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Judgment
Heard counsels for the parties.
As per the pleadings and the arguments, it appears that the concerned workman has claimed appointment in the year 1972 under the erstwhile Dohri Colliery. Subsequently, in the year 1973, on nationalisation, he became the employee of the present-petitioner. As per the employer, the date of birth of the workman has been mentioned as 09.06.1935 in Form-B Register and accordingly, the workman has retired with effect from June, 1995.
The workman has pleaded that at the time of his appointment, Form-B Register has been kept blank and subsequently it has been filled up and there is no endorsement as such. It is further case of the workman that he has represented to the management for correction of date of birth and his date of birth has been corrected in the record maintained by the C.M.P.F. Authority. As per the workman his correct date of birth is 07.06.1948. The employer has sought clarification from the C.M.P.F. Authority and that has been clarified also. In spite of such clarification, the date of birth has not been corrected and this action is contrary to their own rules known as Implementation Instruction No.76.
For better appreciation, para-5 of Implementation Instruction No.76 is quoted hereinbelow:-
Procedure for Determination/ Verification of age of Employees
(A) Determination of the age at the time of appointment
i) Matriculates
In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.
ii) Non- matriculates but educated
In the case of appointees who have pursued studies in a recognised educational institution, date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances.
iii) Ex- servicemen
In the case of Ex-servicemen who are not matriculates, the date of birth recorded in the Army Discharge Certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. In the case of Ex-servicemen who have passed Matriculation examination, the date of birth recorded in the Matriculation certificate will be treated as correct date of birth, provided they have passed the Matriculation examination before entering the Defence Services; otherwise the date of birth recorded in Army Discharge Certificate will be taken as correct date of birth.
iv) Illiterate
In the cases of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Office keeping in view any documentary and other relevant evidence as produced by the appointee. Date of birth as determined shall be treated as correct date of birth and the same will not be altered under any circumstances.
(B) Review determination of date of birth in respect of existing employees
i) a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/ Boards/ Institutions prior to the date of employment.
i) b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic.
Provided that where both documents mentioned in (i)(a) and (i)
(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.
ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through Determination Committee/ Medical Board.
(C) Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the company, namely, Form B register, CMPF Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/ Medical Board constituted by the Management for determination of age."
On the strength of the above Implementation Instruction, it has been argued by the counsel for the workman that admittedly there was variation in the C.M.P.F record and Form-B Register and as such, the matter should have been referred to the Medical Board for determination of age, which had not been done by the employer in spite of representation submitted in the year 1990 and further clarification given by the C.M.P.F. Authority.
On the other hand, counsel for the petitioner-employer has relied upon the judgment passed by Division Bench of this Court in L.P.A. No.521 of 2015 (Sugrim Shaw vs. Central Coalfields Limited & ors.). Paragraph Nos. 8, and 9 of the said judgment is quoted hereinbelow:-
In our opinion, the case of the petitioner is squarely covered under Clause- A (iv) and it is not covered under Clause-C of the Implementation Instruction No.76. From the materials produced on record, it is apparent that the petitioner did not produce any document showing his age in the CMPF records and he merely stated that in CMPF records a different date of birth is recorded. The petitioner did not make the CMPF Authority a party in the writ proceeding rather, he made In-charge CMPF/Pension of M/s. CCL as Respondent No.4 before the Writ Court. It is not in dispute that the respondent no.4 is not the custodian of CMPF records still, the petitioner did not implead the CMPF Authority a party in the writ proceeding. The learned counsel for the respondents has submitted that CMPF Forms are filled up by the employees themselves whereas, Form-B is a statutory form which is prepared by the Company and authenticated by the employee and thus, Form-B has been held binding on both the parties. The law does not mandate that on mere asking of the employee, the matter must be referred for age determination.
The learned Senior counsel next contended that the service excerpts which were supplied to the petitioner in the year, 1987-88 contained two errors namely, wrong date of appointment and wrong date of birth, which was subsequently corrected partly whereby, the date of appointment of the petitioner was corrected and thus, a presumption must be raised against the respondents that they had knowledge of the dispute raised by the petitioner however, the error in date of birth was not corrected. The dispute as pleaded by the petitioner, if at all was raised in the year, 1987, seeks an answer on the issue, why the petitioner remained silent even two years after he superannuated from service on 31.01.2007. There is no explanation by the petitioner for not approaching the Court within a reasonable time. The plea taken by the petitioner that he submitted a representation for correction in his date of birth, has been denied by the respondents. The petitioner has neither produced a copy of the alleged representation nor asserted the date on which it was submitted to M/s. CCL. In "G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad & Ors." (2000) 8 SCC 696, holding that the burden lies on the employee who disputes the date of birth recorded in the service record, the Hon'ble Supreme Court has observed as under:
"The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature............................................."
Relying upon the above judgment, it has been submitted by the learned counsel for the petitioner-workman that the relief could not have been granted to the respondent. Firstly, on account of being stale claim as the Industrial Disputes has been raised after three years of retirement. Secondly, Form-B which is statutory form will prevail over C.M.P.F. Record and on this score also, the order of Tribunal is contrary to law and as such, present writ petition is liable to be allowed.
