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Judgment
Tapen Sen, J.—This Writ Petition, filed by Petitioner, Jamadar Ahmed seeks to challenge the award passed on 15.2.2010 and published on 19.5.2010 (Annexure P-17) whereby and whereunder the IInd Labour Court, Calcutta, considering facts and materials on record and the circumstances of the case was pleased to hold that the workman (Petitioner) had failed to prove his case against the Management (Respondent no. 3) and as such he refused to pass any award in his favour.
The Chief point for adjudication before the Labour Court was as to whether the services of the applicant had been terminated by the company with effect from 1.1.2006 in an unjustified manner or whether the applicant had retired from his service on attaining the age of superannuation? The relevant facts which have been stated in the Writ Petition are that the Petitioner claims to have been born on 16.6.1952. His claims are on the basis of the School Leaving Certificate issued by the Parisadiya Madhyamik Vidyalaya, Madhupur in the District Siwan (Saran). The Petitioner relies on Annexure P-1 in support of the aforementioned contention.
On 12.2.1973, the Petitioner joined as a Peon in the St. Mary''s Nursing Home (hereinafter referred to as the Nursing Home) and since then, continued working without any break. Subsequently, by a letter dated 30.12.1974, the Secretary of the Nursing Home appointed the Petitioner on permanent basis with effect from 1.1.1975 on the Post of a General Duty Assistant (Office Peon) on a consolidated salary of Rs. 120/- with an annual increment of Rs. 3/- after completion of every year of service. Annexure P-2 is the letter of appointment.
According to the Petitioner and as has been stated by him in paragraph 4, he deposited his Biodata including his School Certificate as proof of his age. This part of the statement has however, been emphatically denied by the Respondent No. 3 in their Affidavit-in-Opposition at paragraph 6 thereto.
The Petitioner''s further case is that after he joined the Nursing Home, he was asked to sign on some blank forms by the Directors and since he was newly appointed, he had no option but to sign on such blank forms as per the direction of the said Directors. This has also been denied in the same paragraph 6 of the Affidavit-in-Opposition of the Respondent no. 3.
The Petitioner has stated that sometime in the month of May, 2005, he came to learn from the Office of the Respondent no. 3 that he was going to be superannuated w.e.f. 31.12.2005. Having so learnt, the Petitioner enquired about his service records from the Office and came to learn that his date of birth had been wrongly recorded as 1947 without mentioning the date or month and ignoring the fact that his actual date of birth was 16.6.1952.
He then approached the Directors of the Nursing Home and requested them to correct his date of birth as per of his School Leaving Certificate which, according to the Petitioner, had been submitted at the time of joining. However, the Directors of the Nursing Home did not take any steps and, therefore, an application/representation vide Annexure P-3 was filed before the Secretary/Director of the Nursing Home on 9.5.2005. Alongwith the said representation a photocopy of his School Certificate was also filed.
After receiving the representation, Director Ashim Kumar Deb wrote a letter dated 11.7.2005 addressed to the Petitioner informing him that as per records of the Nursing Home, Form No. 2 which had been signed by the Petitioner himself and which had been submitted before the Provident Fund Authorities, he was shown to have been born in 1947. According to the Director, "since the new Certificate" mentioned a different date of birth, the same was being forwarded to the appropriate authorities for proper verification. This letter is Annexure P-4.
In reply to the aforementioned letter of the Director, the Petitioner, by his letter dated 15.7.2005, informed that he had no knowledge about the records maintained by the Management with regard to his date of birth. He further stated that he had never been asked to submit any document in support of his date of birth in the past and therefore, the date of birth recorded by the Management was arbitrary. He also stated that the moment he came to learn about wrong recording of his date of birth, he collected his School Leaving Certificate which had been forwarded to them. He, therefore, made a request that his date of birth be correctly recorded.
It is the further case of the Petitioner that neither the Directors of the Nursing Home took any steps nor did they give any information with regard to correcting the date of birth for about five months. Suddenly, however, he received a retirement notice dated 28.12.2005 (Annexure P-6) informing him that he would stand superannuated on the close of Office hours of 31.12.2005. Nothing was said with regard to the Petitioner''s letters/representations.
The Petitioner protested and by his letter dated 29.12.2005 (Annexure P-7), he again referred to his School Leaving Certificate issued on 2.1.1965 and requested that he be shown the filled-in form and also the handwriting on the documents retained by the Nursing Home. He also stated that he was forwarding a copy of the letter to the P.F. Authorities and that he reserved his right to contest the issue in a legal forum.
In spite of such protests, representations etc., nothing was done and as a result, the Employees'' Union (St. Mary''s Nursing Home Employees'' Union) sent a letter dated 30.12.2005 to the Director of the Nursing Home requesting him that the Petitioner be allowed to continue to work till his date of birth was finalized. A copy of the said letter was sent to the Labour Commissioner as well as to the Regional Provident Fund Commissioner requesting them to check and inform the date of birth of the Petitioner.
