A.K. Samantaray, J.
1. The petitioner has come with this writ petition for quashing the notice of superannuation vide letter No. MCL/OA/OC.3/SOM/Retirement/04/2738 dated 8.11.2004 and change of his date of initial entry into service from 1.1.1973 to 20.2.1968 and date of birth from 2.5.1945 to 23.7.1948.
2. The grievance of the petitioner and his case as presented in this writ petition are that the petitioner originally belonged to village Dutta Pukur under Barasat Police Station in the District of 24-Praganas of West Bengal and he was born on 23.7.1948. The father of the petitioner was working as a security guard of the market yard and after his birth his horoscope was prepared showing his date of birth as 23.7.1948 and since the time of his birth was during the post partition period there was uncertainty and tension in the locality of West Bengal and as such the petitioner was given admission in the local school little late and after completing Class-VII while he was reading in Class-VIII, due to family compulsion he gave up the studies to help the family in earning livelihood. After leaving his studies he obtained the transfer certificate from the school and thereafter approached the authorities of West Bengal Coal Mines Ltd. which was a private concern owned by Birlas, for a job. While applying through a formal application the petitioner had submitted his transfer certificate before the authority showing his qualification as well as his date of birth. The management after considering the application appointed him as Apprentice for one year and the petitioner joined the post on 16.1.1967 in Orient Colliery, Brajarajnagar in Orissa. After completion of his apprenticeship the petitioner was posted as general Mazdoor on 20.2.1968 in the Orient Colliery, Brajarajnagar. While the petitioner was continuing in this job as general Mazdoor, he was found suitable and eligible to undergo training for Mining Sirdar and he joined the Sirdar training which was for three years term as a trainee being in service which he joined in 1968 and he got salary and other benefits regularly during the period of the training. After completing the training of Mining Sirdar and before passing out the said examination, in the year 1973 the coalmines were nationalized and Orient Colliery was brought under Coal Mines Authority of India. The petitioner successfully completed the said training and passed the examination in the year 1974 which was conducted under the Mines Act, 1952 and Coal Mines Regulation, 1957 under the Director of Mines, Dhanbad and obtained certificate on 13.2.1975 (Annexure-1). In the said certificate the date of birth of the petitioner is recorded as 23.7.1948. After nationalization of the coal mines the Coal Authority of India was bifurcated into different zones and Brajarajnagar came under the Western Coal Fields Ltd. and the petitioner continued under the said management. Subsequently, the Western Coal Fields Ltd. was again bifurcated and South Eastern Coal Fields Ltd. came to existence and thereafter on further bifurcation it has become Mahanadi Coal Fields Ltd. The petitioner continued all along and served continuously under the different managements on bifurcation of the said Orient Colliery right from the date of his appointment in 1968 and he was absorbed by the Coal Mines Authority on nationalization of the Coal Fields Ltd. It is the case of the petitioner that at no point of time any service record was opened with a copy to the petitioner by any of the managements he had served and as such the petitioner was all along under the impression that the date of birth was recorded by the managements as per the date of birth recorded in the Sirdar Certificate. In the year 1997, to his utter surprise the petitioner came to know, when copy of Form P.S.3 and nomination form were submitted under the Coal Mines Pension Scheme, that his date of birth had been interpolated from 23.7.1948 to 2.5.1945 at one place and in the second place his correct date of birth i.e., 23.7.1948 is still available. After coming to know about the interpolation and change of date of birth without any show cause to the petitioner and giving any opportunity to explain the situation, the petitioner filed a representation (Annexure-2) to the previous management, i.e., South Eastern Coal Fields Ltd. stating that his date of birth had been wrongly changed and had been interpolated and his correct date of birth is 23.7.1948 and not 2.5.1945 and prayed for correction of the same accordingly. The previous management did not act upon the representation and it is stated that the management assured that his date of birth be corrected as per Mining Sirdar certificate and even after the bifurcation the management under which the petitioner came to serve and is serving at present had assured him orally that his date of birth be changed and he was lastly assured that it had already been corrected.
