SHANKAR LAL VS HINDUSTAN COPPER LTD. & ORS.
SHANKAR LAL VS HINDUSTAN COPPER LTD. & ORS.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2858 OF 2022
(Arising out of Special Leave to Appeal (Civil) No. 16886
of 2019)
SHANKAR LAL .…...APPELLANT(S)
VERSUS
HINDUSTAN COPPER LTD. & ORS. ……RESPONDENT(S)
J U D G M E N T
ANIRUDDHA BOSE, J.
The appellant is before us primarily questioning the
validity of an order of the employer (Hindustan Copper
Limited the first respondent in this appeal) treating his date
of birth as 21st September 1945. This date has relevance for
computation of his benefits accruing from a Voluntary
Retirement Scheme (“VRS”), for which he applied and was
granted. The appellant’s stand is that his date of birth is 21st
September 1949. The appellant had invoked the writ
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jurisdiction of the High Court of Judicature for Rajasthan at
Jaipur (“the High Court”), but was unsuccessful before a
Single Judge and the Division Bench in sustaining his case.
If the latter date, i.e. 21st September, 1949 was accepted by
the employer to be his date of birth, his financial benefits
from the said scheme would have been higher, as he would
have had longer service tenure left. It appears that the
tenure of service left was the basis on which the VRS benefit
was to be computed. We would like to point out here that in
the pleadings and copies of various other documents forming
part of the paperbook, there are overlapping dates claimed by
the appellant to be his actual date of birth. These are 20th
September 1949 and 21st September 1949. This variation,
however, is insignificant so far as adjudication of this appeal
is concerned. In this judgment, we shall ignore this variation
and proceed on the basis that 21st September 1949 is the
date claimed by the appellant to be his birthdate.
2. The VRS was operational in the appellant’s case with
effect from 3rd October 2002. Admitted position is that 21st
September 1949 was recorded as his date of birth in his
service book. This was opened in 1975. He had joined the
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organisation in the year 1971 and the Form “B” reflects his
date of birth as 21st September 1945. The appellant claims
that at the time of his voluntary retirement, he came to learn
for the first time that his date of birth was being changed to
21st September 1945. He invoked the writ jurisdiction of the
High Court in the year 2008 as his representations for
adhering to 21st September 1949 as his birthdate failed to
evoke positive response from the employer. That writ petition
(S.B. Civil Writ Petition No.5690/08) was disposed of by a
Single Judge with a direction to the appellant to make a fresh
representation in light of the recommendations made by a
committee of the employer themselves in his favour on the
subject controversy. The competent authority was directed, in
the same judgment delivered on 15th July 2008, to consider
and decide on the same in accordance with law.
3. The appellant’s representation was rejected by the
competent authorityemployer by an order passed on 13th
October 2008 (“the rejection order”). The appellant’s plea
against the rejection order (S.B. Civil Writ Petition No.
13195/2008) was dismissed by a learned Single Judge of the
High Court by an Order dated 24th November 2008 and his
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appeal (D.B.Special Appeal Writ No.1501/2011) assailing the
order of dismissal before a Division Bench of the same High
Court also failed. The judgment of the Division Bench was
delivered on 8th December 2016. It is this judgment which is
under appeal before us. The appellant stakes his claim
primarily on his service book maintained by the employer,
where his date of birth is shown as 21st September 1949. Mr.
Kaushal Yadav, learned counsel for the appellant has also
relied on a Life Insurance Corporation (“L.I.C.”) Policy in
which the same date of birth has been shown. This policy,
however, was subscribed to by the appellant in the month of
May, 1980. The appellant’s counsel has brought to our notice
sample copies of his pay slips for the months of August 1994
and August 2001. Both these pay slips carry the message,
“Happy Birthday ***20.09.1949***”. The appellant has also
relied upon certain clauses of the Standing Orders of the
employer in support of his claim. We shall refer to the
relevant clauses thereof later in this judgment.
