Judgment:
ORDER
1. Heard both sides.
2. The delay in filing the appeal is condoned, sine we are satisfied that sufficient cause has been shown for condoning the delay. Appeal is taken up for admission and with the consent of counsel for the parties it is being disposed of finally by this judgment.
3. The appellant entered the service of the respondents on 23.1.1981. According to the appellant his date of birth was 1.1.1953. Actually he was earlier given an appointment letter dated 2.5.1974, but he could not joint due to certain problems as is clear from letter dated 19/20.1.1981 (Annexure-4). The case of the appellant is that after he was given another letter of appointment dated 5.12.1979 (Annexure-2) he was medically examined and his age was determined as 27 years on 1.1.1980. But it appears that the age of the appellant was shown in the concerned service record as 3.1.1941. This entry continued. At some point of time the said entry is seen to have been corrected and the date of birth of the appellant is seen to have been shown as 1.1.1953. Annexure-7, the Service Register, indicates that the original entry regarding the date of birth of the appellant was 3.1.1941 and it is seen to be struck off and the entry corrected as 1.1.1953, as per medical certificate attached. According to counsel for the respondents, this entry was not even authenticated by even an initial of the authority who made the entry and there is no other record available to show that the entry was an authorized entry and not an interpolation. According to the appellant this entry of 1.1.1953 was accepted by the respondents. The respondents issued retirement order dated 11.12.2000 (Annexure-8) to the appellant Informing him that he is to retire on 3.1.2001 presumably on the basis of the entry of the date of birth made in the record as 3.1.1941. According to the appellant he made a representation before the respondents and submitted that since his date of birth was 1.1.1953, he cannot be retired on the basis of the alleged entry in the record as 3.1.1941. It is submitted that the said representation did not yield any fruit and the appellant was constrained to approach this Court by filing writ petition being W.P. (S) No. 4407 of 2001, out of which this appeal arises.
4. According to the appellant, as per the service record and other related relevant documents including the pay slip, he should be allowed to continue in service on the basis of his date of birth as mentioned in the record as 1.1.1953. This contention of the appellant was opposed by the respondents by contending that his date of birth as entered in as 3.1.1941 and the same has never been objected to by the appellant and it has been accepted by him. It is pointed out by the appellant that the correction in the date of birth has been made by the respondents in the relevant records in their custody. But the respondents submit that 3.1.1941 was the correct date of birth. The fact remains that the record was actually in the custody of the respondents and the date of birth has been altered as 1.1.1953 from 3.1.1941.
5. The learned Single Judge took the view that determination of the age of the petitioner as 1.1.1953 or 3.1.1941 involved an adjudication on a disputed question of fact and it cannot be done in proceedings under Article 226 of the Constitution of India. The learned Single Judge therefore declined to interfere on such a disputed question of fact and dismissed the writ petition giving the appellant liberty to approach the appropriate forum for establishing his claim regarding his date of birth. Being aggrieved, the appellant has filed this Letters Patent Appeal.
6. The learned Single Judge was correct in his conclusion that the dispute in question cannot satisfactorily be decided in this proceeding under Article 226 of the Constitution of India obviously because evidence relevant for the resolution of the dispute is needed to be taken. In that context, learned counsel for the appellant placed reliance on a judgment of this Court in L.P.A. No. 649 of 2001 (Central Coalfields Limited and Ors. v. Sri Ram Kishun Pandey) a copy of which is annexed as Annexure-10 to this appeal, in which the respondent herein was the appellant. Of course, in that case, the dispute regarding the age arose at the time when the employee was still in service and in the present case it arises after the superannuation of the appellant. In that case this Court had directed the Head of the Central Coalfields Ltd. Hospital at Gandhi Nagar, Ranchi to constitute a Multi-Member Medical Board, consisting of at least a Radiologist and one Physician Specialist for assessing the age of the employee involved in that case. Here, no doubt, the appellant can approach the appropriate authority under the Industrial Disputes Act to establish his claim to continue in service on the basis of his date of birth being 1.1.1953. But considering the fact that the appellant is a colliery worker and he has already been retired accepted his date of birth as 3.1.1941, we think that in view of the circumstances obtaining in this case and the course adopted by this Court in L.P.A. No. 649 of 2001, the same course can be adopted to determine the age of the appellant herein especially keeping in view the fact that the date of birth of the appellant was once entered in the relevant service record and subsequently that Was corrected.
7. We, therefore, allow this appeal in part and modify the decision of the learned Single Judge dated 13.12.2002 in W.P.(S). No. 4407 of 2001 and direct the respondents to subject the appellant to a Medical examination by a Multi-Member Medical Board to determine his age and submit its report to the respondents. The Head of the Central Coalfields Ltd. Hospital at Gandhi Nagar, Ranchi is directed to constitute a Multi-Member Medical Board, comprising of at least a Radiologist and on Physician Specialist. The. assessment of the age by the said Medical Board will be binding on both the parties. The Board shall assess the age of the appellant as on the date of examination and shall submit its report to the respondents. The Medical Board shall be constituted within a month from today. The Medical Board will give notice to the appellant of the date of examination and then proceed to examine him and submit the report to the respondents, which will take appropriate consequential action based upon it, if any action is needed.
8. We make no order as to costs.