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2004 DIGILAW 24 (JHR)

Management Of D. v. C. VS Dwarika Mistry

2004-01-07

AMARESHWAR SAHAY

body2004
JUDGMENT Amareshwar Sahay, J. 1. In the present writ application the petitioner i.e. the Management of Damodar Valley Corporation, has challenged the award of the Presiding Officer Labour Court, Dhanbad dated 6.4.1996 in Reference Case No. 15 of 1994 whereby the learned Labour Court held that the age declared by the concerned workman at the time of entry into the service of corporation had not been properly recorded and he has been retired from service with effect from 28.2.1991 i.e. 8 years before attaining the age of superannuation. It was further held that premature retirement amounted to "retrenchment" within the meaning of Section 2(00) of the Industrial Dispute Act, 1947 and since there has been no compliance of the mandatory requirement of law contained in Section 25(F) of the Industrial Disputes Act, 1947, Therefore, the order of retirement is bad in the eye of law and accordingly, the management was directed to reinstate him in service with full back wages and other consequential benefits. 2. The case of the petitioner is that the Respondent No. 1 was appointed as Technician Grade-II and just six days prior of his retirement i.e. on 22.2.1991 he raised Industrial Dispute that his date of birth in the Service Book, Descriptive Roll and Medical Certificate mentioning his date of birth to be 17.2.1933 recorded and he demanded correction of his date of birth six days prior to his retirement and requested that the date 17.2.1933 should be corrected and changed to 23.12.1940. At the instance of the respondent No. 1 the State of Bihar referred the following dispute for adjudication :-- "Whether to retire Shri Dwarika Mistry. Technician, Grade-II(Carpenter) MM & EW Division, Damodar Valley Corporation from 28.2.1992 is proper ? If not what reliefs Shri Mistry is entitled ?" 3. According to the petitioner, the concerned workman right from the date of his appointment till the date of his retirement he did not submit any school leaving certificate or even a chit of paper regarding his date of birth. Therefore, he was examined medically and his age was assessed and his date of birth was entered in the Descriptive Roll as 17.2.1933 and said date of birth on 17.2.1933 was accepted by the concerned workman who made his initial on it which is annexed as Annexure-3 to the writ application. Therefore, he was examined medically and his age was assessed and his date of birth was entered in the Descriptive Roll as 17.2.1933 and said date of birth on 17.2.1933 was accepted by the concerned workman who made his initial on it which is annexed as Annexure-3 to the writ application. The further case of the writ petitioner is that even on 6.8.1976 the respondent No. 1 was again examined by a Medical Board and his age was assessed as 43 years which was duly signed by him confirming the fact that he was born in 1933. The document, which was marked as Ext M-3 before the Labour Court, has been annexed as Annexure-9 to the present writ application. The further case of the writ petitioner is that the learned Labour Court failed to consider the Ext. M-3 i.e. Annexure-9 and therefore, the award in question suffers from total non-consideration of Ext. M-3 which was a conclusive proof of age and dale of birth of the respondent No. 1. II is stated by the learned counsel for the petitioner that the learned Labour Court ought to have held that the concerned workman cannot be allowed to raise industrial dispute regarding correction of his date of birth at the fag end of his career and further that in view of the Ext. M-3 which shows that the date of birth of the concerned respondent was recorded after he was medically examined and he put his signature and therefore, the concerned workman was not entitled to any relief. 4. On the other hand Mr. V.R Singh learned Senior Counsel for the respondent No. 1 relying on the decision in the case of Calcutta Port Shramik Union v. The Calcutta River Transport Association and Ors. reported in AIR 1988 SC 2168 , has argued regarding the scope of writ application against the award of the Labour Court and he has further argued that the findings of fact arrived at by the Labour Court should not disturb by this Court in exercise of its writ jurisdiction. 5. I have carefully gone through the impugned award passed by the Labour Court and I find the submissions made by the learned counsel for the petitioner that the important document which was marked as Ext. M-3 has not been at all considered by the Labour Court which had the direct bearing on the issues in question. 6. 5. I have carefully gone through the impugned award passed by the Labour Court and I find the submissions made by the learned counsel for the petitioner that the important document which was marked as Ext. M-3 has not been at all considered by the Labour Court which had the direct bearing on the issues in question. 6. From perusal of Annexure-9 it appears that the concerned workman i.e. respondent No. 1 was medically examined on 6.8.1976 and his date of birth was assessed to be 43 years and in the said report the concerned workman i.e. respondent No. 1 has put his signature without any objection, meaning thereby that he accepted the report but it appears that he never raised any objection against the such assessment of his age as assessed by the Medical Board and therefore, relying on the decision in the case of Hindustan Lever Ltd. v. S.M. Jadhav and Anr. reported in AIR 2001 SC 1666 , in my opinion, the concerned workman could not have been allowed to raise the Industrial dispute regarding wrong recording of his date of birth at the fag end of his career just six days prior to his retirement i.e. on 22.2.1991. It is also important it to note that he was knowing that his date of birth has already been assessed by the Medical Board to be 43 years as far back as 6.8.1976 but he never raised any objection to that. 1 further find that Annexure-9 i.e. Ext. M-3 is a document regarding, the age of the respondent No. 1 to be of 43 years clearly demolishes the case of the concerned workman and therefore, finding of the Labour is held to be perverse due to non-consideration of Ext. M-3. 7. So far the case law cited on behalf of the concerned workman i.e. in the case of Calcutta Port Shramik Union (supra) is concerned, from the aforesaid decision it appears that the Supreme Court has held lhat the findings of the Labour Court should not be upset on higher technical ground but in the case in hand the findings of the labour Court is not being upset on any technical ground but on consideration of the materials on record and because the findings of the Labour Court has been found to be perverse due to non-consideration of Ext. M-3. 8. M-3. 8. In view of my discussions and findings above. I hold that the learned Labour Court has committed error in passing the award In favour of the concerned workman and directing the Management to reinstate him in service with full back wages with consequential benefits, 9. In the result this writ application is allowed the award passed by the Labour Court. Dhanbad in Ref. Case No. 15/1994 is set aside, However, in the facts and circumstances of the case, there shall be no order as to costs.