SHANKAR LAL versus HINDUSTAN COPPER LTD. & ORS on 20 April 2022

704

SUPREME COURT REPORTS

[2022] 5 S.C.R. 704

[2022] 5 S.C.R.

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SHANKAR LAL

v.

HINDUSTAN COPPER LTD. & ORS.

(Civil Appeal No. 2858 of 2022)

BApril 20, 2022

[DR. DHANANJAYA Y. CHANDRACHUD ANDANIRUDDHA BOSE, JJ.]

Service Law – Voluntary Retirement Scheme – Date of Birth –CAppellant-employee questioned validity of an order of respondent-employer treating his date of birth as 21st September 1945 – 21[st]September 1949 was recorded as appellant’s date of birth in his“Service Books” whereas the statutory form, namely, “Form B”,reflected it as 21[st] September 1945 – Date of birth was relevant forcomputation of benefits accruing from Voluntary Retirement SchemeD(VRS), for which appellant applied and was granted – Appellant’sstand was that his date of birth was 21st September, 1949 and thus,his financial benefits from VRS should have been higher – Contentionof respondent-employer that in service books there was error inrecording the age of appellant, which had been subsequentlyEcorrected – Writ jurisdiction of High Court invoked by appellantwas unsuccessful – On appeal, held: This is a case where respondent-employer altered the records at the end of the career of appellant tohis detriment on taking unilateral decision that the date of birthspecified in appellant’s service book was erroneous, relying on adate disclosed in a statutory form – Version of respondent-employerFthat service book recordal was a mistake cannot be accepted –Respondent, a public sector unit is expected to act with certainelement of responsibility in maintaining the service records of theirworkmen and to ensure uniformity in particulars concerningindividual employees – There is no explanation as to how this mistakeGoccurred and how pay slips continued to be issued carrying themistaken date of birth for a long time – Further, appellant’s complaintover the dispute was not belated so as to non-suit him on this countalone – VRS benefit is an entitlement and assumes the character ofproperty to the employee once application is accepted – Action ofrespondent-employer lacked in authority of law on two counts –H

First, it failed for not adhering to the principles of natural justice –The decision not to follow the service book recordal was takenwithout giving an opportunity of hearing to appellant – Moreover,since in the own records of respondent-employer two dates wereshown, under normal circumstances it would have been incumbenton their part to undertake an exercise on application of mind todetermine in which of these two records the mistake had crept in –Respondent-employer proceeded on basis of age of the appellantreflected in his service book during the latter’s service tenure andcannot be permitted to fall back on Form “B” which would curtailthe VRS benefit of the appellant – Respondents directed to extendbenefits of VRS to appellant treating his date of birth as 21[st]September 1949.

Allowing the appeal, the Court

HELD:1.The authorities proceeded in this matter in arather mechanical manner and embarked on a unilateral exerciseof correcting the age entry in the service book on their perceptionthat an error was being corrected. This exercise was conductedwithout giving any opportunity of hearing to the appellant and atthe fag end of his service tenure. [Para 12][715-C-D]

2.1. One of the factors that weighed with the High Courtwas that there was no challenge to entry in the service book,which should have been done within five years as per the DPEguidelines. This reasoning cannot be accepted as the service bookcontained 21[st] September 1949 as his date of birth and this wasprepared in 1975. Thus, no occasion arose for approaching theemployer for making any correction in the service book till 2002.[Para 15][716-C-D]

2.2. Though in the Form “B”, the appellant’s age in 1971was given as 26 years (the date of birth shown as 21st September1945), in the subsequent documents the date appearing in servicebook had been reflected and it was the date reflected in the servicebook which formed the basis of the pay-slips as also the estimatestatement of the appellant’s voluntary retirement benefits. In suchcircumstances, the appellant’s failure to seek correction in theForm “B” register could be condoned. [Para 17][717-B-C]

