Ardeshir B. Cursetji And Sons vs Abdulla Fakir Jambarkar And Anr.
2002 Latest Caselaw 157 Bom

JUDGMENT

Nishita Mhatre, J.

1. By this petition, the petitioner has impugned the Award dated 14th November, 1994 passed by the Presiding Officer, Central Government Industrial Tribunal No. 1, Bombay granting the first respondent workman the relief of reinstatement with consequential benefits upto 14th July, 1992 that is his deemed date of retirement.

2. Facts giving rise to the present petition may be stated in brief as under :-

On 25th April, 1977, the first respondent workman was appointed as a Sarang by the petitioner. The petitioner being a Stevedoring Company required the certificate issued by the Mercantile Marine Department of the Government of India to prospective employees in order to recruit them. This certificate dated 23rd February, 1960 was produced by the first respondent. The said certificate issued to, the first respondent workman declared his year of birth as "1929" and since no specific date was given, the petitioner while recruiting the first respondent noted his date of birth as 31st December, 1929. On 30th November, 1989, the petitioner informed the first respondent that he would be superannuated with effect from 1st January, 1990 upon reaching the age of 60 years. The petitioner was informed by the Trade Union representing the first respondent that the date of birth of the first respondent was 15th July, 1932 and, therefore, he was entitled to continue for three more years in service. The letter from the Union also mentions that the first respondent had declared in his nomination form pertaining to the Provident Fund Scheme that his date of birth was 15th July, 1932 and that the first respondent had already submitted the School Leaving Certificate in order to substantiate his claim about his date of birth. The petitioner informed the Union by its letter dated 3rd January, 1990 that it had accepted the date of birth as given in the Mercantile Marine Department Certificate and that the School Leaving Certificate was never submitted by the first respondent. As regards the date of birth given in the declaration form pertaining to the Provident Fund Scheme, the petitioner stated that no verification of the record was done and the date of birth declared by the first respondent while producing the Certificate was accepted by them. On 5th March, 1990, the petitioner enquired from the Tahsildar of the village where the first respondent was born as to the correct date of birth of the first respondent. No reply was received to this letter.

3. The first respondent, therefore, raised an Industrial Dispute claiming reinstatement in service with continuity and full back wages from 1st January, 1990. The dispute was referred for adjudication. Pleadings were filed and evidence of the first respondent workman and the General Manager of the petitioner was recorded. The first respondent claimed that he had obtained the School Leaving Certificate in the year 1985 and it was on account of an inquiry made with his mother that he learnt that his correct date of birth and, therefore, had mentioned the date of birth as 15th July, 1932 in the declaration form for the Provident Fund nomination. The General Manager of the petitioner deposed that the first respondent did not at any stage produce any record so as to enable the petitioner to change the date of birth in the record after confirming. He has also admitted that he is not aware whether the first respondent workman had produced the School Leaving Certificate at the time when the Provident Fund dues were transferred to the office of the Regional Provident Fund Commissioner and the nomination forms were filled in. The Tribunal accepted the evidence of the first respondent workman and held that the correct date of birth is 15th July, 1932 and not 31st December, 1929 as recorded by the petitioner. He, therefore, held that the first respondent workman was entitled to continue in service upto the deemed date of retirement i.e. 14th July, 1992 and was entitled to back wages and other consequential benefits on the basis of this deemed date.

4. Assailing this Award of the Tribunal, Mr. Talsania, learned Advocate for the petitioner, contends that the Tribunal has wholly misdirected himself by holding that the petitioner was required to prove that the date of birth of the first respondent was not 15th July, 1932 but was as per the record maintained by it. He submits that the onus to prove the date of birth is on the first respondent and this burden has been unjustifiably shifted by the Tribunal on the petitioner. He relies on the judgments of the Apex Court in Union of India v. Harnam Singh, 1993(II) C.L.R. 193, Executive Engineer, Bhadrak (R & B) Division, Orissa and others v. Rangadhar Mallik, and The Secretary & Commissioner, Home Department & others v. R. Kirubakaran, in support of his contention that the date of birth has to be proved by the workman concerned as the employer cannot be faulted for retiring the workman on the date that is mentioned in the records. He also submits that the first respondent has chosen to dispute the record of the petitioner regarding his date of birth at the fag end of his career only when the petitioner informed him of his date of retirement. He submits that this practice has been deprecated by the Apex Court and, therefore, the Tribunal has completely erred in allowing the reference.

5. As against this, Mr. Sawant, learned Advocate for the first respondent, submits that the witness of the petitioner has admitted that the petitioner did not maintain any records regarding the date of birth. Moreover, it was only when the nomination forms were to be filled in for the Provident Fund Scheme that the first respondent was required to submit his date of birth and, therefore, he submitted his School Leaving Certificate. He further submits that the petitioner at no point of time disputed the School Leaving Certificate that he had submitted in order to fill the nomination form in 1987. This being so, it was only when on 30th November, 1989 that the first respondent received letter from the petitioner about his retirement that he became aware that the petitioner had wrongly considered his date of birth as 31st December, 1929.

6. I have gone through the evidence recorded by the Tribunal. I find that the first respondent had no knowledge as to what was the date of birth recorded by the petitioner in the records maintained by it. Moreover, it appears that the petitioner has recorded in 1987 the date of birth as 1932 in the nomination form. This nomination form was required to be counter-signed by the authorised officer of the petitioner and this officer was required to certify that the declaration had been signed/thumb impressed by the workman concerned employed in the establishment in his presence after he was read out the entries made in the declaration form. Obviously, therefore, the entries were made by some officer of the firm and the form has merely been singned by the first respondent. The petitioner has therefore filled this form on the basis of some evidence available with it. The petitioner was aware in 1987 when this declaration form was filled that the first respondent had declared his date of birth as 15th July, 1932 and, therefore, if it had any dispute about this, it should have called upon the first respondent at that stage to substantiate his claim that his date of birth was 15th July, 1932.

7. The School Leaving Certificate shows that the workman concerned was studying in the school from 1939 to 1943 and that the Certificate has been issued on 18th December, 1985. The evidence led by the first respondent before the Labour Court is consistent with this and, therefore, there is no reason to disbelieve the same.

8. In the case of Harnam Singh (supra), it is true that the Apex Court has observed that an employee must approach the employer without any unreasonable delay and not at the fag end of the career. This presupposes that the workman should have known the date of birth recorded by his employer. Again, in the case of R. Kirubakaran (supra), the Apex Court has held that, in case of a public service, the Court or Tribunal should be slow in issuing any direction regarding change of date of birth as this would affect the other persons in service. They have observed that the applicant has to produce evidence in support of his claim which should amount to irrefutable proof relating to his date of birth. Further, in the case of Rangadhar Mallik (supra) also, the Apex Court has reiterated the same principle and has stated that no personal hearing need be given if the date of birth is not accepted by the employer. However, all these cases will not have any application in the facts and circumstances of this case.

9. In the present case, it is obvious that the petitioner did not inform the first respondent that it had recorded his year of birth as "1929" and, therefore, there was no occasion for the first respondent workman to bring to the notice of the petitioner that his actual date of birth was 15th July, 1932. The earliest opportunity that he had was when the nomination forms were filled in 1987. The employer at no point thereafter disputed the claim of the first respondent and, therefore, they could not have accepted 1929 as the year of birth and issued an order of retirement in 1989.

10. Hence, writ petition dismissed. Rule discharged. No order as to costs.

11. Issuance of certified copy expedited.