Budhan Pandit Vs. Bharat Refractories Ltd. and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant.orderd.g.r. patnaik, j.1. prayer in this writ application is for quashing the office order no. karmik/173 dated 24.6.2003 (annexure-8), issued under the signature of the respondent no. 4, whereby the petitioner has been informed of his superannuation from service with effect from 30.9.2008.the petitioner has challenged the aforesaid notification as being illegal, arbitrary and contrary to the principles of natural justice.2. the petitioner's case in brief is that he was initially appointed on 1.3.1971 on the post of peon under the india fire bricks insulation company ltd which was a private company and which was later on taken over by the central government. at the time of his appointment, his age was recorded as 21 years as on 1.3.1971. later, his date of birth was corrected as 21.10.1952 on the basis of his matriculation certificate (annexure-1) and such corrected date of birth was mentioned in his provident fund form, medical card and identity card. according to the aforesaid corrected entry of his date of birth, the petitioner was expected to superannuate on 30.10.2009 and not on 30.9.2008, as declared by the respondents.3. a counter-affidavit has been filed on behalf of the respondents.4. heard learned counsel for the petitioner and the learned counsel for the respondents.5. relying entirely on the date of birth recorded in the petitioner's matriculation certificate and the entries made in the medical card, identity card and p.f. form, shri sunil kumar sinha, learned counsel for the petitioner, submits that the petitioner had passed the matriculation examination in the year 1967 from the high school, bedhona (darbhanga) and his date of birth was recorded in the matriculation certificate as 21.10.1952. on his appointment in the indian fire bricks insulation company ltd, which was later on taken over by the government and is now known as ifico refractories plant, a personal data of the petitioner was prepared by the respondents in which his age was recorded as 21 years. on his coming to know that his correct age was not recorded, he submitted his representation for rectification of the entry of his date of birth, on the basis of the matriculation certificate. on acceptance of the date of birth as mentioned in the matriculation certificate, the concerned authorities made correction of the entry of the date of birth of the petitioner while preparing the pf form on 26.4.1972 accepting the date of birth of the petitioner as 21.10.1952.in 1986 when the management had issued a declaration and nomination form to its employees for the purpose of provident fund, his correct date of birth was recorded and mentioned in the form and the same was accepted by the management for the purpose of provident fund and nomination.on 23.7.1997 the management issued a medical card to the petitioner in which his correct date of birth was recorded. likewise, in the identity card issued to the petitioner on 18.4.2006, his correct date of birth was recorded. yet, in june 2008, the respondents had issued the impugned notice of superannuation to the petitioner and it was then that the petitioner learnt that his impression all along that his date of birth was duly corrected, was wrong and that the respondents have not made any rectification in the entry pertaining to his date of birth in his service book and has wrongly treated the date of the petitioner's superannuation as 30.9.2008.the petitioner lodged his protest by way of a representation before the respondent no. 2 on 1.7.2002 with a request to make the necessary rectification in the entry regarding his date of birth in his service book.learned counsel argues that the dispute relating to the petitioner's date of birth, was set at rest way back in 1972 by way of rectification on the basis of his matriculation certificate. the respondents cannot therefore, after such a long gap, refuse to acknowledge the correction made in their records in respect of the petitioner's date of birth, nor can they refuse to rely upon the entry recorded in the petitioner's matriculation certificate. learned counsel adds further that this is a fit case in which the respondents should be directed to treat the petitioner's date of birth as 21.10.1952, as appearing in his matriculation certificate, and to allow him to continue in service till the date of his superannuation on 21.10.2010.6. respondents in their counter-affidavit have vehemently denied and disputed the entire claim of the petitioner. shri krishna murari, learned counsel for the respondents, would submit that service condition of the respondents is governed strictly in accordance with the statutory service rules and regulations which have been framed under the relevant provisions of law and it is mandatory therefore to follow the same. learned counsel explains that the impugned annexure-8 has been passed in accordance with the service rules and regulations of the respondent institution, since the date of superannuation of the employee is determined in accordance with the date of birth entered and recorded in the personal data form of the employee. learned counsel explains that personal data form contains a voluntary declaration of the employee made at the time of his appointment/absorption in the respondent institution. referring to a copy of the personal data form of the petitioner, learned counsel submits that the personal data form was filled up by the petitioner himself in his own hand writing declaring therein his date of birth as 1950. therefore any claim to the contrary, on the basis of any other document including the matriculation certificate, is not tenable in the eyes of law since no such certificate was produced by the petitioner at the time of his initial appointment. learned counsel explains further that the respondent management cannot make any correction in the personal data form on the basis of the belated claim made