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2022 DIGILAW 1381 (BOM)

Mumbai Shramik Sangh v. Union Of India

2022-05-27

MILIND N.JADHAV

body2022
JUDGMENT Milind N. Jadhav, J. - Heard. 2. The present petition has been filed by Mumbai Shramik Sangh union representing workers employed with Respondent No.2 - Rashtriaya Chemicals and Fertilizers ('RCF'), a public sector company. Though the petition is principal seeks setting aside of the impugned award dated 16.08.2021 passed by the Central Government Industrial Tribunal No.2, Mumbai in Reference No.CGIT-2/49 of 2019, the learned counsel appearing for the Petitioner has restricted his urgent application today to press prayer clauses (d) and (g) only. He submits that in so far as the principal relief of setting aside the award is concerned, since there is a vacancy on the post of the Presiding Officer of the Tribunal, the Petitioner has filed the present petition in this Court and that can be agitated later. 3. Prayer clauses (d) and (g) read as under: "(d) For a writ or an order in nature of writ directing the respondent company not to retire the worker named ashok Lakshaman Pawale subject matter of Reference No. CGIT-2/49 of 2019 likely to be retired w.e.f. 31.05.2022 by Respondent Company. (g) Pending the hearing and final disposal of the present Petition for an order of this Hon'ble Court directing the respondent company not to retire the worker named ashok Lakshaman Pawale subject matter of Reference No. CGIT-2/49 of 2019 likely to be retired w.e.f. 31.05.2022 by Respondent Company." 4. Mr. Parmar, learned counsel for the Petitioner submits that one of its member presently working with RCF is likely to retire w.e.f. 31.05.2022 as per his service record maintained by RCF. He submits that the said worker namely ashok Laxman Pawale has approached the Petitioner and stated that his date of birth recorded in the service record of RCF is incorrect. He submits that the date of birth of ashok Laxman Pawale as recorded in the service record of RCF is 12.05.1962; the age of retirement being 60 years and hence the date of retirement is 31.05.2022. according to him the actual date of birth is 01.06.1965. 5. Though the petition lacks averments in respect of the aforementioned two prayers which are pressed by the Petitioner today, considering the urgency factor, this Court has heard the matter on 13.05.2022 and 20.05.2022 and reserved the matter for orders on the above reliefs. 6. Respondent No.2 - RCF has filed its affidavit-in-reply dated 19.05.2022 through its Chief Manager ('HR'). 7. Mr. 6. Respondent No.2 - RCF has filed its affidavit-in-reply dated 19.05.2022 through its Chief Manager ('HR'). 7. Mr. Parmar has tendered across the bar a compilation of four documents, inter alia, pertaining to ashok Laxman Pawale in respect of his date of birth being recorded as 01.06.1965 as under:- Sr. No. Particulars 1 Copy of the aadhar Card. 2 Copy of Pan Card. 3 Copy of School Leaving Certificate. 4 Copy of School admission Register Entry. 8. as seen the aadhar Card of ashok Laxman Pawale shows his date of birth as 01.06.1965. The second document which is his PaN Card shows his date of birth as 01.06.1965. The third document is his School Leaving Certificate which shows his date of birth as 01.06.1965 and the fourth document is the School Registration Certificate which shows his date of birth as 01.06.1965. Mr. Parmar has also tendered the originals of the above four documents across the bar. They have been seen by me and returned back. He submits that on the strength of these documents the date of birth of ashok Laxman Pawale, member of the Petitioner - Union is 01.06.1965 and therefore considering the age of retirement to be at 60 years, his date of retirement ought to be 31.05.2025. He submits that inadvertently in the service record maintained by RCF, the date of birth of ashok Laxman Pawale is shown as 12.05.1962. He submits that since there is a vacancy of the Presiding Officer in the Tribunal, this Court be pleased to adjudicate the above issue in the interest of justice, since if not done, RCF will retire ashok Laxman Pawale on 31.05.2022 as per his service record. 9. Mr. anirudh Bhalwal, learned counsel appearing for the Respondent No.2 - RCF has opposed grant of reliefs in terms of prayer clauses (d) and (g) in so far as the case of ashok Laxman Pawale is concerned and has drawn my attention to the affidavit-in-reply dated 19.05.2022 filed by the Chief Manager (HR) of RCF. He submits that ashok Laxman Pawale is an employee of M/s. ameya Enterprises, a contractor appointed by Respondent No.2 - RCF to do the work of maintenance of lawns, gardens and allied horticulture works at RCF. He submits that the date of birth informed by ashok Laxman Pawale to his employer i.e. M/s. ameya Enterprises at the time of commencement of his services is 12.05.1962. He submits that the date of birth informed by ashok Laxman Pawale to his employer i.e. M/s. ameya Enterprises at the time of commencement of his services is 12.05.1962. He submits that after M/s. ameya