JUDGMENT G.P. Mathur, J.
1. This petition has been filed by the Employer for quashing of the award dated January 29, 1993 given in Adjudication Case No. 174/1989 of Labour Court (III) Kanpur. Lal Mohammad, the workman concerned died on November 3, 1991 during the pendency of the adjudication proceedings before the Labour Court, but no one was substituted in his place. His son Mohd. Farooq, however, filed a caveat in the writ petition and also a counter affidavit, though no application was formally moved by him for being impleaded as a party. I have heard learned counsel for the petitioner as well as for Mohd. Farooq and with their consent the writ petition is being disposed of finally at the admission stage.
2. The workman, Lal Mohammad was employed in the Cooper Alien Branch of the British India Corporation Ltd. on August 29, 1961 and in the Service Card his year of birth was noted as 1928. The age of retirement of the workman in the petitioner's establishment is Sixty years. The workman gave an application on November 9, 1987 for correction of his date of birth. In accordance with the provisions of an earlier settlement, a Medical Board was constituted for determining the age of the workman and after medical examination the Board confirmed that Lal Mohammad would attain the age of sixty years on June 30, 1988. He was accordingly served an office memo informing him that he would retire from service on June 30, 1988 and he was advised to collect his other dues from the office of the Corporation. At the instance of the workman, State Government by its order dated October 23, 1989 made a reference to the Labour Court (III) Kanpur under Section 4-K U.P. Industrial Disputes Act. The reference was as to whether the removal from service of Lal Mohammad w.e.f. July 1, 1988 was valid/legal and if not, what benefits the workman was entitled to get. The Labour Court held that the workman was born in the year 1931 and therefore, he was entitled to continue in service up to June 30, 1991 and it accordingly gave an award that the concerned workman was entitled to get wages and all other benefits for the period July 1, 1988 to June 30, 1991.
3. Sri Sandeep Saxena, learned counsel for the petitioner, has submitted that the finding recorded by the Labour Court is completely perverse in as much as it has failed to consider the evidence adducel by the employer and also the effect of the earlier settlement regarding the procedure which was to be adopted by a workman who disputed the date of birth as recorded in the service card. Learned Counsel has further urged that the Labour Court has erred in relying upon evidence adduced by the workman which was neither admissible nor had been proved in accordance with law and it had also erred in making observation that there was some interpolation in the year of birth as recorded in the service card when in fact there was no such interpolation. Sri K.P. Agrawal, learned Senior Advocate, who appeared on behalf of Mohd. Farooq (son of Lal Mohammed workman) has urged that the principle of estoppel or res judicata have no application in the field of industrial law and it was open to a workman to raise any dispute and if the State Government was satisfied about the existence of a dispute, it can refer it for adjudication to the Labour Court. He has also submitted that the Labour Court is not bound by any earlier settlement and it was open to it not to rely upon the evidence adduced by the Employer and to place reliance upon the Provident Fund Record which had been adduced on behalf of the workman. In support of his submission, learned counsel has placed reliance on Western India Automobile Association v. Industrial Tribunal, AIR 1949 FC 111. Bharat Bank v. Employees of Bharat Bank, (1950-LLJ-921). According to learned counsel in terms of the decision of the Supreme Court in State Bank of India v. N.S. Moni, (1976-I-LLJ-478) the retirement of the workman on June 30, 1988 amounted to termination of his service and therefore a dispute regarding the same could validly be referred by the State Government.
4. The workman, Lal Mohammad. was initially employed on August 29, 1961 in the Cooper Allen Branch of the British India Corporation Ltd. and at the time of his employment a service record was prepared. In the service record his year of birth is noted as 1928 and in the column meant for 'signature or thumb impression' he put his signature in Urdu. Subsequently the establishment of Cooper Alien Branch was taken over by the Government and it became part of M/s Tannery and Footwear Corporation of India Ltd. and all the employees of the Cooper Alien Branch became employees of the aforesaid Corporation. The record shows that certain disputes between M/s. British India Corporation Ltd. (Cooper Alien and North West Tannery Branches) Kanpur and their workmen were referred to Industrial Tribunal Allahabad by the State Govt. and it was registered as Reference No. 36 of 1965. The parties entered into a settlement before the Industrial Tribunal and thereafter the said settlement was published by the State Government in the U-P. Gazette on October 3, 1965 under Section 6 (3) of the U.P. Industrial Disputes Act. Copy of the Gazette Notification and memo of settlement has been filed as annexure 2 and 3 to the writ petition. Certain terms and conditions of the senlement, which are relevant for deciding the controversy in dispute are reproduced below:
"1) The age of superannuation for the workman of CooperAIlen and North West Tannery branches of Messrs B.I.C. Ltd., Kanpur be fixed at sixty years with effect from today.
