JUDGMENT:- Rule. Rule returnable forthwith. Heard finally with the consent of parties. By this petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the judgment and order dated 28-3-2005 rendered in Complaint (ULP) No.171 of 1998, whereby the learned Member of the Industrial Court allowed the complaint and declared that the correct date of birth of the respondent/complainant was 2-4-1944 and not 16-4-1938 recorded in her service book. 2. Facts: The respondent, who was the original complainant, filed a complaint under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act) in the Industrial Court at Amravati vide complaint (ULP) No.171/98 and sought declaration that her date of birth was 2-4-1944 and not 16-4-1938. She further sought the relief that she should not be retired from service as Samajik Van Majoor (Forest Mazdoor) until she completes the normal age of retirement of Mazdoor, i.e. 60 years, taking into consideration her date of birth as 2-4-1944 in place of 16-41938. Along with the complaint, she had also prayed for grant of interim relief and it seems that the same was refused and she was retired from service. 3. The petitioner herein appeared in the Industrial Court and filed written statement and opposed the complaint on the ground that she was estopped from claiming such a relief' as even when the seniority list was published from time to time, her date of birth was shown as 16-4-1938 and she never raised any objection to the said recording of her date of birth. It was also averred in the written statement that her services were regularised in "D" group under order dated 19-10-1996 in accordance with the Government Resolution dated 21-1-1996. The petitioner then opposed the complaint on the ground that such a course of changing the date of birth in the service-book is not available after a period of five years from the date of entry in the service book. 4. The parties went on trial. The respondent examined herself and one witness Ku. Aruna Taywade. Respondent's witness Aruna Taywade proved the school leaving certificate which was marked as Ex.45, copy of relevant extract of register, i.e. of entry No.132 vide Ex.46 and another entry in respect of respondent at Ex.47. 4. The parties went on trial. The respondent examined herself and one witness Ku. Aruna Taywade. Respondent's witness Aruna Taywade proved the school leaving certificate which was marked as Ex.45, copy of relevant extract of register, i.e. of entry No.132 vide Ex.46 and another entry in respect of respondent at Ex.47. The respondent thus proved the certificate showing her date of birth as 2-4-1944. The petitioner also examined two witnesses. The Industrial Court thereafter heard the parties and passed the impugned order. 5. Arguments : Mrs. Jog, learned A.G.P. argued on behalf of the petitioner that the respondent was estopped by conduct from claiming any relief before the Industrial Court since she never objected to the date of birth being shown as 16-4-1938 in the various seniority lists which were published from time to time. She then argued that the Industrial Court erred in throwing the burden on the petitioner as it was the responsibility of the employee to produce the correct documentary evidence 'in relation to her date of birth at the time of making entry in service book. The responsibility of searching out the document for writing the correct date of birth in the service book was not of the Department. She further argued that the relevant rule, namely Rule 38 of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981 and instructions to the said Rule clearly provide that no date of birth can be changed in service-book after a period of five years commencing from the date of entry in the Government service. She then submitted that the respondent had never applied for change of date of birth within the said period of five years and therefore the respondent was not entitled to any relief. She did not dispute that the normal age of retirement of Van Mazdoor is 60 years. 6. Per contra, Mr. S. B. Bangde, learned counsel for the respondent supported the judgment of the Industrial Court. He argued that the service book does not disclose the basis on which her date of birth has been recorded and the respondent being illiterate, could not be expected to submit documentary proof regarding her date of birth when the entry was made in the service book and she was never asked by the petitioner to bring documentary proof, if any. He, therefore, argued that in accordance with sub-rule (2) of Rule 38, the first step while recording the date of birth in service book contemplated is, to call for documentary evidence from the employee before entering the date of birth in the service book and after making the entry, to mention the nature of the document on the basis of which such entry was made. He continued his arguments by submitting that in the instant case it is an admitted position that the Department did not follow the procedure contemplated in sub-rule (2) of Rule 38. He, therefore, prayed for dismissal of the writ petition. 7. Consideration: Sub-rule (2) of Rule 38 reads as under: "While recording the date of birth, the following procedure should be followed: (a) The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on; (b) ...... (c) ...... (d) ...... (e) ...... (f) When once an entry of age or date of birth has been made in a service book no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error:" Instruction to sub-rule (2) of Rule 38 reads as under: (1) Normally, no application for alteration of the entry regarding date of birth as recorded in the service book or service roll of a Government servant should be entertained after a period of five years commencing from the date of his entry in Government service. (2) Subject to (1) above, the correct date of birth of a Government servant may be determined, if he furnishes a proof of age in any of the following forms :- (a) His own statement or that of a parent, guardian, friend