Jharkhand High Court

Umarmadi Ansari @ Umarmadi vs The Management Of Sail on 9 August, 2023

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Letters Patent Appellate Jurisdiction)

                                 LPA No. 741 of 2019

Umarmadi Ansari @ Umarmadi, Workman (Welder, Blast Furnace Staff
No.277162), Bokaro Steel Plant, aged 67 years, son of Badisma Ansari,
resident of Village - Bharra, P.O. and P.S. - Chas, District - Bokaro
(Jharkhand)                                      ......Petitioner/Appellant
                                       Versus
The Management of SAIL, Bokaro Steel Plant through it's Managing
Director SAIL, Bokaro Steel City, P.O. and P.S. - Bokaro, District - Bokaro
                                                       ... Respondent
                             ---------------

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant         : Ms. Saman Ahmad, Advocate
For the Respondent        : Mr. Arpan Mishra, Advocate

                           ---------------
Order No. 10/ Dated: 09th August 2023

Per, Anubha Rawat Choudhary, J.

This Letters Patent Appeal has been filed against the judgment dated 14th August 2019 passed in W.P.(L). No.4945 of 2010 whereby the writ petition filed by the appellant-workman has been dismissed.

2. The workman had filed the writ petition challenging the Award dated 25th February 2010 / 26th July 2010 passed by the learned Presiding Officer, Labour Court, Bokaro in Reference Case No.5 of 2008 whereby the reference was answered against the workman.

3. The dispute involved in the present case relates to the date of birth of the workman i.e. whether the workman was 21 years or 28 years on the date of his joining on 28th July 1973 in Bokaro Steel Plant ( hereinafter referred to as "the management").

Arguments of the appellant-workman

4. The learned counsel for the appellant -workman has submitted that the learned Labour Court had failed to consider that the workman had disputed the recording of his date of birth by the management vide application dated 28th January 1997 much prior to his date of retirement and if the workman, being illiterate, had no document to prove his date

of birth, then it was for the management to get the workman medically examined for determination of date of birth.

5. It is submitted that at the time of initial entry of the workman, the workman was medically examined and his age was rightly recorded by the doctor as 21 years. The learned counsel has also submitted that in the personal form filled by the workman, the age was initially recorded as '21 years' but later on it was cut and mentioned as '28 years' but there was no basis to record the age as '28 years', and surprisingly it has been held by the learned Labour Court that both 21 years and 28 years were mentioned by the workman himself. The learned counsel submits that there were numerous other documents brought on record before the learned Labour Court, some of them were produced by the management, showing that the age of the workman was 21 years at the time of entry in service. She has also submitted that even the communication from the employment exchange had clearly recorded the age of the workman at the stage of entry as 21 years and there were enough undisputed materials on record before the learned Labour Court to conclusively establish that the age of the workman was 21 years on the date of entry in service.

6. The learned counsel submits that the Award passed by the learned Labour Court is perverse and aforesaid aspects of the matter have not been properly considered by the learned writ Court while dismissing the writ petition.

Arguments of the respondent -management

7. The learned counsel for the respondent-management submits that the Award passed by the learned Labour Court does not suffer from any illegality or perversity and the learned writ Court has rightly refused to interfere with the Award. He submits that no interference is called for by this Court in this Appeal.

Findings of this Court.

8. The terms of reference before the learned Labour Court was as under: -

"Whether the premature retirement of Sri Umarmadi Ansari, Welder Staff No.277162, Blast Furnace Dept. Bokaro Steel Plant by reducing his age by the management is justified? If not, then what relief workman is entitled to?"

9. The case of the workman before the learned Labour Court was

that the workman joined Bokaro Steel Plant as Khalasi on 28th July 1973. The workman is uneducated. At the time of entry in service, the age of the workman was 21 years and in the employment exchange also his age was mentioned as 21 years. As per the procedure, the workman filled up the required personal data form wherein he mentioned his age as 21 years and at the time of appointment, the medical officer of the management also recorded his age as 21 years. As per the workman, there were various materials on the record of the company to show that his date of birth was 21 years which included his initial data form, interview letter dated 18 th June 1973, medical examination report dated 26th July 1973 and attestation form dated 21st July 1973. Further case of the workman was that as soon as the workman came to know about his incorrect recording of date of birth, he filed an application dated 28 th January 1997 which was exhibited before the learned Labour Court stating that his date of birth is 28th July 1952. It was the specific case of the workman that in spite of such letter, no rectification was done and he was asked to retire on 31st July 2005.

