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Judgment
A.K. Shrivastava, J.
The applicants, who are seven in number, have challenged the pregnability of the order of learned Single Judge dated 22/3/ 2001 in Writ Petition No.18/2000.
The appellants who were writ petitioners before the Writ Court, filed writ petition under Articles 226 and 227 of the Constitution of India for quashment of the decision of respondents detailed out in its correspondence of 29/9/1999 (Annexure-P/33) to review the age/date of birth of the petitioners and further to direct the respondents to refer their cases to the Age Determination Committee in accordance with the procedure envisaged in the Implementation Instruction No. 76. It was further prayed by the appellants that an appropriate writ be issued directing the respondents not to pre-maturely retire/superannuate the petitioners until the consideration of their cases by the Age Determination Committee/Medical Board.
The case as set out by the appellants in their writ petition is that appellants No.1 to 6 are working as Mining Sirdar while appellant No.7 is working as Overman. At the time of their entry, their dates of birth were recorded by the respondents in their record but on the strength of certain documents, the petitioners through the Union, approached the respondents and prayed to review the dates of birth so recorded. It has been putforth in the writ petition that the respondents by letter dated 29/9/1999 (Annexure-P/ 33) sent to the General Manager of the Union intimating it the rejection of the claim of the appellants. Indeed this document was impugned before the Writ Court.
The learned Single Judge by the impugned order has dismissed the writ petition.
We have heard Smt. Shobha Menon, learned Senior Counsel assisted by Ku. Pragalbhlata Shrivastava, counsel for the appellants and Shri Anoop Nair, counsel for the respondents. Indeed the entire claim of the appellants is based on Implementation Instruction No.76 (B) (ii). The entire provision has been quoted by learned Single Judge in its order. The learned Single Judge, after giving his bestowed consideration on this provision, came to hold that the certificate issued by Board of Education and/or Department of Public Instructions and admit cards issued by such bodies, if is available, the same is required to be treated as authentic provided it was issued prior to the date of employment. It is only when the proof as regard to clause (a) of the Implementation Instruction is not available then it would become necessary to examine whether on the basis of the statutory certificates referred to in clause (b) a person is entitled to seek review of the date of birth recorded by the employer. The learned Single Judge after paying its attention to word "similarly" used in clause (b) came to hold that the certificates are to be treated in the same manner as the certificates covered by clause (a) and if in any case certificates covered by that clause is not available. The learned Single Judge, after reading the entire provision, came to hold that Annexure-P/33 issued by respondents addressing to the General Secretary of the Union of the petitioners does not require any interference and the claim of appellants No.1, 4, 5, 6 and 7 was dismissed. Since the claim of appellants No.2 and 3 was already forwarded to the Headquarters, it was directed that they may pursue the remedy in accordance with law after the decision, if aggrieved.
Before us, the same arguments have advanced by the learned counsel for the appellants which were addressed before learned Single Judge. The contention of Smt. Shobha Menon, learned Sr. counsel is that respondents had nothing to do except to refer the case/claim of the appellants to the Age Determination Committee in terms of clause (ii) of Implementation Instruction No.76 para-B. According to us, this provision would come into play only when there is variation in record. This clause is crystal clear and there is no doubt that if there is no variation in record the cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the management and the management after being satisfied on the merit of the case will take appropriate action for its correction through Age Determination Committee/Medical Board. Thus, this provision is having two parts. First part puts a rider that if there is no variation in the records they will not be reopened and in the second part, if some glaring and apparent wrong entry is brought to the notice to the Management then only after being satisfied on its merit the Management would refer the matter for correction to Age Determination Committee/Medical Board.
On the analysis of the aforesaid provision, one could say that in every case wherever the dispute regarding the age of date of birth is raised, the Management is not obliged to refer it to the Age Determination Committee/Medical Board, indeed the Management has to apply its mind because the words "the Management after being satisfied on the merit of the case" used in this clause have some significance and the case would be referred to the Age Determination Committee only when the Management had examined each case on its own merit and after being satisfied it would take appropriate action for correction through the Age Determination Committee. In our considered view, under this clause the Management have to play a vital role and they would not act like a post office that whenever any type of dispute regarding the age is raised, the Management is bound to refer it to the Medical Board. Thus, the contention of the learned counsel for the appellants that the Management has simply to refer the case to the Age Determination Committee, if the dispute is raised, has no merit.
Under Section 48 of the Mines Act, 1952 the legislature has imposed an obligation upon the employer to maintain registers of persons employed. Under Sub-section (1) of Section 48 the register shall disclose the necessary particulars and clause (b) pertains to the age and sex of the employees. These relevant entries shall be authenticated by obtaining signatures or thumb impressions by the persons concerned. According to sub-section (3) no person shall be employed in the Mine until the particulars required by sub-section (1) have been recorded in the register and, therefore, before entering into the service, these declarations under this Section are pre-supposed. Mrs. Menon had submitted a chart indicating the dates of birth according to Form "B" certificate of all the employees. Indeed these dates of their birth were recorded at the time of entering into the service as required u/s 48(1) of the Mines Act. u/s 45 of the said Act, there is a prohibition to employ persons below 18 years of age in a Mine. The employment to the petitioners were provided only after the attaining the age of 18 years in accordance with Section 45 of the Act and if the contention of the petitioners is accepted, appellants Chhotelal and Baijnath would be below 18 years of the age on the date of their appointment and which is not permissible under the law. Indeed, why the declaration in the statutory register kept u/s 48 of the relevant entries made in it under sub-section (1) should be disbelived, there is no explanation. The entries under this section were made by the concerning employees and they also signed the register in which the column of their dates of birth has been mentioned. Therefore, we do not think it proper to refer the case of the appellants to Age Determination Committee. In this regard the decision of Apex Court in the case of State of U.P. and Others Vs. Smt. Gulaichi, , relied by Shri Anoop Nair, learned counsel for the respondents cannot be ignored, indeed it throws sufficient light in the matter. The decision of the Apex Court in the case of G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others, , relied by Smt. Shobha Menon, learned Sr. counsel for the appellants is tangentially off the point and is quite distinguishable. In that case the matter was referred to the Medical Board by the Management by exercising its discretion. However, in the present case, since no ambiguity was found, the Management declined to refer the case to the Age Determination Committee of appellants No.1, 4, 5, 6, and 7.
In the result, we do not find any ground to interfere in the order passed by the learned Single Judge and we hereby affirm the same and dismiss this appeal. The parties are directed to bear their own costs.