3. It is stated in the petition that as per law the Mining Sirdar certificate is renewed once in every five years and his Sirdar certificate which was granted in the year 1975 has been renewed in every five years and at no point of time any question was raised by the Director of Mines, Bhubaneswar region who renews the certificate from time to time. He has stated that as there was no communication from any of the managements to change the said date of birth or objection to record the date of birth in the service register, on the basis of the said certificate the petitioner filed a representation and hoped that the date of birth might have been changed as per the certificate. The petitioner demanded the copies of the service records but at no point of time the management supplied the same and as such again in the year 1997 the petitioner reliably came to know that the O.Ps. had not corrected his date of birth and as such he made another representation (Annexure-3) to O.P. No. 4 to correct his date of birth to 23.7.1948. It is stated further that from the office of the Coal Mines Provident Fund, Sambalpur, the petitioner came to know that his correct date of birth was not mentioned in spite of his representation and it had been interpolated to 2.5.1945 at one place although at another place his date of birth has been reflected as 23.7.1948. He has annexed the copies of Form P.S.3 as well as the nomination form prepared by the O.Ps. as Annexures-4 and 5. After coming to know this, the petitioner again represented to correct his date of birth and in the meantime he also came to learn that not only his date of birth but also the date of his initial appointment has been wrongly mentioned by the management without looking to the original records of service while he was taken over from the private management to the nationalized coal fields. He has asserted that his date of appointment was in the year 1968 during the time of private management but in service book it has been mentioned that he entered into service on 1.1.1973, that is the year of nationalization of the coal mines. This fact, according to the petitioner, was also represented with a prayer to change the date of entry into service in his service book vide Annexure-6. The petitioner also approached O.P. No. 2 through the registered trade union for necessary correction of his date of birth and date of appointment vide Annexure-7. It is stated that in spite of repeated representations and requests both orally and in writing the O.Ps. never bothered to respond and ultimately issued the superannuation notice on 8.11.2004 calling upon the petitioner to superannuate from service with effect from 31.5.2005 vide Annexure-8. He being workman is governed by the National Coal Wage Agreement-Ill dated 25th April, 1988 prepared by the joint bipartite committee for coal industry, Coal India Limited with implementation of instruction No. 76. As per the implementation instruction No. 76 of the said agreement determination of age at the time of appointment of an employee in the case of non-matriculates but educated, it is stipulated that who has pursued studies in a recognized educational institution, the date of birth as recorded in school register or school certificate shall be treated as a correct date of birth and the same cannot be altered under any circumstances. In the said instruction (Annexure-9) at Annexure-I clause B it is stipulated as to how the date of birth in respect of the existing employees are to be determined and in Clause (i)(b) of the said Clause B it is clearly stipulated that in case of Mining Sirdarship, Winding Engine or similarly other statutory certificates where the Manager had to certify, the date of birth will be treated as authentic and the petitioner has stated that his case is guided and regulated under this clause as he was a Mining Sirdar with a Sirdar certificate in which his date of birth has been recorded as 23.7.1948 by the management taking into consideration of his school certificate. It is the case of the petitioner that in that view of the matter for all practical purposes the date of birth of the petitioner is to be treated as 23.7.1948 and in the said circumstances issuance of superannuation notice to superannuate him on 31.5.2005 is not sustainable in law and should be quashed.
4. The opposite parties have filed counter affidavit through one Ram Shankar Sharma, Area Personnel Manager, MCL (O.P. No. 3) stating that the said superannuation notice (Annexure-8) has been issued by the Superintendent (M) (O.P. No. 4) taking into account the date of birth of the petitioner recorded in Form B register which was prepared in the year 1973 when the coal mines were nationalized under the Coal Mines Nationalization Act, 1973. It is stated that in the declaration submitted by the petitioner himself as to his date of birth in the said Form B register is 2.5.1945 vide Annexure-A/1. After preparation of the Form B register by the authority the company prepared service book of the petitioner on the declaration given by the petitioner in Form B and the authority recorded the date of birth as 2.5.1945 in the service register/book vide Annexure-A/2 and the petitioner accepted the date of birth so recorded by putting his LTI. After appointment by the company the petitioner appeared for Sirdar Certificate Examination on 6.12.1974 and obtained the certificate from the Chairman of the Board of Mining Examination on 13.2.1975 and since this Sirdar certificate has been obtained by the petitioner after 1973 when he entered into the service of this management, the date of birth recorded in the Sirdar certificate as 23.7.1948 is not correct and the date of birth given in the Form B register and the service book is correct. As regards the averments of the petitioner that he had passed Ciass-VII in the village school, there is no document to that effect. At the time of preparation of Form B and service book the petitioner did not submit any certificate before the authority and the statement in the petition of the petitioner claiming his date of birth to be 23.7.1948 is based on no document produced by him before the authority. According to the O.Ps. as per Form B and the service register the petitioner had joined under the O.Ps. on 1.1.1973 and his claim otherwise is not at all correct. It is specifically stated in paragraph 8 of the counter that the Sirdar certificate (Annexure-1) was obtained by the petitioner only