Municipal Council Osmanabad ... vs Triveni Madan Maske
2017 Latest Caselaw 8415 Bom

                                                                   1284.10wp
                                   (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      WRIT PETITION NO.1284 OF 2010

                            
 Municipal Council Osmanabad
 Through its Chief Officer,
 Yashwant s/o Bhimrao Dange,
 Age: 32 years, Occ: Service,
 R/o. Quarter of Municipal Council,
 Osmanabad, 
 Tq. & Dist. Osmanabad.                              ..PETITIONER

          VERSUS

 Triveni w/o Madan Maske,
 Age: 65 years, Occ: Retire,
 R/o. Ambedkar Nagar,
 Osmanabad, Tq. & Dist.Osmanabad.                    ..RESPONDENT


 Mr R.V. Naiknavare, Advocate for petitioner;
 Mr K.A. Kadam, Advocate for respondent

                            
                         CORAM : NITIN W. SAMBRE, J.

DATE : 3rd NOVEMBER, 2017

ORAL JUDGMENT :

The petitioner, a Municipal Council, a

statutory authority constituted under the

provisions of Maharashtra Municipal Councils, Nagar

Panchayats and Industrial Township Act, 1965

(hereinafter shall be referred to 'Act' for sake of

1284.10wp

brevity), preferred this petition questioning the

judgment delivered by the Member, Industrial Court,

Latur on 3rd November, 2009 in favour of respondent

- employee, whereby it was declared that the date

of birth of present respondent-employee be

considered as 25th August, 1954 and the petitioner

should desist from indulging into unfair labour

practice in view of Schedule IV, Item-9 of the

M.R.T.U. & P.U.L.P. Act, 1971. It is further

directed by the tribunal that the respondent-

employee be reinstated w.e.f. 28th February, 2007

alongwith backwages of 25%.

2. The facts as are necessary for deciding

the present petition are as under :

It is the case of petitioner that from

1978, she was working with the respondent on daily

wages as 'Safai Kamgar'. The petitioner herein

confirmed her services pursuant to the order of

Divisional Commissioner/Regional Director of

Municipal Administration vide order dated 19th

1284.10wp

April, 2002 on the said post with retrospective

effect i.e. 31st October, 2001. The respondent-

employee was thereafter directed to produce

relevant certificates and on the date of joining,

upon her medical examination, she has disclosed to

the Civil Surgeon her age 55 years as on 13 th

February, 2002 as is reflected in the certificate

issued by Civil Surgeon. The petitioner, as such,

stood retired from service after attaining age of

superannuation on 28th February, 2007.

3. The petitioner claimed that on the date

of superannuation, she has completed age of 55

years and not age of superannuation, as her date of

birth was wrongly recorded. According to the

petitioner, her date of birth should have been

recorded as 16th May, 1966 and not 13th April, 1947.

So as to substantiate the said claim, she has

produced certificate issued by concerned

Grampanchayat.

4. Being aggrieved by the aforesaid act of

1284.10wp

her superannuation, respondent-employee preferred

complaint in question.

5. Learned tribunal, after considering the

complaint and reply tendered by the present

petitioner-Council, noticed that upon medical

assessment of the health of the respondent-

employee, it could be disclosed that on 25th

August, 2009, the age of respondent-employee was

between 55 to 60 years. The tribunal then

proceeded to give declaration that the date of

birth of respondent-employee be considered as 25th

August, 1954 and allowed the petition.

6. Learned Counsel for the petitioner

submits that the order passed by the tribunal is

without jurisdiction, particularly when it is not

open for the tribunal to decide the date of birth

of an individual by substituting its decision to

that of one reflected in documentary record. He

would then urge that even if medical report qua

assessment of age of respondent is accepted as it

1284.10wp

is, the fact remains that her average age was

certified by the concerned medical authority

between 55 to 60 years, which act was carried out

pursuant to the order of the Court passed on 29 th

July, 2009 and as such, according to him, it has to

be considered that the respondent stood retired on

attaining age of superannuation. He would then

urge that at the time of entering into service in

the year 2002, the respondent-employee voluntarily

disclosed her age as 55 years. He would then urge

that upon retirement, that too, based on her

service record, she having attained age of

superannuation, has come out with plea that wrong

calculation of her age at superannuation and

further made prayer for grant of relief of

compassionate appointment to her son. He submits

that proceedings are initiated purely with

intention to twist the arms of the petitioner so as

to pressurize the petitioner for grant of

employment to the son of respondent on

compassionate ground.