10. On the other hand, the case of the management was that though the workman disclosed his age as 21 years in his personal data form but he failed to produce any authentic document to prove his age. Therefore, the onus regarding proof of his date of birth was upon the workman. It was the stand of the management that the report of the medical examination board with regard to the workman was only in connection with his fitness and not for assessment of his age. Since the workman was not able to produce any document in support of his age, so he himself had corrected his age as 28 years on the date of entry in service by cutting '21 years' in the personal data form and consequently the workman was taken to be 28 years of age on the date of appointment.

11. The following issues were framed by the learned Labour Court:

"(i) Whether the age of workman Umar Madi Ansari was 21 years or 28 years on the date of his joining viz 28.7.1973 as Khalasi in Bokaro Steel Plant?

(ii) Whether the cutting in age/date of birth of the workman in the P.D. Form has been done by the management or not?

(iii) Whether the separation/retirement order dated 7.7.2005 passed by the management in respect of the workman Umar Madi Ansari Staff No.277162 is justified or not?"

12. In support of its case, the management produced two witnesses and the following exhibits were produced which included application dated 28th January 1997 (exhibit M - 1) whereby the workman disputed his date of birth. The materials produced by the management have been mentioned in paragraph 6 of the Award as under:

"6. In support of its case management produce two witnesses and they are S.S. Mahanayak M.W.1 and Sachindar Kumar Ojha M.W.2. Besides these oral evidence some documents has also been proved by the management viz Application of the workman dated 28.1.97 Ext. M- 1, P.D. Form Ext. M-2, Application for revalidate the Medical Book by workman Ext. M-3 and another application Ext. M-3/1, Appointment letter Ext. M-4, Interview letter Ext. M-5, Medical Examination Report Ext.M-6, Notesheet Ext. M - 7, Letter of workman Ext. M-8, Attestation Form Ext. M-9, L.L.T.C. application Ext. M-10, Notice of retirement Ext. M - 11, Letter dated 7.7.2005 of management Ext. M-12, Separation Letter Ext. M-13, Application for Gratuity Ext. M-14, Application for P.F. Ext.M-15 and Final Settlement Ext. M-16."

13. The workman examined himself as a witness and produced the following documents in support of his case as recorded in paragraph 7 of the impugned Award:

"7. ... two Medical Books which are Ext. W-1 and Ext. W-1/1, Medical Examination Report dated 26.7.73 Ext. W-2 and Workman letter to Managing Director Ext. W-3."

14. The learned Labour Court considered the evidences and held that the workman was not able to establish by any reliable evidence that the management changed his age from 21 to 28 years by cutting in column no.13 of the personal data form. The learned Labour Court was also of the view that the personal data form indicated that both the entries of '21 years' and '28 years' were in the same ink and in the same handwriting. The learned Labour Court also recorded that the exhibit produced by the workman which was claimed to be the medical report was not a report on determination of age of the workman. The learned Labour Court further recorded that there was no reasonable explanation from the side of the workman as to why he raised the dispute after lapse of 24 years. The learned Labour Court decided all the issues in favour of the management and against the workman and accordingly held that the separation order no. 16031 dated 07th July 2005 superannuating the workman with effect from 31st July 2005 was rightly issued.

15. The findings of the learned Labour Court is as under: -

"From the perusal of the case record documentary and oral evidence of both sides I find that the submission of the learned lawyer for the

management seems to be correct. The workman has not been able to establish by any realizable evidence that management change his age from 21 to 28 years by cutting in column no. 13 of the P.D. Form, rather from the perusal of the P.D. Form Ext. M-2 column No. 13 I find that both entry 21 years and 28 years of age are in same ink and in same handwriting so the allegation that the management scored out the age of the workman in P.D. Form does not seems to be correct and convicting at all. During the course of argument the learned lawyer for the workman forcefully argued that the doctor who had examined the workman at the time of joining service had also assessed his age as 21 years and in support of his argument he has referred the Ext. W-2. But from the perusal of Ext. W-2 I find that his submission is not correct at all. Ext. W-2 is not medical report on the determination of the age of the workman rather it is simply a fitness report of the workman Umarmadi Ansari and others. So on the basis of the Ext. W-2 it cannot safely be concluded that the doctor had also determined the age of the worker as 21 years on the date of his joining. There is no reasonable explanation of the workman that why he raise this dispute after 24 years of his service. The onus to proof his date of birth or age at the time of joining his service certainly lies on the shoulder of the workman but he had not produced any authentic documentary evidence on this point. The decision of Apex Court and High Court as relied upon by the learned lawyer for the workman are not applicable in the present fact and circumstances of the case. So both these points decided in favour of management and against the workman.

