Dhanu M. Meshram vs Manganese Ore India Ltd. And Anr.
2002 Latest Caselaw 865 Bom

JUDGMENT

V.M. Kanade, J.

1. By this petition, the petitioner is challenging the decision taken by the respondents by letter, dated February 3, 1996, refusing to accept the petitioner's application for challenging his date of birth.

2. The facts giving rise to the present petition are as under.

3. The petitioner has been working with the respondents since September 20, 1970. The respondents had issued a circular, dated April 16, 1991, by which they have asked their employees and also the union that if any employee wanted to change his date of birth, he could do so within a specific period. Accordingly, time was granted to the employees to produce the relevant record on or before May 16, 1991. It was made specifically clear in the said circular that if the relevant school leaving certificate was not produced before that date, i.e. before May 16, 1991, subsequently no application would be entertained. It is an admitted position that the petition did not make any application before the said cut-off date of May 16, 1991.

4. Thereafter, the union namely, Rashtriya Manganese Mazdoor Sangh, made a representation to the management and requested the management to extend the said date and accordingly, after negotiations, memorandum of settlement was arrived at as per the provisions of Section 12(3) of the Industrial Disputes Act, 1947, before the Assistant Labour Commissioner (Central) II, Nagpur, on January 29, 1992 and the terms of settlement were arrived at and signed by all the parties before the Assistant Labour Commissioner (Central) II, Nagpur. In the said settlement, the respondents agreed to extend the first cut-off date to May 5, 1992 and it was made very clear that the union would not espouse the case of any workman for amendment of his age beyond the conditions stipulated in the settlement. Accordingly, the memorandum of settlement was filed and was duly signed before the authority on January 29, 1992. Thereafter, the management by circular, dated February 5, 1992 informed all the workmen to submit their application on or before May 5, 1992 and it was made clear that no application would be entertained if it is received after May 5, 1992.

5. The petitioner though he was working since 1970 had not filed any application either prior to May 16, 1991 though his identity card showed that his date of birth was 1942, the petitioner just one day before the last date for submitting the application, i.e., May 5, 1992 made an application on May 4, 1992, requesting for extension of time granted for submission of date of birth certificate and requested for grant of one more chance to produce the same. The respondents, by their letter, dated May 12, 1992, made it clear that such an application could not be entertained after May 5, 1992. However, in the said letter, he was informed that since he had mentioned, in his declaration to the company that he had studied up to sixth class (Marathi) he could have submitted his school leaving certificate within the said period, i.e., May 5, 1992 and since the school leaving certificate was not submitted though ample opportunity was given to the workers, his application for extension could not be entertained.

6. It is the case of the petitioner that he tried to contact the school authority. However, it is submitted by the petitioner that he could not obtain the said school leaving certificate as the school was no longer in existence. It is the case of the petitioner that under these circumstances, he approached the Municipal Council, Tumsar for the certificate regarding his date of birth. It is the case of the petitioner that he received the birth certificate from the Municipal Council, Tumsar on June 14, 1992. A perusal of the said certificate which is annexed to this petition as Annexure 3 indicates that the said certificate was obtained on June 15, 1992. However, columns in respect of the record are not filled up and there is no reference to the record number and it is blank. Similarly, from the perusal of certificate which is issued by the Executive Magistrate, Tumsar, it is evident that it has been issued only on the basis of affidavit filed by the petitioner. We had asked the learned counsel appearing on behalf of the petitioner to produce copy of the said affidavit and the documents which the petitioner had filed along with the said affidavit. However, the petitioner was unable to produce the said documents. Similarly, from the certificate issued by the Executive Magistrate that there are number of blanks in the said certificate and though the said certificate is issued purportedly under the Municipal Council Rules Maharashtra Rule 13/3. There is no reference to any other document which is scrutinized by the Executive Magistrate. Apart from these two documents, the petitioner has not produced any other document in support of his claim that he was born on October 4, 1946. The petitioner is, therefore, challenging the said rejection of his application by letter dated May 12, 1992, which is annexed to this petition as Annexure 2.

