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R. Venkatachalam Vs. Personnel Officer, Personnel Branch, Southern Railway and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1970)IILLJ625Mad
AppellantR. Venkatachalam
RespondentPersonnel Officer, Personnel Branch, Southern Railway and anr.
Cases ReferredBaghel Singh v. Union of India
Excerpt:
.....refer to them without considering them, as it ought to. the seniority list circulated to him from time to time as well as the application for advance from provident fund were all made by him in the routine, and not with the conscious exercise of his mind that his year of birth was 1912. it was only when there was an awakening in his mind by the order of the first respondent that he had to retire on superannuation, that the petitioner had necessarily re-scrutinised the matter with reference to public records and apprised his officials, that the descriptive roll does not contain a correct entry of his age, and the two other public records, namely the military discharge certificate and the certificate of age issued by the school are the primary documents evidencing his age and they afford..........be supported is that the earlier record made by the petitioner at the time of his fresh entry in railway service as a new entrant is based upon a surmise, as the record of age therein is based, upon certain records of the earlier railway company which are not available for verification. it is also stated that the authorities concerned did not consider judicially the effect and purport of the military discharge certificate as well as the certificate of age given by a reputed school, and that the order merely purports to refer to them without considering them, as it ought to. it is also stated that there is nothing in the records of the railway as on date, or at any time, to the effect that the petitioner ever 'declared' his age as if born in 1912 as is sought to be made out. the.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The petitioner was in the permanent service of the Southern Railway for well over twenty-three years. He joined the erstwhile M.S.M. Railway company as a mechanic and riveter boy in the year 1928. Then he resigned the service and joined the army and was a combatant during the second world war. He served there from 1940 to 1946 and was discharged therefrom at or about that time. Thereafter, he registered himself in the Employment Exchange and produced before it his military discharge certificate, which has been produced before me and perused by me in the presence of learned Counsel for the petitioner. Under the caption 'age' it was mentioned that the petitioner was twenty-nine years of age, Through the Employment Exchange, and as a fresh recruit, the petitioner obtained service under the first respondent. It is not disputed that at that time the military discharge certificate which formed part of the records which were forwarded by the petitioner to the Employment Exchange, stated his age as twenty-nine years. When the petitioner joined afresh the services of the first respondent, a descriptive roll of the candidate for employment was prepared. As to who prepared it, and as to the circumstances under which it was prepared, are not clear. Certain entries are said to have been attested. One is not sure, when the attestation was procured. But, in column (10). which mentions the date and place of birth, it is given as: 'DB 1912 as per previous employment; Bangalore'. In Column (21) his previous appointment with the Railway Company was referred to as a 'boy, wagon repair shop-resigned'. This is signed by the petitioner in English. But it is common ground that this descriptive roll was filled up by persons other than the petitioner. The petitioner was serving the railway till be got an intimation from the first respondent that he was to retire on 30th June 1970 as according to him he would attain the age of superannuation by that time, and he was directed to vacate the railway quarters which was in his occupation within a time mentioned therein.

2. Before the intimation was served, and which is sought to be impugned in these proceedings, there was occasion for the petitioner to find out that his date of birth was not correctly entered in the descriptive roll and therefore long prior to the service of the intimation memo as above, and on 12th January 1968 he requested the Personnel Officer of the Southern Railway to alter the records and more particularly his date of birth therein in accordance with the military discharge certificate which was the basis for his fresh appointment in the Southern Railway. He was confronted with the reply that when he joined the erstwhile Railway Department, his date of birth was entered as 1912 and therefore no reconsideration or alteration of the date of birth could be undertaken. He thereupon appealed to the General Manager, Southern Railway, wherein he made it clear that when he was recruited in the wagon repair shop of the quondam Railway company, he was recorded as a 'boy' and there was no declaration of his age at that time and that what was entered was only approximate age. It was along with the appeal petition to the General Manager, Southern Railway that the petitioner thought that he could secure and produce another public document from the school in which he studied. He therefore got one such certificate from the Headmaster of the Church of South India High School, Nagapattinam and enclosed the same along with his appeal memorandum to the General Manager, In that school certificate, which has also been perused by me in Court in the presence of learned Counsel for the petitioner, the date of birth of the petitioner was stated as 15th July, 1916. On the basis of the military discharge certificate, which gave his age as twenty-nine completed years in the year 1946 supported by another public document like the certificate of age issued by the Church of South India High School, Nagapattinam, the petitioner wanted to pursue his remedies before the appellate authority. At that time the military discharge certificate was the produced for verification before the authorities. All that the authorities did was to query the petitioner as to why the school certificate was not produced earlier and ultimately the request for alteration of the date was rejected. This was followed up by the initiation of proceedings by the first respondent (Personnel Officer) calling upon the petitioner to quit and deliver the railway quarters within the period mentioned therein. On the memo, which is sought to be impugned here, the petitioner approached once again the appellate authority namely the General Manager, Southern Railway but without success. The petitioner has now come up to this Court seeking a writ of certiorari to quash the order of the first respondent, dated 4th February, 1970.

