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Judgment
Heard the parties.
Petitioner has approached this Court with a prayer for quashing the Award dated 30.09.2016, passed by learned Presiding Officer, Labour Court,
Bokaro Steel City, Bokaro in Ref. Case No. 20 of 2010, whereby it has been held that the action of the Management in prematurely superannuating
the respondent-workman is not justified and the workman is entitled for full back wages along with all consequential benefits w.e.f. 01.06.2006 to his
actual date of superannuation i.e. 30.06.2010
It was the case of the workman before the learned Labour that he joined the services of Bokaro Steel Plant (for short ""BSP"") as attendant on
08.06.1970 and in his personal data form he recorded his age as 20 years on the date of joining and as such, his date of birth is supposed to be
08.06.1950. It was the case of the workman that as per his aforesaid date of birth, his date of superannuation would be 31.05.2010. However, the
petitioner-Management vide letter dated 24.12.2005 informed that workman that he is going to superannuate on 31.05.2006. It was the specific case
of the workman that without issuance of any prior notice or giving opportunity of hearing to the workman, the management by manipulation has
changed his date of birth and has tried to superannuate him 4 years prior to his actual date of superannuation. When workman came to know about
such anomaly, he, through his Union, requested the petitioner-management for making correction in the date of birth and allow him to work till his
actual date of superannuation i.e. till 31.05.2010 but no heed was paid to his said request.
Finding no other alternative remedy, the petitioner through his Union, raised an industrial dispute, which was referred vide notification dated 11.01.2010
to learned Labour Court, Bokaro, by framing following issue for adjudication:
Whether pre-mature retirement of Sri H.N. Mishra, Staff No. 065921, Multi Skill Technician, HRCS Department, Bokaro Steel Plant by changing his
advertised age by the Management is justified? If not, then what relief he is entitled to?
Upon receipt of the notification, the learned Labour Court registered the case as Ref. Case No. 20 of 2010 and issued notices to the parties. Upon
receipt of the notices, both parties appeared and filed their respective written statements. Thereafter, the learned Presiding Officer, after hearing the
parties and perusing the documents and evidences brought on record, by its Award dated 30.09.2016, answered the Reference in favour of the
respondent-workman, holding that:
..............Hence, I have no hesitation to say that the age so assessed or fixed by the management is not proper and hence not justified to retire him
four years prior to his date of birth..................
................In these facts and circumstances of the case, it cannot be said that the present case was filed at the fag end of career. Accordingly, the
workman is entitled for full back wages along with all consequential benefits w.e.f. 01.06.2006 to his actual date of superannuation i.e. 30.06.2010.
...............
Aggrieved by the award dated 30.09.2016, passed by learned Labour Court, Bokaro, the petitioner-management has approached this Court.
Mr. Bibhash Sinha, learned counsel appearing for the petitioner-Management vociferously argues that the Award dated 30.09.2016, passed by
learned Labour Court, Bokaro in Ref. Case No. 20 of 2010, is bad in law and hence, liable to be quashed and set aside by this Court. Learned counsel
further argues that learned Labour Court has failed to appreciate the provisions contained in the Standing Order of the petitioner-management and as
such, came to a wrong finding. Learned Labour Court also failed to appreciate that the question of dispute regarding date of birth of workman cannot
be allowed in the garb of question relating to date of superannuation. Learned Labour Court has also failed to appreciate the documentary evidence
brought on record particularly Exts. M/1 to M/20 which clearly shows that the workman has played fraud since inception of his employment and has
purposely mentioned different dates of birth in his service records and as such, the workman is not entitled for any relief and further, the findings
recorded by learned Labour Court is beyond the terms of reference, hence, the same will not stand in the eyes of law. Learned counsel further argues
that the learned Labour Court has committed gross illegality in allowing full back wages with all consequential benefits to the workman without
appreciating the fact that there is neither any pleading nor any evidence on behalf of the workman to show that he was not gainfully employed
between 01.06.2006 to 30.06.2010. Learned counsel also submits that prior to his present employment he was also employed under the Dhori Colliery
of petitioner- management where he mentioned his date of birth as 19.05.1946 and as such, at the time of joining to the said post, his age was 16
years, which cannot be accepted. Further, at the time of interview for the present post, he mentioned his age as 24 years and subsequently, he
changed the same and mentioned his age as 20 years and 23 years in PD Form (Ext. M-5/1) and Attestation Form (Ext.M-6) respectively. Further, he
revealed his age as 22 years before the Doctor at the time of his fitness test and the same was also recorded in the medical examination report
(Ext.M-2). Learned counsel submits that the learned Labour Court without appreciating the aforesaid facts and considering the exhibits mentioned
above, has passed the Award granting back wages and consequential benefits to the workman, and as such, the same is fit to be quashed and set
aside.