4. The appellant had joined the said organisation as a
miner on completion of his onemonth training in the
temporary job. Communication to that effect was issued on
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th September 1971. We have already referred to different
documents emanating from or maintained by the employer
themselves where his date of birth was shown to be
21st September 1949. In the computation sheet of his
estimated “VR benefit” also the same date of birth was
reflected. By that time, the post the appellant was holding
was that of “drifter operator” (a copy of the estimate sheet
forms part of the paperbook, at page 38). The appellant was
relieved from his service on 3rd October 2002. The appellant’s
case is that he came to know that his date of birth was being
altered only after he was relieved from service. From the
materials available on record, we find reference to his date of
birth as 21st September 1945 for the first time in a form
issued by the employer on 22nd March 2003. The top portion
of this form (a copy of which appears at page 47 of the
paperbook) carries an endorsement made by the Assistant
Manager of the first respondent: “Date of birth: 21.09.1945
as per ‘B’ Form”. Immediately below this sentence there is
recordal that “D.O.B: 21.09.1949 as per H.O. Application.”
Rest of the said form contains other particulars of the
appellant, which also includes his date of birth, filled in as
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20th September 1949. The appellant, however, had knowledge
of his date of birth being taken by the employer as 21st
September 1945 earlier, but according to him, he had noticed
this only after being relieved from service. In his service
certificate issued on 29th October 2002, 21st September 1945
was shown as his birthdate.
5. Stand of the respondents, represented by Ms. Nandini
Sen Mukherjee, learned counsel, is that at the entry point, he
had given his age to be 26 years, and that was the age
reflected in the Form “B”. That is a statutory form required
to be maintained under The Mines Act, 1952. It has also been
submitted by her that at that point of time, the medical
practitioner during a health checkup had also assessed his
age to be about 25 years, which would take his year of birth
closer to 1945. In the year 1975, his service book was
prepared. In such records, the appellant’s age was entered
as 26 years by mistake, repeating his age as it was at the
time he joined the organisation. That is how the inconsistent
recordal of the appellant’s birthdate is sought to be explained
by the employer. She has also emphasised that the appellant
had raised the complaint after receiving all the VRS benefits
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computed on the basis of his age as reflected in the Form “B”.
6. It appears that there had been disputes over age in
respect of other employees also in the same organisation, and
a threemember committee was constituted by an Order
passed on 7th September 2004 by the General Manager,
Khetri Copper Complex of the first respondent. The
committee considered the case of the appellant also, and
their report went in his favour. Relevant extract from this
report has been annexed at page 54 of the paperbook
(Annexure P13). In Clauses 3, 4 and 5 of this report,
background has been given in relation to recordal of date of
birth of an employee. We quote below the said three clauses
from that report:
“3. As per the company’s certified standing orders,
the basis for determining the date of birth of an
employee will be:
a) Birth Certificate
b) School Leaving Certificate
c) Insurance Policy
d) Horoscope
e) Medical Report
In the standing orders followed in KCC, it is no
where written that the ‘B’ Form will be basis for the
determining the age.
4. In one of the court case (Durga Ram Vs. HCL
Case No.2427/1990) for age anomaly, the Hon’ble
High Court, Rajasthan has declined to accept the ‘B’
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Form Register as the basis for age/date of birth
determination where the Hon’ble High Court had
quoted “when ‘B’ Form entries have not been made
by the petitioner in his own handwriting and the
entries have been made in ‘B’ Form in a language
which the petitioner could not have understood,
entries made in ‘B’ Form could not have been made
basis for effecting the retirement of the petitioner.
5. During construction period of KCC there was no
proper system of recording the particulars of an
employee like date of birth, age etc. Most of the
workmen were engaged as “daily rated monthly paid
basis” and there was no proper system of recording
the exact date of joining, date of birth etc. During
this period employees so engaged were never asked
for documents etc. in support of their age. Only after
the Gopal Das Narayan Award in 1971, all these
“daily rated monthly paid” workmen were regularized
and their date of initial joining in the company were
taken into account, service book was introduced and
particulars of these employees were maintained.”
