Allowed

M.Subbarayudu, v. The Vice-Chairman 8s Managing Director

Andhra Pradesh HC5 Nov 2019WP/9532/2014

Case brief

AI extract

What is this about?

In a writ petition challenging forced retirement due to altered date of birth, the court held that documentary evidence (School/SSC certificates) proved the petitioner's true DOB (25.04.1963). The court ruled that subsequent changes made without notice were invalid, allowing the petition and fixing the retirement date to 30.04.2021.

What did the court decide?

Writ petition allowed; petitioner's date of birth approved as 25.04.1963; respondents directed to fix date of superannuation as 30.04.2021 and amend records.

M.Subbarayudu, Vs The Vice-Chairman… — Pension and Retirement Benefits | Andhra Pradesh HC (2019)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

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WRIT PETITION No.9532 OF 2014

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ORDER :

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The petitioner seeks a Writ of Mandamus declaring the action of respondent No.1 in proceeding to retire the petitioner on 31.07.2017 even without petitioner completing age of superannuation as illegal, arbitrary, unjust and against the principles of natural justice and for a consequential direction to the respondents to continue the petitioner in service till he attains the age of superannuation on 30.04.2021 as per service records and other reliefs.

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2. The petitioner’s case is thus:

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(a) The petitioner started his career in the A.P. Mineral Development Corporation Limited on 12.02.1977 on daily wage basis at Mangampet Barytes Project and his service was regularized on 01.04.1989 as Challan Issuer. Later, he was promoted as Junior Assistant/Sub-Assistant and after passing of SSC, he was promoted as Junior Assistant Grade-II on 06.11.2008 and further promoted as Junior Assistant Gr-I and working at Weigh Bridge and continuing, as such. His date of birth is 25.04.1963 and therefore he is due to retire from service on attaining superannuation on 30.04.2021.

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3. The respondent No.2 maintaining B-Register, which contains the date of birth and age of the employees/workers which was opened in the year 1976. The respondent No.3 has been maintaining Form-9 Register which also contains the age and date of birth of the employees/workers, who are working under the respondent No.2. The

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petitioner’s date of birth was recorded as 25.04.1963 in both the above registers and also in the Service Book maintained by the respondents. There was no dispute regarding the date of birth of the employees including the petitioner up to 1982. While so, the disputes have been suddenly evoked in the year 1982 when respondent No.2 opened another fresh B-Register in the place of old register on the lame ground that old register was lost in the office of Deputy Director of Mines Safety, Nellore in 1982. The employees unions have strongly protested for the opening of new B-Register and demanded the corporation to maintain the date of births as per the old Register which were recorded at the time of their initial appointment. Then, respondent No.2 has given an assurance to the unions that the date of births that were entered in the register maintained by the respondent No.3 along with educational services will be taken into consideration and the new B-Register will be prepared and no injustice would be caused to any employee. Due to the said assurance of the respondent No.2, the employees kept silent.

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4. While the matter stood thus, respondent No.2 started entering the date of births with the manipulated dates without keeping up his assurance. In that process, a new B-Register has been prepared with wrong date of births showing discrimination against the employees. In that process, the date of birth of the petitioner was altered in the Service Register as 01.08.1959 without the intimation and consent of

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the petitioner. Basing on the said wrong date of birth, the petitioner was sought to be superannuated on 31.07.2017 though he has left over service of three years. Prior to this alteration also, once the respondent corporation altered his date of birth as 14.07.1953. Noticing the said fact, the petitioner approached the 2^nd respondent and requested to change his date of birth. When the 2^nd respondent did not heed his plea, the petitioner filed W.P.No.19674 of 1996. However, since he could not get service records in time, he had to withdraw the writ petition and the same was dismissed as withdrawn on 08.10.1996. Since then he has been pursuing for correction of his actual date of birth. Some of his co-employees approached High Court and obtained favourable orders, hence once again he approached the 2^nd respondent and he requested to correct his date of birth which was struck off in the Service Register. Then, the 2^nd respondent informed him that his date of birth was changed as 01.08.1959 as per the Head Office’s order No.APMDC/ HRD/DOB/FNo.44 (Vol.III/2005/1948 dated 27.07.2005. There were two other wrong date of births which have been entered in the Service i.e., 14.07.1953 after striking his actual date of birth i.e., 25.04.1963 and another correction was 01.07.1955 after rounding off the second wrong date of birth. The 2^nd respondent stated that it has changed age/date of birth of 94 employees in the first batch and 32 employees in the second batch, as per the records of Assistant Provident Fund,

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Kadapa. However, it has not changed petitioner’s date of birth as per his educational certificates. As per education records and other records, his date of birth is 25.04.1963. Therefore, he has right to continue in the service up to 30.04.2021. Hence, the Writ Petition.

