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2009 DIGILAW 701 (JHR)

Arjun Prasad Singh v. Indian Iron & Steel Company

2009-05-05

D.K.SINHA

body2009
JUDGMENT This is an application for condonation of delay in filing this appeal, which is time barred by 112 days. Counsel for the appellant explained the delay and submitted that it occurred on account of the fact that the appellant was out of job and could not arrange the fund for filing an appeal. Considering the financial constraint of the appellant and the fact that he was out of service, we take a lenient view of the matter and deem it just and appropriate to condone the delay in filing the appeal. The application is accordingly allowed and disposed of. L.P.A. No.454/2008 This appeal has been preferred against the order dated 21.7.2008 passed by the learned Single Judge in W.P (S) No.636/2006 whereby the writ petition was partly allowed and the respondent nos.1 to 4 were directed toreinstate the petitioner within three weeks from the date of the order, but in the circumstances, it was held that he would not be entitled to the salary for the intervening period, i.e. from 15.11.2007 till the date of his reinstatement (29.8.2008). 2. Admittedly the respondent-company has not preferred any appeal against the order of reinstatement andthus has accepted the case of 2 the appellant that his date of birth was wrongly recorded by the management- company ignoring his Matriculation certificate, wherein his date of birth was recorded as 3.7.1953, which was different from what was recorded in the service book. However, the appellant had also been granted promotion to the post of Clerk in the year 1980, by which time he had already cleared Matriculation examination and therefore, the appellant's date of birth had to be recorded in the service book at least when he was promoted as a Clerk on the basis of the Matriculation certificate, which he had produced. Thereafter, the management passed an order of superannuation of the appellant on the basis of the entry recorded in the service book, which was 15.11.1947, as his age was 24 years on 20.11.1971. Thereafter, the management passed an order of superannuation of the appellant on the basis of the entry recorded in the service book, which was 15.11.1947, as his age was 24 years on 20.11.1971. This gave rise to a dispute between the appellant-employee and the respondent-management, since the appellant filed a writ petition before the learned Single Judge assailing the order of his superannuation, contending therein that his date of birth could not have been recorded on the basis of the entry made in the service book, when he joined in the service as Mazdoor, but his date of birth ought to have been recorded as per his Matriculation certificate and in view of his age mentioned in the Matriculation certificate, he could not have been made to superannuate on 15.11.2007. 3. The learned Single Judge, after hearing the counsel for the parties, was pleased to reinstate thepetitioner-appellant by virtue of the impugned order but was further pleased to deny the back-wages for the period during which he was restrained from discharging duties on the ground of his superannuation as per the date of birth recorded in the service book. The petitioner-appellant, therefore, has preferred this appeal against the impugned order only to the extent by which back-wages has been denied to him. 4. In support of the appeal, counsel for the appellant submitted that once it was held that the petitioner's date of birth was wrongly recorded in the service book as the Matriculation certificate was ignored which was the conclusive proof of his date of birth, he could not have been made to retire earlier on the basis of his date of birth recorded in the service book, but should have been allowed to continue to work till his retirement as per the date of birth recorded in the Matriculation certificate which is of a later date. 5. As already stated, the management has accepted the order passed by the learned Single Judge and has notcontested the question of incorrect entry of the petitioner's date of birth, as no appeal has been filed against the impugned order. Therefore, the only question which remains to be addressed in this appeal is whether the appellant could be denied back- wages for the period during which he was compelled to remain out of service. Therefore, the only question which remains to be addressed in this appeal is whether the appellant could be denied back- wages for the period during which he was compelled to remain out of service. Counsel for the appellant submitted that there is absolutely no justification to deny back-wages to the appellant, nor the learned Single Judge has assigned any reason to deny the same. 6. Counsel for the respondent-company, however, submitted that although back-wages may be granted in theevent of reinstatement, the same cannot be permitted to be automatic in all cases and he tried to draw the attention of this Court towards the ratio decided in the case of U.P.S.R.T.C Vs. Mitthu Singh reported in (2006) 7 SCC 180 , wherein the Apex Court had held that while granting back-wages, the conduct, antecedents, good conscience and all other factors have to be taken into consideration. It is, no doubt, true that the position is well-settled in regard to the claim of back- wages, which cannot be granted automatically in the event of reinstatement and bearing this ratio in mind, we have examined the case of the appellant- employee and while doing so, we have noticed that the employee in the instant matter cannot be denied back-wages as there is nothing on his part, 4 which could raise a question-mark on his conduct, to remain out of service in order to derive dual income from other sources, since we have noticed that there have been cases, especially in labour matters, where an employee/workman remains out of service for a long period and without adducing any evidence with regard to his gainful employment elsewhere and even suppressing the fact of his gainful employment elsewhere, claims back- wages. There is also a large number of cases where the employee remains out of service and creates artificial documents claiming back-wages in order to gain dual benefit on the plea that he was out of service and was not in gainful employment anywhere. But there is no such material available in the instant matter, more so, when the period during which the appellant was out of service is approximately one year and during this period, the appellant was essentially contesting the matter in regard to the dispute of his incorrect entry of his date of birth entered in the service book by the respondent- management. 7. 7. On the contrary, we have found that the conduct of the respondent-management has not been just andproper, for when the management itself promoted the appellant from the post of Mazdoor to the post of a Clerk, the minimum educational qualification for the post of Clerk was Matriculation certificate, which was produced and thereafter it was expected of the management to rectify the mistake and enter the correct date of birth in the service book of the appellant and in case, it had any reason to question the same, then the dispute ought to have been resolved by entering into an enquiry or by issuing a show cause notice to the appellant. As the management accepted the date of birth of the appellant which was recorded in his Matriculation certificate, it was not expected of the management to suddenly saddle the employee with an order of superannuation ignoring the conclusive document in regard to his date of birth, which was in the form of a Matriculation certificate. 8. We are equally aware that whenever an employee approaches the Court for rectification of his date of birth most of the time, the plea is rejected on the ground that the plea of rectification of the date of birth is merely raised as a ruse to get over or deferment of the order of his superannuation which is mostly denied by the Courts. Applying the same analogy, it is difficult to overlook that if the employee is precluded from raising the question of rectification of his date of birth at the fag end of his service, why the same reason should not be made applicable even on the management, due to which it cannot be permitted to raise the issue of the date of birth of an employee by issuing an order of superannuation suddenly one fine morning. If the employee is precluded from raising the question of rectification of the date of birth at the fag end of his service prior to superannuation, it is also expected of the management to raise the issue of superannuation contrary to the conclusive document, well in advance of the date of superannuation. 9. If the employee is precluded from raising the question of rectification of the date of birth at the fag end of his service prior to superannuation, it is also expected of the management to raise the issue of superannuation contrary to the conclusive document, well in advance of the date of superannuation. 9. In the instant matter, we have noticed that the management has not examined the matter of premature superannuation of the appellant in spite of his date of birth recorded in the Matriculation certificate and thus, the appellant has unnecessarily suffered on account of the arbitrariness on the part of the management. Hence, for this additional reason too, we find no justification as to why the appellant should be denied back-wages for the period during which he was out of service. Consequently, the appeal is fit to be allowed and is accordingly allowed, but without any order as to costs.