From the arguments and the pleadings of the parties, it is evident that the concerned workman has been appointed in the year 1972 and subsequently on nationalisation in the year 1973, has come under the present employer. In the year 1987, service excerpts has been prepared and circulated among the employees but no objection has been raised at that point of time. Subsequently, in the year 1990, the representation has been made upon which, clarification sought by the employer from the C.M.P.F. Authority as there was variation in the date of birth filled up in Form-B and the record maintained by the C.M.P.F. Authority. The workman had retired in June, 1995 and dispute has been raised in the year 1998 and on failure of conciliation, the matter has been referred on 14.08.1998 vide Reference No.58 of 1998. The terms of Reference is as follows:-
"Whether the action of the management of Amlo Project, CCL in Superannuating Sri Ganesh Turi, T.R. worker by not Correcting his date of birth as per form "B" Register, C.M.P.F records etc. is legal & justified? If not, to what relief the workman is entitled?
Learned counsel for the petitioner submits that the Presiding Officer, Central Government Industrial Tribunal No.1 while passing Award dated 16.04.2013, has considered only two documents i.e., Form-B Register and the record of C.M.P.F. Authority. The award is short one, which is reproduced hereinbelow:-
AWARD
By Order No. L-20012/653/1997-IR- (C-1), dt. 14/08/1998, the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of Sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of Amlo Project, CCL in Superannuating Sri Ganesh Turi, T.R. worker by not Correcting his date of birth as per form "B" Register, C.M.P.F records etc. is legal & justified? If not, to what relief the workman is entitled?
This case is received from the Ministry of Labour on 01.09.1998. After notice both parties are appeared. The workman/Union files their written statement on 30.06.1999. The short point is that the Date of Birth of the workman as mentioned in Form "B" register as 09.06.1935 or the Date of Birth mentioned in Extract of CMPF Register maintained from 07.11.1973 as 07.06.1948 is correct.
In this case on the basis of the Form "B" Date of Birth is 09.06.1935 and the workman has been superannuated. But on close scrutiny of the CMPF register extract and letter to Deputy Personnel Manager Amlo Project from Asstt. Provident fund commissioner the Date of Birth of workman as 07.06.1948 which is document sent at the earliest point of time. The CMPF Register has been maintained by the provident Deptt. From 07.11.1993, is much more authentic. But the workman being illiterate has not stated anything regarding the CMPF register. No suggestion was given to workman that CMPF register is tampered.
The Form "B" register filed by the management does not beat seal of the company, no date is mentioned there. The workman was illiterate, taking of his L.T.I. there not within his knowledge. The Management if any doubt could has referred him for medical board. Since that has not been done.
The Date of birth in the CMPF Register 07.06.1948 is accepted. His superannuation has been done illegally much before.
Considering the facts and circumstances, the action of the management of Amlo Project, C.C.L. in superannuating Sri Ganesh Turi T.R. worker by not correcting his date of birth as per C.M.P.F. records is illegal & justified, Therefore the workman's service continuity be maintained accepting his Date of Birth 07.06.1948. If he is superannuated in the meantime the management to clear up his dues forthwith preferably within 3 months.
From perusal of the award, it appears that learned Tribunal had seen both the documents and has found that Form-B Register does not bear seal of the company nor date has been mentioned and further, C.M.P.F. Register has been opened on 07.11.1973 and there is no tampering, on perusal of both the documents, finding of fact has been recorded by the learned Tribunal, accepting date of birth mentioned in C.M.P.F record.
It is trite that finding of fact recorded by the learned Tribunal cannot be disturbed under the writ jurisdiction unless and until the same is perverse. Perversity means if it is based on no evidence or any material evidence has not been considered or irrelevant material has been considered.
In the present case, both the documents have been considered by comparing it and it has been found that the date of birth maintained in the C.M.P.F. record is more authentic and reliable. Further, as per Implementation Instruction No.76 (supra) if there is variation in Form-B and C.M.P.F record then employer has been mandated to correct it by referring to medical board for determination of date of birth.
The other contention has been raised by the employer that the dispute has been raised after 03 years of retirement and as such claim has become state by passage of time. It appears that the concerned workman, who is illiterate, has approached the authority in the year 1990, upon such, representation, clarification has been sought from the C.M.P.F Authority and the C.M.P.F. Authority has clarified the date of birth, which is mentioned in their record as 07.06.1948. Thus, there was two date of birth of the petitioner, one in the C.M.P.F. Register as 07.06.1948 and another in Form-B Register as 09.06.1935. Once process has been initiated by the employer, it was his duty to conclude the same. Non-conclusion of the process, once set in motion, is nothing but dereliction of duty and on this score, the bonafide claim of the workman, who is illiterate, cannot be rejected.
Reference may be made to the judgment passed by the Hon'ble Apex Court in the case of Prabhakar Vs. Joint Director Sericulture Department and Another reported in (2015) 15 SCC 1. Paragraph nos. 42.4 and 42.5 of the said judgment are quoted hereinbelow:-
"42.4. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection.
42.5. Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum."
(emphasis supplied)
Thus, inaction on the part of the employer, as they have not acted as per their Implementation Instruction No. 76 (supra) and in spite of initiation of the process, the same has not been concluded by the employer and as such, this plea is not tenable.
In view of the above discussion, this Court finds no infirmity or illegality in the order passed by the learned Tribunal, resultantly, present writ petition is dismissed.
Pending, Interlocutory Applications, if any, stands disposed of.