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A3. The employer has taken a stand that the date of birthrecorded of the appellant in the service book was an act bymistake. This is a weak explanation. Several subsequent stepswere taken by the employer in relation to the appellant’semployment on the basis of the entry in his service book. Theemployer are the custodian of these records. They acted all alongBon the basis of the service entries till the appellant took VRS. Ithas been pleaded by the appellant that at the time of hisappointment, the office of the respondent company entered in alltheir records his date of birth as 21st September 1949. In thelight of these facts, the version of the employer that service bookCrecordal was a mistake cannot be accepted. The employer, apublic sector unit in this case, was expected to act with a certainelement of responsibility in maintaining the service records oftheir workmen and ensure that there is uniformity in particularsconcerning individual employees. There is no explanation as toDhow this mistake occurred and how pay slips continued to beissued carrying the mistaken date of birth for such a long time.The High Court ought not to have had accepted “mistake” asthe cause for different entries in different documents.[Para 18][717-D-G]

E4. Further, it cannot be said that the appellant’s complaintover the dispute was belated so as to non-suit him on this countalone. VRS benefit is an entitlement and assumes the characterof property to the employee concerned once his application forVRS is accepted. It is the right of a person under Article 300A ofthe Constitution of India to have the VRS benefit to be given onFaccurate assessment thereof, the employer here being a publicsector unit. If at the time of quantifying the VRS benefit afteraccepting an employee’s application for voluntary retirement, theemployer takes any step that would reduce such benefit inmonetary terms, such step shall have to be taken under theGauthority of law. The action of the employer is lacking in authorityof law in this case on two counts. First, it fails for not adhering tothe principles of natural justice. The decision not to follow theservice book recordal was taken without giving an opportunity H

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of hearing to the appellant. The opportunity of hearing of theappellant also accrued because the employer themselves hadproceeded on the basis that the later date i.e., 21st September1949 was the birthdate of the appellant and this was a longestablished position. Moreover, since in the own records of theemployer two dates were shown, under normal circumstances itwould have been incumbent on their part to undertake an exerciseon application of mind to determine in which of these two recordsthe mistake had crept in. That process would also have had toinvolve participation of the appellant, which would have beencompatible with the principles of natural justice. The veryreasoning on which an employee is not permitted to raiseage-correction plea at the fag end of his service to extend histenure should also apply to the employer as well. It is the employerhere who had proceeded on the basis of age of the appellantreflected in his service book during the latter’s service tenureand they ought not to be permitted to fall back on the Form “B”which would curtail the VRS benefit of the appellant. [Para 21][718-E-H; 719-A, C]

5. The principle of estoppel cannot be invoked in this caseagainst the appellant to debar him from claiming the benefitproperly computed as per his age reflected in the officialdocuments. Occasion did not arise for the appellant to advert tothe age correcting process so far as entry in the Form “B” isconcerned as the employer themselves had treated his date ofbirth to be 21st September 1949 in the service book.[Para 22][719-D-E]

6. In the circumstances, sustaining the view taken by theHigh Court would result in depriving the appellant of his legitimatebenefits under the applicable Voluntary Retirement Scheme. Therespondent no.1 proceeded in the case of the appellant in anerroneous manner in treating the appellant’s date of birth to be21st September 1945. The respondents are directed to extendthe benefits of VRS to the appellant treating his date of birth as21st September 1949. [Para 23][719-F, G]

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 2858of 2022.

From the Judgment and Order dated 08.12.2016 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal WritNo. 1501 of 2011.B

Kaushal Yadav, Nandlal Kumar Mishra, Ms. Mamta Rani, Dr.Ajay Kumar, Ms. Akansha Rai, Ms. Apeksha Rai, Ms. Yashoda Katiyar,Ms. Kritiya Pandey, Ms. Shweta Yadav, Sandiv Kalia, Ms. Reena Rao,Nand Ram, V.G.R. Achary, Dr. Sushil Balwada, Advs. for the appellant.

Ms. Nandini Sen Mukherjee, Advs. for the respondents.CThe Judgment of the Court was delivered by ANIRUDDHA BOSE, J.

1. The appellant is before us primarily questioning the validity ofan order of the employer (Hindustan Copper Limited - the first respondentDin this appeal) treating his date of birth as 21[st] September 1945. Thisdate has relevance for computation of his benefits accruing from aVoluntary Retirement Scheme (“VRS”), for which he applied and wasgranted. The appellant’s stand is that his date of birth is 21[st] September1949. The appellant had invoked the writ jurisdiction of the High Courtof Judicature for Rajasthan at Jaipur (“the High Court”), but wasEunsuccessful before a Single Judge and the Division Bench in sustaininghis case. If the latter date, i.e. 21[st] September, 1949 was accepted bythe employer to be his date of birth, his financial benefits from the saidscheme would have been higher, as he would have had longer servicetenure left. It appears that the tenure of service left was the basis onFwhich the VRS benefit was to be computed. We would like to point outhere that in the pleadings and copies of various other documents formingpart of the paperbook, there are overlapping dates claimed by the appellantto be his actual date of birth. These are 20[th] September 1949 and 21[st]September 1949. This variation, however, is insignificant so far asadjudication of this appeal is concerned. In this judgment, we shall ignoreGthis variation and proceed on the basis that 21[st] September 1949 is thedate claimed by the appellant to be his birthdate.

