Jharkhand High Court
Chief Executive Officer vs Their Workman on 14 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L). No. 2099 of 2017
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Chief Executive Officer, Steel Authority of India Ltd.
Bokaro Steel Plant, Bokaro through Mr. J.T. Kongari,
son of late P.L. Kongari, Deputy General Manager (Law)
... ... ...Petitioner
-Versus-
Their Workman, represented by Bokaro Ispat Kamgar Union,
Sector-3D/823, Bokaro Steel City, Bokaro
... .... ...Respondent
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner : Mr. Bibhash Sinha, Advocate
Mr. Amitabh Prasad, Advocate
For the Respondents : Mr. Shail Kumar, Advocate
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08/ 14.01.2021 Heard the parties.
2. Petitioner has approached this Court with a prayer for quashing the Award dated
30.09.2016, passed by learned Presiding Officer, Labour Court, Bokaro Steel City,
Bokaro in Ref. Case No. 20 of 2010, whereby it has been held that the action of the
Management in prematurely superannuating the respondent-workman is not justified
and the workman is entitled for full back wages along with all consequential benefits
w.e.f. 01.06.2006 to his actual date of superannuation i.e. 30.06.2010
3. It was the case of the workman before the learned Labour that he joined the
services of Bokaro Steel Plant (for short "BSP") as attendant on 08.06.1970 and in
his personal data form he recorded his age as 20 years on the date of joining and as
such, his date of birth is supposed to be 08.06.1950. It was the case of the workman
that as per his aforesaid date of birth, his date of superannuation would be
31.05.2010. However, the petitioner-Management vide letter dated 24.12.2005
informed that workman that he is going to superannuate on 31.05.2006. It was the
specific case of the workman that without issuance of any prior notice or giving
opportunity of hearing to the workman, the management by manipulation has
changed his date of birth and has tried to superannuate him 4 years prior to his actual
date of superannuation. When workman came to know about such anomaly, he,
through his Union, requested the petitioner-management for making correction in the
date of birth and allow him to work till his actual date of superannuation i.e. till
31.05.2010 but no heed was paid to his said request.
Finding no other alternative remedy, the petitioner through his Union, raised an
industrial dispute, which was referred vide notification dated 11.01.2010 to learned
Labour Court, Bokaro, by framing following issue for adjudication:
"Whether pre-mature retirement of Sri H.N. Mishra, Staff No.
065921, Multi Skill Technician, HRCS Department, Bokaro Steel
Plant by changing his advertised age by the Management is
justified? If not, then what relief he is entitled to?"
4. Upon receipt of the notification, the learned Labour Court registered the case as
Ref. Case No. 20 of 2010 and issued notices to the parties. Upon receipt of the
notices, both parties appeared and filed their respective written statements.
Thereafter, the learned Presiding Officer, after hearing the parties and perusing the
documents and evidences brought on record, by its Award dated 30.09.2016,
answered the Reference in favour of the respondent-workman, holding that:
"..............Hence, I have no hesitation to say that the age so assessed
or fixed by the management is not proper and hence not justified to
retire him four years prior to his date of birth..................
................In these facts and circumstances of the case, it cannot be
said that the present case was filed at the fag end of career.
Accordingly, the workman is entitled for full back wages along with
all consequential benefits w.e.f. 01.06.2006 to his actual date of
superannuation i.e. 30.06.2010. ..............."
Aggrieved by the award dated 30.09.2016, passed by learned Labour Court,
Bokaro, the petitioner-management has approached this Court.
5. Mr. Bibhash Sinha, learned counsel appearing for the petitioner-Management
vociferously argues that the Award dated 30.09.2016, passed by learned Labour
Court, Bokaro in Ref. Case No. 20 of 2010, is bad in law and hence, liable to be
quashed and set aside by this Court. Learned counsel further argues that learned
Labour Court has failed to appreciate the provisions contained in the Standing Order
of the petitioner-management and as such, came to a wrong finding. Learned Labour
Court also failed to appreciate that the question of dispute regarding date of birth of
workman cannot be allowed in the garb of question relating to date of
superannuation. Learned Labour Court has also failed to appreciate the documentary
evidence brought on record particularly Exts. M/1 to M/20 which clearly shows that
the workman has played fraud since inception of his employment and has purposely
mentioned different dates of birth in his service records and as such, the workman is
not entitled for any relief and further, the findings recorded by learned Labour Court
is beyond the terms of reference, hence, the same will not stand in the eyes of law.
Learned counsel further argues that the learned Labour Court has committed gross
illegality in allowing full back wages with all consequential benefits to the workman
without appreciating the fact that there is neither any pleading nor any evidence on
behalf of the workman to show that he was not gainfully employed between
01.06.2006 to 30.06.2010. Learned counsel also submits that prior to his present
employment he was also employed under the Dhori Colliery of petitioner-
management where he mentioned his date of birth as 19.05.1946 and as such, at the
time of joining to the said post, his age was 16 years, which cannot be accepted.
