AI Structured Summary
Not yet generated for this judgment
Judgment
Dhirendra Mishra, J.—This writ appeal is directed against the order dated 7th December, 2009 passed in Writ Petition No. 85 of 2004, whereby the learned Single Judge allowing the writ petition of respondent No.1 has set aside the order dated 30th September, 2002, passed by the Industrial Court and restored the order dated 3rd February, 1998 of the Labour Court. (Parties shall hereinafter be referred to as per their description in the writ petition.)
Briefly stated, facts of the case, as projected by the petitioner in the writ petition, are that the petitioner joined in the appellant-organization as Mazdoor in the year 1963. He was appointed as Khalasi in the year 1965. He learned in the year 1987 that his date of birth was recorded in the service book as 16.11.1936, whereupon he obtained certified copy of transfer certificate from the school, in which his date of birth was recorded as 25.1.1944. He made an application in the year 1988 for change of his date of birth. However, the same was rejected by the respondent authorities in its meeting dated 21.9.1989 and it was communicated to him on 13.10.1989.
Being aggrieved by the rejection of his application, he filed an application u/s 31(3) read with Section 61 of the MP/CG Industrial Relations Act, 1960 (in short "the Act, 1960") before the Labour Court, and the Labour Court vide order dated 3rd February, 1998, relying upon the original admission register of the school as well as transfer certificate, held that date of birth of the petitioner was 25.1.1944 and accordingly, the respondents were directed to grant consequential benefits to the petitioner. However, the appeal preferred by the respondents against the order of the Labour Court was allowed by the Industrial Court vide order dated 30.9.2002. Setting aside the award passed by the Labour Court, it was held that there is no reason to record wrong date of birth at the time of entry into service, and the transfer certificate and the original record of the school, could not have been accepted. The petitioner impugned the above order of the Industrial Court by way of fili(sic) petition and the same has been allowed by the impugned order.
Dr. N.K. Shukla, learned Sr. Advocate with Shri Ashish Surana, Advocate appearing for the appellants/Bhilai Steel Plant, vehemently argued that the learned Single Judge has passed the impugned order by doubting the entry of date of birth in service record as 16.11.1936 on the ground that there is manipulation unsigned by an authority or employee. Earlier it was recorded as 7.10.1943 and thereafter, it was changed as 16.11.1936 without any signature of an authority or employee. However, the question of overwriting was never raised by the petitioner before any of the forums i.e. before the Grievance Committee in the year 1989, before the Labour Court when he was confronted with original attestation from dated 7th October, 1963 or before the Industrial Court as well. This plea was raised for the first time before the High Court. On the contrary, his stand before the Labour Court was that at the time of his appointment, he had given his date of birth as 7th October, 1943 and age as 20 years.
It was further contended that the learned Single Judge has also ignored the entries in the attestation form, which is duly signed by the petitioner on each page, and clerical error against Column No.7, wherein inadvertently the date of filling up of the attestation form had been entered against the date of birth and the same has been scored out. The document i.e. school leaving certificate was obtained on 29.1.1988 and submitted in the year 1988 after 25 years of entering in the service. The attestation form of 1963 also mentions that the petitioner was working as Porter during 1957-58 in the Marshalling Yard, Bhilai, which falsifies the school leaving certificate, wherein it is mentioned that the petitioner studied from 25.1.1956 to 2.9.1962.
The learned Single Judge has also overlooked the attestation form dated 2nd July, 1965, herein the petitioner has declared his age as 28 years and further mentioned that he does not know his exact date of birth. The documents regarding date of birth produced by the petitioner are not irrefutable. His representation against the entry of date of birth in service record was rejected in the year 1989, however, he filed the application only in June, 1994 when he was due to retire on 30th November, 1994 and thus, his application before the Labour Court filed at the fag end of his service career was beyond the period of limitation of 2 years, as prescribed u/s 62 of the Act, 1960. The grievance raised by the petitioner was duly considered and rejected by the Committee on October, 1989 and from perusal of the order of rejection, it would be clear that if his date of birth was 15.1.1944, in that case, he was underage at the time of employment in BSP on June, 1957. With the aforesaid discussions, the Committee concluded that the school certificate procured in the year 1988 does not seem to be correct and the grievance was found untenable.
It was further submitted that the learned Single Judge has also failed to consider that the petitioner did not declare his date of birth or his educational qualification as Class IV at the time of entry into service. The documents procured by him are prima facie doubtful as entries were recorded in the school certificate not on the basis of any birth certificate or any application for admission. On the contrary, the petitioner had admitted in his cross- examination that he had told the doctor that his age was 34 years at the time of medical examination. The learned Single Judge has also overlooked the discrepancy in the averment in the petition before the Labour Court, where the petitioner had mentioned that in the attestation form, he gave his date of birth as 7.10.1943, and his date of birth recorded in his school leaving certificate as 25.1.1944.
On the other hand, Shri Pradeep Saxena, learned counsel for the respondent No.1-Motiram, vehemently argued that the petitioner is a semiliterate person, who cannot understand, write or read English and is barely able to put his signature. The entries in the attestation form as well as the service book have been made in English and the same were made without explaining to the petitioner. He came to know about the entry regarding his date of birth in the year 1987 through office bearers of the representative union, whereupon he obtained the school transfer certificate and produced the same before the authorities. The aforesaid document has been duly proved by the petitioner before the Labour Court by examining the Headmaster Shri Banshidhar Pathak of the said school, who has proved the entries from the original admission register, whereas the respondents have not examined any witness. In these circumstances, the Labour Court was fully justified in relying upon the documents duly proved by the petitioner.
