JUDGMENT Anjani Kumar, J.
1. The employer U.P. State Electricity Board aggrieved by an award of the Industrial Tribunal-IV. U.P., Agra (hereinafter referred to as the Tribunal') dated 8th October, 1997, which was published on 8th June, 1998, passed in adjudication case No. 22 of 1993, approached this Court by means of present writ petition under Article 226 of the Constitution of India, copy whereof is annexed as Anncxure-'12' to the writ petition.
2. The following dispute was referred to the Labour Court for adjudication:-
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3. After receipt of the notice from the Tribunal, both employer as well as the workman have put in their written statement and also adduced evidence whatever they want to adduce. The case as set up by the workman before the Tribunal is that he was recruited in the year 1959, when the present employer Board was not in existence and that he was employed by the Agra Electric Supply Company Ltd., Agra on the post of Kooli and instead the Date of Birth, only year 1936 was written in his service book. He further stated that as soon as he came to know the entry with regard to the year of birth, instead of the Date of Birth, he filed Exhibit W-5 before the then Resident Engineer of the Agra Electric Supply Company Ltd., stating therein that his Date of Birth is 12th December, |942. Along with the aforesaid document, he also filed a transfer certificate issued from the School concerned, on 13th September, 1958. The workman also filed an application on 10th December, 1973 along with the copy of transfer certificate, which are shown as Exhibits 3 and 2. He further stated that these documents were filed by him after verifying the same from the original documents. He again stated that the then Resident Engineer had assured him that the correct Date of Birth will be entered in his service book. But it appears that the same has not been done, therefore, the present employer have issued notice for superannutation of the workman. The employer have only stated that the Date of Birth had been entered in the service book of the employees on their own statement and after verifying from the workmen themselves and that is why the workman's year of birth was entered as 1936. The employer further stated that they have no knowledge with regard to the filing of application dated 10th December, 1973 as Exhibit 3 and the transfer certificate Exhibit 2 by the workman concerned. These documents have not been supplied by the Agra Electric Supply Company Ltd. along with service records of workman when the said undertaking was taken over by the present employer. They further submitted that the workman concerned has inspected his service book several times and also put in his signature, but he never raised any objection regarding year of birth and for the first time an objection was raised in the year 1991. According to the employer, it is settled view of law that the Date of Birth once entered in the service book will normally not be interfered with and particularly after a long gap of time. Thus, the objection filed by the workman concerned is neither justified, nor legal. It is further stated that if the Date of Birth should be allowed to correct, it will affect other employees also.
4. The Tribunal after considering the case set up by the both the parties recorded a finding that the transfer certificate which was issued in the year 1958 when the workman concerned was not in employment and there is no justification in not believing the document as well as there is no contrary evidence brought on record by the employer.
5. The workman concerned has cited example of W-7, wherein Sri K.K.S. Tomer, Superintending Engineer has changed the Date of Birth on the basis of the school leaving certificate dated 20th August, 1951, issued by the Cantonment Board, Agra and the Date of Birth of another employee, namely, Sher Singh, in that place was directed to be changed and this was done at the time when he was 45 years of age, which was accepted correct.
6. The workman has clearly stated that when he for the first time came to know in the year 1973 with regard to entry of his year of birth, he immediately approached the higher officers and stated that the school leaving certificate has been issued on 13th September, 1958, when he was not in service, therefore, his Date of Birth may be corrected accordingly. The Tribunal has recorded a finding that employer has produced nothing as to why such document should not be believed because he was given retirement by the present employer in the year 1994 and he had moved the aforesaid application 21 years before his retirement. Thus, it is clear that the application for change of year of the Date of Birth was filed by the workman concerned 21 years ago, which is supported by the transfer certificate. Since the Board, the present employer has taken over the liability of the Agra Electric Supply Company Ltd., the Tribunal stated that it see no reason as to why the application filed on 10th December, 1973 should not be accepted. The explanation of the employer that since this record has not been received by the employer when the Company was taken over, has not accepted by the Tribunal and the Tribunal has stated that if the record has not been received by the employer, then there is no mistake on the part of the workman and in addition to it particularly the employer, in the case of another employee Sher Singh, themselves have changed the Date of Birth in similar situation. The Tribunal, therefore, directed that the superannuation of the workman concerned is illegal and he is entitled to continue in service till December, 2000. It is this award, which has been challenged by the employer when the petition came up for hearing and both the parties have agreed that instead of deciding the stay vacation application, the matter itself may be finally heard as the counter and rejoinder affidavits have already been exchanged.
7. Learned Counsel appearing on behalf of the petitioner-employer Shri Ranjeet Saxena argued that the law is settled that the entry in the service book cannot be altered after a long gap. The law relied upon by Shri Saxena are the cases which arises under the proceedings of under Article 226 of the Constitution of India, whereas in the present case, the dispute was raised and referred to the Industrial Tribunal and the Tribunal has decided the question of fact as well as the question of law. The findings recorded by the Tribunal do not suffer from any infirmity, nor any such infirmity has been pointed out by learned Counsel for the petitioner, which may be said to be a finding suffering from the manifest error of law.
8. In this view of the matter, the arguments advanced on behalf of the petitioner-employer cannot be accepted. This writ petition, therefore, devoid of any merits and is accordingly dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs.