Shankar Lal vs Hindustan Copper Ltd. on 20 April, 2022


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Supreme Court of India

Shankar Lal vs Hindustan Copper Ltd. on 20 April, 2022

Author: Vineet Saran

Bench: Vineet Saran, Aniruddha Bose

                                                                  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)




                                                JUDGMENT

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
Signature Not Verified

Digitally signed by

granted. The appellant’s stand is that his date of birth is 21 st
Rachna
Date: 2022.04.20
17:59:37 IST
Reason:

September 1949. The appellant had invoked the writ

1
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 20 th

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
2
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 13 th

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 24 th November 2008 and his
3
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 21 st 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
4
8th 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 21 st

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
6
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’

7
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, Ex­
employee.

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

8
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 ex­
employee 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 15 th July 2008 earlier

in this judgment.

9

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

10
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 21 st 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
11
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 21 st September

1949. We, however, find that the authorities proceeded in

this matter in a rather mechanical manner and embarked on

12
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

13
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

14
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

15
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 21 st

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

16
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
17
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 16 th 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 subject­

dispute is concerned. Fact remains that this note­sheet

appears to be the first document by which the employer had
18
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 3 rd 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 26 th 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

19
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

20
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.

21

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 13 th

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 21 st 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

22
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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