3. The main ground on which the writ is sought to be supported is that the earlier record made by the petitioner at the time of his fresh entry in Railway service as a new entrant is based upon a surmise, as the record of age therein is based, upon certain records of the earlier Railway Company which are not available for verification. It is also stated that the authorities concerned did not consider judicially the effect and purport of the military discharge certificate as well as the certificate of age given by a reputed school, and that the order merely purports to refer to them without considering them, as it ought to. It is also stated that there is nothing in the records of the Railway as on date, or at any time, to the effect that the petitioner ever 'declared' his age as if born in 1912 as is sought to be made out. The seniority list circulated to him from time to time as well as the application for advance from provident fund were all made by him in the routine, and not with the conscious exercise of his mind that his year of birth was 1912. It was only when there was an awakening in his mind by the order of the first respondent that he had to retire on superannuation, that the petitioner had necessarily re-scrutinised the matter with reference to public records and apprised his officials, that the descriptive roll does not contain a correct entry of his age, and the two other public records, namely the military discharge certificate and the certificate of age issued by the school are the primary documents evidencing his age and they afford acceptable proof of the same.

4. The contentions of the Railway are essentially in the nature of an estoppel. The case is sought to be made out like this ; the descriptive roll having been signed by the petitioner and he having accepted the correctness of the entries therein he must be deemed to have accepted the age and in any event should be considered as having 'declared' his age within the meaning of Rule 145(1) of the Indian Railway Establishment Code, Vol. I. The second contention is that the printed seniority list circulated to the employees of the Railway positively indicates that the petitioner was apprised from time to time of his date of birth and he, not having taken diligent steps to correct the same promptly, cannot be encouraged at this belated stage to get redress. Thirdly, it is stated that even the application for advance from the provident fund is one of the means by which the petitioner is exposed and he cannot retract and resile from the entries therein, and more particularly, the date of birth which is also shown in the application. Reliance was placed upon a decision reported in Baghel Singh v. Union of India : (1970)ILLJ469MP .

5. Learned Counsel for the respondents reiterates that the order does not disclose any error apparent, for the reason that the authorities at the appropriate time, did consider The impact of the school certificate or the military discharges certificate and that consideration or advertance tantamounts to a decision arrived at on the evidence before them and such a decision being essentially one on a question of fact, ought not to be lightly interfered with by this Court under Article 276 of the Constitution.

6. The last argument can be taken first. It is not enough if a Tribunal which is a quasi-judicial Tribunal adverts to material before it, whether in the shape of oral evidence or document in writing, but the order should disclose a consciousness as to the application of the mind of such a quasi-judicial Tribunal to the cogent material before it, and ex facie the decision should disclose that ultimate order was arrived at after considering the pros and cons of such material before it. I may at once state that in the file which was produced before me, excepting for a bare reference to the certificates in question and a laconic expression appended to it to the effect that they are not correct, it does not appear to me that there was conscious application of the mind of the quasi-judicial Tribunal over the weight and impact of such acceptable materials before it. A Tribunal like the one under consideration which was deciding upon the right of the petitioner to retire, or not to retire cannot by merely stating that the certificates of age from a reputed school is incorrect, escape from the normal consequences which flow from the entry in the certificate. However assertive and dogmatic a Tribunal may be in its opinion and decision, yet that would not weigh with Courts; but it should appear from the record that they have made a decision, after at least some enquiry that the military discharge certificate or the certificate of age from the school is not a public document, or is a document on which no reliance can be placed. Unless such a conclusion is arrived at, it is not possible in the instant case for the authorities concerned to decide one way or the other, on the date of retirement of the petitioner concerned. I am therefore unable to agree with the contention of learned Counsel for the respondents that what is involved in this writ petition is a question of simple fact and that having been found by the authorities, that cannot brook any interference at the hands of this Court.

7. The second contention, in general, is one based on the principle of estoppel. It is stated that the seniority list circulated from time to time and the provident fund application which was made by the petitioner would preclude him from stating anything contrary to what is found therein. The petitioner is practically an illiterate. He knew to sign in English. He has not declared his age. One could appreciate that when a loan is asked for from the provident fund, the applicant is conscious to get the loan as early as possible unmindful of what the recitals therein are, and particularly in the matter of his age; he is not very particular about the correctness of a recital when he applies for a loan from the provident fund. In my view, therefore, a recital in the said application cannot disentitle a person at the appropriate moment when he is called upon to act and speak, to prove that his age is not what was stated in the loan application form.

8. This applies even to the seniority list. This is merely circulated and one wonders whether every one of the columns therein is checked by which of the employees when it is sent to them by the department for verification or otherwise.