10. Point No. (iii) :- In the light of the discussion made above in Point No. (i) and (ii) I find that the Separation Order No. 16031 dated 7.6.2005 passed by the management superannuating the workman from the date 31.7.2005 is quite correct and does not require any interference. So in the light of discussions made above the reference as contained in Annexure "A" of the notification is being answered against the workman and in favour of the management."

16. A perusal of the findings of the learned Labour Court reflects as under: -

a. With regards to issue no. (i) the learned Labour Court was of the

view that the onus to prove his date of birth or age at the time of joining was on the workman but he had not produced any authentic documentary evidence on this point and it was also observed that the workman had raised the dispute regarding his date of birth after 24 years from his entry in service. b. With regards to issue no. (ii) it has been held that cutting in age/date of birth of the workman from '21 years' to '28 years' in the personal data form was done by the workman himself. c. With regards to issue no. (iii) it has been held that the separation/retirement order dated 07th July 2005 passed by the management in respect of the workman was justified.

17. The workman challenged the Award before the learned writ Court. The writ petition was dismissed by recording that the judgment

of the learned Labour Court was based on appreciation of materials on record and adequacy and sufficiency of evidence led on a particular point was within the exclusive jurisdiction of the learned Labour Court and also recorded that different date of births were recorded in different documents and therefore, the writ petition was dismissed. The findings of the learned writ Court are as under: -

"Considering the evidence laid by both the parties, findings have been recorded by the Labour Court that the age of the workman as 21 years at the time of appointment is correct and justified. This finding of fact has been recorded on appreciating the rival evidence available on record. It is settled principle of law that in the supervisory jurisdiction, this Court is only supposed to look into the Award, if the same is perverse, meaning thereby, findings recorded is without any evidence or relevant evidence has not been considered or irrelevant evidence has not been considered, which was capable of changing the finding. In the present case, there was rival evidence laid by both the parties. This Court has called for the entire documents from the employer vide order dated 02.07.2019. In pursuance of that order, the entire record has been produced. On the perusal of the different documents i.e. P.D. Form, LTC, Medical Board and other documents, it appears that there is different date of birth in different documents has been recorded.

Reference can be made to the judgment rendered by the Apex Court in the case of Syed Yakoob Vs. K. S. Radhakrishnan and Ors. reported in AIR 1964 SC 477. Para-7 of the judgment is quoted hereinbelow:

"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this

category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque, Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam, and Kaushalya Devi v. Bachittar Singh."

As per the above judgment, the adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding is within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limit jurisdiction conferred to the High Court under Article 226 of the Constitution of India to issue writ of certiorari."

18. The learned writ Court has committed an error of record by observing that findings have been recorded by the Labour Court that the age of the workman as 21 years at the time of appointment is correct and justified, although the learned Labour Court has not recorded any such finding. Rather, the finding of the learned Labour Court is that the onus to prove his date of birth or age at the time of joining was on the workman but he had not produced any authentic documentary evidence on this point. Admittedly, the workman was claiming that his age at the time of entry in service was 21 years and the management was claiming that the age of workman at the time of entry in service was 28 years.

19. The learned Labour Court while recording its finding with regards to the age of the workman at the time of entry has considered only two documents i.e. personal data form (exhibit- M-2) to hold that the cutting in age/date of birth of the workman from '21 years' to '28 years' in the personal data form was done by the workman himself and examination by the doctor at the time of entry (exhibit-w-2) which recorded the age as 21 years, but refused to rely upon the same by holding that it was not a medical report on determination of the age of the workman and so it could not be safely concluded that the doctor had determined the age of the workman as 21 years. The learned Labour Court has failed to consider the interview letter dated 04 th July 1973 (exhibit-M-5) issued to the workman and produced by the management

which recorded the age of the workman as 21 years; attestation form dated 21st July 1973 (exhibit-M-9) produced by the management which recorded the age of the workman as 21 years and also the medical book (exhibit-W-1) produced by the workman and issued by the management showing his date of birth as 28th July 1952 i.e. 21 years at the time of entry in service.

