HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition No. 2472 of 1994
Sohan Singh
....Petitioner
-Versus-
The Steel Authority of India Ltd. & others
....Respondent
! Mr. H. B. Agrawal, Senior Advocate with Miss Sangeeta
Mishra, Advocate for the petitioner.
^ Mr. P. Diwakar, Senior Advocate with Mr. Mahesh Sharma,
Advocate for the Respondents No. 1 and 2.
By Justice Satish K. Agniho
Dated: 16/09/2005
: O R D E R
( 16 September 2005)
1. The present petition filed under Article 227 of the
Constitution of India impugns the order dated 7.3.1994 (Annexure
P/25) passed by the Industrial Court, Bench at Raipur in Appeal
No. 182/M.P.I.R. Act/93.
2. The relevant facts, for adjudication, are that the
petitioner was appointed as Fitter, in the year 1959, in Coke
Oven and By-product Department, Bhilai Steel Plant, Bhilai,
District- Durg. The date of birth of the petitioner was recorded
in the service record, on the basis of his declaration, as
`10.1.1932′. In Exhibit D/10, which is Line of Promotion List
(seniority list) for the post of Chargeman, mentioning Revised
Pay Scale w.e.f. 1.9.1970, the petitioner is placed at Srl. No.6
and his date of birth mentioned in this document as `10.1.32′.
Likewise in the Exhibit D/9, which is L.O.P. (Line of Promotion)
Seniority of Capital Repair Group (Published vide No.
S(M&R)/Estt/Sen/74/(CR)/1636 dated 27.2.74, the name of the
petitioner is placed at Srl. No. 1 in the cadre of Chargeman and
his date of birth is mentioned as `10/1/32′ in this document, and
thereafter it was continued to be recorded as 10.1.1932 on the
basis of the service record. According to the petitioner in
Exhibit P/1, which is Application Form for admission to the
Provident Fund, for submission in the Office of the Chairman
Board of Trustees, Provident Fund, Bhilai Steel Plant, filled in
on 4.3.1983, his date of birth was mentioned as `13.1.1942′ by
the petitioner and it was accepted by the Assistant Manager
(Personnel) of the Respondents No. 1 and 2. The Declaration and
Nomination Form (Exhibit P/2) made on 5.3.1983 by the petitioner
also indicated the date of birth of the petitioner as
`13.1.1942′. The petitioner obtained a copy of the Birth
Certificate in Punjabi language from the Chief Registrar (Births
and Deaths) Punjab on 24.4.1989 wherein the date of birth of the
petitioner was recorded as 23.1.1942. Subsequently, the
petitioner obtained English version of the date of birth
certificate from the office of the Municipal Corporation,
Amritsar on 30.11.1992 wherein the date of birth of the
petitioner was recorded as `18.1.1942′. It is evident from this
document that the date of registration was `23rd January, 1942′
and the Registration number was `678′.
3. The petitioner had received notice dated 8.9.1989 (Annexure
P/10) whereby he was informed that on attaining the age of
superannuation the petitioner would retire on 31.1.1990. Prior to
this notice, the petitioner had been raising his grievance to the
Respondents No. 1 and 2 by submitting representations i.e. on
20.3.1989 (Annexure P/5), on 10.5.1989 (Annexure P/2), on
24.7.1989 (Annexure P/4) for correcting his date of birth as
`13.1.1942′ instead of `10.1.1932′.
4. That being aggrieved by the non correction of his date of
birth to 13.1.1942, the petitioner filed an application under
Section 31(3) read with Sections 61 and 64-A of the Madhya
Pradesh Industrial Relations Act, 1960 (hereinafter `the Act,
1960′) before the Labour Court, Durg praying for a relief that
his date of birth be corrected as 13.1.1942 and the respondents
be directed to retire him accordingly on the basis of his date of
birth i.e. 13.1.1942. The Labour Court, Durg, drawing adverse
inference from the facts that the original service book could not
be produced and the management had not taken any action against
the erring officials, and relying on the entry in the Provident
Fund Form and Declaration Form, and further relying on the birth
certificate, produced by the petitioner, wherein there was
contradiction in the date of birth in the certificate issued in
Punjabi language and in the certificate issued in English
language, the Labour Court vide order dated 20.5.1993 passed in
Case No. 172/M.P.I.R./89 declared the date of birth of the
petitioner as 13.1.1942 and directed the respondents to retire
the petitioner after completion of the age of 58 years on the
basis of the date of birth of the petitioner as `13.1.1942′.