2) If any workman has any objection to the recorded age in Company's records, he may file an objection within a period of six months from today. If the workman produces convicing evidence to the satisfaction of management, it will be open to the management to correct his age.
3) No objection after the expiry of six months under para 2 above shall be maintainable and the recorded age shall be taken and deemed to be correct."
Subsequently another settlement took place between the Tannery Footwear Corporation of India Ltd. and their employees and the Union representing workmen of the Corporation on August 20, 1980 before the Conciliation Officer and Addl. Labour Commisioner, U.P. in the prescribed Form in accordance with Section 4 of U.P. Industrial Disputes Act and Rule5(i) of U.P. Industrial Disputes Rules. Para 12.1 of this settlement provides that every workman must declare on his first appointment his date of birth according to the Christian Era and produce confirmatory evidence like matriculation or School leaving certificate or birth certificate as per records of Local Bodies accompanied by an affidavit sworn by a workman. Para 12.2 provides that in case the age of the workman as given by him is not acceptable to the Management, workman shall be examined by the Medical Board and the decision of the Medical Board shall be final and binding. It also provides that the age so recorded shall not thereafter be sought to be altered by the workman and no change will be acceptable. Para 12.6 of the settlement provides that the age of the existing workman on the basis of the records of the Corporation will be notified by the Management and any workman aggrieved about his date of birth shall have a right to submit an appeal to the Management within thirty days and the age shall be finalised in terms of the provisions of Clause 12. As noticed earlier in the service record, the year of birth of the workman is recorded as 1928 and the same was also signed by him in Urdu. I have carefully examined the photo copies of the service card (annexure I to the writ petition) and in my opinion there is no interpolation whatsoever in the figure '1928'.There is no basis at all for casting doubt upon the entry made in the column- year of birth in the Service Card. The fact that the workman put his signature on the Service card leaves no room for doubt that he would have also seen or at least learnt about the fact that his year of birth was noted as 1928. In terms or the award of the Industrial Tribunal given in Adjudication Case No. 36 of 1965 the workman could make an objection regarding the entry about his year of birth within six months of the date of publication of the award which took place on October 30, 1965. However, he did not make any such objection and in terms of para 3 of the award no objection regarding the age could be entertained after expiry of six months and the entry in the service card shall be deemed to be correct. It is not the case of the workman, nor there is any evidence on record to show that he made any objection regarding the entry about his year of birth even after the settlement which had taken place on August 2, 1980. In terms of para 12.6 of the said settlement also, an objection raised by him in November, 1987 could not be entertained. Lal Mohammad, however, a few months before his date of retirement made an application in November, 1987 for correction of his age. The Employer constituted a Medical Board in terms of para 12.2 of the settlement and the Medical Board gave an opinion that he would attain the age of Sixty years on June 30, 1988. The Medical Board consisted of three Doctors, namely Dr. Y.N.Agarwal, Chief Medical Officer, Kanpur Nagar; Dr. H.C. Prasad, Medical Superintendent, K.P.M. Hospital, Kanpur and Dr. Ashok Puri, Medical Officer, TAFCO, Kanpur, which will be evident from the proceedings of the Medical Board, copy of which has been filed as annexure 4 to the writ petition. It is noteworthy that the Medical Board consisted of two Senior Government Doctors holding responsible position beside Dr. Puri who was Medical Officer of TAFCO. The workman has not alleged any bias against the aforesaid two Government Doctors. This clinching evidence has been completely ignored by the Labour Court.