Enterprises was issued the NIT by RCF to carry out the contractual work, ashok Laxman Pawale was one of the persons engaged for the works by the contractor. He submits that at that time ashok Laxman Pawale submitted his Nomination and Declaration Form under the Employees Provident Fund and Employees Family Pension Scheme to the Respondent No.2 - RCF duly signed by him wherein his date of birth was mentioned as 12.05.1962. He further submits that in the record of the Life Insurance Corporation of India (LIC) Group Gratuity Contribution Scheme which is applicable to all contractual workmen, the date of birth of ashok Laxman Pawale is notified as 12.05.1962. He submits that the CGIT had given enough opportunity to the Petitioner and has held five hearings, however the Petitioner did not prosecute its case and hence the reference was disposed of. He submits that the Petitioner has filed restoration application before the Tribunal and since there is a vacancy of the Presiding Officer, the present petition is filed. He submits that the Petitioner has raised an industrial dispute before the Conciliation Officer for rectification of the date of birth of three employees engaged by the contractor M/s. ameya Enterprises. Two of the three employees have since stood retired. Mr. ashok Pawale's case is sought to be agitated in the present petition. He submits that Mr. ashok Laxman Pawale has submitted the nomination and declaration form alluded to hereinabove stating his date of birth as 12.05.1962 and as per the service record maintained by RCF the said date of birth has stood ground. He submits that as per the Model Standing orders the aforesaid date of birth has been entered into the service card / record of ashok Laxman Pawale and has been finalized within three months of him starting his work with RCF. Lastly he submits that the present petition is not maintainable for non joinder of proper and necessary party in as much as ashok Laxman Pawale is not joined as necessary party and his employer M/s. ameya Enterprises is also not joined as necessary party. He therefore submits that the reliefs pressed for by the Petitioner be rejected. 10. Lastly he submits that the present petition is not maintainable for non joinder of proper and necessary party in as much as ashok Laxman Pawale is not joined as necessary party and his employer M/s. ameya Enterprises is also not joined as necessary party. He therefore submits that the reliefs pressed for by the Petitioner be rejected. 10. I have gone through the pleadings and heard the learned counsel appearing for the respective parties. Submissions made by the counsels are on pleaded lines. 11. It is seen that admittedly though the Petitioner - Union has sought the aforementioned reliefs and pressed them today, the petition lacks averments in respect of the same. There is not a single averment in the petition in respect of the aforementioned two reliefs. Further it is surprising that neither the employee concerned for whose benefit the aforementioned reliefs have been prayed for is a party to the petition nor his immediate employer M/s. ameya Enterprises is made a party. The petition does not bear any reference to M/s. ameya Enterprises and proceeds on the footing that ashok Laxman Pawale is an employee of RCF. 12. as seen, the documents relied upon by the Petitioner in support of the date of birth of ashok Laxman Pawale being 01.06.1965 are the aadhar Card, Pan Card and two School Certificates. The two school certificates though state that the date of leaving of school is 14.10.1977, the same have been procured on 18.01.2013 and 25.07.2016. The aadhar Card and Pan Card must have been procured by ashok Laxman Pawale a few years ago. Thus it was to the knowledge of ashok Laxman Pawale several years ago that his date of birth was 01.06.1965 but he chose to remain silent until his date of retirement. It is now only on the eve of his retirement date that he has chosen to approach the Petitioner - Union. If this be the case then there is no explanation whatsoever for stating his date of birth as 12.05.1962 in the Nomination and Declaration Form and the Group Gratuity Scheme record which was also to his knowledge. If the same was incorrect, then at that time no steps have been taken by ashok Laxman Pawale for rectification. If this be the case then there is no explanation whatsoever for stating his date of birth as 12.05.1962 in the Nomination and Declaration Form and the Group Gratuity Scheme record which was also to his knowledge. If the same was incorrect, then at that time no steps have been taken by ashok Laxman Pawale for rectification. The first two documents relied upon by the Petitioner - Union are statutory documents which are issued on the basis of representation and other documents relied upon by the Petitioner showing his date of birth. In so far as the remaining two documents are concerned, the said documents cannot be considered having due weightage since the same have been procured after a long period of time and their authenticity ought to be proved. 