Dr. Vineet Kothari, J.
1. This writ petition has been filed by the employer-M/s. Hindalco Industries Limited, Belgaum, through its Senior Vice-President, against the workman-Sri K.V. Shetty, S/o. Vasu Shetty, aggrieved by the award of the Additional Labour Court, Hubballi, in KID No. 99 of 2010, dated 21st February, 2012, deciding the issue of date of birth of the workman-Sri K.V. Shetty in favour of the workman and against the employer and directed reinstatement of the workman with the benefit of full back wages and continuity of service, setting aside the alleged premature retirement of the workman with effect from 1st September, 2010. The Management was further directed to pay the costs of Rs. 10,000/- to the workman.
2. The controversy giving rise to the present writ petition is as under:
The workman Sri K.V. Shetty was initially appointed on 18th September, 1980 temporarily and was discharged on 6th December, 1980. He was again employed temporarily from 15th November, 1981 till 31st March, 1982. On 1st April, 1982, he was appointed as Canteen Boy on probation for a period of six months. At the time of such appointment, on 1st April, 1982, his date of birth given in the concerned application form was 9th October, 1955. According to the petitioner-Management, since no proof of date of birth in the form of School Leaving Certificate or Secondary School Pass Certificate was produced by the workman, the Medical Officer of the Company, as per the Standing Orders of the Company applicable, assessed the age of the workman as 28 years taking the date of birth as 27th August, 1952 and therefore, in the record, the date of birth was changed from 9th October, 1955 to 27th August, 1952, which was duly countersigned by the respondent-workman vide Ex. M. 4 (page 154 of the Paper Book). A declaration in Ex. M. 4 by the workman-K.V. Shetty on 3rd April, 1982 that he has produced his school leaving certificate as age proof for his date of birth as 9th October, 1955 was struck off by the concerned officer of the Company who endorsed that no age proof certificate has been produced by the workman.
The case of the Management is that it is only after he completed his service tenure and was nearing his retirement as per the date of birth recorded, on the basis of the Medical Certificate, as 27th August, 1952, on achieving the age of superannuation of 58 years on 27th August, 2010, he was given a notice as at Ex. M. 6 on 30th June, 2010 that he will retire from service of the Company with effect from 1st September, 2010.
In response to the said retirement notice only, the workman gave a reply, Ex. M. 7, with a request for correction of the date of birth saying that his date of birth was 9th October, 1955 and he had produced school leaving certificate before the Company at the time of his appointment itself and the date of birth as 27th August, 1952 has been wrongly mentioned and it had come to his knowledge only recently and therefore, it was required to be corrected.
3. The Management, however, contends that for the withdrawal of provident fund amount, which is permitted within one year preceding the year of retirement, the respondent-workman himself gave the prescribed form filling up his date of birth as 27th August, 1952, the date of joining as 1st April, 1982 and date of retirement as 1st September, 2010, in F.x. M. 5-document (page 155 of the Paper Book) and the said form was furnished on 06th November, 2009 prior to the said retirement notice dated 30th June, 2010 and he had himself withdrawn the said provident fund amount from the Provident Fund Account and therefore, he has made a deliberately incorrect statement in his reply given to the retirement notice for correction of the date of birth, vide Ex. M. 7, dated 17th July, 2010. A detailed reply to the same was given by the Management vide Ex.-M. 8 on 6th August, 2010 that his date of birth was never supported by any evidence on record to be 9th October, 1955 and the correct date of birth as assessed by the Medical Officer was 27th August, 1952 and no school leaving certificate was ever produced before the Company. The petitioner-Management has also contended that no such school leaving certificate is even now available with the workman, nor the same has been produced either before the learned Labour Court or before this Court.