2. The VRS was operational in the appellant’s case with effectfrom 3[rd] October 2002. Admitted position is that 21st September 1949was recorded as his date of birth in his service book. This was opened inH

1975. He had joined the organisation in the year 1971 and the Form “B”reflects his date of birth as 21[st] September 1945. The appellant claimsthat at the time of his voluntary retirement, he came to learn for the firsttime that his date of birth was being changed to 21[st] September 1945.He invoked the writ jurisdiction of the High Court in the year 2008 as hisrepresentations for adhering to 21[st] September 1949 as his birthdatefailed to evoke positive response from the employer. That writ petition(S.B. Civil Writ Petition No.5690/08) was disposed of by a Single Judgewith a direction to the appellant to make a fresh representation in light ofthe recommendations made by a committee of the employer themselvesin his favour on the subject controversy. The competent authority wasdirected, in the same judgment delivered on 15[th] July 2008, to considerand decide on the same in accordance with law.

3. The appellant’s representation was rejected by the competentauthority-employer by an order passed on 13[th] October 2008 (“therejection order”). The appellant’s plea against the rejection order (S.B.Civil Writ Petition No. 13195/2008) was dismissed by a learned SingleJudge of the High Court by an Order dated 24[th] November 2008 and hisappeal (D.B.Special Appeal Writ No.1501/2011) assailing the order ofdismissal before a Division Bench of the same High Court also failed.The judgment of the Division Bench was delivered on 8[th] December2016. It is this judgment which is under appeal before us. The appellantstakes his claim primarily on his service book maintained by the employer,where his date of birth is shown as 21[st] September 1949. Mr. KaushalYadav, learned counsel for the appellant has also relied on a LifeInsurance Corporation (“L.I.C.”) Policy in which the same date of birthhas been shown. This policy, however, was subscribed to by the appellantin the month of May, 1980. The appellant’s counsel has brought to ournotice sample copies of his pay slips for the months of August 1994 andAugust 2001. Both these pay slips carry the message, “Happy Birthday***20.09.1949***”. The appellant has also relied upon certain clausesof the Standing Orders of the employer in support of his claim. We shallrefer to the relevant clauses thereof later in this judgment.

4. The appellant had joined the said organisation as a miner oncompletion of his one-month training in the temporary job. Communicationto that effect was issued on 8[th] September 1971. We have alreadyreferred to different documents emanating from or maintained by theemployer themselves where his date of birth was shown to be 21[st]

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ASeptember 1949. In the computation sheet of his estimated “VR benefit”also the same date of birth was reflected. By that time, the post theappellant was holding was that of “drifter operator” (a copy of theestimate sheet forms part of the paperbook, at page 38). The appellantwas relieved from his service on 3[rd] October 2002. The appellant’s caseis that he came to know that his date of birth was being altered onlyBafter he was relieved from service. From the materials available onrecord, we find reference to his date of birth as 21[st] September 1945 forthe first time in a form issued by the employer on 22[nd] March 2003. Thetop portion of this form (a copy of which appears at page 47 of thepaperbook) carries an endorsement made by the Assistant Manager ofCthe 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 containsother particulars of the appellant, which also includes his date of birth,filled in as 20[th] September 1949. The appellant, however, had knowledgeof his date of birth being taken by the employer as 21[st] September 1945Dearlier, but according to him, he had noticed this only after being relievedfrom service. In his service certificate issued on 29[th] October 2002, 21[st]September 1945 was shown as his birthdate.

