Mahatma Gandhi Memorial Hospital vs Seema Akshay Julka

K.K. Tated, J.—Heard learned Counsel for the parties. Rule. Rules made returnable forthwith. By consent of both the parties, matter is taken on board for final hearing.

By this petition under Articles 226 and 227 of the Constitution of India, the petitioner-original respondent challenges the order dated 5.2.2014 passed by the Industrial Court, Mumbai below Exhibit U-2 in Complaint (ULP) No. 2 of 2014 staying the operation and implementation of Memorandum bearing No. MGM/NE/2013/2927 dated 25.11.2013 till the hearing and final disposal of the complaint.

The few facts of the matter are as under:

(i) The petitioner by Memorandum dated 1.10.1993 appointed the respondent as staff Nurse w.e.f. 4.10.1993 on some terms and conditions. One of the condition of the said appointment letter is as under:

"6. She will observed the service Rules and Regulations already framed and that will be framed from time to time by the Board of Management of the M.G.M. Hospital."

(ii) At the time of joining service, the respondent submitted the school leaving certificate dated 27.3.1973 showing her birth date as 20.2.1956. The respondent also placed on record with the petitioner passing certificate issued by Maharashtra State Board of Secondary Education, Pune Division Board dated 21.2.1978 showing the respondent''s birth date as 20.2.1956. On the basis of these documents, the respondent''s birth date was recorded in service book as 20.2.1956.

(iii) On the basis of birth date disclosed by the respondent, the petitioner issued Memorandum dated 24.10.2013 stating that it is not possible to consider respondent''s applications dated 22.8.2013 and 27.8.2013 for changing her birth date.

(iv) By the said memorandum, the petitioner informed respondent that as per standing order of the Government any modification/changes in date of birth already recorded in the office record can be made within five years from the date of appointment. Therefore, her request for change of date of birth cannot be accepted. (v) Being aggrieved by the said communication from the petitioner, the respondent filed complaint ULP No. 2 of 2014 on 23.12.2013 before the Industrial Court at Mumbai for Unfair Labour Practices u/s 28(1) read with Items 9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971 with following reliefs.

(a) That this Court be pleased to hold and declare that the respondent Nos. 1 to 3 herein have engaged in unfair labour practice under Items 9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971.

(b) That this Court be further pleased to direct the respondent Nos. 1 to 3 to cease and desist from the unfair labour practice under Items 9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971 complained of hereinabove.

(c) That this Court be pleased to quash and set aside the memorandum bearing No. MGM/NE/2013/2664 dated 24.10.2013 and memorandum bearing No. MGM/NE/2013/2927 dated 25.11.2013 issued by the respondents to the complainant.

(d) That this Court be further pleased to direct the respondents to allow the complainant to work till she attains the age of 60 years i.e. till 31.7.2016 as per standing order No. 27 framed under the Industrial Employment (Standing Orders) Act, 1946.

(e) That pending the hearing and final disposal of the main complaint, this Court be pleased to stay the effect, implementation and order of memoranda respectively bearing No. MGM/NE/2013/2664 dated 24.10.2013 and No. MGM/NE/2013/2927 dated 25.11.2013.

(f) That further pending the hearing and final disposal of the main complaint, this Court be pleased to restrain the respondents from retiring or superannuating the complaints w.e.f. 28.2.2014.

(g) Any other and better relief as this Court deems fit and proper be granted.

(h) Cost of this complaint be provided for.

(vi) In that complaint the respondent preferred application for interim relief u/s 30(2) of the M.R.T.U. and P.U.L.P. Act, 1971, restraining the petitioner from implementing order of memorandum dated 24.10.2013 and 25.11.2013. In that application for interim relief, the petitioner filed their affidavit-in-reply dated 15.1.2014 and opposed the same.

(vii) The Industrial Court by impugned order dated 5.2.2014, below Exhibit U-2 i.e. interim application, stayed the operation and implementation of memorandum dated 25.11.2013 issued by the petitioner till the hearing and final disposal of main complaint.

(viii) Hence, the present petition.