(quoted verbatim from the paperbook)
7. In relation to the appellant, the recommendation of the
committee was to the following effect:
“6. Shri Shankar Lal Saini, Code No.36145, Exemployee.
Shri Shankar Lal joined the company on 21.9.1971.
His age was recorded as 26 years in the ‘B’ Form
Register at the time of his initial joining.
Accordingly, his date of birth comes to 21.9.1945.
However, his date of birth was not recorded in his
service book. His service book was filled up in the
year 1975 where his date of birth was recorded as
21.9.1949 counting 26 years from the year 1975
(year of filling up the service book).
In the medical report dated 22.9.1971 also his age
was assessed as 25 years, which comes nearer to
1945 and not of 1949. The date of birth recorded in
the service book was not disputed for a long time.
However, in the year 2002, when the anomaly was
noticed the case was processed for rectification but
in the meantime, Shri Shankar Lal has submitted
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V.R. and subsequently released from the
committee’s service on 3.10.2002. His V.R. payment
was released considering his date of birth as
21.9.1949 and not as 21.9.1949 (which was
recorded in his service book) as the Finance
Department did not agree to accept the date of birth
as 21.9.1949. After receiving the payment the exemployee made several request to release the
balance amount of V.R. benefit considering his date
of birth is 21.09.1949. The committee observed that
the exemployee joined this complex on 21.9.1971.
Since he was only literate, a ‘B’ register was filled up
at that time where his age was recorded as 26 years.
In the year 1975 a service book was filled up where
date of birth was recorded as 21.9.1949, counting
26 years from the year 1975. There was a medical
report dated 22.9.1971 where his age was assessed
as 25 years which makes the date of birth as
22.9.1946 but this medical report cannot be
considered as this was a routine medical report and
no medical board was set up specifically for age
determination. The committee felt that the date of
birth as 21.9.1949 was recorded in the service book
in the year 1975, which was never disputed
thereafter. Moreover, the same date of birth was
mentioned in his payslip ever year which was also
published by the committee. His LIC record also
indicates the same date of birth. Only at the time of
his release of payment in the year 2002 his date of
birth was considered from 21.9.1949 to 21.9.1949
which is against the DEP’s guidelines dated
9.2.2001. The committee, therefore, recommended to
maintain his date of birth as 21.9.1949.”
(quoted verbatim from the paperbook)
8. This recommendation was rejected by the employer,
which resulted in the appellant filing the writ petition before
the High Court. We have referred to this writ petition and
directions issued by the High Court on 15th July 2008 earlier
in this judgment.
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9. The recommendation of the committee was not
accepted by the employer in the rejection order, relying on
Clause 5 of the Standing Order. The relevant extract from
this clause has been quoted in para (iv) of the rejection order
made by the competent authority. We reproduce below the
said clause, as it appears in the rejection order:
“iv) ….. However, in case of Mining workmen,
declaration of age by the individual workman in the
‘B’ Form Register as per the Mines Act/Rules may be
relied upon subject to confirmation by the
Company’s Medical Officer whenever considered
necessary.”
(quoted verbatim from the paperbook)
10. In the rejection order, reference was also made to the
guidelines of the Department of Public Enterprises,
Government of India. In Clauses (v), (vi) and (vii) of the said
order, it is recorded:
“v. The department of Public Enterprises,
Government of India in its guidelines dated 9th
February, 2001 states that the date of birth declared
by an employee and accepted by the appropriate
authority shall not be altered unless the same is
represented against with adequate
proof/justification within 5 years of joining the
service.
vi. Whereas, Shri Shankarlal never disputed the
date of birth recorded in ‘B’ Form, which is the
primary document for the purpose of recording date
of birth of employee working in Mines as per the
Mines Act and as well as the Standing Orders of the
Company, until his release from the services of the
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Company on voluntary retirement on 03.10.2002 i.e.
after 31 years of service.
vii. The competent authority has taken note of the
recommendation of the Committee, which was
appointed in 2004 to examine anomalies in dates of
birth of certain number of employees. It is seen that
while examining this case, the committee had
somehow failed to consider and record the
importance of Clause No.5 of the Standing Order
applicable in case of mining workmen as referred
above. The competent authority has therefore not
accepted the recommendations of the said
committee.”
