WP(C) 1762/2007 - Gauhati High Court

IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT PETITION (C) NO. 1762/2007
1. Sri Bhuban Chandra Baruah,
S/o. Late Tholack Chandra Baruah,
Assistant General Manager, Accounts,
Food Corporation of India,
North East Zonal Officer, Guwahati,
Resident of Ganeshguri, Kachari Basti,
Guwahati.
- Petitioner.
VERSUS
1. The Food Corporation of India,
Having its Head Office as Barakhamba Lane,
New Delhi-110001 and Zonal Officer,
North East, Ulubari, Guwahati-7.
2. The Chairman cum Managing Director, FCI,
H.Q. – 16-20, Barakhamba Lane, New Delhi-1.
3. The Executive Director (Pers), FCI,
H.Q. – 16-20, Barakhamba Lane, New Delhi-1.
4. Executive Director, North-East Zone,
Food Corporation of India, Zonal Office,
Guwahati-7.
5. The Assistant General Manager (Accounts),
Food Corporation of India (NE), Guwahati-7.
6. The Area Manager, FCI, Nagaon.
7. The General Manager (Region), FCI,
Regional Office, Assam Region, G.S. Road,
Ulubari, Guwahati-7.
- Respondents.
BEFORE
HON’BLE MR JUSTICE HRISHIKESH ROY
For the Petitioner:
Ms. B Goyal, Advocate &
Ms. M M Kotoky, Advocate.
For the Respondents:
Mr. K N Choudhury, Sr. Advocate,
Date of hearing & order:
18.02.2014.
JUDGEMENT AND ORDER ( ORAL)
Heard Ms. B Goyal, learned counsel appearing for the petitioner. The
respondents are represented by Mr. PK Roy, the standing counsel for the
Food Corporation of India (FCI).
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2.
While serving as the Assistant General Manager (Accounts), Food
Corporation of India (NE), Guwahati, the petitioner was made to retire from
service on 31.12.2006 and his grievance is that he was superannuated
prematurely on the basis of wrong date of birth. In the High School Leaving
Certificate (HSLC) dated 21.9.1964 (Annexure-I) and the admit card issued
by the Board of Secondary Education, Assam (in short SEBA), the petitioner
is shown to have passed his 1964 HSLC examination at the age of 15 years 3
months and accordingly he claims that his birth date is 1.12.1948. But in the
petitioner’s service book, his date of birth was recorded as 1.1.1948 and
correctness of the recorded birth date in the petitioner’s service book is
questioned in this proceeding.
3.
The petitioner joined service with the FCI on 24.3.1970 and according
to him he learnt of the wrong entry in his service book only in March, 1994,
when the service book was produced before the employee for his perusal. He
immediately applied for rectification of the date of birth on 30.3.1994
(Annexure-IV) and in this application the petitioner stated that his correct
date of birth is 1.12.1948, as per his HSLC certificate and admit card issued
by the SEBA and accordingly request was made for correcting the entry
recorded in the petitioner’s service book.
4.
However since the initial entries in the service book was made by the
District Officer, FCI, Nagaon where the petitioner joined service, a letter was
sent on 7.1.1997 (Annexure-V) by the Dy. Manager (Pers.) to verify the
service records along with the contemporaneous testimonials for rectification
of the incorrect entry in the service book. Although no order for correcting
the petitioner’s date of birth was passed, in the office order issued on
28.10.2004 (Annexure-VI) whereby the petitioner’s request for V.R.S. was
rejected, his birth date was recorded as 1.12.1948. Therefore at least from
the office order of 28.10.2004 (Annexure-VI), the petitioner assumed that his
application for correcting his birth date was acceded by the respondents. But
eventually through the order dated 29.12.2006, the petitioner was made to
retire on 31.12.2006 and this meant that his date of birth was not corrected
as 1.12.1948 in the service book.
5.
Representing the petitioner, Advocate Ms. B Goyal submits that it is
not a case of a dishonest and opportunistic prayer made on the eve of
retirement. Moreover the correction is sought on the basis of the original
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certificate issued by the SEBA in the year 1964 itself. She submits that
petitioner made a bonafide mistake in calculating his birth date from the
certificate(s) issued by the SEBA, by incorrectly mentioned his date of birth
as 1.1.1948 (instead of 1.12.1948) and accordingly it is submitted that the
incorrect entry in the service book should have been rectified by the
respondents.
6.
The petitioner refers to letter dated 7.1.1997 (Annexure-V) addressed
to the District Manager, FCI, Nagaon and also the letter dated 29.12.2006
(Annexure-XI) addressed to the Executive Director (NE), Food Corporation of
India, Zonal Office (NE), Guwahati, to project that clarification was sought by
the DGM (Estt.) from the concerned offices and accordingly the learned
counsel argues that corrective steps should have been taken to its logical
conclusion
by
referring
to
contemporaneous
testimonials
like
the
matriculation certificate and admit card issued by SEBA since these are
genuine documents. On this basis, the decision for his premature retirement
is assailed by the petitioner.
7.
However Mr. PK Roy, learned counsel for the FCI submits that a
prudent policy of refusing rectification application made beyond 5 years of
joining service is prevalent in the FCI and since the petitioner applied for
correction only on 30.3.1994 (while he joined service on 24.3.1970), the
rectification prayer was rightly not considered by the respondents.
8.