The learned Counsel Mr. P.M. Palshikar appearing on behalf of the petitioner submits that the impugned Order passed by the Industrial Court dated 5.2.2014 below Exhibit U-2 is against justice, equity and good conscience and the same is liable to be set aside. He further submits that the Industrial Court failed to appreciate that at the time of joining service in the year 1993 the respondent submitted the school leaving certificate, passing certificate and other documents showing that her birth date is 20.2.1956. He submits that on the basis of those documents the entry was made in the respondent''s service book that her birth date is 20.2.1956. He submits that the respondent first time made applications dated 22.8.2013 and 27.8.2013 at the fag-end of retirement for change of her birth date from 20.2.1956 to 20.7.1956. He submits that in support of her contention the respondent relied on birth certificate issued by Municipal Corporation of Greater Mumbai dated 27.8.2013 showing the birth date as 20.7.1956. He submits that in the said birth certificate, the name of child is not stated, even the name of father is different. He submits that these facts are not considered by the Industrial Court at the time of passing the impugned order.

The learned Counsel for the petitioner further submits that as per petitioner''s service regulation, Bombay Civil Services Rules are made applicable to their staff. The relevant portion of those regulations reads thus:

"The Mahatma Gandhi Memorial Hospital Service Regulations have been adapted mutatis mutandis from the Bombay Civil Services Rules as far as they can be made applicable to the employees of the Hospital. These Regulations do not claim to be complete, exhaustive or comprehensive in all respects. If any contingency arises in the day to day management of the affairs of the Hospital and of its employees with special reference to the conditions of services, e.g. fixation of pay, grant of allowances, grant of leave etc. of the employees for which these Rules do not make any specific provision; the Board of Management shall act in its discretion and judgment or shall have recourse to relevant or appropriate rules, if any, in the Bombay Civil Services Rules, to meet any such contingency."

He further submits that as per Rule 38(f) of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 application for change of birth date can be entertained within five years from the date of appointment. Rule 38(f) reads thus:

"(f) When once an entry of age or date of birth has been made in a service book no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error;

Instruction.--(1) Normally, no application for alteration of the entry regarding date of birth as recorded in the service book or service roll of a Government servant should be entertained after a period of five years commencing from the date of his entry in Government service.

(2) Subject to (1) above, the correct date of birth of a Government servant may be determined, if he furnishes a proof of age in any of the following forms:--

(a) His own statement or that of a parent, guardian, friend or relative;

(b) School leaving Certificate, Secondary School Certificate Examination/Matriculation Certificate or University Certificate;

(c) Extract from a birth or baptismal register;

(d) Horoscope;

(e) Entry in family records or accounts books.

The proof at (a) above should not be accepted as sole proof of Government servant''s age; also (b) and (e) separately cannot always be depended on as reliable proof of age, while (c) cannot also furnish absolute proof unless the name of the child is registered."

The learned Counsel for the petitioner further submits that even the extract from birth or baptismal register cannot be treated as absolute proof unless the name of child is registered. He submits that in the present proceeding, though the respondent filed birth certificate issued by Municipal Corporation of Greater Mumbai dated 27.8.2013, the name of child is not stated and name of father is altogether different. He further submits that the respondent as per her original birth date is due for retirement at the end of February, 2014. At the fag-end of retirement, she filed application for change of birth date and thereafter, complaint before the Industrial Court is not maintainable. He submits that if the complaint is filed at the fag end of retirement, then normally Court should not pass interim or ad-interim relief in view of the Apex Court judgment. In support of his contention, he relies on the judgment of our High Court in the matter of Mahatma Gandhi Memorial Hospital Vs. Madbukar Vishwanath Ranawade and Another, In this authority, the Division Bench of this Court held that at the fag end of retirement, Court should not grant ad-interim or interim relief during the pendency of main complaint. Paragraph 3 of that judgment reads thus:

"3. The Industrial Court, for reasons best known to it, did not think it proper to advert to the above mentioned aspect of the matter. Even otherwise the Industrial Court did not understand that the balance of convenience was not in favour of the respondent. Even if ultimately it had come to the conclusion that the age of retirement is 60 years and not 58 years as is contended by the petitioner-management, it could compensate the respondent by asking the petitioner to pay him two years'' salary. This relief was admissible at the time of final disposal of the complaint and not prior thereto. The Industrial Court did not appreciate that if the complaint is dismissed, as was the fate of similar other complaints filed by employees similarly situate how he would restore the status quo ante. In the present case, the respondent has achieved the object for which he has filed the complaint without proving his contention that he was not occupying a supervisory post and was a workman and was entitled to continue in service till the age of 60 years under the Standing Orders. The learned Industrial Court, while disposing of the interim relief application, has quashed the retirement memo and we are at a loss to understand as to under what provision of law he has done so. The order does not reflect application of judicial mind. Looking to the matter from any angle, the order cannot be sustained."