To strengthen his arguments, learned counsel for the petitioner-management places reliance on the judgment passed by the Hon'ble Apex Court in
case of Bharat Coking Coal Ltd. & Ors. Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411.
On the other hand, Mr. Shail Kumar, learned counsel appearing for the respondent-Union vehemently opposes the contention of the learned counsel
for the petitioner-management and argues that the workman at the time of joining the services of the petitioner-Management on 08.06.1971, has
mentioned his age as 20 years and date of birth as 08.06.1950 in the PD forms and was under impression that he would be retired on 31.05.2010.
However, the management forcibly got him retired four years prior to his actual date of retirement. Learned counsel further argues that before making
any correction in the date of birth of the workman, no notice or opportunity of hearing has been given to him to present his case. Learned counsel
further argues that custodian of the personal data of an employee is the Management of BSP and if management is trying to make any changes in the
personal data of an employee it is mandatory for it to give prior notice and opportunity of hearing to the concerned employee to present his case. In
the present case, the management had not done the same and just five months prior to his superannuation, i.e. on 24.12.2005 issued letter intimating
the workman that he is going to superannuate on 31.05.2006 and then only, the workman came to know regarding the manipulation made by the
management in his date of birth and soon thereafter, he through his sponsoring Union made request before the petitioner- management for making
correction in his date of birth and when no action was taken by the petitioner-management, he approached the concerned Govt. for reference of an
Industrial disputes. Hence, there is no illegality or any infirmity in the Award passed by learned Labour Court and the writ petition is fit to be dismissed
outrightly.
To buttress his arguments, learned counsel places heavy reliance on the judgment passed by Hon'ble Apex Court in case of Sarjoo Prasad Vs.
General Manager & Anr., reported in (1981) 3 SCC 544.
Be that as it may, having heard the rival submissions of the parties and upon perusal of the records, this Court is of the considered view that the
Award dated 30.09.2016 is fit to be quashed and set aside for the facts and reasons as stated below:
I) Learned Labour Court has failed to consider the fact that workman has played fraud since inception of his employment and has purposely
mentioned different dates of birth in the different service records.
II) Further, the workman has joined the services of the petitioner-management in the year 1970 and continued to work till 2006 and thereafter, after
four years of his retirement, in the year 2010, for the first time he raised an industrial dispute regarding correction of his date of birth.
III) No document has been produced by the workman with regard to his age at the time of joining the services of the petitioner-management.
IV) Learned Labour Court has also failed to consider the fact that at the time of interview for the present post, the workman mentioned his age as 24
years and subsequently, he changed the same and mentioned his age as 20 years and 23 years in PD Form (Ext. M-5/1) and Attestation Form
(Ext.M-6) respectively.
Further, he revealed his age as 22 years before the Doctor at the time of his fitness test and the same was also recorded in the medical examination
report (Ext.M-2).
V) Learned Labour Court while allowing the back wages and all consequential benefits to the respondent-workman has failed to consider the fact that
there was neither any pleading nor any evidence on behalf of the workman to show that he was not gainfully employed between 01.06.2006 to
30.06.2010.
