Jugunu Lal Kori & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 759 Cal/2

                           WPO/172/2017
                  IN THE HIGH COURT AT CALCUTTA
                    Constitutional Writ Jurisdiction
                           ORIGINAL SIDE

                       JUGUNU LAL KORI & ORS.
                              VERSUS
                    STATE OF WEST BENGAL & ORS.




     For the Petitioners    :   Mr. Soumya Majumdar, Advocate

                                Mr. Victor Chatterjee, Advocate

     For the Respondents :      Mr. Partha Bhanja Chowdhury, Advocate

Mr. Ravi Kumar Dubey, Advocate

Heard on : 9th January, 2023.

     Judgment on           :    23rd March, 2023.


RAJA BASU CHOWDHURY, J.:

1. The present writ application has been filed, inter alia, challenging

an Award dated 7th June, 2016 passed by the 7th Industrial

Tribunal, Kolkata.

2. The substituted petitioners are the legal heirs of the original

petitioner, who had died during the pendency of the writ

application. The original petitioner in the aforesaid writ application

claims to be an employee of the respondent no.3.

3. It is the original petitioner's case that at the time of entry into the

service, his date of birth was recorded as 1 st January, 1956. It is

stated that the original petitioner is an illiterate person. He all

along proceeded on the premise that the aforesaid date of birth was

recorded in his service book. Notwithstanding the aforesaid on 2 nd

April, 2008, the original petitioner's service was terminated by way

of superannuation, thereby curtailing his service career by six

years.

4. The original petitioner being illiterate could not apprehend the ill

motive on the part of the respondent no.3 as regards manipulation

of his date of birth. Subsequently upon appreciating that his date

of birth had been altered in the service book, the original petitioner

with the help of the union lodged a complaint with the Labour

Commissioner, Government of West Bengal on 10 th August, 2010.

The conciliation having failed, the appropriate Government was,

inter alia, pleased to refer the dispute for adjudication before the

7th Industrial Tribunal, Kolkata, by framing the following issues.

"1. Whether termination of service of Sri Kalicharan Kori by way of superannuation with effect from 02.04.2008 is justified?

2. To what relief, if any, is the worker entitled?"

5. Before the Tribunal the original petitioner filed his statement of

claim/written statement and also adduced both oral and

documentary evidence. The aforesaid proceeding was contested by

the respondent no.3 by filing written statement and by adducing

both oral and documentary evidence.

6. On contested hearing, the learned 7th Industrial Tribunal was,

inter alia, pleased to hold that the original petitioner was lawfully

superannuated and as such the reference was not maintainable

and accordingly, decided the issue no.1 against the original

petitioner. Consequentially the Tribunal refused to grant any relief

in favour of the original petitioner. Being aggrieved, the instant writ

application has been filed. During pendency of the writ application

the original petitioner having died, his death has been recorded

and in his place and stead, the present petitioners who claim to be

the legal heirs of the deceased petitioner, have been substituted.

7. Mr. Majumdar, learned advocate representing the petitioners,

submits that the date of birth of the original petitioner as recorded

by the respondent no.3 is 1st January, 1956. He says that the

respondent no.3 is covered by the provisions of Employees' State

Insurance Act (in short, "the said Act") and the original petitioner

being otherwise entitled to the benefits under the said Act, was

issued an Identity Card, in terms of Regulations 17 and 95A of the

Employees' State Insurance (General) Regulation, 1950,

(hereinafter referred to as, "the said regulation"). Placing reliance

on regulation 17 of the said regulation, he submits that the

aforesaid Identity Card is a statutory document issued as per the

said regulation.

8. By further drawing attention of this Court to a pension payment

order, issued by the Employees' Provident Fund Organisation

which is appearing at page 42 of the writ application, he submits

that in ordinary course, pension papers are processed through the

employer and the date of birth disclosed in the pension record is

based on service record maintained by the employer. By referring

form 10C of the Employees' Pension Schemes, 1995, it is

submitted that the particulars in such form, are in ordinary course

filled up by the employee and it is only on the basis of the

certification of the employer, that the same are forwarded to the

Employees Provident Fund Organisation.

9. The management of the respondent no.3 had issued the

superannuation notice by ignoring the date of birth of the original

petitioner as recorded in the service book. By referring to the

superannuation notice, it is submitted that such superannuation

notice did not indicate the date of birth of the original petitioner

and as such, the original petitioner upon receipt of the aforesaid

notice, had no knowledge that the respondent no.3 had issued

such notice dehors the recordings made in the service book.