The learned Counsel for the petitioner further relies on judgment in the matter of Aurangabad District Central Co-operative Bank Ltd. Vs. Damodar Jadhav, . In this authority, our High Court held that it is a settled position in law that persons holding office in the public employment cannot be permitted to seek change in date of birth at the fag-end of the service career. Court further held that if the two conflicting documents against each other are weighed, it can be prima facie said that HSC certificate could carry more probative value as compared to the birth certificate issued.

Paragraph 4 of that judgment reads thus:

"4. It is a settled position in law that persons holding offices in public employment cannot be permitted to seek change in the date of birth at the fag end of the service career. The date of birth which is recorded with the bank is based on H.S.C. Certificate issued by the Board way back in the year 1967 and the said date of birth is sought to be countered on the basis of a birth certificate issued on the basis of an affidavit filed by the respondent, in view of the fact that the original register was not available. If the two conflicting documents pitted against each other are weighed, it can be prima facie said that the H.S.C. certificate would carry more probative value as compared to the birth certificate issued, solely on the basis of an affidavit filed by the respondent. In this view of the matter, the respondent had not made out a prima facie case for his continuance in the service after having reached the age of superannuation, but the Industrial Court, by passing the impugned order, has directed the petitioner to continue the respondent in service. In my opinion, the impugned order suffers from patent illegality and cannot be permitted to hold the field. In the facts of the present case, even if the respondent is made to retire on the last day of August, 2006, and if the respondent ultimately succeeds in the complaint, he can very well be compensated by payment of salary for the period for which the respondent is deprived of service. There is no question of any irreparable loss being caused to the respondent. The learned Counsel for the respondent apprehends that under the pretext that the complaint is pending with: the Industrial Court, the petitioner may not release the terminal/retrial benefits which are due and receivable by the respondent. The learned Counsel for the petitioner fairly states that treating the respondent as having retired from service from August 31, 2006, the petitioner shall release all the terminal/retrial benefits to the respondent expeditiously."

The learned Counsel appearing on behalf of petitioner further submits that the respondent submitted family members LTA Form dated 1.7.2002 in that her birth date is shown as 20.2.1956.

On the basis of these submissions, the learned Counsel for the petitioner states that the Industrial Court erred in coming to the conclusion that respondent-original complainant made out prima facie case for stay of operation and implementation of the memorandum dated 25.11.2013 issued by the petitioner. He further submits that the Industrial Court failed to consider the balance of convenience in the matter. He submits that the Industrial Court erred in coming to the conclusion that no irreparable loss will be caused to the petitioner, if the respondent is continued in the employment because she will work and earn wages. He submits that the petitioner made a statement before the Industrial Court that in case respondent succeeds then they are ready and willing to pay her regular wages till the date of retirement on the basis of respondent birth date is 20.7.1956. On the basis of these submissions and the law laid down in the above mentioned authorities, the learned Counsel for the petitioner submits that the operation and implementation of impugned order dated 5.2.2014 passed by the Industrial Court, Mumbai below Exhibit U-2 in Complaint (ULP) No. 2 of 2014 be set aside.

On the other hand, the learned Counsel Mrs. Purav appearing on behalf of respondent-original complainant vehemently opposed the present petition. She submits that the Industrial Court after considering documentary evidence on record passed impugned order dated 5.2.2014 below Exh. U-2 and therefore, it is not necessary to interfere the same under Articles 226 and 227 of the Constitution of India. She further submits that in any case the main complaint is pending for hearing on its merits.

The learned Counsel for the respondent submits that sometime in the year 1995, the respondent made representation for correction of her birth date from 20.2.1956 to 20.7.1956. On the basis of that said representation the petitioner carried out appropriate amendment in her service book.

