Pramila Bhalchandra Kotwal Vs. India United Mills No. 1, Unit of N.T.C. (M.N.) Ltd. - Court Judgment

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Rule. By consent, the rule made returnable forthwith.

2. The petitioner challenges the judgment and order dated 30-6-203, passed by the Industrial Court dismissing the complaint (ULP) No. 1091 of 2002 which was filed by the petitioner. The contention of the petitioner is that in the service records of the petitioner, her birth date was recorded only with reference to the year of her birth and there was no recording of the complete date of birth and that the same discloses the year 1943 only and therefore the petitioner could have been superannuated only on 31-12-2003 and not prior to that day. The contention, therefore, is that the petitioner has been illegally declared as superannuated on 31-12-2002. On the other hand, it is the case of the respondents that the service records of the petitioner with the respondents clearly disclose the date of birth of the petitioner to be 1-1-1943.

3. The Industrial Court on analysis of the materials on record has held that the petitioner has not been able to establish the contention that the service records disclose only the year of birth and not the complete date of birth of the petitioner. In the course of the hearing it was sought to be contended on behalf of the petitioner that the service records were tampered in as much as that while the records originally disclosed only the year of birth, the date with the day and month were incorporated subsequently and without the knowledge of the petitioner It was also argued that the ESI card, issued to the petitioner, discloses only the year of her birth, namely, 1943 and it does not disclose the complete date of birth. Being so, the petitioner should be held as entitled to continue to be in service till the end of the year 2003. It is also sought to be contended that the service records were produced only at the time of recording of the evidence of the witness on behalf of the employer and not prior to that.

4. It is not in dispute that the service records pertaining to the petitioner with the respondents which were produced before the Industrial Court disclose the complete date of birth of the petitioner. The entry relating to the date of birth of the petitioner in the said records is sought to be disputed on two grounds; firstly, that the same were produced before the Industrial Court during the recording of the evidence and secondly, that the said records were tampered. As regards the first contention, it is totally devoid of substance, firstly because the occasion for production of the records by the respondents had arisen for the first time during the recording of the evidence before the Industrial Court. However, the respondents had disclosed the said fact, as is revealed from the records, in the written statement filed by them in reply to the complaint filed by the petitioner before the Industrial Court, Being so, the petitioner was made fully aware of the defence of the respondents and the materials available with the respondents in support of the said defence and this was made known to the petitioner certainly prior to the production of her evidence before the Industrial-Court. Inspite of the same, undisputedly, the petitioner had not made any grievance regarding any false entry in her service records by the respondent even at the time of recording of her testimony. Besides, if so desired, the petitioner was not prevented from seeking inspection of those records with the respondents prior to the recording of evidence of the petitioner, Admittedly, no efforts were made in that regard by the petitioner. As regards the second ground, undisputedly, the records on the face of it disclose the date of birth of the petitioner to be 1-1-1943. Neither in the complaint nor in the testimony of the petitioner, there was any whisper about tampering of the record relating to the birth date of the petitioner by the respondent. On the contrary, the specific statement of the petitioner in the course of her cross-examination was that she had not asked the respondents regarding her records of date of birth. What is pertinent to note is that neither there was any cross-examination of the witness of the respondents on the point of alleged tampering, nor even a suggestion to that effect to the said witness. The contention about tampering of the records was sought to be raised for the first time in the course of the arguments before the Industrial Court and that too solely on the basis of entry of year of birth alone in the ESI card. However, apart from the arguments in that regard, the petitioner could not prove the said contention by producing any evidence, nor even an opportunity was afforded to the respondents either prior to or even in the course of recording of the evidence to establish the absence of any such tampering. Apparently, the dispute which is now sought to be raised regarding the entry in the service records pertaining to the date of birth of the petitioner is purely an afterthought and without any substance.

5. The Apex Court in G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors., reported in : (2001)ILLJ532SC , had held that the date of birth of an employee is not only important for the employee but for the employer also. The quantum of retiral benefits which an employee would be entitled to depends upon the length of service put in by the employee. Any change of the date of birth long after joining service, particularly when the employee is due to retire shortly, can upset the date recorded in the service records maintained in due course of administration. In such a case the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect, and the same can be discharged only by producing acceptable evidence of a clinching nature.

6. In the case of Secretary and Commissioner, Home Department v. R. Kirubakaran, reported in : (1994)ILLJ673SC , it was held that the direction for correction of the date of birth of a public servant can have a chain reaction, in as much as that the others waiting for years below such employee for their respective promotions can be affected in the process and the some may even suffer irreparable injury because of correction of such date of birth as the concerned employee may continue in the office for number of years within which many other employees, who are below him in seniority waiting for their promotion, may lose their promotion forever. It was ruled that :-

'Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the 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. ...... 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, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book.'

These observations apply with equal force even to the employees in public as well as private institutions, other than the Government employees.

7. In Burn Standard Co. Ltd. v. Dinabandhu Majumdar, reported in : [1995]3SCR712 , it was held that no employee can claim a right to correction of date of birth and the fact that an employee who has been in service for over decades with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with an application before the Court or the Tribunal, seeking correction of his date of birth in his service record, the very conduct of non-raising of an objection in the matter by the employee should be sufficient reason for not to entertain such a application on the grounds of acquiescence, undue delay and laches. It was further observed that it is common knowledge that every establishment has its own set of service conditions governed by rules and it is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such a sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. Undoubtedly, the Apex Court therein was dealing with a matter relating to a Government employee as well as senior officers. However, the fact remains that the observations would apply even to employees of the non-Governmental institutions. It is also a matter of common knowledge that at the time of entry of the employee in the service of an institution, certainly his date of birth is ascertained to know his age and the same is recorded in the records pertaining to his service. The Apex Court in Burn Standard Co. Ltd. v. Dinabandhu Majumdar (supra), has also observed that:-

'For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements of the post. In order to verify that the person concerned is not below that, prescribed age, he is required to disclose his date of birth. The date of birth is verified and if found to be correct, is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts 'it as true and accurate before it is entered in the service record.'

8. It is evident from the records that the petitioner has not made any efforts to dispute the correctness of the entry in the service records. Merely because the ESI card discloses only the year of birth, it cannot be said that the service records of the petitioner were tampered by the respondents. In fact, apart from wild allegations in that regard, the petitioner has not made even an effort to disclose any justification or reason for the respondents to cause any such tampering with the records pertaining to the date of birth of the petitioner. It is pertinent to note that even in the course of hearing of the matter before this Court, the petitioner has not been able to point out anything from the materials on record which can even remotely suggest the possibility of tampering of the records by the respondents in relation to the date of birth of the petitioner.

9. The learned Advocate for the petitioner has drawn attention to the decision of the learned single Judge of this Court in the matter of Satya Das (N.K.) v. State of Maharashtra and Ors., reported in 1988 II L.L.N. 860. The decision has no relevancy in the matter in issue as the same was on the point of interpretation of the word 'attaining' in the Rule 10(4)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 1982. The decision of the Allahabad High Court in the matter of Ahmad Husain v. The Managing Director, U.P. State Road Transport Corporation and Ors., reported in 1992 1 CLR 105, was also sought to be relied upon. That was a decision on the point when the records do not disclose the date but only the year of birth. In the case in hand, the records apparently disclose the complete date of birth of the petitioner and therefore the said decision is also of no relevancy in the matter in hand.

10. For the reasons stated above, no interference is called for in the impugned order in writ jurisdiction and therefore the petition fails and is dismissed, the rule is discharged with no order as to costs.