5. Stand of the respondents, represented by Ms. Nandini SenMukherjee, learned counsel, is that at the entry point, he had given hisEage to be 26 years, and that was the age reflected in the Form “B”. Thatis 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, themedical practitioner during a health check-up had also assessed his ageto be about 25 years, which would take his year of birth closer to 1945.FIn the year 1975, his service book was prepared. In such records, theappellant’s age was entered as 26 years by mistake, repeating his age asit was at the time he joined the organisation. That is how the inconsistentrecordal of the appellant’s birthdate is sought to be explained by theemployer. She has also emphasised that the appellant had raised thecomplaint after receiving all the VRS benefits computed on the basis ofGhis age as reflected in the Form “B”.

6. It appears that there had been disputes over age in respect ofother employees also in the same organisation, and a three-membercommittee was constituted by an Order passed on 7[th] September 2004by the General Manager, Khetri Copper Complex of the first respondent.H

The committee considered the case of the appellant also, and their reportwent in his favour. Relevant extract from this report has been annexedat page 54 of the paperbook (Annexure P13). In Clauses 3, 4 and 5 ofthis report, background has been given in relation to recordal of date ofbirth of an employee. We quote below the said three clauses from thatreport:- “3. As per the company’s certified standing orders, the basis fordetermining 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 writtenthat 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 hasdeclined to accept the ‘B’ Form Register as the basis for age/date of birth determination where the Hon’ble High Court hadquoted “when ‘B’ Form entries have not been made by thepetitioner in his own hand-writing and the entries have been madein ‘B’ Form in a language which the petitioner could not haveunderstood, entries made in ‘B’ Form could not have been madebasis for effecting the retirement of the petitioner.

5. During construction period of KCC there was no proper systemof recording the particulars of an employee like date of birth, ageetc. Most of the workmen were engaged as “daily rated monthlypaid basis” and there was no proper system of recording the exactdate of joining, date of birth etc. During this period employees soengaged were never asked for documents etc. in support of theirage. Only after the Gopal Das Narayan Award in 1971, all these“daily rated monthly paid” workmen were regularized and theirdate of initial joining in the company were taken into account,service book was introduced and particulars of these employeeswere maintained.”

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A7. In relation to the appellant, the recommendation of the committeewas 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 wasrecorded as 26 years in the ‘B’ Form Register at the time of hisinitial 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 ofbirth was recorded as 21.9.1949 counting 26 years from the year1975 (year of filling up the service book).

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In the medical report dated 22.9.1971 also his age was assessedas 25 years, which comes nearer to 1945 and not of 1949. Thedate of birth recorded in the service book was not disputed for along time. However, in the year 2002, when the anomaly wasnoticed the case was processed for rectification but in themeantime, Shri Shankar Lal has submitted V.R. and subsequentlyreleased from the committee’s service on 3.10.2002. His V.R.payment was released considering his date of birth as 21.9.1949and not as 21.9.1949(which was recorded in his service book) asthe Finance Department did not agree to accept the date of birthas 21.9.1949. After receiving the payment the ex-employee madeseveral request to release the balance amount of V.R. benefitconsidering his date of birth is 21.09.1949. The committee observedthat the ex-employee joined this complex on 21.9.1971. Since hewas only literate, a ‘B’ register was filled up at that time wherehis age was recorded as 26 years. In the year 1975 a servicebook was filled up where date of birth was recorded as 21.9.1949,counting 26 years from the year 1975. There was a medical reportdated 22.9.1971 where his age was assessed as 25 years whichmakes the date of birth as 22.9.1946 but this medical report cannotbe considered as this was a routine medical report and no medicalboard was set up specifically for age determination. The committeefelt that the date of birth as 21.9.1949 was recorded in the servicebook in the year 1975, which was never disputed thereafter.Moreover, the same date of birth was mentioned in his pay-slipever year which was also published by the committee. His LICrecord also indicates the same date of birth. Only at the time ofhis release of payment in the year 2002 his date of birth was D

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considered from 21.9.1949 to 21.9.1949 which is against the DEP’sguidelines dated 9.2.2001. The committee, therefore,recommended to maintain his date of birth as 21.9.1949.”

8. This recommendation was rejected by the employer, whichresulted in the appellant filing the writ petition before the High Court.We have referred to this writ petition and directions issued by the HighCourt on 15[th] July 2008 earlier in this judgment.

