Management of M/s. Woodlands Hotel (P) Ltd. vs G.N. Gundappa

L. Narayana Swamy, J.—The appellant is challenging the legality and correctness of the order passed by the Learned Single Judge dated 22.5.2012 passed in W.P. No. 38491/2009. Heard the counsel for the appellant.

The facts leading to this case are as hereunder.

The respondent was appointed by the appellant - Management. Based on the horoscope of the respondent his age was shown as 28 years on the date of appointment at the time of entering into the service. In 2002, 26 years after his entering into the service, the appellant directed the respondent to undergo medical examination before Dr. H.M. Veeresh Sharma, to determine his age. He refused to undergo medical examination since his date of birth entered in the EPF and ESI records as 1.7.1948. The appellant drawing an adverse inference against him, his services were terminated w.e.f. 7.9.2002. He was ordered to be superannuated. Aggrieved by the order of superannuation, the respondent raised a dispute before the Labour Court to set aside the illegal termination of his services w.e.f. 8.9.2002 and to reinstate him into service with continuity of service by paying full back-wages. The Labour Court rejected the claim of the respondent. Therefore, he filed a Writ Petition before the Learned Single Judge. The Learned Single Judge has allowed the Writ Petition stating that the respondent-workman had not completed the age of superannuation and there was no reason for the Management to draw an adverse inference against him, since the respondent was not called upon to undergo a medical examination before the District Surgeon as required under the law and considering that his date of birth has been entered into the service records, he would not have superannuated w.e.f. 7.9.2002. Accordingly the Writ Petition was allowed. The Learned Single Judge also referred the matter to Medical Board attached to the Victoria Hospital and based on the clinical report, came to the conclusion that the respondent was entitled to be in service till 1.7.2006. Accordingly, the appellant has been directed to pay 50% of the wages commencing from 8.9.2002 till 1.7.2006 and to pay all consequential benefits along with continuity of service. This order is called in question in this appeal.

Having heard the counsel for the parties, we do not see any error committed by the Learned Single Judge for the following reasons:

Admittedly, the respondent was appointed by the appellant in the year 1976. In all the records his date of birth has been mentioned as 1.7.1948. ESI so also the EPF records, which are all public document discloses the date of birth as 1.7.1948. Therefore, in all fairness, the appellant-employer could not have called upon the respondent to undergo a medical examination from the Doctor of his choice; 26 years after the respondent was appointed as an employee. It was the primary duty of the appellant-Management to verify the age and call upon the respondent to produce the document in proof of his age either before taken him to duty or at least within a reasonable time from the date of joining the service. 26 years later assuming that his date of birth was incorrect and drawing an adverse inference because the respondent did not agree to undergo a medical examination of the choice of the Management, the appellant could not have terminated him prematurely.

The learned counsel for the appellant submits that as per the standing orders, the respondent was required to undergo a medical examination as directed by the appellant. We do not agree with the arguments of the learned counsel for the appellant because it was for the appellant to send the respondent to undergo medical examination within a reasonable time from the date of his appointment. Having not done so, nearly 26 years after his service, he could not have been sent for medical examination. Even otherwise the Learned Single Judge having referred the matter to Medical examination Board constituted by the Government by sending him to a Government Hospital (Victoria Hospital, Bangalore), has passed the order in question. Therefore, we are of the view that the order does not suffer from any infirmity and we do not see any error committed by the Learned Single Judge. Accordingly, the appeal is dismissed. Consequently, we do not see any reason to condone the delay of 36 days.