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2006 DIGILAW 399 (KAR)

AMCO BATTERIES LTD. v. MARIAPPA

2006-04-20

ANAND BYRAREDDY

body2006
( 1 ) THE Management has filed this petition challenging the Award in favour of the workman setting aside his order of superannuation and directing his reinstatement and conferring all consequential benefits including back wages. ( 2 ) THE facts of the case are :-The workman is said to have joined the petitioner as on 27-1-1963. At that point of time, his age was recorded as twenty in the service record. However, the workman having received a communication from the petitioner, as per letter dated 16-11-1992, that he would be attaining his age of superannuation of 60 years as on 26-1-1993 - he had protested as this was an incorrect computation of his age. In fact, he would have attained his age of superannuation only as on 26-1-2003. Accordingly, a written representation was made by him as per letter dated 4-12-1992. The management did not agree. At his insistence, he was shown his service record and it was then that, according to the workman, he had discovered an obvious tampering of the record. In view of the stand taken by the Management, the workman had filed a civil suit seeking injunctory relief against the Management restraining his termination. The Civil Court had rejected the application. The Management had proceeded to terminate the services of the workman effective from 26-1-1993. It is in this background that the respondent workman had raised an industrial dispute. ( 3 ) THE petitioner had contested the claim. As the declared age of the workman, at the time of joining was stated as 30 and his date of birth 27-1-1933, this is reflected in the service record and in terms of the Standing orders governing the workman - the age as indicated in the service record shall be the final proof of age. ( 4 ) THE First Additional Labour Court, Bangalore (hereinafter referred to as 'the Labour court' for brevity) having adjudicated on the dispute, has placed reliance on three documents namely Ex. Wl which is the ESI card of the workman, which indicated the year of birth of the workman as "1943". Secondly, the Labour Court has relied on a certificate ex. W8 issued by the Regional Director, ESI corporation, to endorse that as per the records of the Corporation the year of birth of the workman was 1943. And Ex. Wl which is the ESI card of the workman, which indicated the year of birth of the workman as "1943". Secondly, the Labour Court has relied on a certificate ex. W8 issued by the Regional Director, ESI corporation, to endorse that as per the records of the Corporation the year of birth of the workman was 1943. And Ex. W9, which is a letter from the Assistant Provident Fund Commissioner, to endorse that the workman's age is indicated as 21 as of December 1963. as per records maintained by the Provident Fund commissioner's office. In the light of these documents, the Labour Court has negated the contentions of the Management and had passed the Award which is impugned in the present petition. ( 5 ) SMT. K. Sribhoomi Yeshswini for M/s. Kasturi Associates for the petitioner contended that the Labour Court has not taken into account the declared age of the workman as reflected in the service record. The Award of the Labour Court has declared the date of birth of the workman, which was without jurisdiction. Even if such jurisdiction, to adjudicate upon and declare the disputed date of birth, was available with Labour Court, any correction at the fag end of the workman's service has been frowned upon by the Supreme Court. ( 6 ) THE positive evidence placed before the court by the Management as to the date of birth of the workman, has been overlooked. It was also not appreciated by the Labour court that there was no alteration to the service record. And that any alleged tampering is not established. That the award of the labour Court is contrary to the certified Standing orders of the petitioner, and the ratio of the judgments of the Supreme Court. ( 7 ) THE counsel relies on the following judgments :-Hindustan Lever Ltd. v. S. M. Jadhav 2001 (I) Lab LJ 1695 : ( AIR 2001 SC 1666 ). The supreme Court, while allowing the appeal of the Management against a judgment of the high Court permitting the correction of the date of birth of the workman in the service record, held that the date of birth ought not to be corrected at the fag end of the workman's service. Burn Standard Co. Ltd. and others v. Dinabandhu Majumdar and another - AIR 1995 SC 1499 also to the same effect as above. Burn Standard Co. Ltd. and others v. Dinabandhu Majumdar and another - AIR 1995 SC 1499 also to the same effect as above. Vishakhapatnam Dock Labour Board v. E. Atchanna and others 1996 (2) Lab LN 85 (SC ). It was held that for the reason the workmen were illiterate and affixed their thumb impression in their service records, was not a tenable reason for subsequent correction at their instance, after a lapse of 25 years. C. H. Narayana v. M/s. Bharat Heavy electricals Ltd.