or relative; (b) School Leaving Certificate, Secondary School Certificate Examination/Matriculation Certificate or University Certificate; (c) Extract from a birth or baptismal register; (d) Horoscope; (e) Entry in family records or accounts books. From perusal of the above, it is seen that subrule (2) provides for a particular procedure to be followed while entering the date of birth in the service book. From perusal of the above, it is seen that subrule (2) provides for a particular procedure to be followed while entering the date of birth in the service book. Applicability of Instruction (2), in my opinion, would squarely depend upon the fact whether procedure laid down in subrule (2) of Rule 38 has been followed or not. Therefore, the burden to show that the procedure, as required in sub-rule (2) of Rule 38, while entering date of birth in the service book was followed, was on the petitioner. 8. In the instant case, the copy of service book does not show the basis for recording date of birth as 16-4-1938. It does not show that it was recorded on the basis of oral statement of respondent or on the basis of any documentary evidence. In the column of qualification, it is shown that the respondent was 3rd standard pass. If she was 3rd standard pass, in accordance with sub-rule (2) of Rule 38, it was obligatory on the part of the person making entry in the service book to call for School Leaving Certificate as an evidence about her date of birth. There is a failure on the part of the petitioner to comply with the said procedure. It is therefore clear that the service book of the respondent was prepared for the first time in the year 1996 when her services were regularised by the Government. The Industrial Court in paragraph 22 of its judgment has recorded a finding as under: "The witness No.2 of the respondent has specifically admitted in his cross-examination that in 1996, it was informed by the complainant that she was born in 1944 and in spite of it no attempt was made by the department to know the truth. The department did not call upon the complainant to produce any document." In view of this finding, it is clear that the respondent had disclosed that she was born in the year 1944, but the Department never directed her to produce any documentary evidence to that effect. It is thus clear that due to want of care on the part of person making entry, wrong date of birth was entered. Hence under clause (f) it is permissible to effect change. 9. It is thus clear that due to want of care on the part of person making entry, wrong date of birth was entered. Hence under clause (f) it is permissible to effect change. 9. Now coming to the argument about bar of entertaining application for change of date of birth after five years, according to me, the said provision is inserted as an Instruction to sub-rule (2) of Rule 38. That apart, the said instruction does not completely bar entertaining any application for change of date of birth as it begins with the word, "Normally no application .......... should be entertained after a period of five years". (emphasis supplied). Instruction No.(2) permits such correction if the document of the nature shown in clause (a) to (e) are furnished as proof of age. In my opinion, therefore in a situation where the documentary evidence shows the correct date of birth, entry in the service book can be corrected even after five years in deserving cases. 10. In the instant case, the finding of record by the court below is that it is the petitioner who has breached the provision of sub-rule (2) of Rule 38 while recording the date of birth and that too despite knowing the correct date of birth of the petitioner no documentary evidence was insisted for. The petitioner was at fault in not correctly recording the date of birth on the basis of some documentary evidence when it was known that the respondent was in the school up to 3rd standard. Perusal of the extract of service book shows no basis for recording the date of birth as 16-4-1938. The entry in the extract further shows that she was 3rd standard pass and still there was violation on the part of the petitioner to call for documentary evidence, i.e. School leaving certificate before making entry of date of birth in the service book. If there was any breach on the part of the petitioner in recording correct date of birth, the respondent cannot be blamed for the same. At any rate, when the dispute arose about the date of birth, the petitioner ought to have, in accordance with sub-rule (2) of Rule 38, called for all the documentary evidence and verified the relevant entries and determined the correct date of birth. At any rate, when the dispute arose about the date of birth, the petitioner ought to have, in accordance with sub-rule (2) of Rule 38, called for all the documentary evidence and verified the relevant entries and determined the correct date of birth. However, instead of doing that the petitioner straightway retired the respondent from service considering her date of birth as 16-4-1938. Such a haste was wholly unnecessary and as per the order of the Industrial Court now the petitioner is required to pay wages for wrongful act on the part of the petitioner. It is pertinent to note that neither before Industrial Court nor before this Court the genuineness of the document of date of birth which is proved by calling a witness from the school with Original register, is at all in dispute. The document is impeccable. The Industrial Court has therefore rightly directed the petitioner to pay her wages till 30-4-2004. 11. Conclusion: In the result, I find no merit in the present writ petition and the same is dismissed. Petitioner is directed to comply with the order of the Industrial Court within a period of two months from the date of receipt of this order. Upon failure to comply within the stipulated period, petitioner will have to pay interest on the said amount at the rate of 6% per annum. No order as to costs. Petition dismissed.