4. The respondent-workman, however, produced before the Management a certificate in the form of extract from the Register of Births and Deaths of the State, vide F.x. W. 35 at SI. No. 46 (pages 125 of Paper Book), at which the date of birth on 9th October, 1955 is mentioned against the name of the parents (in vernacular language as explained by the learned Counsels at the Bar) with the endorsement that the name of the petitioner has been inserted in the said Register only in the year 2010 i.e., on 9th July, 2010 vide CA No. 969 of 2010-11. The said Certificate of the Municipal Council, upon cross-examination by the Management of the workman, the same could not even be proved by the workman, as firstly, for the birth on 9th October, 1955, the name of the workman was inserted on 9th July, 2010 after the dispute about the date of birth had already begun with the retirement the retirement notice dated 30th June, 2010 and the workman appears to have obtained this proof of date of birth from,the Municipal Corporation later on. When he was asked to give the details of his brothers and sisters born before or after him, with their dates of births and produce them as witnesses, he failed to do so. Therefore, whether the said Certificate in the form of an extract from the Register of births really pertained to him or for the birth of his brother or sister with reference to names of his parents, which were already entered in the said Register was not proved. The workman further contended that the documents for his date of birth as 9th October, 1955 was also forwarded to ESI Corporation, which issued ESI Card with date of birth mentioned as 9th October, 1935 vide Ex. W.-1 (page 75 of Paper Book).
5. In these circumstances, the workman approached the learned Labour Court challenging his alleged premature retirement on the basis of his date of nth as 27th August, 1952 with effect from 1st September, 2010 and the labour Court allowed this claim under Section 10(4-A) of the Industrial Disputes Act, 1947 by the impugned order dated 21st February, 2012 with the following observations:
"11. The workman has contended that his date of birth has been shown to the records of registrar of birth as 9-10-1955 and he has produced extract of birth register for the period from January 1955 to August 1955 at Ex. W. 35. The name of the workman has been shown at Serial No. 46 and his date of birth is shown as 9-10-1955. The name of father, mother and place of birth of the workman have been shown at column 46, the relevant entry is at Ex. W. 35(a). It is common procedure that the date of birth of a child is mentioned first and subsequently after naming ceremony, name of the child would be mentioned in the register. Therefore it appears that the name of the workman was not mentioned in the register of birth initially. However the workman obtained his date of birth certificate on 6-1-1981 the Xerox copy of which is produced by the workman at Ex. W. 21. It further appears that at the time of issuing birth certificate as per Ex. W. 21 the name of the Workman was not mentioned in the relevant column, which was kept blank and it was filled up on the application of the workman in the year 2010-2011. There is nothing wrong in mentioning the name of the workman in the register of birth at Sl. No. 46. Because the parties might have forgotten to report the name of the child to the concerned authority and therefore, it was kept blank. However is necessary to make it clear that the workman has shown his date of birth in his application for appointment in the year 1980 itself as 9-10-1955. It cannot be said that the workman had intended to cheat the management in the year 1980 itself. It is only the failure of Registering Authority which is responsible for not mentioning the name of the workman in the concerned column. The workman also could not produce his school leaving certificate or SSLC marks card as he had studied in night school at Bombay and it appears that the said school is not in existence now.
12. The workman has also produced date of birth certificate before the management as per Ex. M. 7(a) along with his application for correction of his date of birth. In fact it is not the correction of date of birth. But this application was given to accept his date of birth as 9-10-1955 as shown in the order of offer for appointment.
18. I have carefully gone through the principles laid down in the said decision and I am of the opinion that the principles laid down in the said decisions are not much helpful to the management. Hence, for the reasons stated above, I hold that premature retirement of the workman amounts to illegal termination of the workman from service and the workman is entitled to raise the dispute as per law. Hence for the reasons stated above, I hold that the correct dale of birth of the workman is 9-10-1955. Therefore, he is entitled to retire on attaining the age of superannuation on 8-10-2013 or 30-10-2013 as per standing orders of the management. Therefore, I further hold that the management is not justified in retiring the workman with effect from 1-9-2010. I further hold that his retirement date is 8-10-2013 or 30-10-2013 and not 1-9-2010. I further hold that the workman is entitled to continue in service till 8-10-2013 or 30-10-2013. With these observations, my findings on Issue No. 1, Additional Issue Nos. 1 and 2 are in the affirmative.