9. I am therefore unable to accept the plea that there is any question of estoppel in the instant case.

10. One other argument it that there has been delay. This it indirectly interlocked with the previous argument. It is at a time when the person's rights are affected to his prejudice that he is called upon to act and speak and establish that what is sought to be made out by his superiors or his employers is not correct and is opposed to records, public as well as private. The petitioner was called upon to express himself in or about 1969 when the question arose about the fact whether any mistake has crept in the records of the Railway regarding his age. The old records of the Railway company are not available to see how the age was given as 'D.B. 1912'. The so called attestation of the entry appears to be an empty formality and it is doubtful whether it was done, as it purports to be. I do not think that the proceedings initiated by the petitioner and followed up by him by filing the writ petition in this Court are in any way designedly delayed or wilfully postponed.

11. It there remains for me to consider the legal contentions raised by Mr. Rattan. Reliance was placed upon Rule 145(1) of the Indian Railway Establishment Code. It states:

Every person, on entering railway service, shall declare his date of birth which shall not differ from any declaration expressed or implied for any public purpose before entering railway service.

On the strength of this excerpt, it is sought to be made out that there was an earlier 'declaration' expressed or implied by the petitioner when be joined the Railway Company service as a 'Boy' in the wagon repair shop. It is sought to be followed up by stating that the old company's records which were relied upon for filling up the descriptive roll of candidate for employment in 1946, must be deemed to have been perused and 'D.B. 1912 (Date of birth, 1912) contained in column (10) of the roll must, naturally be accepted as an entry made from the earlier records kept up by the Railway Company. This argument had not the advantage of perusing the records of the Railway Company. Nor does this descriptive roll filled up in 1946 by persons other than the petitioner, make it appear that there was a verification of the same from the records of the old Railway Company. It therefore follows that one cannot definitely state that the date of birth as is sought to be made out by the petitioner with reference to public records, differed from any declaration expressed or implied, made by him for any public purpose before entering the railway service in 1946. In the absence of evidence it is very doubtful whether any such declaration was made and even if it was made I am not sure whether that was made for any public purpose before entering railway service. The previous service was company's service and company could relax its rules according to its whims and fancies and entertain boys and entertain anyone at any stage, provided it felt satisfied that it should give an employment to that individual. Therefore, Rule 145(1) has no application. Above all the petitioner was not a literate.

12. Mr. Venkataraman, however, relied upon Rule 145(2)(c) and Rule 145(3)(i) and (iv) of the same Code. Rule 145(2)(c) enables the Railway Authority to get the age assessed by the Railway Medical Officer if the person concerned is unable to state his age. What is sought to be made out by learned Counsel for the respondents is that this is not a case in which the petitioner is not able to state his age. Literally, it may be so. But the petitioner was confronted with the entries in the descriptive roll and in juxtaposition to this, the petitioner has placed two other public records to prove that the age as disclosed in the descriptive roll is not correct. Therefore, this is a case in which the person concerned is virtually 'unable to state' or accept 'hit age', as stated by the respondents; and in those circumstances means 'unable to establish'. Even according to the principles of natural justice, it appears to me that Rule 145(2)(c) should have been invoked, for, rights of parties are involved in the decision of the first respondent and such rights cannot lightly be decided upon and brushed aside without a proper and due enquiry. An assessment by a Railway Medical Officer about the age of a person would be the best method of satisfying every one concerned as to what could be the age of the petitioner at or about the disputed time.

13 Even otherwise, this ii a case to which Sub-rule (3)(iv) of Rule 145 directly applies, A request for an alteration of age had been made and it was supported by a copy of the school certificate and it was made at or about the date of retirement. Then, it is obligatory on the part of the Railway authorities to keep the petitioner in service until they decide on the problem which by then was placed before them by the servant in question. But what is sought to be argued is that they have taken a decision, and Sub-rule (3)(vi) of Rule 145 has worked itself out.

14. The question further remains whether a decision has been properly taken and whether that decision is based upon the materials before the authorities which they were obliged or entitled in law to decide. The documents which were before the authorities, and which they were called upon to decide under Sub-rule (3)(iv) of Rule 145, were the military discharge certificate and the school certificate. Excepting for a reference to those two documents, and suddenly concluding that they are incorrect, without testing whether those documents could possibly be incorrect, and without making any effort to find out whether those documents contained any materials which were incorrect the authorities came to the decision within the meaning of Sub-rule (3)(iv) Such a decision is no decision at all and therefore they are yet He decide on the materials before them and they cannot therefore implement their order by calling upon the petitioner to surrender his interests as an employee of the Railway.

15. The decision of the Madhya Pradesh High Court, referred to already, has no application at all to the facts of this case, because, there, the learned Judges were called upon to decide about the impact and import of Sub-rule (3)(iv) of Rule 145 of the Railway Establishment Code. Further Shat was a case where no public documents evidencing proof of age were produced before the authorities.

16. As the authorities concerned did not apply their mind when dealing with rights of the petitioner, though they were conscious that they were exercising quasi-judicial functions, the order impugned is to be quashed. The rule nisi is made absolute. Writ Petition allowed. No costs.


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