B.P. Banerjee, J.
1. This is an appeal against the order of the learned trial Judge dated October 11, 1991 passed in C.O.No. 12680-81 (W) of 1987. The question involved in this appeal is whether the writ Court can adjudicate as to what should be the age of retirement of the employees of a particular concern and whether a writ Court can decide on what date an employee should retire on the basis of the date of birth claimed by the employee concerned which is contrary to the date of birth recorded in the records of the management. Further the question also to be decided in this appeal is whether after the parties have entered into a contract of employment judicial review could be available in a case where there is no sufficient statutory underpenning of the employment to inject an element of public law into the relationship.
2. The facts of this case may be shortly stated as follows. The petitioner who was an employee of a private mill viz. Sodepur Cotton Mills which was ultimately taken over under the provisions of Sick Textile Undertakings (Nationalisation) Act, 1974 by National Textile Corporation and that on July 20, 1987 the said Corporation served a notice of retirement intimating him that he would retire from service on October 31, 1987. This notice was challenged by the writ petitioner respondent on the ground that according to him that date was not the date of hi s retirement and consequently took a stand that there was no age of retirement for the employees of that concern and accordingly the notice of retirement was illegal and should be recalled. Thereafter the matter was referred to the Assistant Labour Commissioner but the fate is not known. The writ application was filed by the writ petitioner respondent challenging the validity of the said notice of retirement alleging that according to him he was born in the year 1938 and not in 1926 and that there is no age of retirement under the Standing Orders of that concern and consequently he could not be made to retire under the circumstances. Further it was alleged that in the facts and circumstances of the case he should have been given a reasonable opportunity of being heard before he could be made to retire. The claim of the writ petitioner respondent was based on an alleged entry in the E.S.I. record and the identity card issued by the company. The writ application was initially disposed by the learned trial Judge by an order dated November 28, 1988 directing that the age of the writ petitioner respondent was based on an alleged entry in the E.S.I. record and the identity card issued by the company. The writ application was initially disposed of by the learned trial Judge by an order dated November 28, 1988 directing that the age of the writ petitioner respondent should be fixed by a Medical Board and thereupon to decide the age of the writ petitioner respondent. The Division Bench of this Court affirmed the said view of the learned trial Judge. The appellants thereafter took the matter before the Supreme Court and the Supreme Court by an order dated July 16, 1990 set aside the order passed by the learned trial Judge and the Division Bench of this Court and directed the High Court to determine the question of age on the basis of available materials and with liberty to parties to produce further material, if any. The learned trial Judge by an order dated October 11, 1991 allowed the writ application holding that the writ petitioner respondent was entitled to continue in service upto the age of 60 years which was found by the learned trial Judge to be the age of retirement as claimed by the writ petitioner respondent on the basis of industry-cum-region approach.
3. Mr. Partha Sarathi Sengupta, learned Advocate appearing on behalf of the appellant submitted in the first place that the writ Court cannot decide a disputed question of fact which can only be adjudicated after taking evidence and that too by the civil court. Writ proceedings are decided on the basis of admitted facts and that too on affidavits. It was further submitted that there was no question of law involved in the instant case inasmuch as what is the correct date of birth is a pure question of fact and not of law. Secondly, it was submitted by Mr. Sengupta that when the age of retirement of the employee is 58 years the writ Court cannot decide that the age of retirement should be 60 years only on the ground of industry cum region basis. This was challenged by Mr. Sengupta on two grounds that such a question could only be decided in an industrial dispute proceeding by the Labour Court and not by the writ court and secondly the Supreme Court in the case of Guest Keen Williams (Private) Ltd. v. Sterling (PJ) and Ors. (1959-II-LLJ-405) held that 'In fixing the age of superannuation Industrial Tribunal have to take into account several relevant factors. What is the nature of the work assigned to the employees in the course of their employment? What is the nature of the wage structure paid to them? What are the retirement benefits and other amenities available to them? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region? What is generally the practice prevailing in the industry in the past in the matter of retiring, its employees?' These were the relevant factors which the Supreme Court directed should be taken into consideration by the Industrial Court while adjudicating such an issue. Mr. Sengupta submitted that the learned trial Judge decided that the age of retirement should be 60 years merely by saying that the court cannot shut its eyes to such an approach. It was further submitted by Mr. Sengupta that the learned trial Judge even assuming that the writ Court can decide such question had not arrived at finding after considering the relevant factors that the age of retirement of the employee should be 60 years. Further Mr. Sengupta submitted that the learned trial Judge has not made a clear finding that the date of birth recorded by the management was wrong on the basis of some unimpeachable piece of document for which the Court may be inclined to make such correction. It was on the basis of an identity card and the E.S.I. records that this age has been found to be correct. Incidentally Mr. Sengupta pointed out that the object of recording the date of birth in the E.S.I. record was immaterial and not germane for the purpose of retirement age or date and the date of birth recorded in the service record could only be challenged on the basis of some cogent and unimpeachable piece of evidence. Further Mr. Sengupta submitted that the writ Court cannot make a finding of fact on the basis of assessment of evidence and that too on a disputed question of fact. In this connection reference was also made on a decision of Prabir Kumar Majumdar, J. in Matter No. 2171 of 1986 (Ashis Ghosh v. National Textile Corporation). In that case it was held that it could only be established in the writ application that the writ petitioner was entitled to be superannuated at the age of sixty years on the basis of any statutory rule or notification or an agreement arrived at between the employees' Union and the unit concerned before nationalisation or thereafter. It was also held that no case of discriminatory treatment could be made out and accordingly the learned Judge dismissed the writ application.