19. Issue No. 3: In view of my findings on the above issues, I hold that this claim petition deserves to be allowed partly and the workman is entitled to be reinstated in to service with continuity of service. The workman is also entitled to get full back wages from the date of premature retirement on 1-9-2010 till he is reinstated in to service. The workman is also entitled to get other consequential benefits. With these observations, my finding on Issue No. 4 is accordingly and I pass the following:
ORDER
a. Award is passed.
b. The claim petition is hereby allowed partly with costs.
c. The order of the management retiring the workman prematurely as on 1-9-2010 is hereby set aside.
d. The management is hereby directed to reinstate the workman in to service with continuity of service, within 30 days from the date of publication of the award by the Government.
e. The management is directed to pay full back wages from the date of premature retirement i.e., 1-9-2010 till he is reinstated into service and other consequential benefits.
f. The management shall pay cost of this litigation of the workman which is fixed at Rs. 10,000/-.
g. Send a copy of this award to the Government for publication." 1982.
6. The learned Counsel for the Management, Mr. Sundaraswamy, vehemently submitted that the respondent-workman failed to adduce any evidence in support of his date of birth given in the original application form in the year 1982 as 9th October, 1955, neither any school leaving certificate was ever produced nor any Birth Certificate was produced by the petitioner. When initially itself his date of birth was corrected to be 27th August, 1952 on the basis of the medical examination as per the Standing Order, he had himself accepted the date of birth and had countersigned the correction in the application form, thereafter, he has throughout worked on the basis of his date of birth as being accepted as 27th August, 1952 and it is only when the retirement notice was given to him on 30th June, 2010, he came up with a change of thought and has applied for the correction of his date of birth and levelling all allegations against the Management that his school leaving certificate originally given has been misplaced, and a.,false Date of Birth ; Certificate from Municipal Council in the form of extract from the Register of Births later on obtained by him has been produced, without the said document being proved in accordance with law. That apart, he himself having withdrawn the provident fund amount giving his date of birth as 27th August, 1952 and date of retirement as 1st September, 2010 in Ex. M. 5 document, the workman is not entitled to any extension of period of service beyond 1st September, 2010 and his superannuation at the age of 58 years under the notice dated 30th June, 2010 given by the Company was absolutely correct and therefore, the learned Labour Court has fallen into error in declaring his date of birth, as 9th October, 1955 and directed his reinstatement with full back wages and awarding costs against the Management.
7. The learned Counsel for the petitioner-Management has further submitted that the respondent-workman is continuing in the Company's Residential Quarter No. J-125 absolutely illegally even beyond 2013, even if assuming that his date of birth 9th October, 1955 was to be accepted, for a moment, though vehemently denied, but he would achieve the age of superannuation of 58 years in the year 2013 i.e., on 9th October, 2013, but he is even now in 2017 continuing in the same Residential Quarter without any payment of rent. The learned Counsel further submitted that under the interim orders of a Co-ordinate Bench of this Court, the Company had to make payments of full wages under Section 17-B of the Industrial Disputes Act, 1947 vide order dated 12th September, 2012 and the Company is entitled to recover all the excess payments made to the respondent-workman after 1st September, 2010 and get the Residential Quarters vacated forthwith, recovering the arrears of rent with interest.
8. On the other hand, the learned Counsel Sri S.L. Matti appearing for the respondent-workman vehemently submitted and supported the impugned award of the learned Labour Court and urged that the date of birth of the respondent-workman is 9th October, 1955 only and on the basis of Doctors Medical Report, his date was wrongly changed to 27th August, 1952 in the Company's records and the Company has even misplaced his original School Leaving Certificate produced by him.