in the year 1975 during the service period under the O.Ps. which is after the preparation of the service register/book and Form B and as such the claim of the petitioner that his date of birth is 23.7.1948 as per Annexure-1 is also incorrect. Apart from that, the claim of the petitioner that his performance was satisfactory is negated on the face of the service book Annexure-A/2 which reveals that he has acted against the standing instruction of the company. In paragraph 10 of the counter it is stated that in 1998 the O.Ps. introduced pension scheme for the employees as third benefits and after the scheme was introduced all the employees including the petitioner submitted Forms P.S.3 and P.S.4 (Annexure-A/3 series) before the authority and in the said forms the petitioner had given his date of birth as 23.7.1948 and when it was verified by the authorities it was corrected to 2.5.1945 which is his date of birth recorded in the service book. It is further averred by the O.Ps. that prior to submission of Forms P.S.3 and P.S.4 on 19.10.1995 the petitioner signed Form-0 (Annexure-A/4) before the Medical Officer that he has rendered twenty-two years of service under the O.Ps. and his age was fifty years. After verifying the Form-O the petitioner put his signature. As regards the representation about which the petitioner has stated, the O.Ps. denied to have received any representation vide Annexure-2 and in this connection it has been categorically stated by the O.Ps. that no oral assurance was given by the authorities to the petitioner for correction of his date of birth or date of entry into the service. It is further stated that the petitioner was the office bearer of Brajarajnagar Coal Workers Union and the General Secretary of the Union vide his letter dated 3.4.1998 requested the O.Ps. to correct the date of appointment of the petitioner and the O.Ps. examined the documents and rejected the claim of the petitioner and communicated the same to the General Secretary of the Union vide Annexure-A/5. It is stated in paragraph 13 of the counter that for obtaining medical book the petitioner has declared his date of birth as 2.5.1945 submitting the medical book form (Annexure-A/6). It is finally stated that as per the circular under Implementation Instruction (in short-ll) 1.1.76 of National Coal Wage Agreement it was mentioned in Clause-11 that the declaration of age by the determination committee/medical board will be binding and final for all the employees and the date of birth mentioned in Form B service record and CMPP record is final and as such the allegation of the petitioner on the basis of date of birth recorded in the Sirdar certificate which he obtained subsequent to the preparation of his service record cannot be accepted as it does not show the correct date of birth. Besides, it is stated that the petitioner at the fag end of his service is claiming that the date of birth recorded in his service register is not correct which plea does not deserve any consideration and in this connection the O.Ps. have relied on the decision of the apex Court reported in AIR 2001 SC 72 (G.M., Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors.) and have averred that determination of date of birth is a question of fact which appears on evidence either orally or documentary and the High Court in writ petition cannot make an enquiry into such disputed question of fact and the proper course for the petitioner would be to get a declaration from the competent Court of law regarding the date of birth.
5. A rejoinder affidavit has been filed by the petitioner reiterating the same averments and it is added there that it has not been denied by the opposite parties in their counter that the petitioner was appointed in Orient Colliery and the O.Ps. having not produced the service records of the petitioner at the time of his joining the Orient Colliery, the subsequent records as per Annexures-A/1 to A/6 are not admissible in law. Besides, it is added that the claim of the O.Ps. that Annexures/A/1 and A/2 were prepared on 1.1.1973 is totally false as because Govt. of India, when took over the private companies on 1.5.1973, the O.Ps. could not have prepared the service records on 1.1.1973, that is before taking over or nationalization. It is averred further that the O.Ps. have suppressed facts and the original service records received during nationalization and have ignored the date of birth in the Sirdar Certificate and as such the claim of the O.Ps. is liable to be ignored.
6. From the aforesaid averments of the parties it is crystal clears that the dispute relates to the date of birth of the petitioner as well as the date of entry into service. The petitioner claims that his date of birth is 23.7.1948 whereas the O.Ps. as per their records state that it is 2.5.1945. The date of birth as per the petitioner is noted in the Sirdar Certificate obtained on 13.2.1975 wherein his date of birth has been mentioned as 23.7.1948. The O.Ps. refute the same and referring to Form B claim that the date of birth mentioned in Form B was recorded as per the own statement of the petitioner and he has signed on the said Form B as token of admission of date of birth given by him. The O.Ps. also rely on the service register (Annexure-A/2) wherein the date of birth of the petitioner has been noted as 2.5.1945 and the petitioner has put his left hand fingers impression on the said document and he has also signed on the same. Disputing the date of birth as claimed by the petitioner the O.Ps. have also corrected the date of birth put by the petitioner in Form P.S.3 submitted by him on 22.5.1998 which has been taken exception to by the petitioner as because this correction of date of birth with reference to the Form-B and service register, as pleaded by the O.Ps., has been carried out at one place in the said Form P.S.3, but in another place of the said Form it has not been corrected. The petitioner has termed this to be manipulation of his date of birth by the O.Ps. As it appears, the petitioner is not in a position to give any school leaving certificate or transfer certificate to show his actual date of birth as recorded in the said certificate. In the declaration (Annexure-A/6) for the purpose of availing medical facilities the petitioner has furnished his own date of birth as well as the date of birth of his wife and dependents and in serial No. 1 in column 3 he has mentioned his date of birth to be 2.5.1945.