9. The recommendation of the committee was not accepted bythe employer in the rejection order, relying on Clause 5 of the StandingOrder. The relevant extract from this clause has been quoted in para(iv) of the rejection order made by the competent authority. We reproducebelow the said clause, as it appears in the rejection order: - “iv) ….. However, in case of Mining workmen, declaration ofage by the individual workman in the ‘B’ Form Register as perthe Mines Act/Rules may be relied upon subject to confirmationby the Company’s Medical Officer whenever considerednecessary.”

10. In the rejection order, reference was also made to the guidelinesof 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 inits guidelines dated 9[th] February, 2001 states that the date of birthdeclared by an employee and accepted by the appropriate authorityshall not be altered unless the same is represented against withadequate proof/justification within 5 years of joining the service.

vi. Whereas, Shri Shankarlal never disputed the date of birthrecorded in ‘B’ Form, which is the primary document for thepurpose of recording date of birth of employee working in Minesas per the Mines Act and as well as the Standing Orders of theCompany, until his release from the services of the Company onvoluntary retirement on 03.10.2002 i.e. after 31 years of service.

vii. The competent authority has taken note of the recommendationof the Committee, which was appointed in 2004 to examine A

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anomalies in dates of birth of certain number of employees. It isseen that while examining this case, the committee had somehowfailed to consider and record the importance of Clause No.5 ofthe Standing Order applicable in case of mining workmen asreferred above. The competent authority has therefore notaccepted the recommendations of the said committee.”

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11. In the appellant’s writ petition seeking invalidation of therejection order, the High Court found the stand taken by the authoritiesin rejecting the appellant’s plea for treating his date of birth as 21[st]CSeptember 1949 to be justified. The Single Judge of the High Courtconsidered the fact that no documentary evidence was available onrecord to support his date of birth to be 21[st] September 1949. Theappellant’s writ petition was dismissed. Against the judgment of dismissal,the appellant approached the Division Bench of the same Court. TheDivision Bench also primarily relied upon the entry in the Form “B”Dregister and dismissed the appeal. The Division Bench, inter alia, held:- “(5) There shall be a presumption of correctness with regard toentries regarding date of birth made as far back as 1971 in thestatutory Form ‘B’ register under the Mines Act. If the Appellantseeks to challenge entries in a statutory register duly signed byhim also, the onus lies on him to prove how it was wrongly made.Obviously the age mentioned was not a figment of imagination bythe Respondent evident from the order of appointment which statesthat it was based on his own statement E

(6) The service book of the Appellant was opened in the year1975. There was no challenge to entry in the same also. Accordingto the DPE guidelines any request for correction in the date ofbirth in the service book was required to be made within 5 years.If there was a prescription of time limit, the question of raisingany controversy much after that period and acceptance of VRS2002 simply does not arise.

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(7) The Appellant accepted the benefits of the VRS and thenraised the dispute. The Respondents in all fairness referred hiscase to a Medical Board which again opined in confirmation ofthe entries made in the Form ‘B’ register and the service book.The contention of the Appellant with regard to his date of birth H

being 21.09.1947 becomes a disputed question of fact which cannotbe inquired in the writ jurisdiction quite apart from the fact of ithaving been raised very belatedly.”

12. The stand of the employer, thus, is that in his service bookthere was error in recording the age of the appellant as 26 years in 1975and we ought not to give any credence to such recordal. The respondentshad only corrected an error and such recordal in service book cannot betreated to be acceptance of the appellant’s date of birth as 21[st] September1949. We, however, find that the authorities proceeded in this matter ina rather mechanical manner and embarked on a unilateral exercise ofcorrecting the age entry in the service book on their perception that anerror was being corrected. This exercise was conducted without givingany opportunity of hearing to the appellant and at the fag end of hisservice tenure. Otherwise, various documents including the L.I.C. policyconsistently reflect 21[st] September 1949 to be the appellant’s birthdate.

13. Clause 5 of the Standing Order on which reliance has beenplaced by the employer does not treat the entry in the Form ‘B’ recordingdate of birth of a miner to be the conclusive proof of his or her age. Anydoubt on a workman’s age at the time of joining service also could beverified by a medical board. We accept that an entry in the Form “B”possesses high probative value, but they are not conclusive proof ofwhat is contained therein. The competent authority proceeded on thebasis that since the appellant did not question the entry in Form “B”, heought not to be permitted to question the same at the time of his voluntaryretirement.