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5. The respondents 1 & 2 filed counter inter alia contending thus:

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(a) The petitioner joined in the Corporation on 12.02.1977 as daily wage worker at Mangampet Barytes project and his service was regularized on 01.04.1989 as a Challan Issuer. His date of birth was not 25.04.1963 but it is 01.08.1959 which was confirmed by the 3^rd respondent. The petitioner did not produce any certificate in proof of his age but orally informed his date of birth when he joined the service. Therefore, as per office records, his date of superannuation is 31.07.2017.

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(b) The entry in B-Register was made basing on the oral information provided by the petitioner and the same was informed to Provident Fund office. On verification from the Provident Fund organization vide letter No.AP 4567/AO/SRV/CDP/1455 dated 06.07.2005 with the basic records of the respondents 1 and 2 and Form-9 register of 3^rd respondent, it confirmed the date of birth and changed it as 01.08.1959 and the same was intimated to the petitioner by the respondent corporation vide Order No.APMDC/HRD/DOB/FNo.44(III)/2005/1948 dated 27.07.2005.

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(c) The Board of Directors of the respondent corporation in their meeting dated 14.07.2005 considered the issue regarding discrepancy in the age, date of birth of the employees/work persons recorded in B-Register under the Mines Rules, 1955 and Form-9 register of Assistant Provident Fund Commissioner, Kadapa and authorized the VC & MD to take decision. The matter was examined and having found that the original B-Register opened in the year 1976 was lost in the office of Deputy Director of Mines Safety, Nellore, another B-Register was opened in the year 1982. Accordingly, the age/date of birth particulars of all workers were furnished to Assistant Provident Fund Commissioner, Kadapa in 1978, were not recorded in the Form-B register in the year 1982. The petitioner therefore cannot claim his date of birth as 25.04.1963 and he has no locus standi to file the petition for change of date of birth at the fag-end of service. The respondents prayed to dismiss the writ petition.

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6. The petitioner filed reply denying the counter averments. His contention is that at the time of joining service, he produced his 7^th class T.C showing his date of birth as 25.04.1963 to the respondent Corporation and the said date of birth was entered in the Service Register. There was no dispute regarding dates of births of the employees in the respondent corporation up to 1982. It is only when the new B-register was opened in 1991 on the ground that old register was lost, different dates of births were recorded therein. False dates

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of births were submitted to the 3^rd respondent by changing the original ones. The respondents have no power to change petitioner’s date of birth once after entering it in the Service Register. The petitioner has not received any intimation from the respondents about the change of date of birth lest he should have definitely challenged the same.

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7. Heard Sri G. Jagadeeswar , learned counsel for the petitioner and Sri Y. Sudhakar, learned standing counsel for respondent Nos.1 & 2.

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8. Learned counsel for petitioner would argue that the petitioner was born on 25.04.1963 as per the Transfer Certificate issued by the Head Master, HMM High School, Koduru (RS), Kadapa. He joined in the service of 1^st respondent Corporation at Mangampeta on 12.02.1977 on daily wage basis. His service was regularized as Challan Issuer w.e.f 01.04.1989 and thereafter he was promoted as Junior Assistant/Sub-Assistant and further promoted as Junior Assistant Gr-I at Weigh Bridge. Learned counsel would further submit that in the B-Register under the column date of birth, his date of birth was correctly mentioned initially as 25.04.1963. In the Service Register, the said date of birth was mentioned. However, subsequently the said date of birth was struck off in the Service Register and mentioned as “14.07.1953 as per B-Register”. Learned counsel would vehemently argue that while effecting the change of the date of birth from 25.04.1963 to 14.07.1953 in the B-Register as

