Jharkhand High Court
Ioc Limited (Now Known Boc (I) Ltd.) vs Presiding Officer, Labour Court And ... on 16 April, 2004
Equivalent citations: [2004(2)JCR466(JHR)]
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. The respondent No. 3, Brij Nath Tiwary (Hereinafter referred to as the "concerned workman") was appointed on 21.9.1953, as temporary Darwan by the writ petitioner, M/s. Indian Oxygen Company Limited (Hereinafter referred to as the "Company"), The concerned workman was made permanent on 1.3.1955 and in the Staff Form containing the details of the employment of the concerned workman kept with the company disclosed the date of birth of the concerned workman to be January 1938 and accordingly the concerned workman was made to retire from his service 1.2.1990, after attaining the age of 60 years.
2. The concerned workman through his union raised Industrial Disputes regarding recording of his date of birth by the Company, According to the concerned workman, his date of birth was 4.1.1941, and therefore, his retirement/superannuation from service by the Company on 1.2.1990 before completing the age of 60 years was not justified.
3. The Government of Bihar referred the disputes to the Labour Court, Jamshedpur with the following reference :
"What is the date of birth of Shri Brij Nath Tiwary T. No. JM/161, workman of M/s. Indian Oxygen Ltd. Jamshedpur and whether that is properly recorded in the records of management or not."
Another dispute was referred by Notification dated 12.3.1991, with the following terms of reference :
"Whether the termination of services of Shri Brij Nath Tiwary is justified? if not, whether he is entitled to reinstatement and/or any other relief?"
4. The references were registered as Reference Case No. 13 of 1990 and Reference Case No. 8 of 1991. Both the reference cases were decided by the impugned award by the labour Court, Jamshedpur, holding that the date of birth of the concerned workman was 4.1.1941, as it was not properly recorded by the Company, in its record and further that the termination/ superannuation of the concerned workman was improper and unjustified and ultimately it was held that the concerned workman was entitled to be reinstated with all back wages and other benefits including continuity of service. The above award of the Labour Court, Jamshedpur dated 29.7.1995 has been challenged by the company in the present writ application.
5. The case of the management/company is that the concerned workman was appointed, as Darwan, on temporary basis on 21.9.1953, and he was made permanent on 1.3.1995. The concerned workman put his signature in the staff form which was prepared on the information furnished by him. The date of birth of the concerned workman as stated by him was recorded in the said Staff Form as well as in the nomination form of the Employees Provident Fund Scheme as January 1930 on his such declaration. He was also issued company's Identity Card, in which the date of birth of the concerned workman was recorded as January, 1930 and the concerned workman also put his signature on the said identity card. On the basis of the aforesaid fact the company asserted that the date of birth of the concerned workman was January, 1930 as per his own statement and declaration and therefore, he was rightly superannuated on 1.2.1990, after attaining the age of 60 years. The company further asserted that for the first time in the year 1988 i.e. at the fag end of his service the concerned workman raised the question of wrong recording his date of birth by the company in its record and he produced school leaving certificate issued by the Head Master of V.M.H. School Siwan in the district of Saran in the year 1977. It is submitted by the petitioner that apparently the said school leaving certificate appears to be a manufactured document as in the said certificate was mentioned that the concerned workman was admitted in the school in the year 1953 and he let the school in question in the year 1977. The date of birth of the concerned workman in the said school leaving certificate was 4.1.1941.
6. According to the company, the concerned workman was continuously working in the company at Ranchi since 1953 then it cannot be believed that during his course of employment i.e. from 1953 to 1977 he was studying in a school situated at Siwan in the district of Saran. Further case of the company is that if the date birth as recorded in the school leaving certificate is accepted to be correct then on the date of the appointment of the concerned workman in the year 1953 his age comes to about 12/13 years and therefore, it cannot be said that the company could have appointed a minor boy aged about 12/13 years as Darwan, therefore, the claim of the concerned workman that his date of birth was 4.1.1941, according to the school leaving certificate, cannot be accepted. Further case of the company is that the concerned workman did not raise any dispute with regard to wrong recording of his date of birth since the date of his appointment till 1988 more than 30 years and therefore, he cannot be allowed to agitate the same at the fag end of his service.
7. On the other hand, the case of the of the concerned workman is that the company employs various categories of employees and, it was the practice of the Company to record the age/date of birth of an employee at the time of his appointment, on the basis of school leaving certificate or on the basis of determination of age scientifically by medical process. His age/date of birth was not assessed by any medical process. He cane to know about the wrong recording of his date of birth in the year 1976 and thereafter, he procured school leaving certificate in the year 1977 and then it was produced to the company. According to the school leaving certificate, his date of birth is 4.1.1941, but the company failed to correct his date of birth. Thereafter by letter of demand dated 16.2.1988, the correction of his date of birth on the basis of school leaving certificate was made and ultimately reference was made to the Labour Court as aforesaid.
8. The learned Labour Court by the impugned award held as follows :
(i) that issue as framed and referred for adjudication is an Industrial Dispute within the meaning of under Section 2(k) of the said Act and there is no illegality in the order of reference and as such the reference is maintainable.
(ii) that Staff Form of the workman was not prepared at the time of his appointment and it was blank when the workman signed it at the time of appointment.
(iii) that particulars were not mentioned in the Identity Card Record and it was blank when the workman signed it.
(iv) that in the Form 2 of Employees Provident Fund Scheme, the workman put his signature under pressure.
(v) that the elder brother of the concerned workman was still working in that very company, therefore, it was a strong proof of wrong recording of the date of birth of the concerned workman by the company in its record.