14. The committee report prepared by three deputy generalmanagers of the respondent no.1 has raised doubt of the correctness ofthe medical report as the same was not a report of a medical board setup specifically for age determination. It appears to have been a generalobservation in course of health check-up. There does not appear to havehad been any other medical board constituted for that purpose. TheDivision Bench, in the judgment under appeal, has held that therespondents had referred the appellant’s case to a medical board whichhad again confirmed the entries made in the Form “B” register. We donot find from the counter affidavit that any further medical board wasconstituted. Moreover, the finding of the Division Bench that opinion of A

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Athe medical board confirmed the entries made in the Form “B” registerand service book is erroneous as in the service book prepared in theyear 1975, the year of birth of the appellant has been treated to be 1949.Moreover, the rejection order does not deal with the committee’sobservation that the medical opinion on the appellant’s age was a routinemedical report and not the opinion of a medical board constituted toBdetermine the age of an employee. Subsequent pay-slips, the samplecopies of which have already been referred to in a preceding part of thisjudgment also repeated 1949 to be the appellant’s year of birth. TheL.I.C. policy subscribed to by the appellant also carries the same date ofbirth.C

15. One of the factors that weighed with the Division Bench wasthat there was no challenge to entry in the service book, which shouldhave been done within five years as per the DPE guidelines. We areunable to accept this reasoning as the service book contained 21[st]September 1949 as his date of birth and this was prepared in 1975.DThus, no occasion arose for approaching the employer for making anycorrection in the service book till 2002.

16. This is not a case where a workman is seeking to change hisdate of birth to his benefit at the end of his career. This is a case wherethe employer is altering the records at the end of the career of theEworkman to his detriment on taking unilateral decision that the date ofbirth specified in the appellant’s service book was erroneous, relying ona date disclosed in a statutory form. Turning to Clause 5 of the StandingOrder, we have already expressed our view on the evidentiary value ofthe entries in Form “B” as regards date of birth of a workman. In thecommittee report, the DPE’s guidelines dated 9[th] February, 2001 hasFbeen referred to, which deals with alteration of the date of birth of anemployee. The report records: - “1. As per the DPE’s guidelines dated 9.2.2001, an alteration ofdate of birth of an employee may be considered with the sanctionof the Board of Directors, ifG

(a) request in this regard is made within 5 years of his entry intothe service of the Public Sector Undertaking (b) It is clear established that a genuine bonafide mistake hadoccurred.

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(c) and date of birth so altered should not make him ineligible toappear in any school/University in which he had appeared or forentry in Public Sector Service on the date on which he firstappeared at such examination or on the date on which he enteredthe Public Sector Services.”

17. Though in the Form “B”, the appellant’s age in 1971 wasgiven as 26 years (the date of birth shown as 21[st] September 1945), inthe subsequent documents the date appearing in service book had beenreflected and it was the date reflected in the service book which formedthe basis of the pay-slips as also the estimate statement of the appellant’svoluntary retirement benefits. In such circumstances, the appellant’sfailure to seek correction in the Form “B” register could be condoned.

18. The employer has taken a stand that the date of birth recordedof the appellant in the service book was an act by mistake. This is aweak explanation in our opinion. Several subsequent steps were takenby the employer in relation to the appellant’s employment on the basis ofthe entry in his service book. The employer are the custodian of theserecords. They acted all along on the basis of the service entries till theappellant took VRS. It has been pleaded by the appellant that at the timeof his appointment, the office of the respondent company entered in alltheir records his date of birth as 21[st] September 1949. In the light ofthese facts, we are not inclined to accept the version of the employerthat service book recordal was a mistake. The employer, a public sectorunit in this case, was expected to act with a certain element ofresponsibility in maintaining the service records of their workmen andensure that there is uniformity in particulars concerning individualemployees. There is no explanation as to how this mistake occurred andhow pay slips continued to be issued carrying the mistaken date of birthfor such a long time. The High Court in our view ought not to have hadaccepted “mistake” as the cause for different entries in differentdocuments.

