Madhya Pradesh High Court
Grasim Industries Limited, Birla ... vs Atar Singh And Ors. on 16 April, 2002
Equivalent citations: 2002(3)MPHT210
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. The short question, that requires determination in the present petition is, whether a Labour Court exercising powers under Section 107 of the Madhya Pradesh Industrial Relations Act, 1960 (hereinafter referred to as "Act of 1960") can pass an order staying retirement of an employee after he has attained the age of superannuation.
2. The facts, are that respondent No. 1 is in employment with the petitioner since 1963. The petitioner's contend that according to the record available with them the age of the employee-respondent No. 1 is recorded as 25 years as on 1-2-1969 (Annexure P-3), which is the declaration given by the employee-respondent No. 3 for being enrolled as a member of the Provident Fund Scheme. Accordingly, he was to retire w.e.f. 1-2-2001. This document was prepared on 1-2-1969 and is signed by the respondent-employee. It is averred that the age has been accordingly recorded by the employer and during all these years the respondent No. 1 employee has never raised objections nor has be made any application for correction of his date of birth.
3. On 2-1-2002 an application was submitted by respondent No. 1 inter alia claiming that his date of birth is 5-8-1946 and accordingly, the same be corrected. It is averred that the application was filed on 2-1-2002 vide Annexure P-4. Along with said application a School Leaving Certificate issued on 10-12-2002 (Annexure P-5) and birth registration certificate issued by on 15-7-2002 (Annexure P-5-A) was filed by the respondent. The said request for correction of the date of birth was not accepted by the petitioner, respondent employee moved an application under Section 31 read with Sections 61 and 62 of the Act of 1960 claiming a declaration and direction that his date of birth be declared as 5-8-1946 and he be permitted to continue in services till he attains age of 58 years. An application under Section 107 of the Act of 1960 was also filed praying for interim stay of retirement.
4. The Labour Court No. 1, Gwalior, by order dated 4-12-2001 (Annexure P-1) allowed the application under Section 107 of the Act of 1960 and stayed retirement of the respondent-employee as an interim measure, pending final disposal of the main application under Section 31.
5. Being aggrieved by the order passed by the Labour Court vide (Annexure P-1) dated 4-12-2001 the petitioner employer preferred an application under Section 67 before the Industrial Court and the Industrial Court, by order dated 30-1-2002 (Annexure P-2) has rejected the same on the ground that there is no error of jurisdiction warranting interference in an application under Section 67.
6. Being aggrieved by the orders dated 14-12-2001 (Annexure P-1) passed by the Labour Court, Gwalior and order dated 30-1-2002 (Annexure P-2) passed by the Industrial Court, the present petition has been filed.
7. Shri R.D. Jain, learned Senior Counsel appearing for the petitioner/ employer submits that the Courts below committed grave irregularity in granting interim the relief. It is submitted by him, that prayer made for correction in the date for correction in the date of birth at the fag end of the service should not be entertained and moreover granting stay in such cases is contrary to the law laid down by the Supreme Court in series of cases. Amongst others he has placed reliance in the case of Tamil Nadu P.G. T. Association v. State of Tamil Nadu and Ors., reported in AIR 2002 SC 72 and Hindustan Lever Ltd, v. S.M. Jadhav, AIR 2001 SC 1666. On the basis of the aforesaid judgments it is put forth by Shri Jain, learned Senior Counsel that the Supreme Court has clearly held, that Courts should be slowing in granting stay. Reliance is also placed on a earlier judgment of the Supreme Court in the case of Secretary and commissioner, Home Deptt. and Ors. v. R. Kirubakaran, reported in AIR 1993 SC 2647, wherein the Supreme Court has held, that the Courts and Tribunals should be slow in granting interim relief in cases pertaining to correction of date of birth.