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well as in the Service Register, no prior notice was issued to the petitioner and he was not heard of. Hence, principles of natural justice were not followed. Not stopping there, the 2^nd respondent has further changed the date of birth from 14.07.1953 to 01.07.1955 mentioning “vide HO order No.4082/ 27696”. During this alteration also, the petitioner was not taken into confidence. Thereafter, his date of birth was further changed to 01.08.1959 mentioning as per Head Office’s order No.APMDC/HRD/DOB/FNo.44(Vol.III/2005/1948 dated 27.07.2005. During this change also, the petitioner was not informed of the reason and no hearing was given to him. A lame excuse for the 2^nd respondent to make initial alteration was that the B-Register was lost. Learned counsel would argue that, that cannot be a sole ground to alter the date of birth without issuing notice and hearing the petitioner.

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9. Whereas, it is argued by the standing counsel for the respondents 1 & 2 that the Mangampeta Barytes Project was opened during 1975 in Obulavaripalli Mandal, Kadapa District and under rule 48(3), 51 and 77 of the Mines Rules, 1955, Form-B register was maintained by keeping one Folio for each employee. Since most of the employees were illiterates or just illiterates, their age was recorded in column No.4 of the B-Register as orally mentioned by them. After completion of three years, they are entitled to the provisions of Employees Provident Fund. Hence, return in Form-9 was submitted

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to 3^rd respondent showing their dates of births/age as per Form-B register. While so, B-Register maintained in the Corporation was lost and hence a new register was opened by the then Project Manager in the year 1982 and age and other particulars were recorded in the said register again as per the oral proclamation of the employees. Again in 1991, the then Project Manager opened another B-Register. There were differences in the age/date of birth recorded in the said two registers. Added to it, branch officers made some corrections/interpolations, changes/additions in the column No.4 of B-Register, which resulted in number of disputes. Therefore to resolve the issue, an office order dated 26.05.1995 was issued to the effect that the age entered into column No.4 of the B-Register at the time of commencement of service of the worker/employee shall be the age for all service purposes including determination of age of retirement and any change made in the column including entering the date of birth shall not be considered. Subsequently in the matter of granting pension under employees pension scheme, 1995 there was some dispute and therefore the APMC Workers Union raised an industrial dispute in (Central-I) Hyderabad wherein a settlement was agreed to the effect that if any workers/employee applies for change in the age/date of birth as per PF records, it was agreed to consider such change after verification of PF records and it was applicable only to those who were presently working in the roles of Corporation and

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who have joined Corporation before 31.12.1982 because Form-B register was reopened in the year 1982 due to misplacement earlier B- Register. He would thus argue that since the petitioner has not filed any proof showing his date of birth at the time of joining into service, the subsequent changes were effected basing on the oral information and other material available only and now he cannot seek for change in the date of birth.

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10. The point for consideration is whether there are merits in the writ petition to allow?

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11. I have bestowed my anxious consideration to the pleadings, arguments and material placed before me. The facts undisputed are that the petitioner joined in the corporation on 12.02.1977 as daily wage worker at Mangampeta, Barytes project and his service was regularized on 01.04.1989 as a Challan Issuer. The bone of contention is with regard to his date of birth. According to petitioner, he was born on 25.04.1963 and he intimated the said date while he joined in service initially and the said date was incorporated in the Service Register. However, the said date was changed from time to time and ultimately noted by the authorities as 01.08.1959 without there being any legal or factual basis and without giving prior notice and extending hearing to him. On the other hand, the crux of contention of respondents is that initially while joining the service, most of the employees being illiterates/semi-literates have given their

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dates of birth/age orally during the years 1976, 1977 and 1978 and the same was recorded in B-Register and subsequently when the B-Register was lost, the dates of birth/age of the employees/workers were recorded in the new B-register opened in the year 1982 on the oral information of the employees. Again, in 1991 also another B-Register was opened basing on the oral information of the employees/work persons.

