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Sri Saroj Kumar Bhattacharya v. Bengal Immunity Ltd. & Ors.

Calcutta High Court

Dec 9, 1993

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Structured Summary of the Opinion (Banerjee, J.)

Factual and Procedural Background

This appeal challenges the judgment and order dated 6th May, 1993 passed in Matter No. 156 of 1993 by the learned Trial Judge, which dismissed the appellant's writ application seeking correction of his date of birth recorded in the respondent-company's service records.

Key factual points, as set out in the opinion:

The appellant joined the service on 1st May, 1953 and, on the basis of his declaration at that time, his date of birth was recorded as 21st March, 1935.
On 20th October, 1956 the appellant made a declaration for the gratuity fund stating his age on 21st September, 1956 as 21 years 6 months based on a horoscope; the opinion states this "tallies with the date of birth initially declared by him as 21st March, 1993" (as recorded in the opinion).
While in service the appellant appeared as a private candidate in the School Final Examination (West Bengal Board) in March 1962 and the School Final Certificate recorded his date of birth as "10th June, 1939".
The appellant did not immediately seek correction in the employer's records after obtaining the School Final Certificate but later, according to the appellant, wrote on 9th January, 1979 requesting acceptance of the 10th June, 1939 date; he made another representation on 2nd February, 1985.
The appellant was President of the Bengal Immunity Workers' Union; at a meeting on 20th March, 1984 an Age Dispute Committee was agreed to be constituted to settle age disputes by bipartite agreement between management and workmen.
The Company issued a notice dated 28th May, 1985 inviting workmen with age disputes to submit them to the Age Dispute Committee (chairman: DM(A)) by 21st June, 1985, after which existing records would be final and binding.
A notice of retirement was issued on the basis of the originally recorded date of birth; the writ challenged that notice.
The appellant relied on a letter dated 18th June, 1935 by Shri G. Rai Verman (then Personnel Manager officiating) purportedly stating the appellant's date of birth was recorded in service records as 10th June, 1939. The respondent-company contested the genuineness of this letter in affidavit-in-opposition, alleging the dispatch register shows that letter number was to the National Insurance Company for a different purpose.
The respondent also pointed out that Shri G. Rai Verman was not an authorised adjudicator of age disputes after constitution of the Age Dispute Committee, and that he was on probation and later had his service terminated in August, 1985.
In paragraph 5 of its affidavit-in-opposition the respondent raised that the gratuity declaration showed a date of birth (the opinion records this as "23rd March, 1993"); the appellant did not deny, dispute or explain that admission. The learned Trial Judge refused relief largely on the ground that the appellant had not explained or gone back from that prior admission.

Legal Issues Presented

Whether the appellant can obtain correction of his date of birth in the employer's records on the basis of a School Final Certificate obtained as a private candidate many years after entering service.
Whether a letter purportedly issued by a Personnel Manager (Shri G. Rai Verman) can be relied upon to treat the appellant's date of birth as recorded in the service records, where the genuineness of that letter is disputed by the employer.
Whether subsequent documents or certificates (including those produced long after entry into service) can be used retrospectively to alter recorded date of birth, particularly when the employee previously made admissions about his age and failed to contest the record for many years.
What is the effect of the constitution of an Age Dispute Committee with a notice requiring contested cases to be submitted by a specified date — i.e., whether individual officers (not members of the Committee) could thereafter adjudicate an age dispute.

Arguments of the Parties

Appellant's Arguments

The appellant sought correction of his date of birth in service records to 10th June, 1939 relying primarily on the School Final Certificate issued after he passed as a private candidate in March 1962.
The appellant also relied on a letter by Shri G. Rai Verman dated 18th June, 1935 in which that officer stated the date of birth was recorded as 10th June, 1939.
The appellant made later written requests (9th January, 1979 and 2nd February, 1985) seeking acceptance of the 10th June, 1939 date recorded in the School Final Certificate.

Respondent-Company's Arguments

The respondent-company disputed the genuineness of the letter dated 18th June, 1935 attributed to Shri G. Rai Verman, stating the dispatch register shows that letter number corresponded to a different letter addressed to the National Insurance Company for another purpose.
The respondent submitted that Shri G. Rai Verman was not a member of, nor authorised to adjudicate age disputes after the Age Dispute Committee had been constituted, and that age disputes were to be referred to that Committee pursuant to the notice of 28th May, 1985.
The respondent emphasised that the appellant had previously made a declaration (for gratuity) admitting a particular age/date of birth and had remained silent for about 17 years; that admission was not explained or denied by the appellant and therefore binding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dy. Commissioner of Police, Special Branch v. Bhupesh Chandra Karanjai & Moti Ranjan Bhattacharjee, Special Bench, reported in 1993 (II) CLJ 74	The principle that a date-of-birth correction post-entry into service may be permitted only on the basis of a contemporaneous document which existed before the employee made any declaration in ignorance of the age recorded in that document; and the distinction between regular students (whose school records are subject to safeguards) and private students (whose declared age to the Board may go unverified).	The Court applied this principle to hold that the School Final Certificate (issued to the appellant as a private candidate) was not a contemporaneous document entitled to reliance for correcting the recorded date of birth, because private-candidate certificates lack the safeguards of regular-school registers and because the appellant had earlier made admissions about his age which were not controverted.