5. Feeling aggrieved by the order dated 20.5.1993 passed by the
Labour Court, Durg, the respondents filed appeal under section 65
of the Act, 1960 before the Industrial Court, Raipur. The
Industrial Court vide order dated 7.3.1994 passed in Appeal No.
182/M.P.I.R.Act/93, after having considered all the documents
recorded the findings that the seniority list of February, 1974
clearly indicates the date of birth of the petitioner as
10.1.1932. Admittedly, recording of the date of birth in the
seniority list was on the basis of the date of birth recorded at
the time of appointment in the service book. It was found that no
adverse inference can be drawn because the service book,
attestation form and other documents prepared at the time of the
appointment could not be produced being the old documents. The
Industrial Court, however, found that the subsequent documents
like Provident Fund Form, Declaration & Nomination Form etc. made
by the petitioner recording/mentioning his date of birth as
13.1.1942 cannot be relied upon for determining the date of
birth. The birth and date certificate produced by the petitioner
obtained in Punjabi language and English language have
contradictory dates of birth. In Punjabi the date of birth was
recorded as 23.1.1942 and the father’s name was Dil Sher Singh,
no place of birth was recorded in the said certificate. In the
subsequent date of birth certificate, the date of birth of the
petitioner is mentioned as 18th January, 1942 and father’s name
as Sher Singh. The Industrial Court did consider the said
documents also. The Industrial Court after having considered and
having appreciated all the documents and depositions of the
witnesses of the parties, came to the conclusion that the
petitioner’s date of birth was 10.1.1932 and the petitioner was
rightly retired from service on attaining the age of 58 years.
The Industrial Court vide order dated 7.3.1994 after recording
the above stated reasons allowed the appeal filed by the
respondents and set aside the award dated 20.5.1993 passed by the
Labour Court, Durg.
6. I have heard learned counsel for both the parties and
perused the records of the Courts below. This Court has limited
jurisdiction in exercise of its supervisory powers under Article
227 of the Constitution of India. The High Court can interfere
only in cases of erroneous assumption or excess of jurisdiction,
refusal to exercise jurisdiction, error of law apparent on the
face of records, arbitrary or capricious exercise of powers of
the authority or discrimination, flagrant error in procedure and
recording of the perverse findings. In the present case I have
not found that any of the ground stated above has been invoked to
seek interference of this Court.
7. Shri H. B. Agarwal, learned Senior counsel with Miss
Sangeeta Mishra, learned counsel appearing for the petitioner
submitted that the Labour Court’s order was perfectly legal and
sustainable. The respondents were unable to prove their case in
absence of service book and attestation forms that the
petitioner’s date of birth was 10.1.1932 and not 13.1.1942. The
petitioner has not taken missing of the records as seriously by
not taking any action against the erring officials. The
Industrial Court had recorded the findings on the basis of the
seniority list alone and completely ignored the provident fund
form and nomination form filled in by the petitioner and accepted
by the Management. The contradictions in both date of birth
certificates in Punjabi and English are insignificant.
8. Mr. P. Diwakar learned Senior counsel with Mr. Mahesh
Sharma, learned counsel appearing for the respondents on the
contrary submitted that the Industrial Court has considered all
the aspects of the matter and the same is valid and legal.
Learned counsel for the respondents further submitted that this
Court has limited jurisdiction under Article 227 of the
Constitution of India. Learned counsel relied on the decision in
Secretary & Commissioner, Home Department & others Vs. R.
Kriubakaran, 1994 Supp (1) S.C.C.155 wherein the Supreme Court
held as under:
“7. An application for correction of the date of birth
should not be dealt with by the tribunal or the High
Court keeping in view only the public servant
concerned. It need not be pointed out that any such
direction for correction of the date of birth of the
public servant concerned has a chain reaction, inasmuch
as others waiting for years, below him for their
respective promotions are affected in this process.