7. At the instance of the petitioner by order dated 21.6.2005 the O.Ps. were called upon to produce the relevant records in connection with the service records of the petitioner and accordingly the service records. i.e., the service register, Form-B and other documents referred to above were produced. It is manifest on the face of the pleadings of the parties and the documents relied on that the question of date of birth of the petitioner is very much disputed and when the petitioner is claiming it to be 23.7.1948 on the basis of the Sirdar certificate, the O.Ps. claim that as per his own version when the service record was prepared in the year 1973 at the time of nationalization of the coal mines, his date of birth was recorded to be 2.5.194.5.
8. As regards the claim of the petitioner that he entered into the service under the private management, that is West Bengal Coal Mines Ltd. owned by Birlas as an apprentice on 16.1.1967 and after successful completion of the apprenticeship of one year he was appointed as general Mazdoor on 20.2.1968 and as such he has made a prayer in the writ petition that his initial date of appointment be corrected from 1.1.1973 to 16.1.1967. The O.Ps. have entered his date of appointment in the service register as 1.1.1973 and no appointment order of the petitioner is forthcoming from the side of the petitioner to show that he was initially appointed on 16.1.1967. It is, however, not denied by the O.Ps. that the petitioner was working under the private management. From the document Form-0 (Annexure-A/4) which is a document of the year 1995 pertaining to medical examination of the petitioner under Rule 29-B, the petitioner was aged 50 years and by then he had already put in 22 years of service. In this document also the petitioner has put his signature and if the petitioner had put in 22 years service in the year 1995 his entry into the service cannot be earlier to 1973. The petitioner vehemently disputes this as his service was taken over from the private management by the O.Ps. at the time of nationalization in the year 1973 and his service under the private management (West Bengal Coalfields Ltd.) was as such prior to 1973 and ft cannot be said that his date of initial entry into the service is 1.1.1973.
9. In view of the above facts and circumstances, as we find, there are number of documents to show that the date of birth of the petitioner is 2.5.1945 while according to Sirdar certificate (Annexure-1) the date of birth of the petitioner has been recorded as 23.7.1948. The date of initial entry into the service though has been recorded as 1.1.1973 the petitioner disputes it on the ground that he had served for a pretty long period under the private management and when nationalization took place on 1.5.1973, his date of initial entry into the service of the O.Ps. could not have been recorded as 1.1.1973.
10. While sitting in writ jurisdiction under Article 226 of the Constitution of India this Court cannot determine the disputed question of facts and find out which date of birth, the date of birth mentioned in the documents relied by the petitioner or the documents relied by the O.Ps. is correct. There is a catena of decisions that the disputed question of facts cannot be determined in a writ petition filed under Article 226 of the Constitution. Learned counsel for the O.Ps. relied on the decision of G.M., Bharat Coking Coal Ltd. (supra) where the apex Court has held that determination of date of birth is a question of fact which appears on evidence either orally or documentary and High Court in writ petition cannot make an enquiry into such disputed question of facts. Therefore, this Court cannot conduct a trial or frame issues to determine the fact. The proper course for the petitioner would be to get a declaration from the competent Court of law regarding his date of birth.
11. But for the intervention of this Court the petitioner would have retired by now and only by an interim order passed by this Court he is there in service and enjoying all the benefits. The apex Court has deprecated this practice and paragraph 17 of the judgment referred to above, we can profitably quote here:
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 which will up-set 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 record 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. For the reasons indicated in foregoing paragraphs, we dismiss the writ petition of the petitioner, and, if he so likes, he may approach the proper forum for a declaration as regards his date of birth. The interim order-passed on 26.5.2005 stands vacated. We make it clear that the period during existence of the interim order passed in favour of the petitioner shall not be counted towards his post retiral benefits and his post retiral benefits shall be given to him according to the notice of retirement/superannuation dated 8.11.2004 (Annexure-8). The writ petition is dismissed accordingly.
B.P. Das, J.
13. I agree.