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2015 DIGILAW 387 (UTT)

KICHHA SUGAR COMPANY v. RAM KRIPAL

2015-08-05

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is filed assailing the order dated 05.03.2014 passed by the Deputy Labour Commissioner, Kumaon, Haldwani, whereby direction was issued to correct/modify the date of birth of the workman/respondent, herein, as 01.01.1960 after deleting the earlier incorrect date of birth i.e. 09.06.1953. 2. The brief facts of the present case, inter alia, are that the petitioner had joined sugar factory as un-skilled labour on 01.11.1979; vide notice dated 29.03.2013, workman/respondent, herein, was informed that on reaching the age of superannuation, he would stand retire with effect from 08.06.2013; workman stood retired in the afternoon of 08.06.2013; after the retirement, workman has moved an application on 12.06.2013 making request to correct his date of birth as 01.01.1960 instead of 09.06.1953 and he should be allowed to give joining; learned Deputy Labour Commissioner having placed reliance on the copy of the family register was pleased to pass impugned order directing correction of the date of birth in the record of sugar factory; feeling aggrieved, employer/petitioner, herein, has approached this Court by way of present petition. 2 3. I have heard Mr. T.A. Khan, learned senior counsel assisted by Mr. S.C. Dumka, learned counsel for the petitioner and Mr. P.S. Rawat, learned counsel for the respondent and have carefully perused the record. 4. Undisputedly, the Deputy Labour Commissioner has directed for correction of the date of birth in the record of sugar factory by exercising the powers given to him by Standing Orders dated 27.09.1988, Annexure no. 8 to the writ petition. 5. Paragraph LL of the Standing Orders reads as under: “LL. Retirement of workmen on reaching the age of superannuation. 1. A workman may be retired from service on reaching the age of superannuation which shall be 60 years. 2. The provident fund record of the factory specifying the workman’s age should, to begin with, be taken as reliable record of the age of workman for purpose of retirement. 3. This record of age shall stand modified as may be warranted by the following: (a) Date of birth as given in High School certificate. If the school leaving certificate is below High School then such certificate must be authenticated by the District Inspector of Schools or by the District Education Officer, as the case may be. 3. This record of age shall stand modified as may be warranted by the following: (a) Date of birth as given in High School certificate. If the school leaving certificate is below High School then such certificate must be authenticated by the District Inspector of Schools or by the District Education Officer, as the case may be. (b) Date of birth as certified by a Municipal Corporation, Municipal Board, a Cantonment Board, a Notified Area or a Town Area Committee. (c) An insurance policy taken before November 1, 1960: Provided that: (i) Where the date, month and the year birth of a workman are recorded in Provident Fund records shall taken as final; (ii) Where only the month and year of birth are given, the date shall be taken as the 1st of that month; and (iii) Where the Provident Fund record of the workman does not specify the date or month of birth in that case the 1st November of the year shall be deemed to be the date of retirement. (iv) The foregoing provisions regarding modification of age shall lapse on expiry of one year from the date of enforcement of these Standing Orders. 4. The age of new entrants shall be accepted on the following basis: (i) Date of birth given in the High School Certificate/Transfer Certificate: (ii) Date of birth as certified by Nagar Mahapalika/Nagar Palika/Cantonment Board/Notified Area Committee/Town Area Committee/Gram Panchayat: Provided that the new entrants shall furnish proof of his age within three months of the date of his appointment and the management shall accept within six months of the date of appointment. The date of birth so accepted shall be final. 5. The Management shall given two months notice to a workman before retiring him. 6. The workmen who are in employment at the time of enforcement of these Standing Orders shall have the right to get, their age record modified as per clause 3 above with one year of enforcement of these Standing Orders. 5. The Management shall given two months notice to a workman before retiring him. 6. The workmen who are in employment at the time of enforcement of these Standing Orders shall have the right to get, their age record modified as per clause 3 above with one year of enforcement of these Standing Orders. He shall have the right to represent to the Regional Additional/Deputy Labour Commissioner of the area concerned within one month of notice of retirement, such representations shall normally be disposed of within period of one month of the date of receipt of representation from the workman, and the orders passed by the Additional/Deputy Labour Commissioner regarding the age of the concerned workman shall be final and shall not be questioned by any party before any court. In case the Regional Additional Deputy Labour Commissioner allows the representation, the employer shall modify the record of age of the workman immediately on receipt of the said order. 7. ………………………………………….. 8. …………………………………………..” 6. As per the Standing Orders, provisions of modification of age shall lapse on expiry of one year from the date of enforcement of Standing Orders and as per Clause 6 of the Standing Orders LL, a workman can apply for the correction/modification of age within one year from the date of enforcement of the Standing Orders, therefore, his application was hopelessly time barred. 7. Mr. P.S. Rawat, learned counsel for the workman/respondent, herein, has vehemently argued that workman is an un-skilled and illiterate labour, so he was not aware as to what date of birth was mentioned in the Provident Fund record. He further contends that workman could acquire knowledge about the wrong date of birth, only after receiving the notice of retirement dated 29.03.2013, therefore, learned Deputy Labour Commissioner was competent to modify the date of birth. 8. Mr. P.S. Rawat, learned counsel for the respondent, does not dispute that there is absolutely no provision in the Standing Orders for the relaxation of the period for moving the application for correction of date of birth and as per the provisions of the Standing Orders, correction application for modification/correction of date of birth could have been moved within one year from the date of enforcement of the Standing Orders. 5 9. 5 9. It is the settled position of law that date of birth should not be permitted to be corrected either at the fag end of the career or after retirement, therefore, order impugned does not sustain in the eyes of law. Consequently, writ petition succeeds and is hereby allowed. Impugned order dated 05.03.2014 passed by the Deputy Labour Commissioner, Kumaon, Haldwani is hereby quashed. 10. CLMA No. 9051 of 2014 also stands disposed of accordingly.