20. Thus, there were at least aforesaid documents on record, two produced by the management which showed that the date of birth/age of the workman at the time of entry in service was recorded as 28th July 1952/21 years and one produced by the workman but issued by the management to support the contention of the workman that at the time of entry in service the date of birth/age of the workman was recorded as 28th July 1952/21 years. Such material documents have not been considered by the learned Labour Court while deciding issue no.(i). Non consideration of such material documents makes the Award perverse.

21. This Court also finds that it is not in dispute that the age of the workman recorded as '21 years' at the time of entry in service was cut and mentioned as '28 years', but the basis for mentioning the age of the workman '28 years' has also not been disclosed by the management. The management has not brought on record any material to show that at any point of time, even at the stage of entry in the service, the workman was ever medically examined to determine his age. Rather, at the time of entry there was medical report wherein the age of the workman was mentioned as 21 years although it is the case of the management that the medical report was not relating to assessment of age.

22. The fact remains that the workman had raised his grievance in relation to dispute regarding his date of birth as back as on 28th January 1997. The management itself acknowledged the application of the workman dated 28th January 1997 disputing his date of birth mentioned in the record but the management has not produced any material to show as to what happened to the dispute which was raised by the workman as back as on 28th January 1997. As per the management the workman was to superannuate on 31st July 2005 and as per the workman he was to superannuate in the year 2012. Even if the date of

retirement is taken as 31st July 2005, it cannot be said that the workman had raised the dispute regarding his date of birth at the fag end of his service. There is no justification from the side of the management to sit over the dispute raised as back as on 28th January 1997. This Court finds that the learned Labour Court while holding that there was no reasonable explanation of the workman as to why he raised the dispute after 24 years of his service, has failed to consider that the workman had raised the dispute much before 31st July 2005 (the date of superannuation of the workman as per management) and there was no justification from the side of the management to sit over the dispute raised as back as on 28th January 1997.

23. Thereafter, the learned Labour Court was not justified in law in deciding the reference against the workman on the ground that the workman had raised the dispute after 24 years from the date of entry in service. Admittedly, different documents of the management itself show different age of the workman but the learned Labour Court failed to consider that the workman being illiterate and the dispute regarding his date of birth having been raised as back as on 28 th January 1997, it was for the management to take steps for determination of the age of the workman. Having not considered aforesaid aspects of the matter, the Award passed by the learned Labour Court becomes perverse and cannot be sustained in the eyes of law.

24. As a cumulative effect of the aforesaid findings, the Award passed by the learned Labour Court cannot be sustained in the eyes of law, firstly, because there was sufficient material before the learned Labour Court to come to a conclusion that the workman was 21 years of age at the time of entry in service and secondly, the management cannot take any advantage of not taking any steps for determination of the age of the workman who raised the dispute as back as on 28 th January 1997. This Court finds that the aforesaid aspects of the matter have not been properly considered by the learned Single Judge while dismissing the writ petition and accordingly, the judgment passed by the learned writ Court calls for interference. Consequently, the Award dated 25th February 2010 / 26th July 2010 impugned in the writ petition as well as the impugned order passed by the learned writ Court are set-

aside and the reference is answered in favour of the workman.

25. The workman is required to be compensated in terms of money for loss of 7 years of service period. While determining the quantum of compensation it has to be kept in mind that the workman has not pointed out any material before the learned writ Court or even before this Court to show that a stand was ever taken that he remained unemployed during the period 31st July 2005 till the year 2012.

26. The pay scale of workman, at the time of entry in service was Rs.200 - 221/- in the post of khalasi and he was working as welder staff on 31st July 2005, the date of his premature retirement.

27. One notification issued by the State of Jharkhand under Minimum Wages Act, 1948 made available is dated 14th August 2015 which indicates that Khalasi comes under semi-skilled category and the monthly minimum wages for semi-skilled employee has been shown to be Rs.5720/- per month. Though this notification is of the year 2015, but it gives some idea to determine the quantum of compensation to be paid to the workman. This Court is of the considered view that compensation calculated roughly taking @ Rs.2,000/- per month for 7 years which comes to Rs.1,68,000/- would be adequate to meet the ends of justice.

28. We accordingly grant compensation to the tune of Rs. 1,68,000/- to the appellant-workman to be paid by the management of Bokaro Steel Plant within 2 months.