13. That apart, it is stated that the objection for seeking rectification of date of birth has been taken only now i.e. on the eve of retirement. If the Petitioner - Union and its members would have been vigilant, such objection should have been taken at the earliest point of time. The date of birth of ashok Laxman Pawale at the time of his entry in the service record of RCF is 12.05.1962 and has continued to be so. The Petitioner - Union nor the member has taken any steps for rectification of the date of birth which was recorded in the service record and all along the said date of birth has remained unchallenged. The Petitioner or its member ought to have approached the Competent authority and/or the employer or RCF at the earliest which they failed to do so. The certification of the date of birth of ashok Laxman Pawale in the service record of RCF is under his own signature and therefore he was aware about the said date of birth being 12.05.1962. admittedly, no steps have been taken thereafter. It is only now that on eve of retirement such an issue is pleaded for seeking undue benefit. 14. In the decision passed by the apex Court in the case of State of Madhya Pradesh Vs. Premlal Shriwas2011 aIR SC 3418, a similar controversy had arisen with reference to rectification of date of birth on the eve of retirement. It is only now that on eve of retirement such an issue is pleaded for seeking undue benefit. 14. In the decision passed by the apex Court in the case of State of Madhya Pradesh Vs. Premlal Shriwas2011 aIR SC 3418, a similar controversy had arisen with reference to rectification of date of birth on the eve of retirement. In the said case, the Respondent was appointed to the post of Police Constable in the year 1965 and in his service book, prepared at that time of entering into the service, his date of birth was recorded as 01.06.1942. This position continued till 1980, when the Respondent therein made a representation for seeking correction of his date of birth in the service record. By order dated 08.03.1995, the representation of the Respondent came to be rejected on cogent grounds. The Respondent filed appeal before Madhya Pradesh administrative Tribunal and the Tribunal also dismissed the application on 18.04.2001. The Respondent filed Writ Petition before the High Court which set aside the order of the Tribunal and allowed the Writ Petition. Being aggrieved by the order of the High Court, the State of Madhya Pradesh and two of its functionaries approached the apex Court. The apex Court in paragraph Nos.9 and 10 of the said judgment observed thus :- 9. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag-end of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless, the Court or the Tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No Court or the Tribunal can come to the aid of those who sleep over their rights (See: Union of India Vs. Harnam Singh 2021 SCC Online SC 767).S 10. In Secretary and Commissioner, Home Department & Ors. Vs. R. Kirubakaran 2020 3 SCC 411 , indicating the factors relevant in disposal of an application for correction of date of birth just before the superannuation and highlighting the scope of interference by the Courts or the Tribunals in such matters, this Court has observed thus : "an application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. according to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. as such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. as such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior. 15. I may also usefully refer to the ratio of the following cases decided by the apex Court to arrive at a decision in the present case. (i) Karnataka Rural Infrastructure Development Limited and Ors. Vs. T.P. Nataraja and Ors. 2021 SCC Online SC 767; (ii) Bharat Coking Coal Ltd. and Ors. Vs. Shyam Kishore Singh 2020 3 SCC 411 . 16. (i) Karnataka Rural Infrastructure Development Limited and Ors. Vs. T.P. Nataraja and Ors. 2021 SCC Online SC 767; (ii) Bharat Coking Coal Ltd. and Ors. Vs. Shyam Kishore Singh 2020 3 SCC 411 . 16. as seen in the present case it is only on the eve of superannuation i.e. at the fag - end of the service tenure of its member, the Petitioner - Union has pleaded his case for rectification of date of birth. Considering the long lapse of time after starting to work with RCF through M/s. ameya Enterprises the member of the Petitioner - Union cannot make or claim as a matter of right correction of his date of birth even if he has good evidence to establish that the recorded date of birth was erroneous. 17. In the present case applying the aforementioned ratio in the case of State of Madhya Pradesh Vs. Premalal Shriwas (supra), the Petitioner - Union and its member ashok Laxamn Pawale cannot be given any benefit of doubt to seek correction of the date of birth in the service record of RCF. 18. In view of the above discussion and findings, the interim reliefs pressed for by the Petitioner - Union in terms prayer clauses (d) and (g) are rejected. 19. For the rest of the reliefs, liberty to apply.