Further, at the time of interview for the present post, he mentioned his age as 24
years and subsequently, he changed the same and mentioned his age as 20 years and
23 years in PD Form (Ext. M-5/1) and Attestation Form (Ext.M-6) respectively.
Further, he revealed his age as 22 years before the Doctor at the time of his fitness
test and the same was also recorded in the medical examination report (Ext.M-2).
Learned counsel submits that the learned Labour Court without appreciating the
aforesaid facts and considering the exhibits mentioned above, has passed the Award
granting back wages and consequential benefits to the workman, and as such, the
same is fit to be quashed and set aside.
To strengthen his arguments, learned counsel for the petitioner-management
places reliance on the judgment passed by the Hon'ble Apex Court in case of Bharat
Coking Coal Ltd. & Ors. Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411.
6. On the other hand, Mr. Shail Kumar, learned counsel appearing for the
respondent-Union vehemently opposes the contention of the learned counsel for the
petitioner-management and argues that the workman at the time of joining the
services of the petitioner-Management on 08.06.1971, has mentioned his age as 20
years and date of birth as 08.06.1950 in the PD forms and was under impression that
he would be retired on 31.05.2010. However, the management forcibly got him
retired four years prior to his actual date of retirement. Learned counsel further
argues that before making any correction in the date of birth of the workman, no
notice or opportunity of hearing has been given to him to present his case. Learned
counsel further argues that custodian of the personal data of an employee is the
Management of BSP and if management is trying to make any changes in the
personal data of an employee it is mandatory for it to give prior notice and
opportunity of hearing to the concerned employee to present his case. In the present
case, the management had not done the same and just five months prior to his
superannuation, i.e. on 24.12.2005 issued letter intimating the workman that he is
going to superannuate on 31.05.2006 and then only, the workman came to know
regarding the manipulation made by the management in his date of birth and soon
thereafter, he through his sponsoring Union made request before the petitioner-
management for making correction in his date of birth and when no action was taken
by the petitioner-management, he approached the concerned Govt. for reference of an
Industrial disputes. Hence, there is no illegality or any infirmity in the Award passed
by learned Labour Court and the writ petition is fit to be dismissed outrightly.
To buttress his arguments, learned counsel places heavy reliance on the
judgment passed by Hon'ble Apex Court in case of Sarjoo Prasad Vs. General
Manager & Anr., reported in (1981) 3 SCC 544.
7. Be that as it may, having heard the rival submissions of the parties and upon
perusal of the records, this Court is of the considered view that the Award dated
30.09.2016 is fit to be quashed and set aside for the facts and reasons as stated below:
I) Learned Labour Court has failed to consider the fact that workman has played
fraud since inception of his employment and has purposely mentioned
different dates of birth in the different service records.
II) Further, the workman has joined the services of the petitioner-management in
the year 1970 and continued to work till 2006 and thereafter, after four years
of his retirement, in the year 2010, for the first time he raised an industrial
dispute regarding correction of his date of birth.
III) No document has been produced by the workman with regard to his age at the
time of joining the services of the petitioner-management.
IV) Learned Labour Court has also failed to consider the fact that at the time of
interview for the present post, the workman mentioned his age as 24 years and
subsequently, he changed the same and mentioned his age as 20 years and 23
years in PD Form (Ext. M-5/1) and Attestation Form (Ext.M-6) respectively.
Further, he revealed his age as 22 years before the Doctor at the time of his
fitness test and the same was also recorded in the medical examination report
(Ext.M-2).
V) Learned Labour Court while allowing the back wages and all consequential
benefits to the respondent-workman has failed to consider the fact that there
was neither any pleading nor any evidence on behalf of the workman to show
that he was not gainfully employed between 01.06.2006 to 30.06.2010.
8. The Hon'ble Apex Court as well as this Court in catena of decisions has held
that request for change of date of birth in service records at the fag end of service
career is not sustainable and in the present case, the workman had raised the disputes
relating to correction in date of birth, after his superannuation.
In case of State of T. N. Vs. T.V.Venugopalan, reported (1994) 6 SCC 302, the
Hon'ble Apex Court was clearly of the opinion that the government servant should
not be permitted to correct the date of birth at the fag end of his service career. The
Court, in very strong words, observed as under:-
".....The government servant having declared his date of birth as
entered in the service register to be correct, would not be
permitted at the fag end of his service career to raise a dispute
as regards the correctness of the entries in the service register.
The Hon'ble Apex Court in case of Secretary and Commissioner, Home
Department & Ors. Vs. R. Kirubakaran, reported in 1994 Suppl. (1) SCC 155,
has held as under:
"7. An application for correction of the date of birth [by a public
servant cannot be entertained at the fag end of his service]. 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 their promotion
forever. ...According to us, this is an important 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, the court or the tribunal should not issue a direction, on
the basis of materials which make such claim only plausible. 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 onus is on the applicant to prove the
wrong recording of his date of birth, in his service book."