9. The learned Counsel further contended that the Birth Certificate issued by the Municipal Council or relevant extract of the Register of births to prove the date of birth of the workman to be 1st September, 1955 and Ex. W.-22 the Birth Certificate produced on that basis, is a clinching evidence in favour of the respondent-workman and the School Leaving Certificate from his , Bombay Night School, which was later on closed down, was produced before the Management and the premature retirement of the respondent-workman with effect from 1st September, 2010 was illegal and therefore, the learned Labour Court was perfectly justified in allowing the claim of the workman by the impugned order and the present writ petition filed by the petitioner-Management deserves to be dismissed.
10. About the School Leaving Certificate, the learned Counsel for the petitioner-management, in a rejoinder, submitted that the Company at its own expense had addressed Registered Acknowledgment Due Letters to the Principal/Headmaster, Guru Narayan Night High School (Kannada Medium), Modi State Road, Near Chatrapati Shivaji Terminus (CST), Mumbai. Also another letter to the Principal/Headmaster, Majgaon Municipality School (Kannada Medium), Mumbai, and to the Principal/Headmaster, Jawahar Night High School (Kannada Medium), Near G.T.O. Hospital, Culaba, Mumbai, for confirming the said date of birth of the respondent-workman as claimed by him, but none of these registered letters were even delivered at the addresses given by the respondent-workman and were returned back and the original undelivered Envelopes were produced before the learned Labour Court and thus, the so-called evidence led by the workman about the School Leaving Certificate was absolutely false and unbelievable.
11. The learned Counsel for the respondent-workman relied upon the decision of the Hon'ble Supreme Court in the case of Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Company Limited and Another, (2014)2 LLN 301 (SC).
12. Learned Counsel for the petitioner-Management relied upon the following decisions in support of his submissions:
(1) Judgment passed by the High Court of Karnataka, in V.G.K. Acharyalu v. Vijaya Bank, RFA No. 1324 of 2002, dated 20-9-2011.
State of Haryana v. Satish Kumar Mittal, (2010)9 SCC 337.
(3) Secretary and Commissioner, Home Department and Others v. R. Kirubakaran, 1994 Supp. (1) SCC 155 : 1994 SCC (L and S) 449.
(4) (Union of India and Others v. Kantilal Hematram Pandya, (1995)3 SCC 17.
(5), Burn Standard Company Limited and Others v. Dinabandhu Majumdar and Another, (1995)4 SCC 172.
(6) Union of India v. Ram Suia Sharma, (1996)7 SCC 421.
(7). Union of India v. C. Rama Swamy and Others, AIR 1997 SC 2055 : (1997) 4 SCC 647
(8) Hindustan Lever Limited v. S.M. Jadhav and Another, AIR 2001 SC 1666
(9) University of Mysore v. Shankara Ganapathy Pathak, 2000(3) Kar. L.J. Sh. N. 43.
(10) State of Uttar Pradesh and Others v. Gulaichi (Smt.), (2003) 6 SCC 483
(11) Uttar Pradesh Madhyamik Shiksha Parishad and Others v. Raj Kumar Agnihotri, AIR 2005 SC 2491.
13. I have heard the learned Counsels at the Bar and perused the records and judgments cited at the Bar.
14. This Court is of the clear opinion that the learned Labour Court below has erred in giving a declaration in favour of the respondent-workman that on the basis of his date of birth on 9th October, 1955, he was prematurely retired on achieving the age of 58 years on 1st September, 2010. The said date of birth of 9th October, 1955 although was given in the initial application form furnished by the workman at the time of initial appointment on 1st April, 1982, but no evidence in support of the said date of birth was ever produced by the respondent-workman. Had it been produced, there was no need of determining his age on the basis of medical report as per the Standing Orders applicable to the Company, a copy of which is placed on record at Ex. M.-1.