But on the petitioner being made to superannuate on 31.12.2006, the
FCI counsel refers to para-5 of the counter affidavit filed on 29.7.2009 to
concede that even with the birth date of 1.1.1948 (recorded in the
petitioner’s service book), he ought to have retired one year later on
31.12.2007 but he was wrongly made to erroneously retire a year earlier on
31.12.2006.
9.
The petitioner’s service book in original is produced by the FCI lawyer
to show that 1.1.1948 was the birth date recorded in the service book.
Additionally Mr. Roy refers to the CARDEX Form, filled in by the petitioner
himself on 31.8.1987 to project that even in 1987, the petitioner mentioned
his date of birth as 1.1.1948 and accordingly it is argued on behalf of the
employer that the rectification sought by the petitioner is unjustified.
10.
If the age recorded in the SEBA’s matriculation certificate (Annexure-
I) is taken into account, there is no dispute in the Bar that the petitioners
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birth date will be 1.12.1948. But an incorrect birth date i.e. 1.12.1948 was
recorded in the petitioner’s service book, obviously at his own instance when
he joined service. But it must also be borne in mind that in the matriculation
certificate and admit card issued by the SEBA in those times, only the age of
the examinee as on March, 1964 (the year of matriculation examination) is
mentioned and the birth date is not specified. Therefore a bonafide mistake
in calculating the birth date by taking the SEBA testimonial into account can’t
entirely be ruled out. The possibility of an innocent error of arithmetic
calculation made by the petitioner in his application and in the CARDEX Form
can’t entirely be ruled out since the actual birth date is not specified and it
has to be calculated with reference to the age in the year of the
matriculation examination.
11.
The issue that is to be decided next is whether the petitioner’s
application for correction made on 30.3.1994 should have been considered
by the FCI. In this context, the prevalent policy of not entertaining
rectification application made beyond 5 years of joining service is cited by
the respondents to deny the correction sought by the petitioner. But in the
context it must be observed that the application for rectification was filed 12
years before the petitioner retired and it is therefore not one of those cases
of opportunistic application, on the eve of retirement.
12.
Moreover from the communication dated 7.1.1997 addressed to the
District Manager, FCI, Nagaon and the one dated 29.12.2006 (Annexure-XI)
addressed to the Executive Director (NE), Food Corporation of India, Zonal
Office (NE), Guwahati, it can be gathered that a process for correcting the
service record on the basis of contemporaneous documents was undertaken
by the FCI but no finality was given to the process. Moreover the rectification
application of 30.3.1994 was not rejected outright as a time barred
application. In fact in the office order dated 28.10.2004 (Annexure-VI) issued
by Joint Manager (Pers) of the FCI, the petitioner’s birth date is recorded as
1.12.1948. Significantly this office order with the correct birth date
(1.12.1948) was issued just 2 years before the petitioner was made to retire
on 31.12.2006.
13.
There is another striking aspect of this case. The FCI has admitted
that the petitioner was mistakenly made to prematurely retire on 31.12.2006
whereas he should have retired only on 31.12.2007, as per his birth date
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(1.1.1948) recorded in his service book. Therefore in this case it is apparent
that mistakes have been committed by both sides in considering the
petitioner’s birth date.
14.
The matriculation certificate and the admit card of the SEBA are the
authentic records and these certificates issued in the year 1964 have
remained unaltered. Moreover the genuineness of these testimonials is not
being questioned by the respondents. It is therefore obvious that that if the
SEBA’s certificates are made the basis for the petitioner’s age, his birth date
can’t be 1.1.1948 (as was recorded in his service book) but it will be
1.12.1948, as has been claimed by the petitioner.
15.
In view of above and noticing that the petitioner applied for
rectification 12 years before retirement (immediately after learning of the
mistaken entry in his service book), I am of the view that his application
(Annexure-IV) for correction of his birth date should be considered by the
employer with due regard to the SEBA’s HSLC certificate and admit card. To
facilitate the consideration, the petitioner should produce his original
certificate(s) before the Executive Director (NE), FCI, Zonal Office (NE),
Guwahati, who in turn will ensure consideration of the plea by the competent
authority of the FCI. Since the petitioner was made to retire prematurely on
31.12.2006, his retirement age will be re-determined by taking his birth date
as 1.12.1948 and on this basis, the consequential service benefits for a
longer service tenure should be granted to the retired employee. As the
petitioner’s application filed on 30.3.1994 (Annexure-IV) has remained
unconsidered for long, the competent authority should give his decision
within 3 months of the petitioner furnishing the original testimonial(s) before
the Executive Director (NE), FCI, Zonal Office (NE), Guwahati.
16.
With the above direction, the case is allowed without any order on
cost.
JUDGE
Barman.
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
WRIT PETITION (C) NO. 6107/2006
1. Sri Raj Kishore Buragohain.
- Petitioner.
-vs1. The Airport Authority of India and others.
- Respondents.
WRIT PETITION (C) NO. 6001/2006
1. Sri Dipankar Das.
- Petitioner.
-vs1. The Airport Authority of India.
- Respondents.
BEFORE
HON’BLE MR JUSTICE HRISHIKESH ROY
For the Petitioner:
Mr.
Mr.
Mr.
Mr.
N Dutta, Sr. Advocate,
I Choudhury, Advocate,
RM Deka, Advocate &
K Barthakur, Advocate.
For the Respondents:
Mr. K N Choudhury, Sr. Advocate,
Dates of hearing:
27.01.2014 and 28.01.2014.
Dates of judgment:
28.01.2014.
FR
NFR
JUDGE

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