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2010 DIGILAW 889 (MP)

Bheru Lal v. Grasim Industries Limited, Birlagram

2010-09-01

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2010
ORDER Shantanu Kemkar, J. -- 1. The petitioner has filed writ petition under Article 227 of the Constitution of India challenging the order dated 8.3.2010 (Annexure P-2) passed by the President, Industrial Court of Madhya Pradesh, Indore in Civil Appeal No. 151 of2009, by which the respondent's appeal has been allowed and the order dated 15.7.2009 passed by Labour Court, Ujjain in Case No. 185 of200 1 (Labour) has been set aside. 2. Briefly stated, the petitioner was working as an employee in the Maintenance Department of the respondent Grasim Industries Limited, Nagda. On attaining the age of superannuation he was retired by the respondent vide order dated 23.3.2001 w.e.f. 30.6.2001. 3. According to the petitioner, prior to his retirement he had submitted an application dated 16.8.2000 before the respondent seeking correction of his date of birth so as to make it 9.3.1953 in place of the date of birth (year) declared by him as 1943. The said prayer made by the petitioner was rejected by the respondent (employer) vide order dated 4.9.2000. 4. Aggrieved by the order of his retirement w.e.f. 30.6.2001, the petitioner approached to the Labour Court by filing an application under section 31 (3) of the M.P. Industrial Relations Act, 1960 (for short the Act of 1960). The Labour Court after giving opportunity of filing reply to the respondent and after recording evidence led by the parties vide order dated 15.7.2009 allowed the petitioner's application, set aside the order of his retirement, and directed the respondent to continue the petitioner in service till 8.3.2011 treating his date of birth to be 9.3.1953. 5. Aggrieved by the aforesaid order dated 15.7.2009 passed by the Labour Court, the respondent (employer) filed an appeal under section 65 of the Act of 1960 before the Industrial Court. The President, Industrial Court, vide impugned order dated 8.3.2010 passed in Appeal No. 151/2009 allowed the respondent's appeal. The industrial Court held that the petitioner himself declared his date of birth as 1943 at the time of entry in the service. It held that the date of birth which is being claimed by him vide application dated 16.8.2000 as 9.3.1953, has not been proved by him by producing a reliable and admissible evidence, in the circumstances, the same cannot be treated to be his date of birth. Aggrieved, the petitioner has filed this petition under Article 227 of the Constitution of India. 6. Aggrieved, the petitioner has filed this petition under Article 227 of the Constitution of India. 6. Shri S.H. Moyal, learned counsel for the petitioner (employee) argued that the President Industrial Court has committed error in not re1ying upon the School Leaving Certificate produced by the petitioner before the Labour Court when its authenticity was not doubted by the respondent. According to him, in view of the provision contained in Rule 14-A (2) of the Standard Standing Orders for short SSO framed by the State Government and legally enforceable in relation to the undertaking of the respondent, the said certificate was rightly relied upon by the Labour Court. Thus, according to him the order of Industrial Court being contrary to Rule 14-A of the S.S.O. the same deserves to be quashed. 7. Rule 14-A of the S.S.O. on which the petitioner as well as the Industrial Court has placed reliance reads as under : "14. -A. Retirement (1). -- An employee shall retire from the service of the employer on the date he attains the age of 58 years. He may, however, be retained in service by the employer after the date of attaining the age of 58 years if his services are necessary in the interest of the undertaking but he shall not be retained ill service after the age of 60 years: Provided the nothing in this clause shall adversely affect the operation of the terms of any contract, agreement, settlement or award on this subject, if the age of retirement is not less than 58 years: Provided further that before retiring an employee from the service in accordance with the provisions contained in this caluse, the employer shall give to the said employee at least one month's intimation in writing of such retirement. However, failure to give such intimation will not entitle the employee to continue in service after attaining the age of retirement. On the employer's failure to give such intimation, he shall be liable to pay to the employee concerned one month's wages. (I-a) *** *** *** (2) "14-A (2). However, failure to give such intimation will not entitle the employee to continue in service after attaining the age of retirement. On the employer's failure to give such intimation, he shall be liable to pay to the employee concerned one month's wages. (I-a) *** *** *** (2) "14-A (2). For the purpose of clause (1) the age shall be reckoned by any of the following methods in order of priority:- (i) The date of birth as given by the employee at the time of his employment and accepted by the Manager, (ii) The date of birth as given in the Higher Secondary School Certificate or equivalent examination Certificate, (iii) The certificate issued by the local authority of the place where the employee was born, on the basis of the records maintained by such authority or certified copy of the entry in the Birth and Death Register in which date of birth is mentioned, (iv) The date of birth as declared by the employee in his declaration card for purpose of membership of the Employee's Provident Fund." (3) Notwithstanding anything contained in the foregoing clause, if any dispute arises regarding the date of birth intimated at the time of employment or declared in the declaration card for the purpose of membership of the Employees' Provident Fund, as the case may be, then the date of birth shall be determined on the basis of School Leaving Certificate and in its absence, the date of birth determined by a Registered Medical Practitioner, not below the rank of Civil Surgeon, shall be considered as final, but any such dispute shall not be entertained within the period of six months before the date of retirement." 