8. Apart from the aforesaid it is submitted by the learned Senior Counsel that the genuineness of the documents are in dispute and until and unless evidence is recorded and it is established that document in question are genuine no relief could be granted. It is further submitted by Shri Jain that final relief cannot be granted by way of interim arrangement. In the instant case grant of stay amounts to granting the final relief and therefore the orders passed by the Courts below cannot be sustained.
9. Further submission of Shri Jain, is that the Courts below, have not appreciated the principles of existence of prima facie case, balance of convenience and irreparable loss correctly. A sum of Rs. 3,68,050,00 (Three lakhs sixty eight thousand and fifty only) is being paid to the respondent employee by way of Post Retiral dues, if the Labour Court allows his application finally he can be compensated by payment of salary. It is therefore argued by the learned Senior Counsel that an order's impugned cannot be sustained.
10. Per contra Shri K.N. Gupta, learned Counsel, for the respondent employee has filed a detailed return and has also filed an additional documents (Annexure R-3) which is the admission register of the institute, where the date of birth of the employee is mentioned. It is submitted by Shri K.N. Gupta, learned Counsel that under the provision of Clause 14-A of the Standard Standing Orders framed under the provisions of Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963, Sub-clause (2) deals with procedure for reckoning age of an employee. In the said sub-clause various certificates have been mentioned on the basis of which the age of an employee is to be assessed. The learned Counsel submits that Clause 2 and Clause 3 of the said sub-section covers his case, according to him the date of birth mentioned in the School Leaving Certificate and the documents submitted by the Registrar of birth and death have been placed on record, in these documents the date of birth of the employee is entered as 5-8-1946. It is therefore submitted by the learned Counsel that in view of the specific provisions as contained in Clause 14-A of the Standard Standing Orders there is no error warranting interference in the present case.
11. Apart from the aforesaid submissions the learned Counsels appearing for the parties seriously disputed the genuineness of the documents filed by each other, various discrepancies were pointed out and it was argued that the documents cannot be relied upon. Shri Gupta has also placed reliance on judgments in the case of Premlal Shrivas v. Slate of M.P. and Ors., reported in 2002 M.P.L.S.R. 208 and S.C. Verma v. Union of India and Anr., reported in 2001 M.P.L.S.R. 17, to show that there is no jurisdictional error warranting interference by this Court.
12. It is not in dispute that the question with regard to the assessment of date of birth of an employee is a question of fact and the same can be assessed only after recording evidence of the parties. In the instant case the Courts below have granted the interim relief on the basis of the documents submitted by the parties. Genuineness of these documents are yet to be determined on the basis of evidence to be led by the parties and therefore for the purpose of considering an application under Section 107, prima facie evidence has to be appreciated.
13. The employer/petitioner has placed heavy reliance on the declaration form Annexure P-3 which is a form prepared on 1-2-1969 and bears signature of the respondent employee. Date of birth is assessed by the petitioner on the basis of this document. Per contra the employee has placed reliance of School Leaving Certificate (Annexure P-5) and the document issued by the Registrar of birth and death (Annexure P-5-A) and the entries in the admission register (Annexure P-3).
14. As far as the document filed by the employer is concerned this is a document prepared in the year 1969 and bears the signature of the employee concerned. On the contrary the School Leaving Certificate is issued on 10-12-2000 and the birth certificate (Annexure P-5-A) is dated 15-7-2001 (Annexure P-3) the admission register is also a duplicate and is of recent origin. The documents on the basis of which the employee is seeking the correction of his date of birth have been prepared much after he had entered the services, prima facie it seems to be obtained for the purpose of making representation for correction of date of birth. That apart the genuineness of these documents are yet to be determined on the basis of evidence to be led by the parties before the Labour Court.
15. That being no prima facie the case of the employee respondent is yet to be established. Seeking a declaration on the basis of documents which came into existence much after the employee had entered the service, which are of recent origin and which seems to be prepared during the making of representation for correction of date of birth cannot form the basis for granting interim relief. It is the considered view of this Court that the Labour Court and Industrial Court committed error in assessing the prima facie case on the basis of these documents.
