JUDGMENT Rakesh Tiwari, J.
1. The petitioner was a Driver/Instructor In the U. P. State Road Transport Corporation (hereinafter referred to as the Corporation). He retired from service on 24.9.1991 in pursuance of an order passed by the Regional Manager of the Corporation.
2. The case of the petitioner is that his date of birth is 28.6.1937 but it is wrongly recorded in his service book as 18.10.1933 and as such the order of retirement of the petitioner at the age of 58 years is illegal.
3. At the time of admission of the petition, the following interim order was passed on 16.11.1991 :
"In the meanwhile, the petitioner shall not be retired from service till he attains the age of 60 years from the service record or 31.10.1993, whichever is earlier."
4. The issue germane to the controversy involved in the writ petition is as to whether actual date of birth recorded in the certificate will be basis for counting the age of superannuation. The petitioner contends that the Corporation is an industrial establishment within the meaning of U. P. Industrial Disputes Act, 1947. Relying upon the case of U. P. State Electricity Board and Anr. v. Hari Shankar Jain and Ors., AIR 1979 SC 65, it is contended that the regulations framed by the Corporation are not applicable as they were not notified under Section 13B of the Industrial Employment (Standing Orders) Act, 1946. On the basis, it is submitted that the higher age of retirement at the age of 60 years prescribed in the standing orders adopted by the Corporation in respect of some of its units such as Central Workshop, Kanpur, Kalpi and Juhi, will govern the petitioner and the regulations, which provides lower age of retirement at the age of 58 years is not applicable in the case of the petitioner.
5. The petitioner has pleaded discrimination and submitted that the age of retirement of the workers in the Corporation has to be uniform and there can be no discrimination in the age of superannuation in respect of employees working under the same employer. It has been vehemently argued that action of the respondents in retiring the petitioner is violative of Articles 14 and 16 of the Constitution of India. Reliance has been placed by him on Shyam Bihari Lal v. U.P.S.R.T.C., 1991 UPLBEC 618. It has been prayed that since the petitioner has worked in view of the order passed by this Court and salary has been paid of the work actually done by him, depriving him of the aforesaid salary, will amount to "Begar", which it violative of Article 30 of the Constitution of India. In the alternative, he has prayed that the respondents may be directed to grant post-retirement benefits with interest etc., and not to recover or deduct salary paid after 31.10.1991.
6. It is settled law that the date of birth recorded in the service book is to be relied upon in the first instance for the purpose of retirement of a worker. If a person has worked for some period under an interim order, that will not give him any legal right as he can get relief in the writ petition only if he is entitled to it in his own right, as writ jurisdiction is an equitable jurisdiction.
The Apex Court has held that the date of birth as recorded in the service book, should not be changed until and unless the employee submits incorrigible proof pertaining to date of birth.
7. In Burn Standard Co. Ltd. v. Dinabandhu Majumdar, 1995 (2) CLR 250 : 1995 Lab 1C 1825, para 11, the Apex Court observed thus :
"When the person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age, he is required to disclose his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. The entry in the service record made on the basis of the employee's statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment."
8. In Chief Medical Officer v. Khadeer Khodari. 1995 (71) FLR 9, the Apex Court has held that belated attempt to rectify the date of birth in the service book cannot be permitted.
9. In Union of India v. Harsam Singh, 1993 (67) FLR 262, the Apex Court has held :
"The date of birth entered in the service records of a civil servant, is thus of utmost importance for the reason, that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course not precluded from making a request later on for correcting his age ................. if he is in possession of irrefutable proof relating to his date of birth.
The petitioner has not submitted any incorrigible, irrefutable proof of his date of birth."
As such, change in date of birth cannot be permitted by this Court.
10. It is not denied by the learned counsel for the petitioner that under Section 4A of the U. P. Industrial Disputes Act, 1947, the question of application and interpretation of standing orders is within the jurisdiction of the labour court as provided in the First Schedule of the said Act. The First Schedule of Section 4A of the U. P. Industrial Disputes Act, 1947, is quoted below :
"The First Schedule (See Section 4A) (Matters within the jurisdiction of Labour Courts) (1) The propriety or legality of an order passed by an employer under the standing orders ;
(2) The application and interpretation of standing orders ;
(3) Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed ;
(4) Withdrawal of any customary concession of privilege ;
(5) Illegality or otherwise of a strike or lock-out ; and (6) All matters other than those specified in the Second Schedule."
Thus, the labour court is empowered to remove the anomaly, if any, in the age of superannuation. Moreover, the question raised in the present writ petition, is disputed question of fact and law within the competence of the labour court which requires adjudication by adducing oral and documentary evidence. This Court cannot take such an exercise in exercise of powers under Article 226 of the Constitution of India.
11. In these circumstances, it would be proper to relegate the petitioner to the alternative and efficacious remedy available to him before the labour court as has been held in Chandrama Singh v. Managing Director, U. P. Co-operative Union, Lucknow and Ors., 1991 (2) AWC 1005 ; 1991 UPLBEC 898, wherein the Court relying upon the judgments rendered by the Hon'ble Supreme Court in paras 9 and 13 has held that the remedy before the labour court is more efficacious. In the case of Chandrama Singh (supra), the Full Bench of this Court in paras 9 and 13 of the judgment has held as under :
"9. Having regard to the above noticed decisions of the Hon'ble Supreme Court of India, it is ruled that where a complete machinery/ remedy for obtaining relief is provided in statute and such machinery and remedy fully covers the grievance of the petitioner then, unless extraordinary or exceptional circumstances exist or the machinery/ remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or Inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redressal of the grievance by the petitioner,......."
"13. The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well-settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. The petitioner must furnish material facts and particulars to sustain such a plea."
12. In the case of Scooters India and Ors. v. Vijay E.V. Elder, 1998 SCC (L&S) 1611, the Hon'ble Supreme Court in para 2 of the judgment has held as under :
"............,........,........ there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed questions of fact for which remedy under the industrial laws are available to the workman."
13. In this view of the matter, the writ petition is dismissed on the ground of alternative remedy. However, it is directed that if the petitioner raises an industrial dispute before the concerned Regional Conciliation Officer/Deputy Labour Commissioner within two months from today, the said authority will try to amicably settle the dispute under the provisions of the U. P. Industrial Disputes Act, 1947. In case no settlement is arrived at, the matter shall be immediately referred by the competent authority/State to the labour court for adjudication. The reference so made, shall be decided by the labour court in the manner and time limits as provided in Rule 12 of the U. P. Industrial Disputes Rules, 1957, for filing written statements, rejoinders documents etc. If necessary, the proceedings may be held on day-to-day basis under Rule 12 (4) of the Rules and the case may be decided preferably within a period of six months and not from the date of receipt of reference.
14. No order as to costs.