4. Mr. Pratap Roy, learned Advocate appearing on behalf of the writ petitioner opposite party submitted in the first place that in view of the direction of the Supreme Court that the High Court should determine the question of age on the basis of available materials and/or further evidence that may be adduced before the Court. The writ court has been fully authorised by the Supreme Court to make the determination even though there is a disputed question of fact. It was further submitted by Mr. Roy that the writ Court could decide the question of fact including questions of law and the power of the writ Court is very wide and that wherever injustice is there writ Court can interfere. Secondly, it was submitted by Mr. Roy that the identity cards issued by the management and the E.S.I. records should be taken to be conclusive evidence for the purpose of determining the age of retirement leaving aside all others in view of the fact that such identity card bears the date of birth and E.S.I. records also are statutory records which must be accepted by the Court. Incidentally the learned trial Judge directed the Employees' State Insurance as well as the Provident Fund Authorities to produce their relevant records pertaining to the age of the petitioner. Mr. Roy stated that when the learned trial Judge has directed the records to be produced in that even non-production of the same will create an adverse presumption against the management and further it was submitted that the E.S.I. records which were subsequently prepared must be accepted as correct and must be treated as correcting the date of birth in the original records in view of the fact that in the E.S.I. records the date of birth was shown as 1938 and that when it was done it must be deemed that the service records in which the date of birth was there stands corrected and rectified as 1938. It was further submitted by Mr. Roy that similar questions came up for consideration before a learned single Judge of this Court in the case of Balai Chandra Das and Anr. v. Union of India and Ors. C.R. No. 3316 (W) of 1985. In that case judgment was delivered on July 20, 1989 wherein the learned trial Judge found on the basis of comparison of the date of recruitment of some Accountant and other officers who are not industrial workers with the age of retirement in that case of the writ petitioners who were not industrial workers but they were Time Keepers and/or Clerks. There it was found on the basis of the materials on record that retiring the writ petitioners at the age of 58 years and retiring others at the age of 60 years had resulted in discrimination which offends Articles 14 and 16 of the Constitution. It appears that the said judgment is under appeal. Several cases were cited by Mr. Roy in support of presumption under Section 114 of the Evidence Act in regard to the E.S.I. records and the identity card and also submitted that non-production of the Provident Fund records before the learned trial Judge has created an adverse presumption for which the writ petitioner opposite party was entitled to benefit. It was submitted that if the records were produced in that event the case of the petitioner would have been supported and that is why that was suppressed.