19. The other point on which argument has been advanced onbehalf of the employer is on the aspect of delay on the appellant’s part inquestioning the mistake in the Form “B”. It has been urged by therespondents’ counsel that they had extended the sum as per the VRSpackage computed on the basis of 21[st] September 1945 as his date of A

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Abirth and complaint on that count was raised by the appellant afterreceiving such benefits. It is their case that the anomaly was discoveredsometime in July-August 2002 and the appellant was asked to appearbefore a higher authority, which he did on 16[th] October 2002. The notesheet of the appellant’s meeting with the Assistant General Manager on16[th] October 2002 has been annexed to the respondent’s counter-affidavitBmarked as “R1”. The note sheet records that the appellant had refusedto put his signature thereon. Such refusal is not of much significance sofar as adjudication of the subject-dispute is concerned. Fact remainsthat this note-sheet appears to be the first document by which the employerhad alerted the appellant of their decision to rely on Form “B” entry forCcomputing his age.

20. The said document came into existence after the appellantwas released from his service on 3[rd] October 2002. No document ofearlier origin in this regard has been brought to our notice in course ofhearing of this appeal. The appellant complained against such decisionDon 26[th] October 2002. Thus, the process of fixing of the appellant’s dateof birth had continued beyond the date on which he was released fromhis service.

21. We do not think the appellant’s complaint over the disputewas belated so as to non-suit him on this count alone. VRS benefit is anEentitlement and assumes the character of property to the employeeconcerned once his application for VRS is accepted. It is the right of aperson under Article 300A of the Constitution of India to have the VRSbenefit to be given on accurate assessment thereof, the employer herebeing a public sector unit. If at the time of quantifying the VRS benefitafter accepting an employee’s application for voluntary retirement, theFemployer take any step that would reduce such benefit in monetaryterms, such step shall have to be taken under the authority of law. Wefind the action of the employer lacking in authority of law in this case ontwo counts. First, it fails for not adhering to the principles of naturaljustice. The decision not to follow the service book recordal was takenGwithout giving an opportunity of hearing to the appellant. The opportunityof hearing of the appellant also accrued because the employer themselveshad proceeded on the basis that the later date i.e., 21[st] September 1949was the birthdate of the appellant and this was a long established position.Moreover, since in the own records of the employer two dates wereshown, under normal circumstances it would have been incumbent onH

their part to undertake an exercise on application of mind to determine inwhich of these two records the mistake had crept in. That process wouldalso have had to involve participation of the appellant, which would havebeen compatible with the principles of natural justice. There are severalauthorities in which this Court has deprecated the practice on the part ofthe employees at the fag end of their career to dispute the recordspertaining to their dates of birth that would have the effect of extensionof the length of their service. We are not referring to those authorities inthis judgment as the ratio laid down on that count by this Court is notrelevant for adjudication of this appeal. The very reasoning on which anemployee is not permitted to raise age-correction plea at the fag end ofhis service to extend his tenure should also apply to the employer aswell. It is the employer here who had proceeded on the basis of age ofthe appellant reflected in his service book during the latter’s servicetenure 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 againstthe appellant to debar him from claiming the benefit properly computedas per his age reflected in the official documents. Occasion did not arisefor the appellant to advert to the age correcting process so far as entryin the Form “B” is concerned as the employer themselves had treatedhis date of birth to be 21[st] September 1949 in the service book.

23. In these circumstances, we are of the opinion that the DivisionBench as also the Single Judge of the High Court did not appreciate thematerials available in their proper perspective. We do not think that theview taken by the Division Bench was a possible view. Sustaining suchview would result in depriving the appellant of his legitimate benefitsunder the applicable Voluntary Retirement Scheme. The materials reliedupon by the appellant were ignored altogether. We thus set aside thejudgment of the Division Bench. As a consequence, the judgment of theSingle Judge also would stand set aside. The rejection order dated 13[th]October 2008 of the competent authority shall stand quashed. Therespondent no.1 proceeded in the case of the appellant in an erroneousmanner in treating the appellant’s date of birth to be 21[st] September1945. We accordingly direct the respondents to extend the benefits ofVRS 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 A

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[2022] 5 S.C.R.

Aamount shall carry simple interest at the rate of seven percent (7%) perannum to be computed from 3[rd] October 2002, being the date on whichhe was released from service, till the date of actual payment to him interms of this judgment.

24. The appeal is allowed accordingly.B25. Pending application(s), if any, shall stand disposed of.

26. There shall be no order as to costs.

C

Bibhuti Bhushan Bose

(Assisted by : Neha Sharma, LCRA)

Appeal allowed.

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