- 1995 Lab LR 497 (Kant ). To reiterate the law that a belated correction of date of birth is not permissible. General Manager, Bharat Coking Coal Ltd. v. Shib Kumar Dushad and others - ( 2001 (1)LLJ 532 : ( AIR 2001 SC 72 ). A claim for correction of date of birth raised after 20 years by a workman resolved by reference to a medical Board that determined the age of the workman and accepted by the Management was challenged. The Supreme Court held that no interference was warranted and that in such cases, the burden of proof is heavy on the employee and can be discharged only by producing acceptable material of a clinching nature. ( 8 ) PER contra, Shri. K. S. Subramanya, appearing for the respondent, would contend that the documents cited by the Labour Court, in finding in favour of the respondent are documents which are counter-signed by the petitioner. There was no occasion for the respondent to raise any dispute about the date of birth and it is only on being appraised of the Management's intention to treat his age as 30 years instead of 20 years at the time of joining service, that a dispute arose. Hence, it is not the case of a unilateral claim for correction of date of birth at the fag end of service. The Labour Court has adjudicated on the dispute and has found as a fact that the date of birth of the workman was 27-1-1943. He relies on the following judgments :-State Bank of India v. N. Sundaramoney 1976 (I) Lab LJ 478 (SC): To contend, termination of service for any reason amounts to retrenchment and it cannot be held that the remedy before the Labour Court was not available. Dadu Nagu Upashe v. Shri Warna Sahakari sakhar Karkhana, Ltd. 1991 II Lab LN 367 (Bom ). Dadu Nagu Upashe v. Shri Warna Sahakari sakhar Karkhana, Ltd. 1991 II Lab LN 367 (Bom ). To support the contention that when an employee disputes the date of birth incorrectly sought to be foisted on the workman -the employer cannot retire the employee without providing an opportunity of hearing to the workman. Binda Prasad Singh v. Presiding Officer, labour Court, Dibrugarh and another - 2003 (3) Lab LJ 544: (2003 Lab IC 849) (Gau ). To support the contention that a dispute with regard to the retirement age would be dispute regarding termination of service and would fall within the scope of Section 2a of the Industrial Disputes Act, 1947. The Rajasthan State Road Transport Corporation and another, etc. etc. v. Krishna Kant etc. etc. 1995 (II) Lab LJ 728 : ( AIR 1995 SC 1715 ): to contend that the jurisdiction of the Civil court is barred in respect of an industrial dispute. ( 9 ) ON these rival contentions, it is to be noted that the dispute was with regard to the age of superannuation adopted by the Management on the basis of the service records. There is no indication in the Award as to the reason that the Service Record ought to have been negated. It is not demonstrated from the record that there was a tampering of the service record. ( 10 ) THE dispute sought to be raised on the management placing the workman on notice of his attaining the age of superannuation was certainly a dispute being raised at the fag end of his service. The burden was on the workman to have established his claim by placing acceptable and clinching material in support thereof. ( 11 ) IN the absence of school records and in the face of the declaration of age at the time of entering service as reflected in the service record, reliance being placed on endorsements issued by statutory authorities who were vouching for entries made in records which would be of a secondary nature in support of the workman's claim, could not be the basis for allowing the claim. ( 12 ) THE Labour Court has embarked on an enquiry and has proceeded to declare the date of birth of the workman. This was clearly without the scope of an industrial dispute and was not capable of being found at a summary enquiry. ( 12 ) THE Labour Court has embarked on an enquiry and has proceeded to declare the date of birth of the workman. This was clearly without the scope of an industrial dispute and was not capable of being found at a summary enquiry. ( 13 ) THE case law would clearly support the appellant. ( 14 ) HENCE, the petition is allowed and the impugned award is quashed. Petition allowed.