AMTS vs Ahmedabad Muncipality Nokar Mandal

H.K. Rathod, J.—Heard learned advocate Mr.M.G. Nagarkar on behalf of the A.M.T.S. and learned advocate Mr.M.B. Gandhi for

respondent workman.

In the present petition, the petitioner Transport Service has challenged the award passed by the Industrial Tribunal, Ahmedabad in Reference

[IT] NO.74 / 1993 dated 9th September, 1993 whereby the Industrial Tribunal has directed the Transport Service to correct date of birth of the

respondent workman in service book as 20th November, 1942 instead of 16th march, 1935 and also directed Transport Service not to retire the

respondent workman till he reached age of superannuation on the basis of birth of date as 20th November, 1942. Affidavit-in-reply has been filed

by the workman.

Initially, this Court has issued Rule and Notice as to interim relief making it returnable on 17th January, 1995 by order dated 19th December,

1995. Thereafter, the matter was adjourned on 27th January, 1995. On 27th January, 1995, this Court made order to continue the ad-interim

relief granted earlier. But from the earlier order, it is not correct that any ad-interim relief was granted at earlier point of time. Thereafter, matter has

been adjourned on many occasions from time to time for final hearing. Therefore, it is clear from the record that no ad-interim relief and stay

against the award in question was granted in favour of the petitioner. This fact was also brought to the notice of the Transport Manager by letter

dated 19th December, 1994 written by the learned advocate for the petitioner. Therefore, in pursuance of the award, the respondent workman

remained in service upto the date of retirement on the basis of date of birth 20th November, 1942 and he retired on 30th November, 2000. The

petitioner transport service has implemented the award in question and continued the respondent in service upto 30th November, 2000 on the

basis of the date of birth 20th November, 1942.

Learned advcoate Mr. Nagarkar has vehemently submitted that the Industrial Tribunal had no jurisdiction to correct the date of birth of the

respondent which has been recorded by the Transport Service. He also submitted that the Industrial Tribunal has also committed gross error in

deciding the disputed question of facts between the parties. The date of birth which was recorded by the Transport Service was on the basis of the

medical certificate issued by the L.G. Hospital on medical examination of the workman at the instance of the Transport Service and thus, at the

time when the respondent workman was appointed, he was medically examined and found aged 28 years old and on that basis, date of birth came

to be recorded in the service book of the respondent as 16th March, 1995. It is also contended by the learned advocate Mr.Nagarkar that the

date of birth which was recorded in the service book at the time of appointment calculating his age of 28 years, was accepted by the workman and

the workman signed the service book accordingly. But after many years, beyond period of limitation prescribed under the Administrative Rules of

the Transport Service, he raised the dispute for correction of the date of birth and therefore, the Tribunal has committed gross error in correcting

the date of birth of the workman concerned. Mr.Nagarkar submitted that at the time when the respondent workman had joined service with the

petitioner, he had not produced any documentary evidence in support of his date of birth and therefore, he was examined through the Civil

Surgeon and accordingly his date of birth was determined by the transport service as per the Service Rules of the Transport Service.

Learned advocate Mr. Gandhi, on the other hand, supported the order in question and submitted that award has been fully complied with by the

Transport Service as no stay has been granted by this Court at the time of issuing Rule and therefore, once the order in question has been fully

implemented in favour of the workman, in that case, disturbing the said finding at this stage, as it would adversely affect on pensionary benefits

being received by the workman. Therefore, on this ground also, the award under challenge may not be disturbed by this Court.