15. Clause (4) of the said Certified Standing Orders clearly requires a workman to produce the proof of age in the form of Birth Certificate with the name mentioned therein, the School Leaving Certificate and the insurance policy taken before the employment commences where the age has been admitted and it is clearly stipulated in the Standing Orders' clause (4) that in the absence of this proof, the decision of the Company's Medical Officer about the age shall be final.
16. In the present case, since no such evidence was produced, the Medical Officer of the company determined the age and the date of birth at the time of initial appointment itself and accordingly, in the service record, his date of birth was corrected as 27th August, 1952 which was even countersigned by him at that time. During the long period of service of the respondent-workman, he never raised any grievance or made a request for changing his date of birth or adduced any suitable evidence for such change of date of birth. At the fag end of his career, when the retirement notice was served upon him, he came up with a story of incorrect date of birth being entered or altered in the service record maintained by the Company. His story is nothing but tissues of lies and he has not been able to adduce any evidence before the Labour Court to establish his date of birth to be 9th October, 1955.
17. On the other hand, consistent evidence available on record to prove that his date of birth was not 9th October, 1955 as claimed and there was no documentary evidence on record ever produced by him, but on the contrary, his Provident Fund amount withdrawal Form clearly establishes his own acquiescence in the matter about his date of birth being correctly entered as 27th August, 1952 and he withdrew the provident fund amounts on the basis of these dates mentioned as per the Bye-Laws applicable. The Birth Certificate produced later on, after the retirement notice, from the Registrar of Births obtained only in the year 2010 vide Ex. W. 22 on 9th July, 2010 is nothing but a false and forged document on the basis of extract of the Register, vide Certificate No. 46 (page No. 125 of the Paper Book) where admittedly, his name in the said Register was entered only in the year 2010 i.e., on 9th July, 2010, for showing his birth to the names of the parents already entered but that could only be proved, if the proof of births of his brothers and sisters was also adduced and established in a sequence before the learned Labour Court, but nothing of this sort was done by the respondent-workman. It is very much possible that he got his name entered in the said place after more than 50 years with reference to the parents' names in that Register, whereas that birth may be actually relating to that of his brother or sister. Unless all the births of children to that couple of parents was established and proved, the workman could not be allowed to take advantage of such a Birth Certificate issued by the Chief Registrar of Births and Deaths, the Deputy Tahsildar, Udupi, vide Ex. W. 22.
18. On the basis of such flimsy and unbelievable evidence, one wonders how the Labour Court could rely upon the same blindly. There was absolutely no reason to disbelieve the record maintained by the employer-Company in the contemporary period in the ordinary course of business as per the provisions made in the Standing Orders. His own countersignatures on that changed date of birth and Provident Fund Amount Withdrawal Form clearly establishes his own acquiescence in the matter and he was estopped to raise this dispute at the fag end of his service career. In the absence of any documentary evidence, the Certificate given by the Medical Officer of the Company was to be treated as final as per clause (4) of the Standing Orders and the respondent-workman himself had accepted the same and had throughout acted upon the same, treating his date of birth as 27th August, 1952, the change of thought, after the retirement notice was served upon him, was all self-serving and cooked up evidence, which could not be established in accordance with the provisions of the Indian Evidence Act, 1872 still the Labour Court gave a declaration and relief to the respondent-workman without any foundation for the same.
19. The Hon'ble Supreme Court in the case of Home Department v. R. Kirubakaran, 1994 Supp. (1) SCC 155 : 1994 SCC (L and S) 449, (supra), has clearly held that the application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. Any such direction for correction of the date of birth of a public servant concerned has a chain reaction, inasmuch as others waiting for years below him for their respective promotions are affected in this process. The Court further held that such application for correction of date of birth, if any, may be made within the time fixed by any rule or order and in the absence of any such rule or order, it should be made within a reasonable time and therefore an application filed even after 33 years of service and only about a year prior to the superannuation ought not to have been allowed by the Tribunal.