5. In the instant case it appears that the writ petitioners respondents have taken a stand that there is no age of retirement fixed in the Standing Order concerned. It was the case of the writ petitioners that they could not be made to retire on the basis of notice of retirement as on that date the writ petitions did not attain the age of retirement. No particular age of retirement was claimed by the writ petitioners. No case of discrimination has also been made out indicating the cases of other similarly situated employees whose age of retirement has been fixed at the age of 60 years or above whereas the writ petitioners have been made to retire at the age of 58 years. With regard to the submission of Mr. Sengupta that the writ Court has no jurisdiction to make such determination, it appears to us that the learned trial Judge did not make any positive finding on the basis of the guideline fixed by the Supreme Court in the Guest Keen William's case (supra) that the age of retirement of the employee concerned should be fixed at 60 years. That apart this question about the age of retirement is a matter which is ordinarily decided by the Industrial Court if any reference is made by the State Government regarding such dispute. So far as the writ Court is concerned in our view the writ Court cannot make any pronouncement with regard to the age of retirement on the basis of a writ application on disputed question of fact by a declaratory relief. The power of the writ Court is limited. Writ of Mandamus is only available to enforce a legal right and to compel the respondents to discharge the statutory duties and/or obligations. In the instant case admittedly there is no statute in the field and that there is no statutory underpenning in this matter. The question is whether in the absence of any statute and/or any statutory obligation the writ court can direct an authority to discharge a function which a statute has not conferred any such duty on such authority. In our view if there was any rule and/or regulation holding the field certainly the writ Court could direct the authority concerned to act in accordance with law and/or discharge the duties imposed upon the said authority under the law. When there is no statute it is difficult on the part of the writ Court to make any pronouncement or make any correction which is in the nature of correcting an error of fact and not of law. In the instant case the date of birth as recorded in the service records was 1926 and the writ petitioner respondent claimed that his date of birth was 1938 and his case found support from the records of the E.S.I. which was not brought on record by following the established procedure. It appears that the learned trial Judge directed the E.S.I. as well as Provident Fund authorities to produce the records and decided to adjudicate the matter on the basis of the records that may be produced without bringing those matters formally on record. In a writ proceeding in our view the Court cannot follow a procedure which is not self-settled and well-established. If any document and/or any evidence had to be relied on in that event the evidence or document has to be introduced by way of an application for amendment of the petition or otherwise and the decision of the writ Court should be confined to the records on the basis or the principles of exclusiveness of record. The writ Court cannot travel beyond the pleadings of the parties and beyond the affidavits and pass its decision on the basis of information and/or material produced by the parties without formally making the same as a part of record by amendment or otherwise. Be that as it may, in the instant case we are clearly of the view that the question as to what should be the correct date of birth could not be adjudicated by the writ Court on the basis of some evidence or records when we find that there was no unimpeachable piece of evidence. But the evidence that was there was contrary to and inconsistent with each other.
6. The age recorded in the E.S.I. records, in our view, cannot be said to be relevant for the purpose of determining the age of retirement as the purpose of recording the age in the E.S.I. records, it appears to us, is for the purpose of medical benefit and the same cannot be said to be a very weighty evidence for the purpose of correction of date of birth. In the identity card or E.S.I. records no such procedure is there to find out and/or determine the date of birth and accordingly such recording of the date of birth is wholly irrelevant for the purpose of correction of the date of birth which could only be made on the basis of some cogent evidence and/or unimpeachable piece of evidence. The Provident Fund Authorities were present in Court with records but we are not inclined to admit this piece of evidence even though that appears to be against the writ petitioner respondent, in view of the fact that recording of age by Provident Fund Authorities may be relevant for the purpose of Provident Fund but the age recorded by the Provident Fund or E.S.I. Authorities cannot override the age recorded in the service records. In this connection our attention was drawn to a decision of the Supreme Court in the case of Secretary and Commissioner, Home Department and Ors. v. R. Kimbakamn (1994-I-LLJ-673) wherein the Supreme Court clearly laid down the factors relevant for disposal of an application for correction of the date of birth and it was pointed out by the Supreme Court that while considering such a question the chain reaction has also to be considered as such relief which has been granted by the learned trial Judge could not be granted on the basis of a writ application and within the scope and power of the writ Court for the simple reason that disputed question of fact could not be adjudicated by writ Court which cannot assume jurisdiction of the Industrial Court for the purpose of determining the age of retirement which could only be decided by the Industrial Tribunal on reference being made by the State Government. We are also of the view that the order of the Supreme Court referred to by Mr. Roy that writ court shall decide the question on the basis of available materials for the determination of age, the Supreme Court did not authorise the writ Court to take evidence and adjudicate the disputed questions of fact with regard to the correctness of the date of birth in the facts and circumstances of the case. Incidentally it may be mentioned that the order that was passed by the Supreme Court was in connection with the order of this Court that the matter should be decided by setting up a medical board and that the Supreme Court was of the view that in the facts and circumstances of the case the matter should not be decided by the medical board and should be decided by the writ Court on the basis of the materials on record and that in doing so the writ Court is bound to decide the case in case the writ Court is entitled to decide such question within the limited scope and power as has been laid down by the Supreme Court from time to time in this regard and one of the cardinal principle that has been laid down by the Supreme Court for which no decision is required to be cited is that the writ Court cannot adjudicate any disputed question of fact nor the writ Court should weigh evidence in order to arrive at decision on purely a question of fact but only deciding questions of law.
Accordingly, we are of the view that the order of the learned trial Judge could not be sustained and the same is set aside. The appeal is thus allowed without any order as to cost.
This Judgment and order shall also govern the other similar case which has been heard with this case analogously being P.M.A. No. 365 of 1993.
R.P.Gupta, J.
7. I agree.