STEEL AUTHORITY OF INDIA v. INDUSTRIAL COURT — 1986 DIGILAW 78 (MP)

JUDGMENT : ( 1. ) THE petitioner has filed this petition under Articles 226 and 227 of the Constitution of India, in the manner of M. P. Industrial Relations Act, 1960 with a prayer to quash the impugned orders dated 10-9-1982 (Annexure K) passed by the labour Court, Durg and the impugned order dated 20-5-1983 (Annexure L) passed by the Industrial Court, Indore. ( 2. ) THE facts giving rise to this petition may be stated in brief, thus : The respondent No. 3 Sadanand Rath was originally appointed as a Fitter in the Bhilai Steel plant with effect from 31-12-1958 and was working as Auxiliary Attendant on the operation side of Power and Blowing Station, Bhilai Steel Plant, Bhilai at the time of his retirement from service. At the time of his initial appointment in service the respondent no. 3 had declared his date of birth as 18-3-1924 and entries to that effect were made in the Service Roll of respondent No. 3, which have been duly signed by him as per Annexure A. ( 3. ) IN the year 1963, when the respondent No. 3 submitted his application for admission to the contributory provident fund, he stated the date of his birth in the said application as 25-3-1924 and in the declaration and nomination form, which is also to be submitted as required by the Rules of the provident fund, the respondent No. 3 gave his date of birth as 25-3-1924 as per Annexure-B. Accordingly in the initial records maintained by the petitioner, in the service roll of respondent No. 3 his date of birth was duly recorded as 18-3-1924. ( 4. ) THE services of the employees in the Bhilai Steel Plant are regulated by the standing Orders (Plant) which are duly certified under the Industri Employment (Standing Orders) Act, 1946. Standing Order No. 39, which provides for the age of retirement reads as follows : "39. Age of Compulsory Retirement - Age of retirement shall be 58 years, provided that in exceptional cases extension not exceeding one year at a time may be granted at the discretion of the management. " Thus, according to the petitioner, as per the Standing Order, respondent No. 3 was to reach the age of superannuation on 17-3-1982 on the basis of his date of birth viz. " Thus, according to the petitioner, as per the Standing Order, respondent No. 3 was to reach the age of superannuation on 17-3-1982 on the basis of his date of birth viz. 18-3-1924 as recorded in his Service Roll and he was due to retire on 31-3-1982, which was the last date of the month in which he would have attained the age of 58 years. ( 5. ) HOWEVER, according to the petitioner, to forestall his retirement in accordance with the date of birth given by him in the Service Roll, the respondent No. 3 on 21-7-1980 made an application to the Management to have the date of birth corrected as 25-3-1928 on the ground that the date of birth furnished by him earlier was not correct. No certificate from the school was enclosed in support of the said application which was, therefore, rejected by the Management by its order dated 4-8-1980 on the ground that the date of birth as recorded in the service book could not be changed at that stage as per Annexure-D. ( 6. ) THEREAFTER, respondent No. 3 submitted another application for correction of his date of birth as 25-3-1928 and in support of this he submitted a translated copy of a transfer certificate from the Balbhadrapur Lower Primary School dated 2-1-1937 in which the date of birth recorded was shown as 25-3-1928. This application was also rejected by the Management on the ground that no request for change of birth could be entertained within five years of the date of retirement. This rejection was communicated to the respondent by letter dated 6-11-1980 as per Annexure-E according to the petitioner this rejection was in conformity with the guidelines issued by the Management by its Circular No. SPO/mr-8/10) 68 dated 2-8-1974, which provides inter alia that no change in the date of birth should be allowed if such a request is made within five years of the date of retirement for any reason whatsoever as per annexure-F. Accordingly, vide Annexure-G dated 21st September, 1981 the respondent No. 3 was given advance intimation that he was due to retire on superannuation with effect from 31-3-1982 as he would be reaching the age of superannuation on 17-3-1982. Accordingly the retirement order was issued, vide Annexure-H dated 4th March 1982. ( 7. Accordingly the retirement order was issued, vide Annexure-H dated 4th March 1982. ( 7. ) THEREAFTER respondent No. 3 filed an application before the Labour Court, Durg on 18-3-1982 under section 62 read with section 61 (1) (a) of the M. P. Industrial relations Act with a prayer that the petitioner be directed to correct the date of birth as 2-3-1928 and also with a further prayer for withdrawal of the retirement order annexures G and H referred to above, on the ground that they are