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12. Thus, in the entire episode, the first question falls for consideration is what is the actual date of birth of the petitioner and whether the said date is supported by plausible evidence. In this regard, the copy of the Transfer Certificate dated 23.02.1978 issued by the Head Master, HMM High School, Koduru (RS), Kadapa shows that the petitioner was born on 25.04.1963 and he studied 7^th class during 1974-75 in the said school. Further, the copy of the Secondary School Certificate (GG1195449) issued by Board of Secondary Education, would show that the petitioner passed SSC examination held in June, 2008. His date of birth was mentioned as 25.04.1963. Thus, in my considered view, there is a clinching evidence to establish his date of birth as 25.04.1963. The respondent authorities have not placed any material to contradict the said date of birth. On the other hand, both parties in tandem admit that the aforesaid date was recorded in the B-Register maintained as per Rules on the information of the petitioner when he initially joined in service. The respondents

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contended that except orally mentioning his date of birth, the petitioner did not produce any record in proof of the same. Even assuming so, still the TC and SSC certificates referred supra would unmistakably confirmed his date of birth as 25.04.1963. In this regard, a perusal of copy of the Service Register shows that in column No.4, at first, his date of birth was mentioned as 25.04.1963. Subsequently the said date was struck off and noted as 14.07.1953. The reason given by the respondents for effecting this change is due to the loss of original B-Register. They claim that the said change in the date of birth was effected only after giving notice to the petitioner and other employees and on the oral information provided by the petitioner. This explanation appears to be false from cove. If really notice was afforded to petitioner, certainly he would have mentioned his date of birth as 25.04.1963 only but not any other date much less 14.07.1953 because the former date was mentioned in his academic records. Therefore, there was no occasion for him to give a different date to the authorities. Thus, it would appear the 2^nd respondent might have incorporated a fanciful date without reference to the petitioner. The Service Register further shows that even the date 14.07.1953 was further altered to 01.07.1955 and 01.08.1959 showing some untenable grounds. So in the entire issue, what surfaces is that the correct date of birth of the petitioner is 25.04.1963 and the other dates mentioned in the Service Register were not correct dates and those altered dates

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were mentioned as per the convenience of the respondents to suit their case and hence those subsequent dates cannot be taken into consideration for fixing the date of superannuation of the petitioner. It appears, the principles of natural justice are a casualty in this case since the respondents have altered the original date of birth a number of times without giving proper opportunity and hearing to the petitioner. Thus, running the risk of pleonasm, it must be said that the date of birth of petitioner is 25.04.1963 and his service including his superannuation shall be regulated accordingly.

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13. On legal side, the respondents relied upon the decision reported in Sundilla Lingaiah v. Singareni Collieries Company Limited Co. Ltd., Hyderabad and others¹ to contend that date of birth cannot be changed at the fag-end of the service. In the aforesaid decision, a learned Judge of this Court considering several decisions of Hon’ble apex Court relating to the issue of correction of date of birth of an employee, has observed that when an employee disputes the date of birth which was entered in the service record and produces some documentary evidence showing the different date of birth, it is a disputed question of fact which cannot be adjudicated in exercise of jurisdiction under Article 226 of Constitution of India as a normal rule. He further observed, if at all to exercise such jurisdiction, the Court has to take into account the conduct of the parties, such as, whether there is inordinate delay in approaching the Court and any

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1 2016(6) ALD 734

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laches on the part of the petitioner and if so, the Court normally would not interfere.

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There is no demur in the above principle. However, in the instant case the facts are different. As per B-Register, the petitioner’s date of birth was initially recorded as 25.04.1963 and even as per School records also his date of birth is 25.04.1963. Subsequently, the respondents altered his date of birth from time to time without reference to the petitioner. Therefore, such alteration cannot be approved.

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14. In the result, the Writ Petition is allowed and petitioner’s date of birth is approved as 25.04.1963 and respondents are directed to give effect to the said date of birth in all the concerned records and fix his date of superannuation accordingly.

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As a sequel, Interlocutory Applications petitions, if any pending, shall stand closed.

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_____________________________ U. DURGA PRASAD RAO, J Date: 05.11.2019. MS

M.Subbarayudu, v. The Vice-Chairman 8s Managing Director

Case brief

What is this about?

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M.Subbarayudu, v. The Vice-Chairman 8s Managing Director

Case brief

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