Court's Reasoning and Analysis

The court's reasoning proceeded by applying established principles about when a recorded date of birth may be corrected and by evaluating the evidentiary materials (affidavits and documents) on the record:

Contemporaneity of Documentary Evidence: The court accepted the view expressed by the Special Bench decision that correction of date of birth after entry into service is permissible only on the basis of a contemporaneous document that existed before the employee made any declaration inconsistent with that document. The School Final Certificate, produced by the appellant, was held not to be such a contemporaneous document.
Distinction between Regular and Private Candidates: The court explained the qualitative distinction between a regular student's school register (which is supported by school verification, guardian statements and teacher observation) and a private candidate's declaration to the Board (which is largely accepted without independent verification). Because the appellant had appeared as a private candidate, the School Final Certificate was considered inherently less reliable for the purpose of altering service records.
Genuineness and Authority of the Personnel Manager's Letter: The court noted that the letter dated 18th June, 1935 attributed to Shri G. Rai Verman (purportedly recording the appellant's DOB as 10th June, 1939) was challenged as fake in the respondent's affidavit. Given the challenge and the materials on record (including dispatch register entries), the court refused to treat the letter as an undisputed, genuine document upon which correction could be based.
Effect of Prior Admissions and Silence: The respondent asserted (in affidavit) that the appellant had made earlier declarations about his age at the time of joining service and again four years later (including a gratuity declaration supported by a horoscope), and had remained largely silent for about 17 years. The appellant did not properly explain or contradict those allegations in his replying affidavit. The court held that an employee could not be permitted to go back from such admissions which are binding on him unless satisfactorily explained.
Procedural Regime for Age Disputes: An Age Dispute Committee had been constituted and a public notice required submission of disputes by a specified date, after which company records would be final and binding. The court noted that after constitution of the Committee and issuance of the notice, age disputes could not be adjudicated by persons who were not members of the Committee (e.g., Shri G. Rai Verman).
Timing and Retrospective Effect: The company had been taken over by a Government of India undertaking on 18th May, 1978, and it was only thereafter that a move was made to get the appellant's date of birth corrected on the basis of the School Final Certificate. The court emphasized that subsequent documents produced after the relevant declarations cannot ordinarily be made the basis for retrospective correction unless they meet the contemporaneity test explained above.
Standard of Decision in Writ Proceedings: The court observed that the writ court adjudicated on affidavit evidence; where factual allegations in the respondent's affidavit (that went to admissions by the appellant) were not controverted, the court was bound to accept them.

Holding and Implications

Holding: The appeal is dismissed. The Court agreed with the learned Trial Judge's order dated 6th May, 1993 dismissing the appellant's writ application; the appeal was dismissed without any order as to costs. (Bhattacharjee, J. agreed.)

Implications / Consequences:

The direct effect is that the appellant's request to correct his date of birth in the respondent-company's service records was refused and the notice of retirement issued on the basis of the originally recorded date of birth stands.
The court refused to rely on the School Final Certificate (private-candidate) or the disputed letter by Shri G. Rai Verman as sufficient grounds to alter the recorded date of birth, given the lack of contemporaneity, the challenge to genuineness, and the appellant's prior admissions and prolonged silence.
The opinion applies and reiterates the established principle (as cited from the Special Bench decision) that only contemporaneous documents existing before an employee's declarations may justify a post-hoc correction of date of birth; it does not purport to set a new precedent beyond applying that principle to the facts before the court.

This summary is based exclusively on the content of the provided opinion and does not add facts or inferences beyond what the opinion itself records.

Show all summary ...

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 declared 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.

3. 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”.