Subsequently when such illegality was detected the matter was

referred to the Tribunal on the failure of conciliation, and the

original petitioner had filed a written statement and had, inter alia,

prayed for the following reliefs:-

"(i) That the termination order issued by the company is illegal, unlawful, inoperative and violative of principle of natural justice;

(ii) The workman be entitled to get all benefit including wages from the period from 2.4.2008 to 2.4.2014 with consequential benefit;

(iii) And/or such other order or orders as deem fit and proper."

10. In course of hearing before the Tribunal the identity card

issued by the ESI Authorities and the pension payment order issued

by the Employees Provident Fund Organisation were marked as

exhibits. While being cross-examined the management witness was

confronted with both the identity cards, one issued by the ESI

Authorities and the other issued by the Employees Provident Fund

Organisation, the management witness had accepted both the

documents and did not dispute the same. The said witness, however,

could not produce the service records which was prepared at the time

of the original petitioner's entry in service. The records prepared

ordinarily at the time of entry in service, cannot be altered unless

good reasons are shown. It is the original petitioner's case, that his

service records all along recorded his date of birth as 1 st January,

1956 and that original petitioner all along proceeded on the premise,

that his date of birth had never been altered. He says that although

the original petitioner had sought for an age proof certificate from the

management, in the year 1992, however, in view of the identity card

issued by the ESI Authorities in the year 1997, the certificates issued

by management, and recordings made therein loses much of its

significance.

11. It is submitted that the original petitioner had not filed any

proceeding for correction of his date of birth but it is a case for

premature termination on retrenchment. In this context reliance is

placed on section 2(oo) of the Industrial Disputes Act 1947, (in short

the said Act), which defines retrenchment.

12. He submits that the Tribunal had erred in overlooking and

ignoring the vital piece of evidence, forming exhibits 1 and 2 which

obviously had been issued on the basis of the service records

maintained by the respondent no.3, and in placing reliance on the

age proof certificates issued by the management which had no basis,

the management's witness also failed to demonstrate the basis on

which the certificates had been issued.

13. The original petitioner had within a reasonable period,

immediately after becoming aware with regard to the illegalities

committed by the respondent no.3, had approached the Labour

Commissioner, whereupon issues were formulated and referred to

the Tribunal for adjudication.

14. The Tribunal had acted with material irregularity in conducting

the proceedings and in adjudicating the dispute raised by the original

petitioner, which were formulated and referred to the Tribunal for

adjudication. The Tribunal failed to exercise jurisdiction, in not

deciding the disputes by, inter alia, holding the petitioner having

reached the age of superannuation, the employee and employer

relationship having come to an end, no application for correction of

age is permissible.

15. According to Mr. Majumdar, the Tribunal posed unto itself a

wrong question and also ignored the reference made before it. By

once again drawing attention of this Court to the order of reference

dated 7th April 2014, which is recorded in the Award, it is submitted

that Tribunal was required to adjudicate whether the termination by

way of superannuation with effect from 1 st of April, 2008 was

justified or not. Despite the aforesaid, the tribunal simply returned a

finding that the reference is not maintainable, thereby refusing to

adjudicate the same, and has thereby failed to exercise jurisdiction

vested in him. He submits that this is a case of premature

retirement, which is akin to retrenchment. By placing reliance on a

judgment delivered by this Hon'ble Court in the case of Hindusthan

Paints Supply Company v. State of West Bengal and Ors.,

reported in (1998) 1 CHN 541, it is submitted that this Hon'ble

Court while considering a similar case, returned a finding that

premature retirement is akin to retrenchment and is amenable to

reference under section 10 of the said Act.

16. He also places reliance on a judgment delivered by the Hon'ble

Gauhati High Court, in the case of Sri Binda Prasad Singh v.

Presiding Officer, Labour Court, Dibrugarh and Anr., reported in

2003 LLR 545, in support of his contention that the retirement of

workman by the management before the date of superannuation, not

only amounts to termination of service but such dispute of

termination squarely falls within the purview of adjudication under

the provisions of Industrial Disputes Act, 1947. He then relies on the

judgments delivered by the Hon'ble Supreme Court in the case of

Deepali Gundu Surwase v. Kranti Junior Adhyapak

Mahavidyalaya (D. ED) & Ors., reported in (2013) 10 SCC 324 and

in the case of Jayantibhai Raojibhai Patel v. Municipal Council,

Narkhed & Ors., reported in (2019) SCC OnLine 1071, in support

of his contention that whenever termination were held to be illegal,

payment of back wages ought not to be denied.