illegal and improper. The petitioner contested the said application. ( 8. ) THE Labour Court, Durg vide its order dated 10-9-1982 (Annexure-K) allowed the application by holding that the date of birth of respondent No. 3 being 2-3-28 his retirement with effect from 31-3-82 was illegal. Consequently the petitioner was directed to reinstate him after paying all arrears of salary etc. Against the Labour Court the petitioner went in appeal before the Industrial Court, which by its order dated 20th may, 1983 (annexure-L) dismissed the same by maintaining the order of the Labour court. Hence this petition. ( 9. ) THE respondent No. 3 has contested the said petition. According to him the standing order does not restrict or prescribe the time limit for correction of date of birth. Further according to the said respondent he furnished the necessary evidence regarding the correct date of birth. Therefore, according to him the Labour Court, as also the industrial Court having rightly exercised their jurisdiction the petition deserves to be dismissed. ( 10. ) THE learned counsel for the petitioner submitted that respondent No. 3 did not file any documents about his date of birth when he joined service and in the Service book his date of birth has been correctly recorded as per Annexure-A which bears his signature. He further submitted that the Labour Court could not decide the question of age and a new contract could not be forced upon the employer in this manner and in support of his submission he placed relance on a Division Bench decision of this Court in Hariram Soni v. The General Manager, Bhilai Steel Plant Ltd. and others (JBP) (M. P. No. 377 of 1980 decided on 26-9-1980.) as also another order dated 7-1-1985 passed in krishna Bihari v. Union of India and others (M. P. No. 1670 of 1983 decided on 7-1-1985 ). in which similar question was involved. In addition he also placed reliance on the decisions Bathul Gabriel v. Dist. Manager, A. P. S. R. T. C. Kurnool 1982 Labour and industrial Cases 297 and 1983 Labour and Industrial Cases, 162 wherein also such question of retirement of an employee on superannuation on the basis of his date of birth recorded in his service book was considered. ( 11. ) THE learned counsel for the petitioner further contended that the Labour court or the Industrial Court could not decide the question of age of an employee nor a new contract of employment thus could be forced upon the employer. The learned counsel for the petitioner also submitted that the provisions of SS. 61 and 62 of the M. P. Industrial Relations Act, 1960 are not attracted and consequently under S. 31 (3) of the said Act Labour Court did not acquire any jurisdiction to decide that question. The learned counsel for the petitioner further submitted that the respondent No. 3 at the time of entering into service having given his date of birth as 18-3-1924 coupled with the fact that Annexures A and B bear his signature, though in Annexure-B he has shown his date of birth to be 25-3-1924, there was no reason for the Labour Court to assume that this date of birth was wrongly recorded in the service book of the petitioner when he entered service. The learned counsel for the petitioner further submitted that the circular dated 2-8-1974 (Annexure-G) clearly provides that no application for correction of age would be entertained if made within 5 years from the date of superannuation. Therefore, in face of the said Circular no order for correction of the date of birth could be given especially when the request for such a change was made within 5 years from the date of superannuation. He further submitted that the learned industrial Court has committed an error in holding that the Circular Annexure-F could not be relied upon in absence of a provision to that effect in the Standing Order of the petitioners plant as he submitted that there is nothing inconsistent with the said Circular in the Standing Orders and, therefore, the said Circular can still be given effect to. ( 12. ( 12. ) THE learned counsel for the petitioner further submitted that admittedly initially the respondent No. 3 did not produce any school certificate or register showing his correct date of birth, but produced the same for the first time before the Labourt court which could not be said to be reliable and was also not duly proved. He, therefore, submitted that the Labour Court as also the Industrial Court have committed an error in assuming that the correct date of birth of respondent No. 3 was 2-3-1928 especially when even regarding the date of birth is no uniformity because in Annexure-A his date of birth is shown as 18-3-1924, whereas in Annexure-B he has shown it to be 25-3-1924. In transfer certificate from B. B. High School Dhenkanal it is shown as 2-3-1928 whereas in the transfer certificate from the Lower Primary School, Balbhadrapur it is shown as 25-3-1928. Thus, there is inconsistency in all these dates