The Hon'ble Apex Court as well as this Court in catena of decisions has held that request for change of date of birth in service records at the fag
end of service career is not sustainable and in the present case, the workman had raised the disputes relating to correction in date of birth, after his
superannuation.
In case of State of T. N. Vs. T.V.Venugopalan, reported (1994) 6 SCC 302, the Hon'ble Apex Court was clearly of the opinion that the government
servant should not be permitted to correct the date of birth at the fag end of his service career. The Court, in very strong words, observed as under:-
.....The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of
his service career to raise a dispute as regards the correctness of the entries in the service register.
The Hon'ble Apex Court in case of Secretary and Commissioner, Home Department & Ors. Vs. R. Kirubakaran, reported in 1994 Suppl. (1) SCC
155, has held as under:
An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out
that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years,
below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the
correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him
in seniority waiting for their promotion, may lose their promotion forever. ...According to us, this is an important aspect, which cannot be lost sight of
by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case
on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a
direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully
satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the
procedure prescribed, and within the time fixed by any rule or order. ... the onus is on the applicant to prove the wrong recording of his date of birth, in
his service book.
This Hon'ble Court dealing with the similar issue in case of Manik Chand Ghosh Vs. Bharat Coking Coal Ltd. & Ors., reported in 2004 (1) JCR 51
(Jhr.), has held that, date of birth once recorded and entered in the service record, counter- signed by the government servant, he should not be
permitted to challenge at the fag end of his service.
Further, the Hon'ble Apex Court in the case of State of Maharashtra & Anr. v. Gorakhnath Sitaram Kamble & Ors., reported in (2010) 14 SCC 423
has held that:
The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad Vs. Raj Kumar
Agnihotri [(2005) 11 SCC 465 : 2006 SCC (L&S) 96]. In this case, this Court has considered a number of judgments of this Court and observed that
the grievances as to the date of birth in the service record should not be permitted at the fag end of the service career.
In another judgment in State of Uttaranchal Vs. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the
government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment
of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.
Further, the Hon'ble Apex Court reiterating the same view, in case of State of M.P. v. Premlal Shrivas, reported in (2011) 9 SCC 664 has held as
under:-
It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his
superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for
correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully
satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or
as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person
concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the
view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the
service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good
evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their
rights.
Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the
respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application
could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the
respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to
explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the
time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the
service book.
Similar view has been expressed by the Hon'ble Apex Court in case of Bharat Coking Coal Ltd. & Ors. Vs. Shyam Kishore Singh, reported in (2020)
3 SCC 411, wherein the Hon'ble Apex Court has held that, ""request for change of the date of birth in the service records at the fag end of service is
not sustainable.
Time and again it has been held that if government servants sleep over their right and are not vigilant, the Court cannot come to their rescue/ aid
and grant relief only because they were ignorant of the Rules. These decisions lead to a different dimension of the case that correction of date of birth
at the fag end would be at the cost of large number of employees, therefore, any correction at the fag end must be discouraged by the Court.
The judgment cited by the learned counsel for the respondent-workman does not come to his rescue, as in the present case the workman himself
has played fraud since inception of his employment and has purposely mentioned different dates of birth in his service records, and as such, there is no
question of holding any enquiry after giving notice and opportunity of hearing to the affected employee, since no relief can be granted to the person
who has not come to the Court with clean hands and is trying to misuse the remedy available in the law.
As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the Award dated 30.09.2016 passed
by the learned Presiding Officer, Labour Court, Bokaro Steel City in Ref. Case No. 20 of 2010 is hereby quashed and set aside. However, the
petitioner-management is directed to pay the retiral dues, if not paid till date, in accordance with law, to the workman, within a period of four weeks
from the date of receipt/ production of a copy of this order.
With the aforesaid observations and directions, the writ petition stands allowed.
Pending I.A.s, if any, also stands disposed of.