9. On the basis of the aforesaid findings, the learned Labour Court held that the date of birth of the concerned workman was not recorded properly by the company in its record and the date of birth of the concerned workman was 4.1.1941, as mentioned in the School Transfer Certificate.
10. In view of the above findings of the learned labour Court passed in the award for reinstatement of the concerned workman with full back wages.
11. Mrs. Banani Verma learned counsel for the petitioner submitted that as the findings arrived at by the Labour Court is based on no evidence and is based on conjecture and surmises, therefore, the same is liable to be setaside. She further stated that the concerned workman could not have been allowed to agitate the matter regarding the dispute of his date birth as recorded in the company records at the fag end of his service. In this regard she further submitted that the concerned workman accepted his date of birth as January 1930 as declared by him only and in token thereof he put his signature In the staff form, in the identity Care issued to him by the company and also in the Form of Employment Provident Scheme. She further submitted that the School leaving certificate produced by the concerned workman was out and out a forged document. According to the said certificate, the concerned workman was studying in the school at Siwan in the district of Saran from 1953 to 1977 which cannot be believed as during that period he-was working with the company as Darwan at Jamshedpur and therefore, no reliance of the said document should be placed wherein the date of birth of the concerned workman has been recorded as 4.1.1941. Mrs. Verma very vehemently argued that the concerned workman cannot be allowed to take a plea that he was compelled to sign on the blank i.e. the staff form and Identity Card as well as Employment Provident Scheme form, because the said plea was not taken by him earlier even in his written statement, therefore, it was beyond his pleadings and as such the same cannot be considered at all. She submitted that the findings of the Labour Court that concerned workman was compelled to sign in the blank form was absolutely perverse. She further submitted that under Section 67 of the Factory Act, there is a prohibition for appointment of a child below 18 years and therefore, the concerned workman could not have been appointed by the company at the age of 12/13 years if the date of birth as mentioned in the School leaving certificate is accepted to be 4.1.1941. She further submitted that except the concerned workman no other independent witness was examined to substantiate the fact alleged by the concerned workman and therefore, findings of the labour Court is not based on record.
12. In support of his submission the learned counsel for the petitioner has relied on the decision in the case of Union of India v. Ram Sua Sharma, reported in 1996 (2) LLJ 939 (SC), in the case of Union of India v. Harnam Singh, reported in 1994 (1) LLJ 318 (SC), and in the case of National Airports Authority v. M.A. Wahab, reported in 1995 (1) LLJ 34 (SC).
13. On the other hand Mr. M.K. Laik learned counsel for the concerned workman submitted that the findings of fact arrived at by the Labour Court cannot be disturbed by this Court in its writ jurisdiction and that the findings in the award should not be set aside on hyper technical ground. In support of his submission he relied on the decision in the case of Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors., reported in 1988 (Supp) SCC 768.
14. I have carefully gone through the impugned award passed by the labour Court and I find that the findings of the labour Court that the staff form and identity card were not prepared at the time of the appointment and it was blank, when the workman signed it, is based on no evidence at all. There was nothing on record to show that any evidence either oral and documentary was available before the Labour Court so as to come to the above findings and therefore, I find that submission of the learned counsel for the petitioner is valid.
15. From bare perusal of the school transfer certificate produced by the concerned workman which has been annexed as Annexure-3 to the writ application and was marked as Ext. M/3 I find that no prudent person can believe the statements of the concerned workman that form the period 1953 to 1977 while he was in service at Jamshedpur with the company, he was also studying in the school situated at Siwan, in the district of Saran and accordingly I find that the findings of the Labour Court that the date of birth of the concerned workman to be 4.1.1941, on the basis of said school leaving certificate, which on the face of it appears to be a forged document, was bad.
16. Lastly, the submission of the petitioner that concerned workman should not have been allowed to agitate the dispute with regard to wrong recording of his date of birth at the fag end of his service, appears to be correct in view of the fact that the concerned workman raised the dispute with regard to his age in the year 1988, when he was going to retire in 1990, therefore, in 1990, therefore, in view of the decision of the Supreme Court, he cannot be allowed to do so. Reference in this regard be made to the decision of the Supreme Court in the case of G.M. Bharat Coking Coal Ltd. v. Shib Kumar Dushad and Ors., reported in (2000) 8 SCC 606.
17. So far as the decision of the Supreme Court, cited by the respondents in the case of Calcutta Port Shramik Union, (supra) is concerned, there is no dispute that the Supreme Court has held that while exercising powers of judicial review, the High Court should not pick holes here and there in the award on trivial points and strike down the awards on hyper technical grounds, but as it has been found in this case the whole basis of the claim of the workman regarding his date of birth is the school leaving certificate, according to which he was studying in the school in between the period 1953 to 1977 in the district of Saran whereas according to his own case, he was employed at Jamshedpur with the company during the said period therefore, no importance can be attached to such certificate, which apparently cannot be said to be genuine. Even the learned counsel for the respondents could not explain as to how it was possible for the workman to be present at both places at the same time. Therefore, the case of the Supreme Court is of no help to the respondents in the facts and circumstances of this case.
18. In view of my discussions and findings above, I hold that the finding arrived at by the Labour Court is perverse, as the same is not based on record, rather it was based on conjecture and surmises and therefore, it cannot be sustained.
19 Accordingly this application is allowed and impugned award passed by the Labour Court Jamshedpur is hereby setaside. In the facts and circumstances of the case, there shall be no order as to costs.