16. Apart from the aforesaid the principle of granting interim relief in such cases was considered by the Hon'ble Supreme Court in the case of Secretary and Commissioner Home Department (supra) and the Supreme Court has observed as under :--
"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. 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 the promotion forever. Cases arc not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior.
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 the Court or the Tribunal should no 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. 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 many cases it is a pan of the strategy on the pan 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 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 sendee, unless prima fade evidence of unimpeachable character is produced because if the public succeeds, he can always be compensated.
17. The aforesaid view is further confirmed in the case of G.M. Bharat Cooking Co. Ltd. (supra) where it has been observed as under :--
"The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the disputs in such matters Courts should bear in mind that a change of the date of both long after joining service, particularly the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptance evidence of a clinching nature. Court is constrained to make this observation because it is found that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the Courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the Court in passed such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialise, on account of which the junior is denied promotion, which he has all along been lead to believe will be his due on the retirement of the senior."
18. Considering the instant case in the light of the aforesaid settled principles of law I am of the opinion that the Courts below have committed material irregularity in passing the interim order staying retirement of the respondent No. 1/employee.
19. During the course of arguments Shri K.N. Gupta, learned Counsel that the respondent No. 1/employec had invited my attention to observation made in para 5 in the case of Secretary and Commissioner Home Department (supra) and submitted that the provisions of Clause 14-A of the Standard Standing Orders being statutory in nature the School Leaving Certificate has to be relied upon. There cannot be any dispute in accepting the aforesaid preposition of Shri Gupta, but the fact remains as to whether School Leaving Certificate and the birth register certificate are in fact genuine, they are of recent origin and issued much after the respondent No. 1 entered into services. It would not be proper to go into said question at this stage as the matter is yet to be decided by the Labour Court on the basis of evidence to be produced by the parties during the trial. At this stage existence of prima facie case is to be assessed and I am of the considered view that prima facie case does not exist in favour of the respondent No. 1.
20. The question of balance of convenience and irreparable loss are also not in favour of the respondent No. 2 employee. In case he succeeds the Labour Court can pass appropriate order directing for payment of salary and further compensation. Balance of convenience is also not in favour of the employee, by granting interim stay the petitioner/employer will be compelled to keep in employment a person who according to them stands superannuated. Consequently all the ingredients required for grant of interim injuction, namely, balance of convenience, irreparable loss and prima facie case are not in favour of the respondent No. 1/employee.
21. A Division Bench of this Court in the case of G.L. Vishwakarma v. Steel Authority of India Ltd., reported in 1992 (II) Weekly Notes 12, has also held that order of injunction under Section 107 for continuing in service even after superannuation cannot be granted. The aforesaid judgment is filed as Annexure P-1 I with the petition. Considered in the light of the above judgment also the orders of the Labour Court and Industrial Court is unsustainable.
22. Considering the facts and circumstances of the case and the law as discussed hereinabove I have no hesitation in holding that the Labour Court and Industrial Court committed serious error in granting relief to the respondent-employee under Section 107 of the Madhya Pradesh Industrial Relations Act, 1960. I am of the considered view that in the light of the law as discussed hereinabove interim relief of this nature could not be granted.
23. Accordingly, the orders dated 4-12-2001 (Annexure P-1) passed by the Labour Court and the order dated 30-1-2002 passed by the Industrial Court arc quashed. It is made clear that I have not made any observation on the merits of the case and the Labour Court is free to proceed with the matter and decide the case on merit, whatever observation have been made hereinabove are only for the purpose of assessment of prima facie case. The Labour Court without being influenced by these observations has to take an independent decision on the merits of the case after recording the evidence of the parties. The Labour Court shall dispose of the application within a period of two months from the date of filing of a certified copy of this order.
The petition is accordingly allowed. The parties to bear their own costs.