8. On going through the impugned order of the Industrial Court we find that applying the provision contained in Rule 14-A of the S.S.O. the Industrial Court scrutinized the evidence led by the parties. In paragraph 6 of its order the Industrial Court recorded the following finding:- "In this appeal the learned counsel for the appellant and the Representative of the respondent have been heard. The pleading and the evidence on record have been scrutinized by this Court. Applicant Bherulal (PW 1), had deposed that his date of birth is 9.3.1953. He has submitted a photocopy of the School Leaving Certificate dated 15.10.1999 i.e. Exh. P-3. The pleading and the evidence on record have been scrutinized by this Court. Applicant Bherulal (PW 1), had deposed that his date of birth is 9.3.1953. He has submitted a photocopy of the School Leaving Certificate dated 15.10.1999 i.e. Exh. P-3. In this certificate the date of birth of the applicant has been shown as 9.3.1953. This certificate is of Grasim Primary School. In Cross-examination. Bherulal (PW 1), has admitted in Para 14 that before entering of the service of the non-applicant he was employed by Bharat Commerce and Industrial Limited. He has further admitted in Para 17 that in that company he had worked for six years and after leaving the service of that company he came in the service of the factory of the non-applicant. In case, the age of the applicant as contended by him, is accepted as 9.3.1953 then his age at the time of entry in the service of Bharat Commerce and Industries Limited comes to 11-12. years. It is impossible to accept the case of the applicant that he entered in the service of Bharat Commerce and Industrial Limited at that age. Therefore, the School Leaving Certificate (Exh. P-3) produced by the applicant is on the face of it false." 9. After appreciation of the oral and the documentary evidence also Rule 14-A of the S.S.O. the Industrial Court noticed that the date of birth now claimed by the petitioner by his application dated 16.8.2000, if accepted to be correct then in that eventuality the age of the petitioner at the time of entry in the service' of Bharat Commerce and Industrial Limited would be 11-12 years. As regards the petitioner's reliance on the School Leaving Certificate we find that the Industrial Court has rightly held the same to be not proved in view of the fact that the petitioner did not place on record the original School Leaving Certificate. He produced a photocopy of the Duplicate School Leaving Certificate. He also failed to prove the said certificate by any reliable evidence, in the circumstances, the President Industrial Court did not commit any error in not relying the same. The Industrial Court after scrutinizing the evidence of he petitioner and the evidence of respondent's witness Ashok Tiwari (DW 1), reached to the conclusion that the petitioner had himself declared his date of birth (year) as 1943 in the Provident Fund Declaration. The Industrial Court after scrutinizing the evidence of he petitioner and the evidence of respondent's witness Ashok Tiwari (DW 1), reached to the conclusion that the petitioner had himself declared his date of birth (year) as 1943 in the Provident Fund Declaration. The details of petitioner's service record filed by the respondent clearly established that the petitioner was appointed on 17.3.1970. The document Exh. D-2 also finds mention that prior to joining the service of respondent the petitioner had worked in Bharat Commerce and Industrial Limited as Helper. 10. Having regard to the aforesaid as also keeping in view the provision contained in S.S.O. 14-A, we are of the view that the Industrial Court has committed no error in holding that the School Leaving Certificate which has not been properly proved, cannot be relied upon. In view of he admission made by the petitioner himself that he joined the service of respondent on 17.3.1970 and prior to his joining services of the respondent, he had worked for 6 years in Bharat Commerce and Industrial Limited. Taking into consideration the aforesaid period, the employment of the petitioner began in the year 1964, and therefore, if the date of birth now claimed by the petitioner is taken to be correct, then the age of the petitioner while joining the services of Bharat Commerce and Industrial Limited would come to 11 years, which cannot be accepted. The Supreme Court in the case of State of M.P. and others v. Mohan/al Sharma 2003 (2) JLJ 84 = (2002) 7 SCC 719 , has held that any interpretation or revision of date of birth that would make the employee ineligible for entry in service as on the date of entry in service i.e., being of age lesser than the minimum age of entry, should not, be accepted or encouraged. This view has been also taken by a Division Bench of this Court at Principal Seat Jabalpur vide age lesser than the minimum age of entry, should not be accepted or encouraged. This view has been also taken by a Division Bench of this Court at Principal Seat Jabalpur vide order dated 7.2.2005 in the case of H.K. Khandelwal v. State of M.P., writ petition No. 3114 of 2000. 11. Accordingly, we find no merit in this writ petition so as to interfere in the order passed by the Industrial Court. This view has been also taken by a Division Bench of this Court at Principal Seat Jabalpur vide order dated 7.2.2005 in the case of H.K. Khandelwal v. State of M.P., writ petition No. 3114 of 2000. 11. Accordingly, we find no merit in this writ petition so as to interfere in the order passed by the Industrial Court. Thus, the petition fails and is hereby dismissed in limine.