The learned Counsel for the respondent further submits that even the petitioner issued I-Card showing the validity up to 31.7.2014 i.e. considering the respondent''s birth date as 20.7.1956. She further submits that the petitioner without informing the respondent, carried out the correction in her service book and shown her birth date as 20.2.1956 though it was shown as 20.7.1956. She submits that when the respondent learnt in the month of August, 2013 that her birth date is. shown in service book as 20.2.1956 immediately she wrote a letter/application dated 22.8.2013 stating that her birth date is 20.7.1956 and same may be corrected in her service book. She further stated in the said letter cum application that she already applied to the Municipal Corporation for issuing birth certificate and the same will be placed on record within short period. The learned Counsel for the respondent relied on certificate issued by Medical Officer of Health G/North Ward, Mumbai showing that on the basis of intimation given by Dr. Pinto Hospital, her birth date is recorded as 20.7.1956. Thereafter, the respondent by her letter dated 13.10.2013 informed the petitioner that as per her application in the year 1995, her birth date was shown in service book as 20.7.1956. Same was again altered without informing her and therefore, requested the petitioner to show her correct birth date in service book as 20.7.1956.

The learned Counsel for the respondent submits that on the basis of these documents the Industrial Court rightly held that during the pendency of main complaint, petitioner should not act on memorandum dated 25.11.2013. She further submits that the authorities cited by the petitioner are not applicable in the facts and circumstances of the present case. She submits that the authority cited by the petitioner in the matter of Mahatma Gandhi Memorial Hospital (supra) the issue in respect of age of retirement whether it should be 58 or 60. Hence, same is not applicable in the facts and circumstances of the present case. She further submits that another authority cited by the learned Counsel for the petitioner in the matter of Aurangabad District Central Co-op. bank Ltd. (supra) is also not applicable in the facts and circumstances of the present case, because in that matter the employee obtained birth certificate by filing the affidavit that is not case in the matter in hand.

The learned Counsel for the respondent relies on the judgment in the matter of Rajya Sahakari Krushi V. Gramin Vikas Bank Karmachari Sanghatana and Another Vs. Maharashtra State Co-operative Agriculture and Rural Development Bank Ltd. and Another, She submits that in this case our High Court have taken view that if there is dispute about birth date and the employee placed on record the birth certificate issued by Competent Authority then Courts below should grant interim relief, restraining the employer from retiring the employee during the pendency of complaint. On the basis of these submission and authority in the matter of Rajya Sahakari Krushi (supra), the learned Counsel for the respondent states that there is no substance in the present petition and same is to be dismissed with costs.

I heard both the sides at length. After considering the submissions made by learned Counsel for both the parties, in my view the point involved in the present petition is "Whether the respondent-original complainant can get her birth date changed at the fag-end of retirement?"

In the present proceeding, admittedly respondent joined the service of petitioner in the year 1993. At that time, she submitted school leaving certificate, passing certificate etc. showing that her birth date is 20.2.1956. On the basis of that birth date, the respondent is supposed to be retired at the end of February, 2014. First time the respondent by her application dated 22.8.2013 and 27.8.2013 requested the petitioner to change her birth date from 20.2.1956 to 20.7.1956. In the entire complaint the respondent has not disclosed on what basis she obtained the birth certificate dated 27.8.2013 from the Municipal Corporation of Greater Mumbai. There is no explanation in the complaint why the respondent applied for change of birth date at the fag-end of retirement. The respondent stated in her complaint that the petitioner in her service book initially showed birth date as 20.2.1956 and thereafter, the same was corrected as 20.7.1956 and again made it 20.2.1956 without informing her. It is to be noted that respondent in her complaint nowhere explained on what basis her birth date was corrected as 20.7.1956 in the service book. Actually, it is the case of the petitioner somebody with mala fide intention manipulated that document. The enquiry in respect of that is going on. In any case, at the time of joining the service, the respondent disclosed her birth date as 20.2.1956. That cannot be changed at the fag-end of retirement as held by our High Court in the matter of Mahatma Gandhi Memorial Hospital (supra) and Aurangabad District Central Co-op. Bank Ltd. (supra).

Documents placed on record by the respondent i.e. I-card issued by the petitioner, letters dated 27.7.2013, 22.8.2013, 30.10.2013, 18.1.2014 and the certificate issued by Medical Officer of Health, G/North Ward dated 28.1.2014 cannot be considered at this stage because admittedly, the respondent has not placed on record to show how she applied in the year 1995 for carrying out appropriate amendment/change in her birth date. It is to be noted that except bare statement in some of the letters, the respondent has not placed on record any documentary proof to show that on the basis of her application in the year 1995, the petitioner corrected her birth date from 20.2.1956 to 20.7.1956.

