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2001 DIGILAW 33 (CAL)

E. C. L. v. Madhusudan Ram

2001-01-19

ASHIM KUMAR BANERJEE

body2001
Judgment 1. The apex Court while drawing an analogy of Section 35 of the Evidence Act in the case reported in (I) AIR 1986SC 1794, was of the view that with regard to the correction of age sufficient contemporaneous documents from the public, record should be the guiding factor. The apex Court in the case reported in (2) 1993 (1) S.CC page 162, was of the view that the application for correction of date of birth entered in the service book in 1956, for the first time made in September 1991 was hopelessly belated as it had not been even within, the five years period from the date of coming into force the relevant circular. This inaction of all these period of about 35 years from the date of joining service, therefore, precludes anyone from showing that entry of his date of birth in service record was not correct. 2. In this case, the respondent-workman raised a dispute with regard to correction of his age, the company referred the matter to the Age Assessment Committee for ascertaining of his correct age as this workman could not produce any authenticated document in support of 'his claim with regard to his date of birth. Such Assessment Committee assessed the age of the respondent-workman and granted him two years benefit. The workman was scheduled to retire in the year 1980 as per record of the company after the assessment was done by the said Committee, the workman got benefit of two years and was superannuated in the year 1982. The respondent-workman availed of all pecuniary benefits resulting in such superannuation. After receiving all such benefits the workman raised a dispute with regard to his date of birth which ultimately resulted• in an industrial dispute. The Tribunal upon appreciation of the rival pleadings and contentions passed an award directing reassessment of the age of the respondent-workman by the Apex Medical Board, the company challenged the same by way of this writ. 3. Mr. The Tribunal upon appreciation of the rival pleadings and contentions passed an award directing reassessment of the age of the respondent-workman by the Apex Medical Board, the company challenged the same by way of this writ. 3. Mr. Majumdar, appearing for the company submits that since the respondent-workman got his age corrected in terms of the report of the Age Assessment Committee and thereby took the benefit of two years of additional service and since the workman after superannuation in the year 1982 got his all pecuniary benefits in full and final settlement of his claim, he is precluded from raising any further issue and the Tribunal should have rejected the c1aimof the workman on the said ground., 4. Mr. Majumdar has also contended that the dispute which was referred to the Tribunal was whether the superannuation of the respondent workman in 1982 was justified or not, instead of answering that the Tribunal has referred the matter to the medical board for assessment. Relying on Supreme Court decision reported in (3) AIR 1967 SC 469 , Mr. Majumdar has contended that the Tribunal has exceeded its power while directing the assessment of age. 5. It appears from the award that the respondent-workman contended before the Tribunal that there was no assessment at all by the Reassessment Committee, he appeared before the said Committee where he did not find any Medical Officer. It was further contended by the respondent workman that the result of such assessment was never communicated to him. According to Mr. Majumdar, even if the assessment was done wrongly and even if the same was not communicated to the respondent-workman, the respondent-workman took the benefit of such assessment without raising any objection thereto. Hence, he is debarred from raising the said issue. I find substance in the contention of Mr. Majumdar in this regard. There has been no attempt on the part of the respondent-workman for correction of his are after the correction of his age through the Reassessment Committee. There was no follow lip on the part of the workman, instead the workman acted upon the decision of the said Committee by availing additional two years of service. Subsequent objection after superannuation is not permitted in view of the apex: Court decision as discussed by me hereinbefore. There was no follow lip on the part of the workman, instead the workman acted upon the decision of the said Committee by availing additional two years of service. Subsequent objection after superannuation is not permitted in view of the apex: Court decision as discussed by me hereinbefore. In any event, the doctrine of estoppel also precludes the respondent-workman to reagitate the issue which had already been decided and had been acted upon by the parties. 6. With regard to the second contention of Mr. Majumdar, I feel that since the question which was raised before the Tribunal about the justification of the superannuation, the said issue cannot be answered by the Tribunal without the reassessment of age in case the Tribunal is of the opinion that there has been no assessment. The Tribunal did not have the expertise of assessment of age and as such, is entitled to take the benefit of .expertise as is often done by the Court of law. However, since I am with Mr. Majumdar on the other question, this becomes academic. 7. In the result, the writ petition succeeds. The award dated April 30, 1991 is set aside. Rule nisi issued by this Court on May 12, 1992 is made absolute. Despite service, none appears on behalf of the respondents. The original notice showing the receipt of the copy of writ petition by the respondents be kept on record. S. K. G.