(quoted verbatim from the paperbook)
11. In the appellant’s writ petition seeking invalidation of
the rejection order, the High Court found the stand taken by
the authorities in rejecting the appellant’s plea for treating
his date of birth as 21st September 1949 to be justified. The
Single Judge of the High Court considered the fact that no
documentary evidence was available on record to support his
date of birth to be 21st September 1949. The appellant’s writ
petition was dismissed. Against the judgment of dismissal,
the appellant approached the Division Bench of the same
Court. The Division Bench also primarily relied upon the
entry in the Form “B” register and dismissed the appeal. The
Division Bench, inter alia, held:
“(5) There shall be a presumption of correctness with
regard to entries regarding date of birth made as far
back as 1971 in the statutory Form ‘B’ register
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under the Mines Act. If the Appellant seeks to
challenge entries in a statutory register duly signed
by him also, the onus lies on him to prove how it
was wrongly made. Obviously the age mentioned
was not a figment of imagination by the Respondent
evident from the order of appointment which states
that it was based on his own statement
(6) The service book of the Appellant was opened in
the year 1975. There was no challenge to entry in
the same also. According to the DPE guidelines any
request for correction in the date of birth in the
service book was required to be made within 5 years.
If there was a prescription of time limit, the question
of raising any controversy much after that period
and acceptance of VRS 2002 simply does not arise.
(7) The Appellant accepted the benefits of the VRS
and then raised the dispute. The Respondents in all
fairness referred his case to a Medical Board which
again opined in confirmation of the entries made in
the Form ‘B’ register and the service book. The
contention of the Appellant with regard to his date of
birth being 21.09.1947 becomes a disputed question
of fact which cannot be inquired in the writ
jurisdiction quite apart from the fact of it having
been raised very belatedly.”
(quoted verbatim from the paperbook)
12. The stand of the employer, thus, is that in his service
book there was error in recording the age of the appellant as
26 years in 1975 and we ought not to give any credence to
such recordal. The respondents had only corrected an error
and such recordal in service book cannot be treated to be
acceptance of the appellant’s date of birth as 21st September
1949. We, however, find that the authorities proceeded in
this matter in a rather mechanical manner and embarked on
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a unilateral exercise of correcting the age entry in the service
book on their perception that an error was being corrected.
This exercise was conducted without giving any opportunity
of hearing to the appellant and at the fag end of his service
tenure. Otherwise, various documents including the L.I.C.
policy consistently reflect 21st September 1949 to be the
appellant’s birthdate.
13. Clause 5 of the Standing Order on which reliance has
been placed by the employer does not treat the entry in the
Form ‘B’ recording date of birth of a miner to be the
conclusive proof of his or her age. Any doubt on a workman’s
age at the time of joining service also could be verified by a
medical board. We accept that an entry in the Form “B”
possesses high probative value, but they are not conclusive
proof of what is contained therein. The competent authority
proceeded on the basis that since the appellant did not
question the entry in Form “B”, he ought not to be permitted
to question the same at the time of his voluntary retirement.
14. The committee report prepared by three deputy general
managers of the respondent no.1 has raised doubt of the
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correctness of the medical report as the same was not a
report of a medical board set up specifically for age
determination. It appears to have been a general observation
in course of health checkup. There does not appear to have
had been any other medical board constituted for that
purpose. The Division Bench, in the judgment under appeal,
has held that the respondents had referred the appellant’s
case to a medical board which had again confirmed the
entries made in the Form “B” register. We do not find from
the counter affidavit that any further medical board was
constituted. Moreover, the finding of the Division Bench that
opinion of the medical board confirmed the entries made in
the Form “B” register and service book is erroneous as in the
service book prepared in the year 1975, the year of birth of
the appellant has been treated to be 1949. Moreover, the
rejection order does not deal with the committee’s
observation that the medical opinion on the appellant’s age
was a routine medical report and not the opinion of a medical
board constituted to determine the age of an employee.
