The Depot Manager, vs M. Rajaiah S/O. Mankaiah
2023 Latest Caselaw 3385 Tel

             HON'BLE SRI JUSTICE J. SREENIVAS RAO

                WRIT PETITION No.40842 OF 2017

ORDER:

APSRTC presently TSRTC filed this writ petition questioning

the impugned Award passed by the Industrial Tribunal at

Warangal in I.D.No.25 of 2012 dated 30.06.2017, which was

published vide G.O.Rt.No.768 dated 25.09.2017.

2. Heard Sri Gaddam Srinivas, learned standing counsel

appearing for the petitioner Corporation, and Sri A.K.Jayaprakash

Rao, learned counsel for respondent No.1/workman.

3. Learned counsel for the petitioner submits that respondent

No.1 was appointed as Driver in the petitioner Corporation on

17.12.1979. At the time of appointment, he declared his date of

birth as 10.04.1954 and also mentioned the very same date of

birth in the nomination forms. Respondent No.1 got certified by

the Assistant Civil Surgeon, Jangaon, on 26.05.1981 that the

information furnished in the attested forms is correct and the

medical officer after conducting medical examination declared that

he is medically fit for employment and in his service record, the

date of birth is mentioned as 10.04.1954. He further submits that

as per clause (1)(a) of Regulation 6 of APSRTC Employee (Service)

Regulations, 1964 (hereinafter called, "Regulation" brevity),

petitioner Corporation issued advance notice vide letter JSR, J W.P.No.40842 of 2017

No.E2/757/(17)/2011-WL-1, dated 01.11.2011, informing

respondent No.1 about his due date of retirement and he

acknowledged for the same and he has not raised any objection

about his date of birth.

3.1. He further submits that respondent No.1 was retired from

service on attaining the age of superannuation on 30.04.2012 and

he received all retirement benefits, such as, gratuity, SBT,

terminal encashment, settlement salary and SRBS amounts from

the petitioner Corporation. Thereafter, respondent No.1 raised a

dispute vide I.D.No.25 of 2012 on the file of the Industrial

Tribunal at Warangal invoking the provisions of Section 2-(A)2 of

the Industrial Disputes Act, 1947 (for short, 'the Act') stating that

that the petitioner Corporation retired him prematurely and his

actual date of birth is 10.09.1954 and sought consequential

direction directing Corporation to treat the period from 01.05.2012

to 30.09.2012 as on duty and to pay full wages and all other

attendant and consequential benefits including retirement benefits

for the said period.

3.2. He further submits that the petitioner Corporation filed

counter before the Industrial Tribunal contending that the dispute

raised by respondent No.1 is not maintainable under law, as he JSR, J W.P.No.40842 of 2017

has not raised any dispute in respect of his date of birth during

his entire service and after retirement, he raised the dispute. He

further contended that the Industrial Tribunal, without properly

considering the contentions raised by the petitioner Corporation

and evidence on record, erroneously passed the impugned Award

directing the petitioner Corporation to pay full wages and all other

attendant and consequential benefits for the period from

01.05.2012 to 30.09.2012 and the same is contrary to law.

4. Per contra, learned counsel for respondent No.1 submits that

the actual date of birth of respondent No.1 was recorded as

10.09.1954 and later it was corrected to 10.04.1954 and the

petitioner Corporation has to retire him from services on

30.09.2012, on the other hand retired him prematurely on

30.04.2012. The Industrial Tribunal after considering the

contentions of respective parties and documentary evidence on

record rightly passed the impugned Award holding that basing on

the medical certificate, the date of birth was recorded as

10.09.1954 and subsequently the said date was altered to

10.04.1954 without any notice to respondent No.1 and without

any basis. Hence, there is no illegality or irregularity in the said

Award.

JSR, J W.P.No.40842 of 2017

5. I have considered the rival submissions made by the

respective parties and perused the impugned Award passed by the

Industrial Tribunal. It is an undisputed fact that respondent No.1

was appointed as Driver in the petitioner Corporation on

17.12.1979. As per the Regulations, the petitioner Corporation

issued advance notice on 01.11.2012 basing upon the date of

birth recorded in service records, informing respondent No.1 that

he is going to be retired from service on attaining the age of

superannuation w.e.f. 30.04.2012 and the same was

acknowledged by respondent No.1. However, he has not raised

any objection or dispute in respect of his date of birth and he

retired from services from the petitioner Corporation on

30.04.2012 and also received all terminal benefits.