4. On the basis of the date of birth as originally recorded and as originally 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 dated 18th June, 1935 issued by Shri G. Rai Verman was seriously disputed by the respondent-company and in the affidavit-in-opposition it was categorically stated in substance that the said letter was a fake letter inasmuch as from the despatch register this letter with that number was not a letter addressed to the appellant-petitioner at all but to the National Insurance Company for a different purpose and further it was submitted by Mr. Chaudhuri, learned Counsel appearing on behalf of the respondent-company that self-same authority had issued a notice on 28th May, 1985 for referring all the age disputes to the Age Dispute Committee. Admittedly, Shri G. Rai Verman was not a member of that company nor an authority to adjudicate the age dispute which had been exclusively entrusted to the Age Dispute Committee and after constitution of an Age Dispute Committee and after issue of the notice, such dispute could not be adjudicated by the said Shri G. Rai Verman who was in probation and whose service was terminated in August, 1985 because of unsatisfactory work.

5. Regarding the declaration made for the purpose of gratuity fund that his date of birth is 23rd March, 1993 a point was specifically raised by the respondent-company in paragraph 5 of the affidavit-in-opposition. But the appellant-petitioner did not deny and dispute nor explain the circumstances under which such admission was made. The learned Trial Judge in his order stated that as because the appellant-petitioner had not explained the position and as because he had not made out any case how he could be allowed to go back from the admission made by him in the said declaration the learned Trial Judge was unable to grant any relief in the matter.

6. After hearing the learned Counsel for the parties and after considering the facts and circumstances of the case, it is clearly evident that this School Final Certificate was not a contemporaneous document. In this connection, a reference was made by the learned Counsel appearing on behalf of the respondent to the Special Bench decision in the case of (1) Dy. Commissioner of Police, Special Branch v. Bhupesh Chandra Karanjai & Moti Ranjan Bhattacharjee reported in 1993 (II) CLJ 74 wherein if was stated that the discrepancy of the date of birth in respect of the employee of the State Government is governed by the provisions of the West Bengal Service Rule, Part I, particularly under Rule 9. It was held by the Special Bench that, if there was any 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. In the instant case the School Final Certificate was not a contemporaneous document and there is a distinction between a Student who had passed as regular Student and as a private Student. In case of regular Student, the age/date of birth is registered with the register of the School where the School Authorities insist upon production of some records or documents or statements made from the guardian and the same is also considered in view of the appearance of the boy by the trained and experienced teachers and in such a case there is a very little scope for suppressing the real age or to manipulate the age before the teachers who are dealing with thousand of similar students and in that case age recorded in the School Register is reflected in the Matriculation or School Final Certificate. That age is accepted because of certain saveguards therein. But in case of a private Student the Board accepts the age declared by the Candidate in the application form, without any verification and in case of a private Candidate any age may be declared suppressing real age and there is no machinery or there is no check and balance for verifying the actual age. As such, the School Final Certificate in respect of a candidate appearing as a private candidate and a candidate appearing as a regular candidate cannot be treated at par.

7. In these circumstances, no reliance could be placed on the letter issued by Shri G. Rai Verman dated 18th June, 1935 in support of the contention of the appellant-petitioner in view of the fact that the genuineness of the said letter is under challenge, as from the materials on record, we cannot hold that the said letter was genuine or undisputed letter. Secondly, the Writ Court decides the matter on affidavit of evidence. When allegation is made by the Management on affidavit that not only he had declared his age at the time of entering of service, but four years thereafter he had also made a voluntary declaration about his age supported by a horoscope and for long 17 years he was keeping significantly silent, when his allegation is made in the affidavit-in-opposition and this allegation is not at all controverted in the affidavit-in-reply, in that event the Court is bound to accept the position that he had no explanation to offer in this regard. He cannot be allowed to go back from the admission already made in this behalf which is binding on him. The Company was originally a private company. The company was taken over by the Government of India undertaking on 18th May, 1978 and only thereafter a move was made to get his date of birth corrected on the basis of age recorded in the School Final Certificate in which he appeared as a private candidate wherein he had put his date of birth according to his choice. Subsequent document/documents which had come into existence subsequent to his admission cannot be made a ground for correcting something with retrospective effect. The Special Bench of this Court in that case decided that any contemporaneous document which could not be produced because the reason is beyond the control of an employee concerned only in that event the said contemporaneous document may be made a basis for claiming the case for correction of a date of birth at a later date and not otherwise.

8. Considering the facts and circumstances of the case, we do not find any reason to interfere with the order passed by the learned Trial Judge inasmuch as no case has been made out by the appellant-petitioner for intervention of the order passed by the learned Trial Judge. On the basis of the materials on record, it is difficult for this Court to sustain the claim made by the appellant-petitioner.

9. Accordingly, we agree with the view expressed by the learned Trial Judge. We do not find any substance in the appeal. The appeal is accordingly dismissed without any order as to costs.

10. Bhattacharjee, J.: I agree.

11. S.K.G