The Counsel for the respondent mainly relied on the record from the office of Provident Fund to show that her birth date is 20.7.1956. It is to be noted that, that cannot be considered to decide the birth date of respondent because the respondent on her own, at the time of joining the services, placed on record the certificate issued by Maharashtra State Board of Secondary Education, school leaving certificate and other documents. Even the authority cited by the respondent in the matter of Rajya Sahakari Krushi (supra) is not applicable to the facts and circumstances of the present case, because in that case the bank called upon the employees to submit relevant documents in support of their birth date. On basis of that the employees submitted the documents and accordingly bank carried out correction and thereafter, bank unilaterally made change in the birth date of employee. That is not case in the present matter.

The Apex Court in the matter of State of U.P. and Others Vs. Smt. Gulaichi, held that if the correction of birth date is sought at the verge of retirement then, Court/Tribunal should be slow in granting interim relief. The same view taken by the Apex Court in subsequent judgment in the matter of State of Punjab and Others Vs. S.C. Chadha, Subsequently, the Apex Court in the matter of State of U.P. and Another Vs. Shiv Narain Upadhyaya, held that change to the date of birth as recorded in the service book, made on the eve of retirement should not normally be entertained. Paragraphs 5 and 8 of that Judgment reads thus:

"5........Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, and it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement waking up from their supine slumber raise a dispute about their service records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the concerned Administrative Tribunals, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not.

An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. 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 loose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the Court or the Tribunal must be fully satisfied that there has been real injustice to tine 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, men such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, tine onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior."

Similarly, the Apex Court in the matter of State of Maharashtra and Another Vs. Gorakhnath Sitaram Kamble and Others held that correction in date of birth at the fag end of carrier is impermissible.

In similar way, our High Court in the matter of Hamid Sh. Dawood Kagadi Vs. The Commissioner of Sales Tax and Others, held that laches as also be a material factor denying relief to the petitioner and correction cannot be permitted when age was wrongly mentioned to gain an advantage.

Considering the above mentioned facts and law declared by the Apex Court as well as our High Court, I am of the opinion that the Industrial Court erred in coming to the conclusion that no irreparable loss will be caused to the petitioner if the respondent is continued in the employment because she will work and earn wages. The Industrial Court failed to consider that the respondent-original complainant filed application at the fag end of retirement for change of her birth date. Even the birth certificate submitted by the respondent dated 27.8.2013 has not disclosed the name of respondent. Even as per Maharashtra Civil Services Rules, 1981, the application for change of birth date can be entertained if it is filed within five years from the date of joining of service.

During the course of arguments, the learned Counsel for the petitioner made a statement that in case, the respondent applies to the petitioner for allowing her to stay in staff quarters for sometime, definitely the petitioner will consider the same on sympathetic ground. Hence, liberty granted to the respondent to make appropriate application to the petitioner, if so she desires, for allowing her to retain the staff quarters for sometime. If such application is made the petitioner is directed to consider the same on the sympathetic ground.

I do not wish to express any opinion on the merits of the case because the complaint is still pending before the Industrial Court. That to be decided by the Industrial Court on its own merits as early as possible, but in any case, on/or before 15.5.2014.

Considering the above mentioned facts and submissions made by both the Counsel and the law declared by the Apex Court, I am of the opinion that the petitioner has made out case for allowing this writ petition.

Hence, following order. (A) Rule made absolute in terms of prayer clause (a), which reads thus:

"(a) That this Court may be pleased to exercise its jurisdiction under Articles 226 and 227 of the Constitution of India and issue writ or certiorari or writ in the nature of the certiorari or any other appropriate writ, directions, or order calling for the records and proceedings of Complaint (ULP) No. 2 of 2014 from the Industrial Court and after examining the legality and validity of the order dated 5.2.2014 passed by the Industrial Court be pleased to quash and set aside the same (Exhibit "O") to the petition."

(B) The Industrial Court is directed to decide respondent''s complaint on its own merits without getting influenced with the order passed by this Court as early as possible, in any case, on or before 15.5.2014.

Writ petition is disposed of with no order as to costs.