I have considered submissions made by the learned advocates for the parties. It has clearly come on record that at the time respondent joined

service of the petitioner, he had not produced any documentary evidence in support of his date of birth and consequently, he was medically

examined by the Civil Surgeon and on examination, he was found aged 28 years and on that basis 16th March, 1935 was determined as date of

birth by the Transport Service and said birth of date was recorded in the service book and the same was signed by the respondent. However,

subsequently, request was made by the respondent workman in the year 1993 when he was called upon by the Deputy Superintendent that now

he was due to retire on 30th March, 1993, at that time, the workman had raised objection that he has not attended 58 years of age and therefore,

he was entitled to remain continue in service because his correct date of birth is 20th November, 1942 and the date of birth which is recorded in

the service book, is not correct. In support of that objection, he produced school leaving certificate which showed the date of birth of the

respondent as 20th November, 1942. Before the Tribunal, the respondent workman was examined at Exh.24. It is important to note that no one

was examined on behalf of the Transport Service and as such, no witness was examined by the petitioner. Thereafter, the Tribunal has considered

merits of the matter and the fact that the workman was appointed in the category of the Driver in the year 1963 and his date of birth was recorded

on the basis of medical certificate as 16th March, 1935. Thereafter, the Tribunal has further examined the matter and considered school leaving

certificate produced by the workman which suggested the date of birth as 20th November, 1942. The respondent workman has given application

to the Industrial Tribunal to call the Principal of Navagam Primary School and accordingly, the Tribunal issued summon and called upon the

Principal of Navagam Primary School, and in the examination, it was proved that the date of birth of the respondent as per the documentary

evidence produced by the school authority as 20th November, 1942. Thus, it has come on record from the original record of the school authority

which was called for by the Tribunal the date of birth recorded in the school record as 20th November, 1942. As per the said record, the

respondent was admitted in school on 1st September, 1952 and therefore, considering his date of birth in the year 1942, he was admitted in the

school at the age of 9 years and he studied upto second standard and thereafter left the school on 21st January, 1954. The Tribunal has discussed

that if the date of birth recorded by the Transport Service is believed to be correct as 16th March, 1935, then, it has to believe that the respondent

workman was admitted in the school at the age of 17 years, that is not possible and not believed by the Tribunal. Therefore, the Tribunal has

considered the entire facts and circumstances of the case and the delay aspect in raising the dispute as regards the date of birth which is contrary to

the circular issued by the Transport Service. It was case of the transport service before the Tribunal that when the Circular was issued by the

transport service in respect of the date of birth, no such application was submitted by the respondent workman. Therefore, now after such long

passage of time, application should not be considered. But the Tribunal has considered the evidence of the workman that he was not aware as

regards this circular and therefore, the Tribunal has not believed the contention of the transport service as to delay and examined the merits of the

matter and on merits, after appreciation of documentary and oral evidence, the Tribunal has found that the date of birth transpired in the school

leaving certificate is found to be just and correct in comparison to the date of birth 16th March, 1935 recorded by the transport service.

Accordingly, the Tribunal has come to the conclusion that the correct date of birth of the respondent workman is 20th November, 1942 and not

the date of birth 16th March, 1935 as recorded in the service book of the respondent by the transport service.

I have perused the award in question and also gone through the observations made by the Tribunal. According to my opinion, the Tribunal has

rightly appreciated the oral and documentary evidence and also rightly considered that if the date of birth recorded in the service book as 16th

March, 1935 is believed to be correct, then it mean to believe that the workman was for the first time entered and admitted in the school at 17

years of his age, that was not possible as per the presumption of Tribunal. As per the original school record produced by the Principal of Navagam

Primary School, the date of birth of the respondent workman is 20th November, 1942 recorded at the time when the workman was got admitted

in the school and he studied upto 2nd Standard and left the school in the year 1954. Therefore, according to my opinion, the Tribunal has not

committed any error while passing the award under challenge and afterall, it is finding of fact recorded by the Tribunal and this Court cannot

reappreciate the same. Moreover, the award under challenge has been fully complied with and implemented by the Transport Service and the

workman concerned has retired on 1st December, 2000 and the fact that this Court has not granted any stay at the time of issuing Rule in the

matter. This Court cannot act as an appellate authority and cannot reappreciate the evidence as appreciated by the Tribunal and as such, there is

no procedural irregularity committed by the Tribunal found apparently on the face of record, in my opinion, no interference of this Court is called

for while exercising the jurisdiction under Article 227 of the Constitution of India.

In view of aforesaid discussion, there is no substance in the present petition and the same fails. Petition is, therefore, dismissed. Rule discharged.

No order as to costs.