Some are likely to suffer irreparable injury, inasmuch
as, because of the correction of the date of birth, the
officer concerned, continues in office, in some cases
for years, within which time many officers who are
below him in seniority waiting for their promotion, may
lose their promotions for ever. Cases are not unknown
when a person accepts appointment keeping in view the
date of retirement of his immediate senior. According
to us, this is an important aspect, which cannot be
lost sight of by the court or the tribunal while
examining the grievance of a public servant in respect
of correction of his date of birth. As such, unless a
clear case, on the basis of materials which can be held
to be conclusive in nature, is made out by the
respondent, the court or the tribunal should not issue
a direction, on the basis of materials which make such
claim only plausible….”
9. In the case of Commissioner of Police, Bombay & another Vs.
Bhagwan V. Lahane, (1997) 1 S.C.C. 247, relied by learned counsel
for the
10. respondents, the Supreme Court held that entry in the
service book made on the basis of the date of birth is final
unless it is proved by the employee that the said entry was made
due to negligence on the part of some other person or that it was
an obvious clerical error.
11. In the case of G.M. Bharat Coking Coal Ltd. West Bengal Vs.
Shib Kumar Dushad & others (2000) 8 S.C.C. 696, relied on by
learned counsel for the respondents the Supreme Court held as
under:
“17. The date of birth of an employee is not only
important for the employee but for the employer also.
On the length of service put in by the employee depends
the quantum of retiral benefits he would be entitled
to. Therefore, while determining the dispute in such
matters courts should bear in mind that a change of the
date of birth long after joining service, particularly
when the employee is due to retire shortly, will upset
the date recorded in the service records maintained in
due course of administration should not generally be
accepted. In such a case the burden is heavy on the
employee who comes to the court with the case that the
date of birth in the service record maintained by the
employer is untrue and incorrect. The burden can be
discharged only by producing acceptable evidence of a
clinching nature. We are constrained to make this
observation as we find that in a large number of cases
employees who are on the verge of retirement raise a
dispute regarding correctness of the date of birth
entered in the service record and the courts are
inclined to pass an interim order for continuance of
such employee beyond the date of superannuation on the
basis of the entry of date of birth in the service
record. Such a situation cannot be commended for the
reason that the court in passing such an interim order
grants a relief to the employee even before determining
the issue regarding correctness of the date of birth
entered in the service record. Such interim orders
create various complications. Anticipated vacancy for
which the employee next in the line has been waiting
does not materialize, on account of which the junior is
denied promotion which he has all along been led to
believe will be his due on the retirement of the
senior.”
12. In the case of Hindustan Lever Ltd. Vs. S.M.Jadhav &
another, (2001) 4 S.C.C. 52 the Supreme Court held that the
employee cannot be allowed to raise a dispute with regard to the
date of birth at the fag end of his career.
13. It is settled position of law that the employee should not
be allowed to raise the dispute of the date of birth for
correction at the fag end of his career. In Clause -5 of the
Circular No. 87 dated 2nd August, 1974 issued by the Hindustan
Steel Ltd. Bhilai Steel Plant it is clearly provided that no
change in the date of birth should be allowed if such request is
received during the preceding five years of service of the
employee for any reason whatsoever.
14. The petitioner was retired from service on 31.1.1990 on
attaining the age of superannuation i.e. on completion of 58
years of age in accordance with his date of birth recorded as
10.1.1932. The petitioner has raised a dispute at the fag end of
his career knowing fully well that in all the seniority list
published earlier in the years 1970, 1974 and thereafter, had
indicated the date of birth of the petitioner as 10.1.1932. The
documents produced subsequently cannot be taken into
consideration. Some of the documents namely Provident Fund Form,
Nomination Form were filled in by the petitioner, and the
certificate of birth and date produced by the petitioner in
Punjabi as well as in English are contradictory, as such, I do
not find any perversity in the findings recorded by the
Industrial Court to call for interference of this Court under
Article 227 of the Constitution of India.
15. From the decisions cited above, it is clear that unless a
clear case is made out on the basis of the materials which are
held to be conclusive in nature, the Court or Tribunal should not
issue a direction for change of the date of birth.
For the reasons stated above, the petition is dismissed
and the order dated 7.3.1994 passed by the Industrial
Court is upheld. No order as to costs.
J U D G E