17. In the given facts, it is submitted that the award passed by the

Tribunal cannot be sustained and should be set aside and

consequentially the petitioners should be allowed to get adequate

relief in the form of back wages payable to the original petitioner. He

further submits since the original petitioner, not only crossed the

actual age of superannuation but also died during the pendency of

the writ application, back wages ought not to be denied to the legal

heirs of the original petitioner.

18. Per contra, Mr. Partha Bhanja Chowdhury, learned Advocate

representing the respondent no.3 submits that the original petitioner

all along, since his entry in service and especially since 1986, was

aware with regard to his date of birth as recorded in the service book.

In the year 1986, at the instance of the original petitioner, the

respondent no.3 had certified his date of birth. Again in the year

1992, a similar certification was issued.

19. By drawing attention of this Court to pages 71 and 72 of the

writ application, it is submitted that the original petitioner during his

cross examination was confronted with the certificates issued in the

year 1987, as also in the year 1992. Although the original petitioner

had denied receipt of such certificate issued in the year 1987, the

receipt and contents of the certificate issued in the year 1992 had not

been denied.

20. By referring to exhibit-B, which is a certificate dated 15 th May,

1987, he submits that the original petitioner duly acknowledged and

accepted the date of birth as recorded therein. The original petitioner

had also acknowledged and accepted another age proof certificate in

the year 1992. By drawing attention of this Court to pages 108 and

109, of the writ application, he submits that from the aforesaid

certificates being Exhibits-B and D, it would be apparent that the

date of birth of the original petitioner was 1 st January, 1950.

21. From the aforesaid, it also appears that all along the original

petitioner was aware with regard to his date of birth and at no point

of time raised any objection. Subsequently in the year 2008, the

original petitioner was issued superannuation notice. Even after

receipt of the superannuation notice, the original petitioner did not

object and had accepted his superannuation and the benefits arising

therefrom. It is only subsequently in the year 2010, the original

petitioner lodged a belated complaint.

22. It is submitted that the original petitioner had waived his right,

if any, and there subsists no employee and employer relationship, for

the dispute to be referred to the Tribunal. The original petitioner

while being cross-examined had stated that his application is for

correction of his date of birth and, as such, there is no irregularity on

the part of the Tribunal in proceeding on the basis of the case as

made out by the original petitioner.

23. He says that ordinarily no correction of date of birth is

permissible at the fag end of the service career and in the instant

case, the original petitioner had already been superannuated from

service. In support of his aforesaid contention, he places reliance on

judgments of the Hon'ble Supreme Court in the case Burn Standard

Co. Ltd. and Ors. v. Dinabandhu Majumdar & Anr., reported in

(1995) 4 SCC 172, and in the case of State of Maharashtra & Anr.

v. Gorakhnath Sitaram Kamble & Ors., reported in (2010) 14

SCC 423.

24. According to Mr Chowdhury the onus was on the original

petitioner to come forward and demonstrate his actual date of birth.

The original petitioner having not come forward and having accepted

his date of birth as recorded in the service record, had waived his

right, if any. He further submits that once an employee and employer

relationship ceases by way of superannuation, there is no question of

having one's date of birth corrected. In support of the aforesaid

proposition, he relies on a judgment of the Hon'ble Court in the case

of Rabindra Nath Banerjee v. Union of India & Ors., reported in

(2002) 93 FLR 223 (Cal).

25. I have heard the learned advocate appearing for the

respective parties and considered the materials on record. I find

that the Tribunal had been directed to adjudicate whether the

termination of service of Kalicharan Kori by way of

superannuation, with effect from 2nd April 2008 is justified and to

what relief, if any, is the worker entitled. From the records of the

proceedings before the tribunal, it would be apparent that the

original petitioner had joined the services in the year 1977 and was

made permanent sometimes in the year 1984. A notice of

superannuation was issued in 2008, notifying his superannuation

with effect from 1st April 2008. Although the original petitioner had

initially accepted his superannuation, yet later he raised a dispute,

which was referred to the Tribunal for adjudication. I find that the

Tribunal by the impugned award has concluded that since the

original petitioner was superannuated, the original petitioner had

ceased to be a workman within the meaning of section 2(s) of the

said Act, and as such could not raise a dispute within the meaning

of Section 2(k) of the said Act and had consequentially held the

order of reference is not maintainable. To counter the aforesaid

finding, Mr. Majumdar learned advocate representing the petitioner

has claimed the aforesaid reference to be a case of illegal

termination from service. He says that while referring the dispute

between the parties to the Tribunal, the appropriate Government,

had categorically framed issue no.1 which in no uncertain terms

called upon the Tribunal to ascertain whether the termination

order, issued by the company was illegal or unlawful or inoperative

or violative of the principle of natural justice. I find that it has been

strenuously argued that the Tribunal had posed unto himself a

wrong question and had ignored the reference made to it. In this

context, it would be relevant to refer to the definition of the

workman under section 2(s) and retrenchment under section 2(oo)

from the said Act, the same are extracted below:

