Management Committee vs Paradip Port Workers Union And
2023 Latest Caselaw 1610 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                               WP(C) No.14256 of 2021

      Management Committee, CFH                       ....                      Petitioner
      Scheme, Paradip Port
                                           -versus-
      Paradip Port Workers Union and                  ....              Opposite Parties
      another

      Advocates appeared in this case :

      For Petitioner :              Mr. Anand Prakash Das, Advocate
                                    Mr. P. Panda, Advocate

      For Opposite Parties : Ms. Sujata Jena, Advocate



      CORAM:
      JUSTICE ARINDAM SINHA
      JUSTICE SANJAY KUMAR MISHRA

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                      Date of hearing and Judgment 21.02.2023
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ARINDAM SINHA, J.

1. Petitioner is the management. It has challenged award dated 18th

December, 2020, by which there was finding that date of birth of opposite

party no.2 (workman) is 28th August, 1958.

2. Mr. Panda, led by Mr. Das, learned advocates appear on behalf of

petitioner. Mr. Panda submits, annexure-1 series were documents exhibited

before the Central Government Industrial Tribunal-cum-Labour Court. He

draws attention to affidavit sworn by said opposite party on 2nd June, 1994,

wherein by paragraph 2 he said that his actual date of birth is 28th August,

1958 and he had no other document in support of his date of birth except the

affidavit. He clarifies, this was when the management had formed a sub-

committee and was looking into the age of the mazdoors employed, under the

scheme formulated pursuant to directions made by the Supreme Court. The

committee found several reasons to doubt said opposite party's claim to have

been born on 28th August, 1958. In year, 1994 wife of said opposite party

was said to be 30 years, when his first son was already 16 years old. In the

circumstances, marriage age was doubtful leading to hundred percent doubt

regarding age of the workman. Accordingly, the workman was asked to

appear before the committee. The workman admitted to have been born two

years prior to his claimed date of birth. Hence, the application form for

registration of workers, carrying particulars of opposite party workman, were

altered in respect of his date of birth and present age. In acknowledgment of

the alterations, the workman put his signature and also endorsed the date as

8th August, 1994. In those facts, the Tribunal could not have come to any

other finding. It having done so, the finding was not based on relevant

evidence and, therefore, perverse.

3. Mr. Das takes over and relies on judgment dated 21st September,

2021 of the Supreme Court in, inter alia, Civil Appeal no.5720 of 2021

(Karnataka Rural Infrastructure Development Limited vs. T.P. Nataraja

and others), paragraphs 9 series and 10. He submits, clear declaration of law

is that even if there is cogent evidence, same cannot be claimed as matter of

right and claim can be rejected on ground of delay and laches. There was

gross delay in the workman having claimed and thereby raise dispute

regarding his recorded date of birth.

4. Ms. Jena, learned advocate appears on behalf of the workman. She

submits, her client had pointed out the discrepancy in year, 2007, seven years

before her client was to achieve age of superannuation, reckoned on

purportedly corrected date of birth. The workman, duly obtained his school

leaving certificate, in which there was clear record of his date of birth as 28th

of August, 1958. This was documentary evidence before the Tribunal. The

management though filed written statement but did not thereafter contest. The

documentary evidence, produced by her client was, therefore, not even

attempted to be impeached at trial. In the circumstances, finding of the

Tribunal was based on relevant evidence. There should not be interference.

5. Question for consideration before this Court is whether the workman

having consented to the alteration year, 1994, same would be better evidence

than documentary evidence of his school leaving certificate. Facts are that the

management upon having filed its written statement did not contest the

proceeding in the Tribunal. We reproduce a sentence from paragraph 13 in

the written statement.

"13. xxx xxx xxx. It is clearly understood that the workman in the subsequent stage has managed to obtain the SLC by illegal manner and have submitted same to claim undue benefit and hence the same may kindly be rejected."

(emphasis supplied) It is clear, there was no allegation in the written statement to effect that the

school leaving certificate was either forged, fabricated or manufactured. The

manner of having obtained it was said to be illegal.

6. In this case we have not been able to find establishment of fact that the

workman was born on 28th August, 1956. The workman had initially asserted

his date of birth as 28th August, 1958. Subsequently, he put his signature on

the corrections made in initial record of his date of birth. The corrections,

accompanied by signature and date put by the workman may at best amount

to an admission on his part that he was born on 28th August, 1956. This

admission cannot stand in face of the documentary evidence, borne out by the

school leaving certificate. School leaving certificate is one of the proofs of

date of birth. Furthermore, admissions can be explained. Section 31 in Indian

Evidence Act, 1872 says admissions are not conclusive proof but may

operate as estoppel under the provisions thereafter contained. The estoppel

provisions are those in sections 115 to 117. Section 115 is not applicable to

the workman as it is case of the management that he put his signature and

date against the corrections, when confronted by the committee on doubts

raised by it. The act of the workman cannot be said to have been in pursuance

of his intention to cause the management to believe he was born on 28th

August, 1956. The management already had that belief and made the

workman acknowledge it. Sections 116 and 117 do not apply to the

workman.

7. T.P. Nataraja (supra) is not applicable to this case. This is because the

workman had not belatedly claimed correction of age recorded at the time of

entry into service. There was originally recorded his date of birth as 28th

August, 1958. Subsequently, same was corrected. He assailed the correction,

presumably upon obtaining his school leaving certificate. This he did before

seven years of his retirement reckoned on corrected age and nine years,

reckoning his originally recorded age. It is the management, which made the

correction and the workman raised dispute against it. Impugned award is

dated 18th December, 2020. Though judgment in T. P. Nataraja (supra) was

delivered on 21st September, 2021, earlier judgments of the Supreme Court

relied upon therein were delivered long before as reported in years, 1994,

2011, 2016 and 2020 [Bharat Coking Coal Limited v. Shyam Kishore

Singh, decided on 5th February, 2020 and reported in (2020) 3 SCC 411]. It

follows, ground of delay and laches was available to the management, for it

to have challenged the order of reference. It did not do so and also chose not

to contest at trial. Impugned award is accordingly silent on the contention,

not raised in the Tribunal.

8. For reasons aforesaid, we find the writ petition to be without merit. It is

dismissed. Interim order stands vacated.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge

Prasant Sahoo