Subsequent payslips, the sample copies of which have
already been referred to in a preceding part of this judgment
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also repeated 1949 to be the appellant’s year of birth. The
L.I.C. policy subscribed to by the appellant also carries the
same date of birth.
15. One of the factors that weighed with the Division
Bench was that there was no challenge to entry in the service
book, which should have been done within five years as per
the DPE guidelines. We are unable to accept this reasoning
as the service book contained 21st September 1949 as his
date of birth and this was prepared in 1975. Thus, no
occasion arose for approaching the employer for making any
correction in the service book till 2002.
16. This is not a case where a workman is seeking to
change his date of birth to his benefit at the end of his career.
This is a case where the employer is altering the records at
the end of the career of the workman to his detriment on
taking unilateral decision that the date of birth specified in
the appellant’s service book was erroneous, relying on a date
disclosed in a statutory form. Turning to Clause 5 of the
Standing Order, we have already expressed our view on the
evidentiary value of the entries in Form “B” as regards date of
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birth of a workman. In the committee report, the DPE’s
guidelines dated 9th February, 2001 has been referred to,
which deals with alteration of the date of birth of an
employee. The report records:
“1. As per the DPE’s guidelines dated 9.2.2001, an
alteration of date of birth of an employee may be
considered with the sanction of the Board of
Directors, if
(a) request in this regard is made within 5 years of
his entry into the service of the Public Sector
Undertaking
(b) It is clear established that a genuine bonafide
mistake had occurred.
(c) and date of birth so altered should not make him
ineligible to appear in any school/University in
which he had appeared or for entry in Public Sector
Service on the date on which he first appeared at
such examination or on the date on which he
entered the Public Sector Services.”
(quoted verbatim from the paperbook)
17. Though in the Form “B”, the appellant’s age in 1971
was given as 26 years (the date of birth shown as 21st
September 1945), in the subsequent documents the date
appearing in service book had been reflected and it was the
date reflected in the service book which formed the basis of
the payslips as also the estimate statement of the appellant’s
voluntary retirement benefits. In such circumstances, the
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appellant’s failure to seek correction in the Form “B” register
could be condoned.
18. The employer has taken a stand that the date of birth
recorded of the appellant in the service book was an act by
mistake. This is a weak explanation in our opinion. Several
subsequent steps were taken by the employer in relation to
the appellant’s employment on the basis of the entry in his
service book. The employer are the custodian of these
records. They acted all along on the basis of the service
entries till the appellant took VRS. It has been pleaded by the
appellant that at the time of his appointment, the office of the
respondent company entered in all their records his date of
birth as 21st September 1949. In the light of these facts, we
are not inclined to accept the version of the employer that
service book recordal was a mistake. The employer, a public
sector unit in this case, was expected to act with a certain
element of responsibility in maintaining the service records of
their workmen and ensure that there is uniformity in
particulars concerning individual employees. There is no
explanation as to how this mistake occurred and how pay
slips continued to be issued carrying the mistaken date of
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birth for such a long time. The High Court in our view ought
not to have had accepted “mistake” as the cause for different
entries in different documents.
19. The other point on which argument has been advanced
on behalf of the employer is on the aspect of delay on the
appellant’s part in questioning the mistake in the Form “B”. It
has been urged by the respondents’ counsel that they had
extended the sum as per the VRS package computed on the
basis of 21st September 1945 as his date of birth and
complaint on that count was raised by the appellant after
receiving such benefits. It is their case that the anomaly was
discovered sometime in JulyAugust 2002 and the appellant
was asked to appear before a higher authority, which he did
on 16th October 2002. The note sheet of the appellant’s
meeting with the Assistant General Manager on 16th October
2002 has been annexed to the respondent’s counteraffidavit
marked as “R1”. The note sheet records that the appellant
had refused to put his signature thereon. Such refusal is not
of much significance so far as adjudication of the subjectdispute is concerned. Fact remains that this notesheet
appears to be the first document by which the employer had
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alerted the appellant of their decision to rely on Form “B”
entry for computing his age.