7. The respondents have filed a detailed reply in which they have specifically stated that ample opportunity was given to the workmen to make an application for changing their date of birth by filing the relevant school leaving certificates. It is stated that initially time was given up to May 16, 1991 and thereafter the said time was extended to May 5, 1992 and a settlement was arrived at which was signed by the union and the representative of the management before the Assistant Labour Commissioner (Central) II, Nagpur on January 29, 1992 in which it was specifically made clear that no application after the second cut-off date would be entertained.

8. The respondents stated that they had given a reply, dated February 3, 1996, to the legal notice, dated January 9, 1996, which was sent by the petitioner, in which they made it clear that it is not possible to accept the contention of the petitioner. The petitioner thereafter has filed this petition under Article 226 of the Constitution of India challenging the said refusal on the part of the respondents to change his date of birth.

9. We have heard the learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the respondents at length. We have perused the copy of the petition and annexures thereto. We had heard the matter initially on August 2, 2002 and had directed the petitioner to produce the copy of the affidavit dated May 15, 1992 as also the copies of documents annexed to the said affidavit in order to determine the veracity of the birth certificate on the basis of which the petitioner claimed that his date of birth be changed. Two weeks time was granted to the petitioner. Thereafter, the matter was listed on August 19, 2002 and thereafter it was adjourned to August 23, 2002. Learned counsel appearing on behalf of the petitioner has submitted that the petitioner is unable to produce the said documents which were annexed to the said affidavit, dated May 15, 1992. From the perusal of the documents, which are produced by the petitioner, it is evident that the birth certificate, which he has produced, is annexed to the petition as Annexure 3, cannot be relied upon, firstly because it does not mention the record number and the said column is blank. Secondly, the birth certificate has been obtained on June 15, 1992. The petitioner obviously has procured the said certificate. The petitioner could have produced this certificate when applications were invited for change of birth date initially on May 16, 1991 and subsequently when it was extended to May 5, 1992. The petitioner's application for extension of time was for obtaining relevant record obviously is an afterthought and after the expiry of the said period he has managed to procure the said birth certificate, dated June 15, 1992, which itself is defective and, therefore, cannot be relied upon. The explanation given by the petitioner that he could not obtain the school leaving certificate also cannot be accepted. The petitioner was working with the respondents since 1970. No efforts have been made by the petitioner from 1970 onwards till May 16, 1991 and even thereafter though time was given up to May 5, 1992 he has waited till May 4, 1992 and thereafter he has filed an application for extension. The certificate issued by the Executive Magistrate which is annexed to this petition as Annexure 4, also cannot be accepted because the said certificate has been obtained only on the basis of the affidavit filed by the petitioner. The Executive Magistrate has not examined any other document before issuing the said certificate.

10. Another fact which cannot be overlooked is that the initial date of birth which was given by the petitioner was of 1942 and the said date was given on the basis of information by his parents and elders in the family. The petitioner wants to change his date of birth from 1942 to 1946. It would have been a different matter if the date and month which were not earlier given would have been subsequently changed. However, the petitioner wishes to change the year 1942 to 1946. The said contention therefore, even otherwise cannot be accepted.

11. Apart from this fact, it cannot be overlooked that the respondents had arrived at the settlement with the union which was filed before the Assistant Labour Commissioner (Central) II, Nagpur, and one of the conditions in the said terms of settlement was that the union had specifically agreed that it would not espouse the case of any workman for amendment of age beyond the conditions stipulated in the settlement. The petitioner admittedly is the member of the said union. The terms of settlement are, therefore, binding on him as per Section 18 of the Industrial Disputes Act.

12. The Apex Court in number of judgments has held that any application for change of date of birth which is made by an employee after three years of his initial appointment should not be accepted. The Apex Court has deprecated the practice of the employer entertaining such applications which are filed just before the retirement of the employee.

13. Under these circumstances, we do not find any merit in the said writ petition and the writ petition is, therefore, dismissed. Rule is discharged accordingly. Under the circumstances, there shall be no order as to costs.