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2014 DIGILAW 1246 (JHR)

Mana Birua v. State of Jharkhand

2014-12-12

SHREE CHANDRASHEKHAR

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JUDGMENT SHREE CHANDRASHEKHAR, J. 1. Aggrieved by order dated 30.10.2012 in M.J. Case No. 32 of 2007, the petitioner has approached this Court. 2. Briefly stated, the facts of the case are that, the petitioner was appointed on the post of Security Guard on 15.05.1969. On 24.07.1997 a charge-memo was issued to the petitioner and an enquiry was conducted by the Chief of the Security, who was the competent authority. Vide office order dated 20.08.1997 one Shri A.K. Sharma, Deputy Manager (P) was appointed as enquiry officer. The enquiry concluded on 28.01.1998 and the Chief of the Security agreed with the finding in the enquiry report that charges against the petitioner were found proved. An opportunity to file representation against the finding in the enquiry report was afforded to the petitioner and thereafter, in terms of Certified Standing Orders of the Company, the competent authority decided to discharge the petitioner from service. Accordingly, the petitioner was discharged from service w.e.f. 15.05.1998 and in compliance of Section 33(2)(b) of the Industrial Disputes Act, one month's wage was sent at the local address of the petitioner. The Management moved the Industrial Tribunal in Misc. Case No. 05 of 1998 seeking approval of the order of discharge which was dismissed vide order dated 22.01.2005 holding that the domestic enquiry was not fair and proper. A liberty was given to the management to lead evidence and thereafter, vide order dated 28.07.2006 Misc. Case No. 05 of 1998 was dismissed whereby, the order of discharge of the petitioner was not approved. Thereafter, the petitioner moved an application under Section 33C(2) of the Industrial Disputes Act for computation of the amount due to him with interest at the rate of 12% thereon. In the application under Section 33C(2), the petitioner averred that since the order of discharge from service was disapproved by the Industrial Tribunal, the petitioner would be deemed to continue in service till, he attained superannuation from service and therefore, he was entitled for payment of dues on account of basic wage, dearness allowances payment in terms of tripartite settlement dated 17.12.2001 and also benefits arising on account of wage enhancement and other benefits in terms of memorandum of settlement dated 17.12.2001. In paragraph no. 12 of the application dated 17.12.2007, the applicant/ petitioner has given details of amount due. 3. In paragraph no. 12 of the application dated 17.12.2007, the applicant/ petitioner has given details of amount due. 3. The Management filed its show-cause raising a plea that since the workman has retired from service, he was not entitled for benefit under Section 33C(2) of the Act. The petitioner was discharged w.e.f 15.05.1998 because he himself had submitted application dated 25.04.1998 stating that his date of birth may be considered as 01.07.1938 as recorded in ex-Army Service Certificate. The Management accordingly, calculated amount due to him and the amount for 47 days between 15.05.1998 to 01.07.1998 as back wages has been calculated. The learned Presiding Officer, Labour Court, Jamshedpur vide order dated 30.10.2012 in M.J. Case No. 32 of 2007 held that the petitioner has failed to point out any miscalculation in the settlement dues made by the opposite party TISCO and therefore, it was held that the applicant was entitled to get the settlement amount as calculated by the Management. 4. Heard learned counsel for the parties. 5. Mr. Suman Kumar Ghosh, the learned counsel appearing for the petitioner submits that in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, the only issue before the Industrial Tribunal was whether or not to approve the order of discharge of the petitioner and the Industrial Tribunal has no authority to grant liberty to the Management to treat the date of birth of the petitioner as 01.07.1938. The Exhibit (M7) that is, application dated 25.04.1998 was not signed by the petitioner and it was disputed by the petitioner and moreover, according to the Management the said document was submitted by the petitioner only after the conclusion of the domestic enquiry. 6. Per contra, the learned counsel for the respondent no. 2 has submitted that existence of the ex-Army Service Certificate in which the date of birth of the petitioner has been recorded as 01.07.1938, has not been disputed by the petitioner. The petitioner declared his date of birth as 01.07.1942 at the time of his reemployment which is contradictory by an admitted document that is, the ex-Army Service Certificate. 2 has submitted that existence of the ex-Army Service Certificate in which the date of birth of the petitioner has been recorded as 01.07.1938, has not been disputed by the petitioner. The petitioner declared his date of birth as 01.07.1942 at the time of his reemployment which is contradictory by an admitted document that is, the ex-Army Service Certificate. The Management in view of an admitted document and in view of the application dated 25.04.1998 proceeded to calculate the retiral benefits and the back wages of the petitioner on the basis of the date of birth of the petitioner as recorded in ex-Army Service Certificate and therefore, no fault can be found with the impugned order dated 30.10.2012. It is further submitted that in view of two contradictory date of birth disclosed from the document filed by the petitioner himself, the Management took a conscious decision to treat the date of birth of the petitioner as 01.07.1938 which is a fair decision and in that view of the matter, settlement of dues by the Management has been rightly accepted by the Labour Court. 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. From the materials on record, it is clear that the proceeding initiated against the petitioner on the charge that he got his date of birth wrongly recorded in service book and his consequent discharge from service, has not been affirmed by the Court. The application under Section 33(2)(b) of the Industrial Disputes Act has been dismissed by the Industrial Tribunal. In view of the fact that the charge against the petitioner for recording a wrong date of birth in the service book has in fact failed, it was not open to the Management to contend that the date of birth as recorded in the ex-Army Service Certificate is the undisputed date of birth of the petitioner. The petitioner has contended that at the time of his appointment in Army, his date of birth was recorded only on assessment whereas, he has produced document to the Management disclosing his date of birth as 01.07.1942. Moreover, the petitioner was granted atleast 3 promotions by the Management itself and thus, it was not open to the Management to take a different view and ignore the date of birth recorded in the service book. Moreover, the petitioner was granted atleast 3 promotions by the Management itself and thus, it was not open to the Management to take a different view and ignore the date of birth recorded in the service book. The reliance of the Management on an observation in order dated 28.07.2006 whereby the Industrial Tribunal permitted the Management to treat the date of birth of the petitioner as 01.07.1938 cannot be approved. As rightly contended by the counsel for the petitioner while adjudicating the sustainability of order of discharge in Misc. Case No. 05 of 1998, the Industrial Tribunal had no occasion to make such observation. The veracity of letter dated 25.04.1998 (M7) was not tested by the Industrial Tribunal in the proceeding of application under Section 33(2) (b) of the Industrial Tribunal. The observation of the Tribunal only indicates that the Management “may consider the date of retirement of the applicant as 01.07.1938”. In that view of the matter also, it was necessary for the Management to atleast issue show-cause notice to the employee disclosing its intention to treat the date of birth of the employee as 01.07.1938 instead of the date of birth recorded in the service record, which admittedly has not been done in the present case. A right which has already accrued to the petitioner could not have been taken away by the Management in the garb of observation made by the Industrial Tribunal in order dated 28.07.2006. I find that this aspect of the matter has not been considered by the Labour Court in its order dated 30.10.2012 in M.J. Case No. 32 of 2007 and therefore, order impugned in the present proceeding suffers from serious infirmity and accordingly, it is liable to be quashed. 9. In view of the aforesaid discussion, the impugned order dated 30.10.2012 is hereby quashed and the writ petition is allowed. The matter is remitted back to the Labour Court for consideration of the matter, afresh.