20. Similar view was expressed in the case of Union of India and Others v. Kantilal Hematram Pandya, (1995)3 SCC 17 (supra), where the Hon'ble Supreme Court held that where a railway servant, who entered into service in the year 1955 mentioned in various documents in 1960 and 1980, the same date of birth as recorded in his service book, did not avail of the opportunity given in the year 1972 by Railway Board for seeking correction of date of birth by 31st July, 1973 and made representations for alteration of recorded date of birth only in the years 1985 and 1987, without adducing any reliable evidence and without explaining the inordinate delay on his part, such a relief should have been refused to him.
21. Similar view was expressed in the case of Hindustan Liver Limited v. S.M. Jadhav and Another, AIR 2001 SC 1666, (supra).
22. Thus in a catena of judgments, the Courts have consistently refused such a relief of change of date of birth at the fag end of the career.
23. The judgment relied upon by the learned Counsel for the workman in Iswarlal Mohanlal Thakkar (supra), is clearly distinguishable from the facts of the present case. In that case, the employee had given an application in the year 1977 after a fresh appointment given to him as per the agreement between Bhavanagar Electricity Limited and respondent-Paschim Gujarat Vij Company Limited to change his date of birth from 27th June, 1937 to 27th June, 1940. But he was orally informed of rejection of his request. The Executive Engineer of Railway Board directed him to produce the Secondary Leaving Certificate or Municipal Birth Certificate as proof and stated that in the absence of production of the required documents, the date of birth recorded in the service book shall be final. In a decree of the Court, his date of birth was directed to be recorded as 27th June, 1940 and upon such a Birth Certificate issued by the Municipal Corporation, the workman requested the respondent-Board to change his date of birth, but he was still directed to produce his SSLC Pass Certificate. The workman thereafter filed a civil suit in the year 1977 and upon the suit being rejected, he filed an appeal before the District Court, Bhavnagar. However, in the meanwhile, on the basis of the date of birth recorded, his services were terminated and thereupon, the Labour Court allowed the reference, which was upheld by the Hon'ble Supreme Court.
No such facts are obtaining in the present case and therefore, the said judgment is clearly distinguishable on facts.
24. On a totality of the view of the entire materials on record, this Court is of the clear opinion that the premise taken by the. respondent-workman that his date of birth was wrongly recorded as 27th August, 1952 is contrary to the facts and evidence available on record and his version with unsupported evidence is nothing but tissues of lies and falsehood and his challenge raised to the alteration of date of birth at the fag end of his career was absolutely belated and was not at all proved before the learned Labour Court, but still the Labour Court acting on a misconception and misreading of the evidence, quashed the retirement of the respondent-workman on achieving the age of superannuation with effect from 1st September, 2010 and directed his reinstatement with full back wages, to which the respondent-workman was not at all entitled.
25. Such misplaced sympathies with workmen can seriously prejudice not only the workmen-employer relationship and can disturb the industrial peace but, the employers can be saddled with unnecessary financial and other burdens, including there being a protracted litigation in the Courts of law, and as in the present case the Employer Company may have to pay full wages to the workman, even if actually no work or service is taken from the workman.
26. The respondent-workman himself in the present case has also continued to illegally occupy the company's residential quarter much beyond his period of service and his retirement on 1st September, 2010, presumably without any payments of rent. The petitioner-company shall be entitled to recover all such arrears of rents from him, and the respondent-workman is directed to hand-over the vacant and peaceful possession to the company forthwith not later than one month from today, failing which the company shall be entitled to use the suitable force including police aid, for evicting the workman from the said residential quarter of the company.
27. The impugned award of the Labour Court, dated 21st February, 2012 is set aside and quashed.
28. The present writ petition is, therefore, allowed with cost of Rs. 10,000/- (Rupees Fen Thousand only) to be paid by the respondent-workman to the petitioner-management and the petitioner-management will be entitled to recover back the salary and wages paid to the workman, after 1st September, 2010, except his retiral benefits due to him as per the Company's Rules as on the date of his retirement on 1st September, 2010, from his retiral dues or otherwise.