Back
1993 Supreme(Cal) 502
IN THE HIGH COURT AT CALCUTTA
Bhagabati Prasad Banerjee and Nikhil Nath Bhattacharjee, JJ.
Sri Saroj Kumar Bhattacharya ......Appellant
Versus
Bengal Immunity Ltd. & Ors. ......Respondents
Appeal from Original Order No. 486 of 1993 & Matter No. 156 of 1993
Decided on : December 9, 1993
Mr. Sudipta Sarkar, Priyalal Dutta and Subir Kumar Saha ......for the Appellant
Mr. Ahin Chowdhury, Prasenjit Basu and Ajay Nath Chunder ......for the Respondent No.1
A contemporaneous document or in other words if one has entered into the service, but at the time of entering into the service Matriculation Certificate was missing and was not in his possession, he could apply to the authority, subsequently for the purpose of consideration and correction of the date of birth, only on the basis of such contemporaneous document which was in existence before he had made any declaration in ignorance of the age recorded in the Matriculation or other certificate, the genuineness of which was not disputed.
Headnote:
CORRECTION OF DATE OF BIRTH - WEST BENGAL SERVICE RULE, PART I, RULE 9 - A contemporaneous document or in other words if one has entered into the service, but at the time of entering into the service Matriculation Certificate was missing and was not in his possession, he could apply to the authority, subsequently for the purpose of consideration and correction of the date of birth, only on the basis of such contemporaneous document which was in existence before he had made any declaration in ignorance of the age recorded in the Matriculation or other certificate, the genuineness of which was not disputed.
Fact of the Case:
The appellant joined the respondent company in 1953 and his date of birth was recorded as 21st March, 1935. In 1956, he made a declaration for the purpose of gratuity fund stating his age as 21 years 6 months on 21st September, 1956. In 1962, he passed the School Final Examination as a private candidate and his date of birth was recorded as 10th June, 1939' in the certificate. In 1985, he wrote to the company requesting them to treat him as School Final passed and accept the date of birth as 10th June, 1939'. The company refused, and he filed a writ petition challenging the notice of retirement issued to him based on his original date of birth.
Finding of the Court:
The court found that the School Final Certificate was not a contemporaneous document and that the appellant had not explained the circumstances under which he had made the admission in the declaration for the purpose of gratuity fund. The court also found that the letter issued by the Personnel Manager in 1985 accepting the appellant's date of birth as 10th June, 1939 was not genuine.
Issues: 1. Whether the School Final Certificate was a contemporaneous document that could be used to correct the appellant's date of birth. 2. Whether the appellant's admission in the declaration for the purpose of gratuity fund was binding on him. 3. Whether the letter issued by the Personnel Manager in 1985 accepting the appellant's date of birth as 10th June, 1939 was genuine.
Ratio Decidendi: 1. The court held that the School Final Certificate was not a contemporaneous document because it was not issued until after the appellant had already entered into service and made a declaration about his age. 2. The court held that the appellant's admission in the declaration for the purpose of gratuity fund was binding on him because he had not explained the circumstances under which he had made it. 3. The court held that the letter issued by the Personnel Manager in 1985 accepting the appellant's date of birth as 10th June, 1939 was not genuine because the genuineness of the letter was under challenge and the appellant had not provided any evidence to support its authenticity.
Final Decision: The court dismissed the appeal and upheld the order of the trial court.
Banerjee, J. : This is an appeal against the judgment and order dated 6th May, 1993 passed in Matter No. 156 of 1993 by the learned Trial Judge dismissing the application. The subject-matter of the writ application was for correction of the date of birth of the appellant-writ petitioner. Originally the respondent-company was a private-company known as "Bengal Immunity Company Limited'. Admittedly, the appellant-petitioner joined in the service on 1st May, 1953. At the time of entering into his service, on the basis of the declaration made by him his date of birth was recorded as on 21st March, 1935. Thereafter, on 20th October, 1956 the appellant-petitioner made a declaration required for the purpose of gratuity fund in which he had declared his age on 21st September, 1956 as 21 years 6 months on the basis of horoscope which tallies with the date of birth initially dec1ared by him as 21st March, 1993. While he was in service the appellant-petitioner appeared as a private candidate in School Final Examination conducted by the West Bengal Board of Secondary Education in March 1962 and he was passed in 3rd Division and on the basis of his own statement made before the Board his date of birth was recorded in the School Final Certificate as 10th June, 1939'. Admittedly, after passing the School Final Examination no reference was made to the authority concerned for correction of his date of birth in the records. But according to the appellant-petitioner he wrote a letter to the authority concerned on 9th January, 1979 for treating him as School Final passed and accepting the date of birth as 10th June, 1939' as was recorded in the said Certificate. Incidentally, for 17 years he was keeping significantly silent with regard to the dispute of his date of birth and again he made a representation on 2nd February, 1985.
2. It appears that the appellant-petitioners was a President of the Bengal Immunity Workers' Union and on 20th March, 1984 a meeting was held by and between the Management and the Workmen in which the appellant-petitioner participated as a President and for the purpose of determining the age, Age dispute committee was constituted formulating the principle and procedure to be followed for the purpose of settlement of age dispute by bipartite agreement between the Management and the Workmen. The said age dispute committee was set up with a Chairman and three members and on 28th May, 1985 the Personnel Manager of the Company issued a notice regarding age dispute intimating all workmen and all concerned. The contents of the said notice dated 28th May, 1985 is as follows :–
"From time to time, we have been receiving applications from workmen/employees disputing their date of birth/retirement as recorded with the Company. Accordingly, an Age Dispute Committee with DM(A) as the Chairman has since been constituted and all such disputed cases have been referred to the Committee which, in the meantime, has also settled many cases.
In this connection, it is notified that workmen/employees, having age dispute without yet referred, should submit their cases to DM(A), the Chairman, Age Dispute Committee on or before 21st June, 1985, after which no other case will be entertained and the age record as available with the Company shall be final and binding".
3. On the basis of the date of birth as originally recorded and as criminally declared which was supported by a subsequent declaration, a notice of retirement was issued. This notice of retirement was the subject-matter of Challenge in the writ application. In support of his case, that the management has accepted his date of birth as 10th June, 1939 instead 31st March, 1935, reliance was placed on a letter written by Shri G. Rai Verman, the then Personnel Manager who was officiating in that post, addressed to the appellant-petitioner wherein the said authority has stated that his date of birth was recorded in the records of service as 10th June, 1939. The genuineness of that letter