by the petitioner by referring to his purported matriculation certificate. the corrected entries of the petitioner's date of birth made much later in the pf form, medical card and identity card, were based entirely on the petitioner's own statement, by his controlling authority and such entries were apparently made without reference of the original personal data form of the petitioner and therefore, the purported corrected entry of the petitioner's date of birth in the aforesaid documents, cannot be binding upon the respondent management. learned counsel adds further that entry in the petitioner's service book based upon the entry in the personal data form, cannot be assailed by the petitioner at the fag end of his service tenure. learned counsel explains further that as per the service rules of the respondent company where no definite day and month with year of date of birth is furnished by the employee and the year of birth is only furnished, then by necessary implication, the 1st july of the year is to be treated as actual date of birth of the employee. the petitioner had mentioned in his personal data form the year 1950 as the year of his birth and accordingly, his date of birth is to be treated as 1st july 1950. learned counsel adds that since the personal data form mentions the petitioner's year of birth as 1950, whereas the petitioner's claim on the basis of his matriculation certificate, is 1950, it becomes a dispute of fact and such dispute can be decided only by leading evidence and could be appreciated and decided by a competent civil court and not in this instant writ application.7. from the rival submissions, the facts which emerge are, that at the time of his absorption in service under the respondent company, the petitioner was called upon to fill up and submit his personal data form. copy of the of the personal data form annexed to the counter-affidavit, confirms that the form was filled up by the petitioner himself in his own hand writing and signature indicating thereby that declaration made therein, were his voluntary declaration. against the column of date of birth, the petitioner has mentioned '1950'. if according to the petitioner's claim, he was a matriculate on the date of initial appointment and possessing the matriculation certificate in which his date of birth is recorded as 21.10.1952, then it is not expected that the petitioner who being literate, should himself record an incorrect date of birth voluntarily. it also appears that the petitioner did not annex a copy of the matriculation certificate to the personal data form at the time of filling up and submitting the same to the management.as rightly pointed out by the learned counsel for the respondents, the statutory service rules and regulations of the respondent management which have been framed under the provisions of law, acquire statutory force and is binding both upon the employer and the employee. the requirement of maintaining the personal data form by every employee of the management is a mandatory requirement. such personal data form is prepared on the basis of the voluntary declaration made by the employee at the time of his appointment/absorption in the service of the company. in the instant case, the undisputed fact is that the petitioner had made his own voluntary declaration regarding his date of birth as of the year 1950 and had appended his signature in the personal data form. it is deemed that he has accepted and acknowledged the correctness of such entry as declared by him in his personal data form. the petitioner has though claimed that he had filed his representation for correction of the entry regarding his date of birth in his service book in the year 1972, but he has not enclosed any authentic copy of any such representation to this writ application. the documents on which the petitioner seeks to rely, are the pf nomination form which was prepared in the year 1991 and the identity card which was prepared and issued in the year 1997 and the undated medical card. such entries in the pf form, medical card and identity card were made on the declaration of the petitioner regarding his date of birth and apparently, without verification of the personal data form. the petitioner had wanted to gain capital by relying upon the entry of the date of birth much later in his pf form, identity card and medical card and had not bothered to get rectified the entries in his service book rectified based upon his personal data form. the petitioner cannot therefore take any benefit of the entries regarding his date of birth in the aforesaid documents against the entry which have been recorded in the personal data form on the basis of his voluntary declaration made at the time of his initial appointment and seek rectification of the entries in respect of his date of birth in his service book at the fag end of his service tenure i.e. one year before his superannuation.8. in the case of burn standard co. ltd. and ors. v. dinabandhu majumdar and anr. : [1995]3scr712 , the supreme court has observed that the date of birth entered in service and leave record on the basis of voluntary declaration made by the employee at the time of appointment, authenticated by him and never objected to up to the fag end of service (about two years before superannuation) and held that under such circumstances, the writ petition seeking correction of date of birth filed at such stage, is not ordinarily entertainable.9. in the instant case, going by the facts and circumstances, it does not appear that there was any clerical error or there was any involvement of the management in the preparation of the petitioner's personal data form, since contents of the forms was filled up by the petitioner himself in his own handwriting by way of his voluntary declaration and which he had accepted as correct at the time of submitting the same.10. for the reasons discussed above, i do not find merit in this application. accordingly, the same is dismissed.