"Section 2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual,

unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957).

or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

"Section 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) termination of the service of a workman on the ground of continued ill-health;]"

26. From the aforesaid definitions, it would be apparent that

premature retirement can also be considered as retrenchment as

retrenchment includes termination by the employer of the service

of the workmen for any reason whatsoever other than punishment

inflicted by way of disciplinary action but the same does not

include either voluntary retirement or retirement on reaching the

age of superannuation or termination by way of non-renewal of the

contract or termination of service on the ground of continued ill

health. From the reference made to the Tribunal it would, thus, be

apparent that the Tribunal was required to consider whether the

workman had been terminated by way of retrenchment.

27. The judgment relied on by Mr. Majumdar in the case of

Hindusthan Paints Supply Company., (supra) supports the

above view. It, however, appears that the original petitioner

accepted the superannuation notice and all consequential benefits

thereon. The aforesaid factual finding has been returned by the

tribunal which remains unchallenged.

28. I may add that the Ashim kumar Ghosh, an officer of the

respondent no.3, has claimed in his affidavit in chief, that prior to

engaging the original petitioner, in the year 1977, he was sent for

medical examination to the company's doctor, who after due

examination, recorded the date of birth of the original petitioner as

1st January 1950. It is, on the basis of the aforesaid recording that

the original petitioner was appointed as a temporary workman.

Subsequently, he was appointed against a permanent vacancy on

24th September 1984 and once again prior to making him

permanent, he was sent for medical examination, after medical

examination his date of birth was recorded as 1 st January 1950.

29. At the instance of the original petitioner, a certificate

disclosing the date of birth of the original petitioner was issued by

the respondent no.3, in the year 1987, which is marked as exhibit-

B. The original petitioner's application addressed to the respondent

no.3, praying for an age proof certificate has also been exhibited

and marked exhibit-C. Subsequently in the year 1992, the original

petitioner once again approached the respondent praying for age

proof certificate, which was issued to him on 19 th October, 1992,

the same is marked as exhibit-D. In both such certificates dated

15th May 1987 and 19th October 1992, being exhibits B and D

respectively, the date of birth of the original petitioner had been

mentioned as 1st January, 1950. The aforesaid certificates are

contemporaneous documents and the same remained

unchallenged for more than a decade. The notice of

superannuation dated 29th February 2008, has also been

exhibited, which is marked as exhibit-F. The said document has

not only been acknowledged and accepted by the original petitioner

but the same was acted upon and consequent upon

superannuation, the original petitioner had also accepted his

retiral dues.

30. After more than two years therefrom, sometimes in the

month of April 2010 the original petitioner through his advocate

lodged a claim of wrong recording of his date of birth. The

communication exchanged between the Swapan Kumar Ghosh,

advocate for the original petitioner and the respondent no.3, have

also been exhibited in the present proceedings. Upon scrutiny by

the tribunal, the identity card issued by the Employees' State

Insurance Corporation which was exhibited as exhibit 1 and the

pension payment order issued by the Provident Fund Authorities

reveals that the year of birth of the original petitioner had

been mentioned as 1956. The tribunal upon taking into

consideration all aspects of the matter, inter alia, including the

exhibits, evidence adduced, concluded that the original petitioner

having accepted his superannuation and having received his entire

superannuation benefits, the claim of the original petitioner was

barred by the principle of waiver and acquiescence. I find that the

Tribunal also took note of the age proof certificates, and the factum

of the original petitioner being made aware about his date of birth

as recorded in the service records.

31. There is, however, no cogent explanation as to why no steps

were taken by the original petitioner seeking alteration/correction

of his date of birth during his service tenure. The attempt made by

the advocate for the original petitioner to impeach such

certificates, by contending the respondent no.3 had held back best

evidence in the form of service book is unacceptable. Since the

original petitioner had been kept informed of his date of birth, he

ought to have sought for correction of the same

contemporaneously if any error was detected. For more than 18

years, no steps had been taken by the original petitioner praying

for correction of his date of birth. I find that the definition of

retrenchment specifically excludes retirement from service on

reaching the age of superannuation. Since the original petitioner

had been superannuated and since such superannuation was

accepted by the original petitioner the same cannot tantamount to

retrenchment, within the meaning of Section 2(oo) of the said Act,

and as such cannot be considered to be illegal. The tribunal had

categorically arrived at finding that the original petitioner had

accepted his superannuation and the consequential benefits

without raising any objection.