5. The Labour Court has relied upon a letter dated July 17, 1989 sent from the office of Regional Provident Fund Commissioner to the workman informing him that in Form No. 2 his year of birth is recorded as 1931. The genuineness of this letter (Ex, W. 10) was not accepted by the employer. The objection of the employer was brushed aside on the ground that it was their responsibility to have produced Form No. 9. The Labour Court further observed that the age mentioned in Form No. 2 of provident Fund Record has to be accepted as correct. In my opinion the view taken by the Labour Court is clearly erroneous. No statutory provision or standing order has been brought to my notice which may show that an entry made in Form No. 2 of the Provident Fund Record regarding the age of a workman shall be deemed to be correct. That apart in this case, the genuineness of the letter (Ex.W-10) had been disputed on behalf of the employer. A letter sent from the office of the Regional Provident Fund Commissioner could not form the basis for holding that in Form No. 2 the year of birth of the workman was recorded as 1931. In case the workman wanted to rely upon the entry in Form No. 2, the same should have been summoned from the office of Regional Provident Fund Commissioner and should have been proved by some person who was keeping records in the aforesaid office. The summoning of the original Form No. 2 was not difficult as the office of the Regional Provident Fund Commissioner is also situated in Kanpur where the Labour Court was deciding the dispute. The original Form No. 2 having not been produced before the Labour Court, the letter sent from the office of the Regional Provident Fund Commissioner to the workman on July 17, 1989 informing him that in Form No. 2 his year of birth is noted as 1931 was neither admissible nor could be relied upon.
6. There is another aspect of the matter. The service Card of the workman Lal Mohammad was prepared in the year 1961 when he joined the service and it mentions the name of his father, caste and address etc. The service Card has been signed by him in Urdu. It also shows that he was resident of Mohallah Gwal-toli which is a locality in the city of Kanpur. A person living in a big metropolitan city like Kanpur is generally better aware of the entries made in the service Card than an illiterate person belonging to a rural area. At the time when Lal Mohammad would have signed the service Card he must have seen or would have at least come to know that his year of birth is recorded as 1928. From 1961 till November 1987 he made no objection whatever regarding his age. The application for correction of age was made about eight months before the date of his retirement. Recently the Supreme Court in a series of decisions has strongly depricated the practice of the employees making representations for correction of their age shortly before their age of retirement. In Union of India v. Harnam Singh (1994-I-LLJ-318) it has been observed that the date of birth entered in the service records of Govt. servant is of utmost importance for the person that the right to continue in service stands decided by this entry in the service record. It has also been observed that in the absence of any provision in the rule for correction of date of birth, the general principle of refusing relief on the grounds of laches or stateness is generally applied by the Courts or the Tribunals. If the Government fixes a time limit, beyond which no application for correction of date of birth can be entertained, on application for correction of date of birth made beyond the time so fixed cannot be entertained even if the employee had good evidence to establish that the recorded date of birth is clearly erroneous. In Secretary and Commissioner, Home Department v. R. Kirubakaran (1994-I-LLJ-673) it has been observed as follows in para 5 of the report.
"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 about the wrong recording of his date of birth, in his service -book."
In Burn Standard Company v. Dina Bandhu Majumdar 1995 (4)JT 23,the High Court had issued a direction for correction of date of birth of an employee of the Company in a writ petition but the order was reversed by the Supreme Court with the following observations :
"That fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches".
In my opinion, the principle of law enunciated by the Supreme Court should also apply in the present case.
7. It is, therefore, clear that the award given by the Labour Court cannot be sustained for various reasons. The Labour Court relied upon the evidence adduced by the workman which was inadmissible. It also proceeded on a wrong legal basis that the Provident Fund Record regarding age will be final and conclusive. The Labour Court also ignored to consider that in. terms of the award of Industrial Tribunal given in Adjudication Case No. 36 of 1965 no application had been made by the workman for correction of his age nor he availed of the second oppotunity in terms of the settlement dated August 20, 1980. That apart the application for correction of age having been made only eight months before the age of retirement, the same was stale and could not be entertained on the ground of laches.
8. In the result the writ petition succeeds and is hereby allowed. The award given by the Labour Court on January 29, 1993 is quashed.