Judgment:
ORDER

D.G.R. Patnaik, J.

1. Prayer in this writ application is for quashing the Office Order No. Karmik/173 dated 24.6.2003 (Annexure-8), issued under the signature of the respondent No. 4, whereby the petitioner has been informed of his superannuation from service with effect from 30.9.2008.

The petitioner has challenged the aforesaid notification as being illegal, arbitrary and contrary to the principles of natural justice.

2. The petitioner's case in brief is that he was initially appointed on 1.3.1971 on the post of Peon under the India Fire Bricks Insulation Company Ltd which was a private company and which was later on taken over by the Central Government. At the time of his appointment, his age was recorded as 21 years as on 1.3.1971. Later, his date of birth was corrected as 21.10.1952 on the basis of his matriculation certificate (Annexure-1) and such corrected date of birth was mentioned in his Provident Fund Form, Medical Card and Identity Card. According to the aforesaid corrected entry of his date of birth, the petitioner was expected to superannuate on 30.10.2009 and not on 30.9.2008, as declared by the respondents.

3. A counter-affidavit has been filed on behalf of the respondents.

4. Heard learned Counsel for the petitioner and the learned Counsel for the respondents.

5. Relying entirely on the date of birth recorded in the petitioner's matriculation certificate and the entries made in the medical card, identity card and P.F. Form, Shri Sunil Kumar Sinha, learned Counsel for the petitioner, submits that the petitioner had passed the matriculation examination in the year 1967 from the High School, Bedhona (Darbhanga) and his date of birth was recorded in the Matriculation Certificate as 21.10.1952. On his appointment in the Indian Fire Bricks Insulation Company Ltd, which was later on taken over by the Government and is now known as IFICO Refractories Plant, a personal data of the petitioner was prepared by the respondents in which his age was recorded as 21 years. On his coming to know that his correct age was not recorded, he submitted his representation for rectification of the entry of his date of birth, on the basis of the matriculation certificate. On acceptance of the date of birth as mentioned in the matriculation certificate, the concerned authorities made correction of the entry of the date of birth of the petitioner while preparing the PF Form on 26.4.1972 accepting the date of birth of the petitioner as 21.10.1952.

In 1986 when the Management had issued a declaration and nomination form to its employees for the purpose of Provident Fund, his correct date of birth was recorded and mentioned in the Form and the same was accepted by the Management for the purpose of Provident Fund and nomination.

On 23.7.1997 the Management issued a Medical Card to the petitioner in which his correct date of birth was recorded. Likewise, in the Identity Card issued to the petitioner on 18.4.2006, his correct date of birth was recorded. Yet, in June 2008, the respondents had issued the impugned notice of superannuation to the petitioner and it was then that the petitioner learnt that his impression all along that his date of birth was duly corrected, was wrong and that the respondents have not made any rectification in the entry pertaining to his date of birth in his service book and has wrongly treated the date of the petitioner's superannuation as 30.9.2008.

The petitioner lodged his protest by way of a representation before the respondent No. 2 on 1.7.2002 with a request to make the necessary rectification in the entry regarding his date of birth in his service book.

Learned Counsel argues that the dispute relating to the petitioner's date of birth, was set at rest way back in 1972 by way of rectification on the basis of his matriculation certificate. The respondents cannot therefore, after such a long gap, refuse to acknowledge the correction made in their records in respect of the petitioner's date of birth, nor can they refuse to rely upon the entry recorded in the petitioner's matriculation certificate. Learned Counsel adds further that this is a fit case in which the respondents should be directed to treat the petitioner's date of birth as 21.10.1952, as appearing in his matriculation certificate, and to allow him to continue in service till the date of his superannuation on 21.10.2010.