6. It is very much relevant to mention here that respondent

No.1 discharged more than three decades and during his entire

service, he has not raised any dispute in respect of his date of

birth. After his retirement and after receiving entire terminal

benefits from the petitioner Corporation raised the dispute

invoking the provisions of the Act before the Industrial Tribunal,

vide I.D.No.25 of 2012 for correction of date of birth. The

Industrial Tribunal, without properly considering the contentions JSR, J W.P.No.40842 of 2017

raised by the petitioner Corporation, passed the impugned Award

stating that under Ex.M.8-medical certificate the date of birth of

respondent No.1 was recorded as 10.09.1954 and subsequently

altered to 10.04.1954, especially without giving any reasons in

respect of the contentions raised by the petitioner Corporation and

without framing any points for consideration including

maintainability of dispute and conduct of respondent No.1.

7. The Hon'ble Apex Court and this Court in catena of

judgments specifically held that the employee is not entitled to

raise dispute in respect of correction of date of birth in service

record or the age dispute at the fag end of service. In the case on

hand, respondent No.1 after his retirement, especially after

receiving the terminal benefits from the petitioner Corporation,

raised the age dispute before the Industrial Tribunal and

consequential reliefs. The Industrial Tribunal, without deciding

the maintainability of the dispute raised by respondent No.1 for

correction of date of birth and other claims after his retirement,

especially after receiving terminal benefits, passed the impugned

Award.

8. In Karnataka Rural Infrastructure Development Limited Vs. JSR, J W.P.No.40842 of 2017

T.P.Nataraja and Ors 1, the Hon'ble Apex Court held that, the employee

is not entitled to the relief of change of date of birth on the ground of

delay and latches as the request for change of date of birth was made

after lapse of 24 years since he joined the service, which reads as follows:

9. Even otherwise and assuming that the reasoning given by the High Court for the sake of convenience is accepted in that case also even respondent No.1 - employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service. At this stage, few decisions of this court on the issue of correction of the date of birth are required to be referred to.

11. Therefore, applying the law laid down by this court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law.

9. In State of Tamil Nadu Vs. T.V. Venugopalan 2, the Hon'ble

Supreme Court held that when 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 the service career to raise a dispute as

regards the correctness of the entries in the service register.

10. This Court in K. Kumaraswamy Vs. Regional Manager, APSRTC

and Others 3 after considering the various judgments of this Court and

1 2021 11 Scale 110 2 1994 6 SCC 302 3 2023 1 ALT 332 JSR, J W.P.No.40842 of 2017

Hon'ble Apex Court specifically held that the petitioner having rendered

more than two decades of service is not entitled to contend that he is not

aware of the actual date of birth entered in the service records.

11. The specific contention of the petitioner Corporation before

the Industrial Tribunal is that respondent No.1 raised the dispute

for correction of date of birth after his retirement, as such, the

same is not maintainable under law, and in support of their

contention they relied upon (9) judgments which are mentioned at

para 21 of the impugned Award. However, the Industrial Tribunal

without giving any reasons how the said judgments are not

applicable to the facts and circumstances of the case simply stated

that the judgments relied upon by the petitioner Corporation are

not applicable to the case. The reasoning given by the Tribunal is

not permissible under law.

12. It is also relevant to mention here that the Hon'ble Supreme

Court as well as this Court in catena of judgments specifically held

that the employee is not entitled to raise age dispute or correction

of date of birth at the fag end of the service by invoking

jurisdiction under Article 32 or under Article 226 of the

Constitution of India and when the said remedy itself is not

available, the employee is not entitled to invoke the jurisdiction JSR, J W.P.No.40842 of 2017

under Section 2-A(2) of the Act. It is already stated supra that

respondent No.1 retired from service on attaining the age of

superannuation on 30.04.2012 and also received all terminal

benefits and thereafter he raised dispute that his actual date of

birth is 10.09.1954, but not 10.04.1954. The Industrial Tribunal

without properly considering the law laid down by the Hon'ble

Apex Court as well as this Court passed the impugned Award and

the same is contrary to the law.

13. In view of the foregoing reasons, the impugned Award passed

by the Industrial Tribunal dated 30.06.2017 is liable to be set

aside and accordingly set aside.

14. Accordingly, the writ petition is allowed. No costs.

Miscellaneous applications, if any pending, shall stand

closed.

______________________ J. SREENIVAS RAO, J

Date:30.10.2023 Note:

L.R. copy to be marked - Yes.

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