20. The said document came into existence after the
appellant was released from his service on 3rd October 2002.
No document of earlier origin in this regard has been brought
to our notice in course of hearing of this appeal. The
appellant complained against such decision on 26th October
2002. Thus, the process of fixing of the appellant’s date of
birth had continued beyond the date on which he was
released from his service.
21. We do not think the appellant’s complaint over the
dispute was belated so as to nonsuit him on this count
alone. VRS benefit is an entitlement and assumes the
character of property to the employee concerned once his
application for VRS is accepted. It is the right of a person
under Article 300A of the Constitution of India to have the
VRS benefit to be given on accurate assessment thereof, the
employer here being a public sector unit. If at the time of
quantifying the VRS benefit after accepting an employee’s
application for voluntary retirement, the employer take any
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step that would reduce such benefit in monetary terms, such
step shall have to be taken under the authority of law. We
find the action of the employer lacking in authority of law in
this case on two counts. First, it fails for not adhering to the
principles of natural justice. The decision not to follow the
service book recordal was taken without giving an
opportunity of hearing to the appellant. The opportunity of
hearing of the appellant also accrued because the employer
themselves had proceeded on the basis that the later date
i.e., 21st September 1949 was the birthdate of the appellant
and this was a long established position. Moreover, since in
the own records of the employer two dates were shown, under
normal circumstances it would have been incumbent on their
part to undertake an exercise on application of mind to
determine in which of these two records the mistake had
crept in. That process would also have had to involve
participation of the appellant, which would have been
compatible with the principles of natural justice. There are
several authorities in which this Court has deprecated the
practice on the part of the employees at the fag end of their
career to dispute the records pertaining to their dates of birth
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that would have the effect of extension of the length of their
service. We are not referring to those authorities in this
judgment as the ratio laid down on that count by this Court
is not relevant for adjudication of this appeal. The very
reasoning on which an employee is not permitted to raise
agecorrection plea at the fag end of his service to extend his
tenure should also apply to the employer as well. It is the
employer here who had proceeded on the basis of age of the
appellant reflected in his service book during the latter’s
service tenure and they ought not to be permitted to fall back
on the Form “B” which would curtail the VRS benefit of the
appellant.
22. The principle of estoppel cannot be invoked in this case
against the appellant to debar him from claiming the benefit
properly computed as per his age reflected in the official
documents. Occasion did not arise for the appellant to advert
to the age correcting process so far as entry in the Form “B”
is concerned as the employer themselves had treated his date
of birth to be 21st September 1949 in the service book.
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23. In these circumstances, we are of the opinion that the
Division Bench as also the Single Judge of the High Court did
not appreciate the materials available in their proper
perspective. We do not think that the view taken by the
Division Bench was a possible view. Sustaining such view
would result in depriving the appellant of his legitimate
benefits under the applicable Voluntary Retirement Scheme.
The materials relied upon by the appellant were ignored
altogether. We thus set aside the judgment of the Division
Bench. As a consequence, the judgment of the Single Judge
also would stand set aside. The rejection order dated 13th
October 2008 of the competent authority shall stand
quashed. The respondent no.1 proceeded in the case of the
appellant in an erroneous manner in treating the appellant’s
date of birth to be 21st September 1945. We accordingly direct
the respondents to extend the benefits of VRS to the
appellant treating his date of birth as 21st September 1949.
Such benefits shall be extended to him within a period of four
months, upon deducting therefrom the sum already paid to
him. The differential amount shall carry simple interest at
the rate of seven percent (7%) per annum to be computed
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from 3rd October 2002, being the date on which he was
released from service, till the date of actual payment to him
in terms of this judgment.
24. The appeal is allowed accordingly.
25. Pending application(s), if any, shall stand disposed of.
26. There shall be no order as to costs.
….….……..................................J.
(Dr. Dhananjaya Y. Chandrachud)
.…………………..........................J.
(Aniruddha Bose)
NEW DELHI;
20th April, 2022.
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