That apart, there is overwriting in the entries against the date of birth and the same have been made after scoring out the date of birth earlier recorded as 7.10.1943 as also the age 20 years. The Labour Court, after referring to various discrepancies in the entries in service book, arrived at a conclusion that the respondents have failed to prove the entries against date of birth in the service book and the date of birth has been wrongly and illegally recorded. Learned Single Judge has also disbelieved the entry of date of birth in service book on the ground that the entry has been made after scoring out the earlier entry without signature of the authority and the employee.
In reply to the conte(sic)tion that the dispute regarding entry in the column of date of birth was raised (sic) fag end of service career, it was argued that the dispute was raised in the year 1987 i.e. 7 years before 1994 when the petitioner was due for retirement, and it is permissible as per para-5 of Circular No. 87 dated 2.8.1974, which provides for examination of the date of birth.
Heard learned counsel for the parties, perused the pleadings of the respective parties, oral and documentary evidence adduced by them in support of their pleadings, as also the impugned Order.
Service record has been filed by the petitioner as Annexure P/XV, the same has also been confronted to the petitioner during his evidence before the Labour Court as Ex D/5. The medical certificate dated 9.10.1963 is annexed as Annexure P/XVI. The attestation form filled on 9.10.1963 has been filed as Annexure P/XVII, whereas the attestation form filled and signed on 2.7.1965 is annexed as Annexure P/XVIII. In the attestation form of Annexure P/XVII, in Column No 11, it is clearly mentioned that the petitioner was working as Porter in BSP in Construction Department, Marshalling Yard, Bhilai, from 15.6.1957 to 16.4.1958. The averment to this effect in para-4 of reply of the respondents before the Labour Court or the averment in the writ petition in this regard in para 5.3 and 5.4, has not been controverted.
Whereas as per admission register, he was admitted in school on 25.1.1956. The aforesaid discrepancy between the attestation form and admission register has been overlooked by the Labour Court as well as by the learned Single Judge. We find force in the argument of learned counsel for the appellants that the petitioner gave different date of birth in his application before the Labour Court u/s 31 of the Act, 1960 and in the school leaving certificate. The petitioner did not disclose his date of birth at the time of his entry into service, nor he produced any document in this regard and therefore, his claim in the application filed in the year 1994 before the Labour Court that he gave his date of birth as 7.10.1943 and age 20 years at the time of filling up the attestation form, is clearly an afterthought and the same is an attempt to take benefit of the error present in the attestation form in the entry against date of birth.
The dispute regarding overwriting in the attestation form filled up on 7.10.1963 was not raised by the petitioner before the Grievance Committee nor the same was raised in his application before the Labour Court, as is evident from the order of the Labour Court. The same was raised for the first time before the High Court. The petitioner in his application before the Labour Court averred that in the year 1987 he raised his grievance regarding date of birth, however, he did not receive any reply and therefore, he thought that his date of birth has been changed as 25.1.1944. On the contrary, in para-5 of his cross-examination, he admitted that he received reply of Stage-Ill Grievance, which is Ex.D/4.
Thus, from the above, it is clear that the petitioner did not approach the Labour Court with clean hands. He did not challenge the rejection of his Stage-Ill Grievance vide Annexure P/6 and raised the dispute under the Act, 1960 only in the year 1994 i.e. after five years when his grievance was finally rejected by the respondents and the same was barred by limitation prescribed u/s 62 of the Act, 1960. However, this aspect was neither considered by the Labour Court nor in the impugned order. Learned Single Judge has allowed the petition by observing that the application for change of date of birth was made by the petitioner before five years of his retirement and not within five years and thus, the same was maintainable. However, the representation was rejected in the year 1989 whereas the dispute was raised by the petitioner before the Labour Court only in the year 1994 when he was due for retirement in the month of November, 1994.
The rules governing determination of date of birth have been issued on 24th March, 1982. Rule 4.10 clearly stipulates that in respect of those employees whose date of birth has already been recorded in the descriptive roll/declaration form/service book of the employee and signed/thumb impressed by him, the date so recorded shall be deemed as final and binding. 15. In the instant case, several documents prepared at the time of petitioner''s entry into service reveal his date of birth as 16.11.1936. In the attestation form prepared in the year 1965 (Annexure P/XVIII) also, age of the petitioner has been mentioned as 26 years, based on the declaration made by the petitioner himself. Therefore, in our considered opinion, the prayer for change of date of birth made in the year 1994, based on school leaving certificate obtained in the year 1988, could not be accepted only on the ground that some entries made in Column No.4 of the attestation form of Annexure P/ XVII were scored out without authentication.
It is settled law that no request for change of date of birth is to be entertained at the fag end of the service career of an employee in the normal circumstances. In the present case, from the facts available on record, we are of the opinion that the Labour Court was not justified in allowing prayer of the petitioner and directing change of date of birth on the stated grounds in its order dated 3.2.1998, and order of the learned Single Judge, setting aside the order of the Industrial Court and restoring the order of the Labour Court, cannot be sustained for the aforesaid reasons.
In the result, the appeal is allowed. Impugned order dated 7.12.2009 of the learned Single Judge is set aside and the order passed by the Industrial Court dated 30.9.2002 is hereby restored.