his own handwriting and the same was also not signed by the said writ petitioner.
8. Mr. Soumya Mazumdar, learned Advocate appearing on behalf of the respondent-company referred to certain documents in connection with the provident fund records including the letter submitted on behalf of the appellant/writ petitioner regarding change of provident fund nominee.
9. Scrutinising those records, we find that the signatures of the appellant/writ petitioner in those documents did not tally with each other and, therefore, we cannot rely oil the same. However, in those documents also the date of birth of the appellant was not mentioned.
10. The learned Advocate of the appellant/writ petitioner referred to and relied on the Standing Orders for Workmen of the respondent-company wherein specific provision has been made in respect of the evidence of age of an employee.
11. The relevant provision regarding evidence of age as mentioned in the Standing Order 2(v)(b) is set out hereunder:
(v)(b). The age given by an applicant and set forth in the service record at the time of first entering into company''s service shall be the sole evidence of the age of the workman, for all purposes for determining the age of any workman in connection with his retirement, provident fund, etc. In the absence of any such record, the age recorded in the Matriculation/School Final or School Leaving or equivalent certificate shall be regarded as evidence of age. If, however, the workman concerned has not passed any suit examination, the date of birth as (recorded) certified by the municipal or other competent local authorities in the birth certificate, may be accepted as evidence of age. In case there is no evidence as stated above, a workman may be directed by the company to appear before the Chief Medical Officer of the district for examination for the purpose of determining his age and the certificate of age given by him shall be the evidence of age.
12. In the present case the appellant/writ petitioner submitted the School Leaving Certificate issued by the Headmaster of the concerned school wherein the date of birth of the writ petitioner has been specifically mentioned as 1st October, 1934. The said certificate was submitted before the Chief Personnel Manager of the respondent-company for update the official record.
13. It also appears from the available records that the Chief Personnel Manager of the respondent-company by written communication dated 19th February, 1992 requested the Headmaster of the concerned school to verify the date of birth of the appellant/writ petitioner and as s matter of fact the said Chief Personnel Manager also decided to send one emissary namely, Sri R.K. Bhattacharya, Asstt. Manager Welfare to the said Headmaster for furnishing the necessary details.
14. The relevant extract of the said letter issued by the said Chief Personnel Manager to the Headmaster on February 19, 1992 is set out hereunder:
Ref: 71 February 19, 1992
The Headmaster,
Samudragarh High School,
Vill. & P.O. Samudragarh Dist. Burdwan,
Dear Sir,
We would like to draw your attention that one of your student Sri Dilip K. Moitra, presently working in our organisation was reading in your school in the year 1949.
We would be grateful to you if you kindly send his date of birth to our company. This is required for our official purpose.
An early reply in this connection is solicited. We will send one of our emissary Sri R.K. Bhattacharya, Asstt. Manager Welfare to your for further details.
Yours faithfully,
For Burn Standard Co. Ltd.
Sd/S.K. Basu
Ch. Personal Manager
15. Since no adverse report from the Headmaster of the school concerned has been produced before this Court, it should be presumed that the certificate issued by the said Headmaster on 5th November, 1990 regarding the date of birth of the said appellant/writ petitioner as 1st October, 1934 is correct.
16. Mr. Subroto Mookherji, learned Counsel representing the respondent-Union of India also submits that the respondent-company should have accepted the School Leaving Certificate as valid document in respect of the date of birth of the concerned employee and should not have directed the said employee to retire from the company''s service with effect from 30th June, 1992 in absence of any other proper and valid document regarding the age of the employee concerned contrary to what has been recorded in the School Leaving Certificate submitted by the said employee.
17. The learned Single Judge although referred to and relied upon a decision of the Division Bench of this Hon''ble Court in the case of Puspa Rani Chakraborty and Ors. v. Allahabad Bank and Ors. reported in 2000 (1) CLJ 259, but in our opinion, the said decision is not at all applicable in the facts of the present case as the appellant/writ petitioner herein never approached the respondent-company to get the date of birth corrected. The appellant/writ petitioner herein only supplied the relevant documents for the purpose of recording the date of birth in the service record, as the date of birth was not mentioned in the official service record. It is not in dispute that at the time of entering the company''s service the actual date of birth of the appellant/writ petitioner was not recorded.
18. Mr. Soumya Mazumdar, learned Counsel representing the respondent-company also referred to and relied upon the following decisions of the Supreme Court:
1.
2.
For the identical reasons as mentioned in the earlier paragraphs, aforesaid decisions are also not applicable in the facts of the present case.
19. The respondent-company while recording the date of birth of the appellant/writ petitioner should have followed the standing orders wherein specific provision has been made for evidence of age in Order No. 2(v)(b). Following the aforesaid provisions of the standing order, the competent authority of the respondent-company should have recorded the date of birth of the appellant/writ petitioner on the basis of the School Leaving Certificate. In absence of any other valid documents the age recorded in the School Leaving Certificate should be and must be regarded as evidence of age as has been specifically mentioned in the Standing Order No. 2 (v)(b) of the respondent-Company.
20. For the aforementioned reasons, the Chief Personnel Manager of the respondent-company should not have issued the impugned notice dated 12th May, 1992 informing the appellant/writ petitioner about the attainment of the age of superannuation on 30th June, 1992 when the date of birth of the appellant/writ petitioner has been specifically mentioned in the School Leaving Certificate as 1st October, 1934 and the appellant writ petitioner was due to retire from service on attaining the age of 60 years on 30th September, 1994.
21. The concerned authority of the respondent-company acted wrongfully and illegally by directing the appellant/writ petitioner to retire from the company''s service with effect from 30th June, 1992 ignoring the School Leaving Certificate of the said appellant/writ petitioner wherein the actual date of birth of the appellant/writ petitioner has been recorded as 1st October, 1934 and furthermore, no other document in respect the actual date of birth of the writ petitioner contrary to what has been recorded in the said School Leaving Certificate was available in the off record of the respondent-Company.
22. In the aforesaid circumstances, the impugned order dated 1st May, 1992 issued by the Chief Personnel Manager fixing the date of superannuation of the appellant/writ petitioner as 30th June, 1992 cannot be sustained and the same is, therefore, quashed.
23. The respondent authorities herein are directed to treat the appellant/writ petitioner in regular service of the company till 30th September, 1994 when the said appellant/writ petitioner attained the age of 60 years, i.e., the age of superannuation as per the regulation of the respondent-company. The respondent-company is therefore, directed to grant necessary service benefits to the appellant/writ petitioner herein treating the said appellant in regular service of the company till 30th September, 1994 and, thereafter all other retirement benefits should also be given to the said appellant/writ petitioner as per the norms, rules and regulations of the said company. All the service and retiral benefits including the arrears should be given to the appellant/writ petitioner at an early date but positively within six weeks from the date of communication of this order.
With the aforesaid observations and directions, this appeal stands allowed and the judgment under appeal is set aside. There will, however, be no order as to costs. Let xerox plain copies of this order, duly countersigned by the Assistant Registrar (Court), be given to the respective parties on usual undertaking.
P.K. Chattopadhayay & Arunabha Basu, JJ.