9. This Hon'ble Court dealing with the similar issue in case of Manik Chand
Ghosh Vs. Bharat Coking Coal Ltd. & Ors., reported in 2004 (1) JCR 51 (Jhr.),
has held that, date of birth once recorded and entered in the service record, counter-
signed by the government servant, he should not be permitted to challenge at the fag
end of his service.
Further, the Hon'ble Apex Court in the case of State of Maharashtra & Anr. v.
Gorakhnath Sitaram Kamble & Ors., reported in (2010) 14 SCC 423 has held that:
"16. The learned counsel for the appellant has placed reliance on
the judgment of this Court in U.P. Madhyamik Shiksha Parishad
Vs. Raj Kumar Agnihotri [(2005) 11 SCC 465 : 2006 SCC (L&S)
96]. In this case, this Court has considered a number of judgments
of this Court and observed that the grievances as to the date of
birth in the service record should not be permitted at the fag end of
the service career.
17. In another judgment in State of Uttaranchal Vs. Pitamber
Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief
was denied to the government employee on the ground that he
sought correction in the service record after nearly 30 years of
service. While setting aside the judgment of the High Court, this
Court observed that the High Court ought not to have interfered
with the decision after almost three decades."
Further, the Hon'ble Apex Court reiterating the same view, in case of
State of M.P. v. Premlal Shrivas, reported in (2011) 9 SCC 664 has held as
under:-
"8. It needs to be emphasised that in matters involving correction of
date of birth of a government servant, particularly on the eve of his
superannuation or at the fag end of his career, the court or the
tribunal has to be circumspect, cautious and careful while issuing
direction for correction of date of birth, recorded in the service book
at the time of entry into any government service. Unless the court or
the tribunal is fully satisfied on the basis of the irrefutable proof
relating to his date of birth and that such a claim is made in
accordance with the procedure prescribed or as per the consistent
procedure adopted by the department concerned, as the case may
be, and a real injustice has been caused to the person concerned, the
court or the tribunal should be loath to issue a direction for
correction of the service book. Time and again this Court has
expressed the view that if a government servant makes a request
for correction of the recorded date of birth after lapse of a long
time of his induction into the service, particularly beyond the time
fixed by his employer, he cannot claim, as a matter of right, the
correction of his date of birth, even if he has good evidence to
establish that the recorded date of birth is clearly erroneous. No
court or the tribunal can come to the aid of those who sleep over
their rights.
12. Be that as it may, in our opinion, the delay of over two
decades in applying for the correction of date of birth is ex facie
fatal to the case of the respondent, notwithstanding the fact that
there was no specific rule or order, framed or made, prescribing the
period within which such application could be filed. It is trite that
even in such a situation such an application should be filed which
can be held to be reasonable. The application filed by the respondent
25 years after his induction into service, by no standards, can be held
to be reasonable, more so when not a feeble attempt was made to
explain the said delay. There is also no substance in the plea of the
respondent that since Rule 84 of the M.P. Financial Code does not
prescribe the time-limit within which an application is to be filed, the
appellants were duty-bound to correct the clerical error in recording
of his date of birth in the service book."
Similar view has been expressed by the Hon'ble Apex Court in case of Bharat
Coking Coal Ltd. & Ors. Vs. Shyam Kishore Singh, reported in (2020) 3 SCC
411, wherein the Hon'ble Apex Court has held that, "request for change of the date
of birth in the service records at the fag end of service is not sustainable."
10. Time and again it has been held that if government servants sleep over their
right and are not vigilant, the Court cannot come to their rescue/ aid and grant relief
only because they were ignorant of the Rules. These decisions lead to a different
dimension of the case that correction of date of birth at the fag end would be at the
cost of large number of employees, therefore, any correction at the fag end must be
discouraged by the Court.
11. The judgment cited by the learned counsel for the respondent-workman does
not come to his rescue, as in the present case the workman himself has played fraud
since inception of his employment and has purposely mentioned different dates of
birth in his service records, and as such, there is no question of holding any enquiry
after giving notice and opportunity of hearing to the affected employee, since no
relief can be granted to the person who has not come to the Court with clean hands
and is trying to misuse the remedy available in the law.
12. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions
and judicial pronouncements, the Award dated 30.09.2016 passed by the learned
Presiding Officer, Labour Court, Bokaro Steel City in Ref. Case No. 20 of 2010 is
hereby quashed and set aside. However, the petitioner-management is directed to pay
the retiral dues, if not paid till date, in accordance with law, to the workman, within a
period of four weeks from the date of receipt/ production of a copy of this order.
13. With the aforesaid observations and directions, the writ petition stands allowed.
14. Pending I.A.s, if any, also stands disposed of.
(Dr. S.N. Pathak, J.)
kunal/-