1284.10wp

7. Per contra, learned Counsel for the

respondent-employee would urge that this Court must

consider the very scope of Article 227 of the

Constitution of India under which interference can

be caused in the findings which are already

recorded by the tribunal based on the cogent

evidence. According to him, once the tribunal has

observed that the petitioner has indulged into

unfair labour practice, the tribunal has every

right to determine right age based on the

documentary evidence about date of birth and it

cannot be termed that the tribunal has exceeded its

jurisdiction in recording findings. Learned

Counsel then would urge that pursuant to the order

of tribunal, age of the respondent was certified to

be between 55 to 60 years and based thereon, having

regard to the status of respondent as uneducated

lady, the tribunal rightly granted reinstatement

alongwith 25% backwages, which is based on the

evidence brought before it. He submits that the

petition is liable to be dismissed.

1284.10wp

8. Having considered rival submissions, the

issue cropped up in S.L.P. before the Apex Court in

the matter of State of Gujrat & ors vs Vali Mohmed

Dosabhai Sindhi, reported in A.I.R. 2006 (SC) 2735.

The Apex Court in Paragraph-12 of the said judgment

has observed thus :

"12. An application for correction of the date of birth should not be dealt with by the courts, the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of

1284.10wp

retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in

1284.10wp

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 about the wrong recording of his date of birth in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement questioning the correctness of the entires in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior."

1284.10wp

9. One more aspect of which this Court must

take note of is while dealing similar issue, the

Apex Court has noticed that interference if any

caused by the tribunal in the matter of correction

of date of birth of employee and granting

appropriate relief based on such correction

disturbed the entire chain that is already in

existence qua working of the employee who succeeded

the person who has retired. The Apex Court

observed that the Court should be slow in such

eventuality to cause interference.

10. In the aforesaid backdrop of piece of law

laid down by the Apex Court, it is required to be

noted that the respondent-employee claimed to be in

the service of the petitioner for more than 25

years as a temporary employee and her services were

confirmed in 2002. In 2002 the respondent has not

taken any steps for correctly mentioning her date

of birth so as to substantiate her claim that she

was entitled to be retired on the date of

superannuation after having regard to the date of

birth mentioned in the birth certificate issued by

1284.10wp

Grampanchayat. The birth certificate issued by

Grampanchayat in favour of respondent for the first

time is produced by the respondent-employee after

her superannuation and thereafter before learned

Industrial Court. Just because the respondent-

employee is considered to be an uneducated lady,

that does not give any legal right or premium to

move proceedings for continuation in employment,

for carrying/ordering correction in the date of

birth after she was already superannuated from the

service of the petitioner-Council.

11. The Apex Court has already cautioned the

Courts and Tribunals to be more diligent while

ordering correction in the date birth, which is not

required to be dealt with casually. It could be

inferred that the petitioner accepted permanency in

the employment in 2002 based on the date of birth,

which was formed to be a basis for her

superannuation, of which, this Court cannot lose

sight of. The tribunal has failed to consider the

same.

1284.10wp

The respondent, in my opinion, has not

fairly established by cogent evidence that her date

of birth recorded in the service record is

incorrect and it is out of Grampanchayat record,

her correct date of birth is to be recorded. There

is no sufficient material to fully satisfy that

there has been really injustice to the respondent-

employee qua her date of birth. The respondent has

failed to produce on record irrefutable proof

relating to her date of birth.

12. As a consequence of the order passed by

the tribunal, what could be noticed is, defaults on

the part of respondent, particularly delayed

request for carrying out correction in her date of

birth was permitted after substantial delay, for

which, there is no convincing explanation. The

only ground which is considered for conferring

benefit for correction of her date of birth and

consequential relief is, respondent is uneducated

lady and Doctors have certified about the date of

birth of her on medical examination i.e. in the

1284.10wp

year 2009 as between 55 to 60 years, as per opinion

of the Radiologist based on the radiographs. Even

if presuming that on the date of her examination on

28th February, 2007 she was between 55 to 60 years,

the fact remains that the petitioner was

superannuated at the right age she was rightly

superannuated on 28th February, 2007.

13. In my opinion, the tribunal has exceeded

jurisdiction in exercising power in favour of the

respondent.

14. For the aforesaid reasons, the judgment

impugned passed by the tribunal on 3rd November,

2009 in Complaint (ULP) No.16 of 2007 cannot be

sustained in law and is accordingly quashed and set

aside. It is ordered that the complaint preferred

by the respondent referred supra is dismissed.

15. The petition stands allowed in above

terms. Rule made absolute accordingly.

(NITIN W. SAMBRE, J.)

Tupe