32. In the light of the aforesaid, the judgments cited by Mr.

Majumder in the case of Sri Binda Prasad Singh, (supra) does

not support the original petitioner's case. The aforesaid judgment

delivered by the Hon'ble Gauhati High Court is factually

distinguishable. In the said case the management of the workman

while relying on an agreement known as "staff recruitment"

(minimum benefit) Scheme which provided that a clerical staff

shall retire at the age of 58 years, unless his service is extended by

the management, was issued a notice of superannuation dated

15th November, 1991, informing that the workman would attain

age of 58 years during January 1992 and that he would retire from

service with effect from 1st February, 1991. The workman in the

said case being aggrieved by the notice of superannuation wrote

back to the management that he would reach the age of 58 years

on 25th January 1993 and not in January 1992. It is in the context

of the facts of the case that the Hon'ble Guahati Court had

returned a finding that retirement before the age of

superannuation would tantamount to premature retirement or a

forcible retirement and the Hon'ble Court while observing as such

in paragraph 17 and in paragraph 18 thereof was, inter alia,

pleased to observe as follows:

"17. A bare reading of section 2A clearly shows that retirement on superannuation is per se not covered by section 2A. That is to say, an industrial dispute relating per se to retirement cannot be raised by the individual workman, who stands retired or is sought, to be so retired. What is, however, of utmost importance to note is that a dispute under section 2A arises between an individual workman and his employer. Though retirement on superannuation is not same as termination of service, the fact remains as in a case of present nature, that when the workman disputes the age of his superannuation as fixed by the employer, what basically the dispute, which so arises, relates to forcible termination of service by the employer before the date of superannuation. Viewed from this angle, the dispute in the instant case is a dispute of termination of service and it, therefore, squarely falls within the purview of section 2A and, hence, the reference is not bad in law.

18. In other words, whether retirement on superannuation amounts to termination of service in a given case depends on the facts of the case and it cannot be laid down as an invariable rule that retirement from service will never amount to termination of service. If the date of superannuation falls in dispute, then, the

retirement of a workman by his management will amount to termination of service before the date of superannuation arrives."

33. As such whether retirement or superannuation amounts to

termination of service in a given case would depend upon the facts

of the case.

34. I find that the original petitioner in the instant case stand on

a different footing. Here the original petitioner had accepted his

superannuation. The aforesaid judgment, as such, does not assist

the petitioners. The two other judgments relied on by Mr.

Majumder delivered by the Hon'ble Supreme Court in the case of

Deepali Gundu Surwase (supra) and Jayantibhai Raojibhai

Patel (supra) also does not assist the petitioners. The aforesaid

judgments are distinguishable in the facts of this case. Both the

aforesaid judgments relate to entitlement of back wages on

reinstatement by the Tribunal. Admittedly in this case the original

petitioner had accepted his superannuation including benefits

thereon. The original petitioner had never questioned recording of

his date of birth while in service. The original petitioner did not

produce any unimpeachable document to establish his date of

birth. There is no dispute with the proposition of law laid down in

the judgments relied on by Mr. Majumdar. It, however, must be

remembered that a judgment is an authority for what it decides. A

little variation in facts can alter the outcome and the very the basis

of the judgement.

35. The Tribunal rightly concluded that the original petitioner

was aware that his date of birth was recorded as 1 st January 1950.

Therefore, the superannuation was lawful and justified. The

finding rendered by the Tribunal that consequent upon

superannuation, the original petitioner no longer remains a

workman within the meaning of Section 2(s) of the said Act, has to

be read in the light of the other observations made by the Tribunal.

Once the superannuation notice is upheld and the original

petitioner is deemed not to have been retrenched, the original

petitioner loses his right to maintain the reference or to be entitled

to any relief. I do not find any illegality on the part of the learned

Tribunal in dismissing the reference, I, however, modify the answer

to the first issue by, inter alia, declaring that termination of

original petitioner was lawfully made and his superannuation from

service by the respondent no.3 was justified. Since, the

superannuation is held to be lawful, the petitioners are not entitled

to any other benefits including back wages for the period from 2 nd

April 2008 to 2nd April 2014 or for any other benefits, in any form.

36. With the aforesaid observations the writ application is

disposed of.

37. There shall be no order as to costs.

38. Urgent certified copy of this order and judgment, if applied

for, be given to the appearing parties as expeditiously as possible

upon compliance with all necessary formalities.

(RAJA BASU CHOWDHURY, J.)

sm/akg/