6. Respondents in their counter-affidavit have vehemently denied and disputed the entire claim of the petitioner. Shri Krishna Murari, learned Counsel for the respondents, would submit that service condition of the respondents is governed strictly in accordance with the statutory Service Rules and Regulations which have been framed under the relevant provisions of law and it is mandatory therefore to follow the same. Learned Counsel explains that the impugned Annexure-8 has been passed in accordance with the Service Rules and Regulations of the respondent institution, since the date of superannuation of the employee is determined in accordance with the date of birth entered and recorded in the personal data Form of the employee. Learned Counsel explains that Personal Data Form contains a voluntary declaration of the employee made at the time of his appointment/absorption in the respondent institution. Referring to a copy of the Personal Data Form of the petitioner, learned Counsel submits that the Personal Data Form was filled up by the petitioner himself in his own hand writing declaring therein his date of birth as 1950. Therefore any claim to the contrary, on the basis of any other document including the matriculation certificate, is not tenable in the eyes of law since no such certificate was produced by the petitioner at the time of his initial appointment. Learned Counsel explains further that the respondent Management cannot make any correction in the Personal Data Form on the basis of the belated claim made by the petitioner by referring to his purported matriculation certificate. The corrected entries of the petitioner's date of birth made much later in the PF Form, Medical Card and Identity Card, were based entirely on the petitioner's own statement, by his Controlling Authority and such entries were apparently made without reference of the original Personal Data Form of the petitioner and therefore, the purported corrected entry of the petitioner's date of birth in the aforesaid documents, cannot be binding upon the respondent management. Learned Counsel adds further that entry in the petitioner's service book based upon the entry in the Personal Data Form, cannot be assailed by the petitioner at the fag end of his service tenure. Learned Counsel explains further that as per the service Rules of the respondent Company where no definite day and month with year of date of birth is furnished by the employee and the year of birth is only furnished, then by necessary implication, the 1st July of the year is to be treated as actual date of birth of the employee. The petitioner had mentioned in his Personal Data Form the year 1950 as the year of his birth and accordingly, his date of birth is to be treated as 1st July 1950. Learned Counsel adds that since the personal data form mentions the petitioner's year of birth as 1950, whereas the petitioner's claim on the basis of his matriculation certificate, is 1950, it becomes a dispute of fact and such dispute can be decided only by leading evidence and could be appreciated and decided by a competent Civil Court and not in this instant writ application.

7. From the rival submissions, the facts which emerge are, that at the time of his absorption in service under the Respondent Company, the petitioner was called upon to fill up and submit his personal data form. Copy of the of the personal data form annexed to the counter-affidavit, confirms that the form was filled up by the petitioner himself in his own hand writing and signature indicating thereby that declaration made therein, were his voluntary declaration. Against the column of date of birth, the petitioner has mentioned '1950'. If according to the petitioner's claim, he was a matriculate on the date of initial appointment and possessing the matriculation certificate in which his date of birth is recorded as 21.10.1952, then it is not expected that the petitioner who being literate, should himself record an incorrect date of birth voluntarily. It also appears that the petitioner did not annex a copy of the matriculation certificate to the personal data form at the time of filling up and submitting the same to the management.

As rightly pointed out by the learned Counsel for the respondents, the statutory Service Rules and Regulations of the respondent management which have been framed under the provisions of law, acquire statutory force and is binding both upon the employer and the employee. The requirement of maintaining the personal data form by every employee of the management is a mandatory requirement. Such personal data form is prepared on the basis of the voluntary declaration made by the employee at the time of his appointment/absorption in the service of the Company. In the instant case, the undisputed fact is that the petitioner had made his own voluntary declaration regarding his date of birth as of the year 1950 and had appended his signature in the personal data form. It is deemed that he has accepted and acknowledged the correctness of such entry as declared by him in his personal data form. The petitioner has though claimed that he had filed his representation for correction of the entry regarding his date of birth in his service book in the year 1972, but he has not enclosed any authentic copy of any such representation to this writ application. The documents on which the petitioner seeks to rely, are the PF Nomination Form which was prepared in the year 1991 and the Identity Card which was prepared and issued in the year 1997 and the undated Medical Card. Such entries in the PF Form, Medical Card and Identity Card were made on the declaration of the petitioner regarding his date of birth and apparently, without verification of the personal data form. The petitioner had wanted to gain capital by relying upon the entry of the date of birth much later in his PF Form, Identity Card and Medical Card and had not bothered to get rectified the entries in his service book rectified based upon his personal data form. The petitioner cannot therefore take any benefit of the entries regarding his date of birth in the aforesaid documents against the entry which have been recorded in the personal data form on the basis of his voluntary declaration made at the time of his initial appointment and seek rectification of the entries in respect of his date of birth in his service book at the fag end of his service tenure i.e. one year before his superannuation.

8. In the case of Burn Standard Co. Ltd. and Ors. v. Dinabandhu Majumdar and Anr. : [1995]3SCR712 , the Supreme Court has observed that the date of birth entered in Service and Leave Record on the basis of voluntary declaration made by the employee at the time of appointment, authenticated by him and never objected to up to the fag end of service (about two years before superannuation) and held that under such circumstances, the writ petition seeking correction of date of birth filed at such stage, is not ordinarily entertainable.

9. In the instant case, going by the facts and circumstances, it does not appear that there was any clerical error or there was any involvement of the management in the preparation of the petitioner's personal data form, since contents of the forms was filled up by the petitioner himself in his own handwriting by way of his voluntary declaration and which he had accepted as correct at the time of submitting the same.

10. For the reasons discussed above, I do not find merit in this application. Accordingly, the same is dismissed.