2000 Supreme(SC) 1722

2000(7) Supreme 380
SUPREME COURT OF INDIA
(From Calcutta High Court)
M.B. Shah & D.P. Mohapatra, JJ.
G.M., Bharat Coking Coal Ltd., West Bengal -Appellant
versus
Shib Kumar Dushad & Ors. -Respondents
Civil Appeal No. 6142 of 2000
(Arising out of SLP (Civil) No. 14116 of 1999)
Decided on 2-11-2000
Counsel for the Parties :
For the Appellant : Anip Sachthey and Ms. Sandhya Rajpal, Advocates.
For the Respondents : B. Kanta and Mrs. Sudha Gupta, Advocates.

IMPORTANT POINT
In a case where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of the authority concerned and has been determined by following the procedure prescribed under Service Rules or General Instructions issued by the employer and it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the face of the record, the High Court in exercise of its extraordinary jurisdiction underArticle 226 of the Constitution should not interfere with the decision of the employer.

Headnote:(i) Service Law-Date of Birth-Correction of date of birth stated in service records-If controversy raised long after joining service and matter has engaged attention of authority High Court in jurisdiction under Article 226 should not interfere.

       In a case where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of the authority concerned and has been determined by following the procedure prescribed under Service Rules or General Instructions issued by the employer and it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the face of the record, the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution should not interfere with the decision of the employer. (Para 14)

       (ii) Service Law-Date of Birth-Correction of in service record-Colliery employee-Date of Birth entered in Form- B register was 1932-Employee acquired certificate of Gas Testing and Mining Sirdarship on passing exam conducted by Director General of Mines Safety wherein year of birth mentioned as 9.2.1946-In terms of Service Rules Medical Board examined employee and fixed date of Birth as 13.10.1936-Employee filing writ petition claimed that his date of birth be corrected in service record as 9.2.1946 as stated in certificate acquired by him-High Court directing employer to correct date of birth as prayed for-No scope for High Court to interfere with date of birth as determined by employer-Judgment of High Court set aside.

       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 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 materialise, on account of which the junior is denied promotion which he has all along been lead to believe will be his due on the retirement of the senior. (Para 16)

       From provisions in the Instructions providing for determination/modification of date of birth of an employee applicable in the instant case it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board. Therefore, no fault can be found with the action taken by the appellant to refer the case of the respondent to Medical Board. The Medical Board as laid down in the Instructions is to consider the matter on the evidence available with the colliery management and in accordance with the requirement of medical jurisprudence. As noted earlier, in the present case the Medical Board determined the age of the respondent to be 52 years in 1988 and the employer (appellant) accepted such determination. In the circumstances there was hardly any scope for the High Court to interfere with the date of birth as determined by the employer (appellant herein) and issue a writ of Mandamus that the date as claimed by the employee (the respondent herein) should be accepted. Consequently the judgment of the High Court was set aside. (Paras 19 and 21)