and, therefore, the Labour Court as also the Industrial Court has committed an error in holding that the correct date of birth of respondent No. 3 is 2-3-1928 by giving him the benefit as was given to one Mr. K. C. Malik, whose case was quite different. He, therefore, submitted that the impugned orders passed by the Labourt Court dated 10-9-82 (Annexure-K) and one passed by the industrial Court dated 20-5-1983 (Annexure-L) deserve to be quashed and set aside. ( 13. ) ON the other hand the learned counsel for respondent No. 3 submitted that in annexure-A and B he had only put in his signatures, but had himself not written the date of birth to be 18-3-1924 or 25-3-1924. But according to him as these two dates were contradictory, that is why he submitted an application on 21-7-80 for correcting the date of birth as 25-3-1928. The learned counsel, therefore, submitted that the Standing Order does not restrict or prescribe time limit for correction of such date of birth and in absence of any specific provision having been made in the Standing Order, the circular issued having no statutory force is not binding upon the said respondent. ( 14. The learned counsel, therefore, submitted that the Standing Order does not restrict or prescribe time limit for correction of such date of birth and in absence of any specific provision having been made in the Standing Order, the circular issued having no statutory force is not binding upon the said respondent. ( 14. ) AS regards the jurisdiction of the Labourt Court he submitted that under section 61 (1) (a) of the said Act the Labour Court could decide and deal the matter of employment and, therefore, as the date of birth related to the question of employment it had all the jurisdiction to decide the matter. In short, the contention of respondent No. 3 has been that before attaining the age of superannuation he could at any point of time file such an application to prove his correct date of birth. He, therefore, submitted to the provisions of section 31 (3) of the said Act, as the matter was covered by Schedule-2, in absence of any change having been desired by a representative of employees, the circular on which the petitioner has placed reliance was not binding on the said respondent, though the learned counsel for the petitioner submitted that the provisions of this section nowhere contemplate that after the age of the employee has been admitted on the basis of the contract of service so far as issuance of a circular is concerned, it should be in the form of a standing order which could be said to be binding on the employee. ( 15. ) THUS, after hearing the learned counsel and after going through the decisions cited, I am of opinion that this petition deserves to be allowed. It is difficult to agree with the submission made by the learned counsel for the respondent that an employee who enters into the contract of service can at any point of time or even at the fag end of his service submit such an application that his date of birth recorded in the service book, which bears his signature, was wrongly recorded. It is also somewhat unnatural that an employee would not know his correct date of birth and would after a long lapse of several years would all of a sudden come to know what is his correct date of birth and that the one recorded when he entered into service was wrongly recorded. It is also somewhat unnatural that an employee would not know his correct date of birth and would after a long lapse of several years would all of a sudden come to know what is his correct date of birth and that the one recorded when he entered into service was wrongly recorded. In the present case admittedly the age of superannuation in the case of respondent No. 3 was 58 years and according to the date of birth recorded in the service book he was actually retired on attaining the age of superannuation on 17-3-1982 and it is for the first time that respondent No. 3 filed such an application for correction of his date of birth as late as in 1980. If employees are allowed to challenge their date of birth in such a manner at any point of time at their whim it would amount to an interference in the terms of the contract of service and, therefore, the circular issued by the petitioner-Company for a change in the correct date of birth in case it was recorded wrongly, fixing a definite period, appears to be quite reasonable and in the interest of all, so that on that basis the petitioner can pass necessary orders of retirement on attaining the age of superannuation, which in the present case is admittedly 58 years. ( 16. ) IN the result this petition succeeds and is allowed with no order as to costs. The impugned orders passed by the Labourt Court (Annexure-K) and the order dated 20-5-1983 passed by the Industrial Court (Annexure-L) are set aside and quashed. The amount of security deposit, if any, on verification be returned to the petitioner. Petition allowed.