By another letter dated 2.1.2006 (Annexure P-10), the Union again requested the Directors of the Nursing Home to look into the matter seriously and ensure that the Petitioner was allowed to continue to work for another five years. They also stated that the matter had already been referred to the Labour Commissioner for conciliation.
It is stated that the Conciliation Officer held a number of meetings but due to the adamant attitude of the Director of the Nursing Home, the dispute could not be settled. The Petitioner had also filed a Writ Petition being WP No. 2706(w) of 2006 and by an Order dated 27.2.2006 (Annexure P-11), another Hon''ble Single Judge observed that the issue with regard to the Petitioner''s age was pending disposal before the Joint Labour Commissioner and unless the same was decided, the question of granting any relief to the Petitioner did not and could not arise. The Writ Petition was accordingly dismissed with a further observation that it was needless to mention that all documents relating to the issue of the Petitioner''s age will be disclosed in the appropriate proceeding by the concerned authorities.
Thereafter the Petitioner himself raised a dispute before the Joint Labour Commissioner on 5.5.2006 (Annexure P-12) complaining that the company had suddenly terminated his services w.e.f. 31.12.2005 in violation of the principles of natural justice, equity and in violation of the provisions of law. He requested the Joint Labour Commissioner to intervene in the matter. Since the matter could not be settled, he then filed an application on 25.7.2006 for issuance of a Certificate certifying the pendency of conciliation proceedings so as to enable him to get relief u/s 10(1B)(d) of Industrial Disputes Act, 1947. Accordingly and on the same day, a Certificate was issued.
Thereafter, the Petitioner filed an application before the learned IInd Labour Court, Calcutta praying that the matter be fixed for framing of issues and adjudication. This was filed on 7.9.2006 whereafter the Labour Court initiated a proceeding being Case No. 29 of 2006 under the Industrial Disputes Act. Written statements were filed by the respondent no. 3. List of Documents were filed and relied upon and issues were framed and finally the impugned Order was passed on 15.2.2010 and it was published on 19.5.2010.
An Affidavit-in-Opposition as well as reply thereto have been filed in the instant case.
Having considered the rival submissions of the parties and having also considered the impugned award, it is evident that the case which has been attempted to be made out by the Petitioner cannot be believed and this court, having perused the contents of the award, is satisfied that the same does not suffer from any illegality. No proof has been brought on record to establish that the Petitioner had actually submitted his School Leaving Certificate at the time of entry into service. Moreover, the declaration and nomination form which has been signed by the Petitioner (at page 103 of the Writ Petition) clearly shows that the Petitioner had unequivocally signed on the said form which mentioned his year of birth as 1947. In the absence of any document establishing that he had deposited his School Leaving Certificate with the Management on 12.2.1973 (the date of joining), his statement cannot be said to be an authentic statement.
That apart, another aspect cannot be lost sight of. It has been correctly pointed out by the Respondents in paragraph 3(e) in their Affidavit-in-Opposition that from the School Leaving Certificate, only the word "Vidyalaya" is in print but the name of the School viz. Parisadiya Madhyamik Vidyalaya, Madhopura have been written by hand. The name of the school therefore, ought to have been also in print but no, it was inserted by hand. This casts a serious doubt on the genuineness of the document in question. Moreover, whether the Petitioner had submitted this document at the time of entry into service, has not been established either by documentary evidence or otherwise and therefore, the finding of the learned Labour Court to the effect that there was no explanation from the side of the Petitioner explaining as to why had he not taken any steps for the last 30 years to get his date of birth corrected, cannot be said to be irregular. In fact, the findings of the learned Labour Court do not deserve to be upset. The Labour Court has correctly recorded that "as per own admission of the applicant workman I find that he joined the service in the year 1975, all along for the last 30 years, the applicant workman did not enquire or thought it proper to write to the opposite party management for the correction of his date of birth. There is no explanation from the side of the applicant workman not applying/writing for correction of his date of birth on service record. The Hon''ble Supreme Court of India in Hindustan Liver Ltd. -vs.- S. M. Jadav & Anr. [2001 LLR 501][Supreme Court] held that "it is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth". In the instant case also, the Petitioner had kept silent for so many years and he did not take any steps to get his date of birth corrected. His statement to the effect that he came to learn about such an error only in May, 2005 cannot be believed because firstly, he had himself signed on the declaration and nomination form under the Employees'' Provident Funds Scheme referred to above wherein his date of birth has been mentioned as 1947. This is evident from page 103 of the Writ Petition.
That apart, from page 107, which is the declaration under the Pension Scheme, it is evident that the Petitioner had again signed showing his date of birth as 1947. Consequently and for the foregoing reasons, this Court is not inclined to accept his contention that his date of birth should be accepted as 1952 in terms of the School Leaving Certificate because this Court has already expressed its doubts on the genuineness of the Certificate. The reasons given by the Labour Court does not also suffer from any illegality whatsoever.
Consequently, there is no merit in this Writ Petition. It is accordingly Dismissed. There shall be no order as to costs.
Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.