Karnataka High Court
Sri. K. V. Shetty vs The Sr. Vice President on 26 February, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26 T H DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
W. A. NO. 100215/2017(L-RES)
BETWEEN:
K.V.SHETTY,
S/O VASU SHETTY,
AGE: 62 YEARS,
R/O HINDALCO COLONY,
Q. NO.J-125, NEHRU NAGAR,
BELAGAVI 0 590 010
...APPELLANT
(BY SRI S.L.MATTI, ADVOCATE)
AND:
THE SR. VICE PRESIDENT,
M/S HINDALCO INDUSTRIE LTD.,
BELAGAVI WORKS,
BELGAVI-590010
...RESPONDENT
(BY SRI PRADEEP S. SAWKAR, ADV. & SRI
SURESH S.GUNDI, ADV.)
***
2
THIS WRIT APPEAL IS FILED UNDER SECTION
4 OF KARNATAKA HIGH COURT ACT, 1961,
PRAYING TO SET ASIDE AN ORDER DATED
23.03.2017 PASSED BY THE LEARNED SINGLE
JUDGE IN WP NO.64218/2012 AND TO CONFIRM
THE JUDGMENT AND AWARD DATED 21.02.2012
PASSED BY THE ADDL. LABOUR COURT, HUBBALLI,
IN KID NO.99/2010 BY ALLOWING THIS APPEAL.
THIS APPEAL IS HEARD, RESERVED AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, PRADEEP SINGH YERUR, J., DELIVERED
THE FOLLOWING:
JUDGMENT
This writ appeal is preferred by the appellant - Workman against the orders of the learned Single Judge dated 23 r d March 2017 in W.P. No.64218 of 2012, which has quashed the award of the Addl. Labour Court, Hubli in KID No.99/2010, wherein the Labour Court has decided the issue of date of birth of the Workman - Sri K.V.Shetty, the appellant herein, in favour of the appellant - Workman and against the employer and directed to reinstate the workman with continuity of service and full backwages. 3
2. The brief facts of the case of the appellant - Workman is as hereunder:
The appellant - Workman was initially appointed on 18.09.1980 temporarily and was discharged on 06.12.1980. He was again employed temporarily from 15.11.1981 till 31.03.1982. It is the case of the appellant -
Workman that on 01.04.1982 he was appointed as Canteen Boy on probation for a period of six months. At the time of such appointment, on 01.04.1982 his date of birth given in the concerned application form was 09.10.1955. The appellant - Workman further states that he had signed the declaration and produced school leaving certificate towards the proof of date of birth and that after verification of the document regarding proof of age and date of birth submitted by the appellant - Workman, the respondent - Management forwarded the same to the ESI Corporation for enrolment and for issuance of 4 identity card. Accordingly, the appellant - Workman was enrolled on 27.08.1980, wherein his date of birth is shown as 09.10.1955. The appellant - Workman produced his birth certificate issued by the Registrar of Births and Deaths dated 06.09.1991 as per the directions of the Management and thereafter respondent - Management confirmed the services of the appellant - Workman by declaring his probationary as successful and appellant - Workman thereafter continued in service without any break.
3. It is the case of the appellant -
Workman that the respondent - Management accepted his date of birth for all the purposes as 09.10.1955 and recorded the same in Office records from 01.04.1982.
4. In the year 1993 the respondent -
Management introduced VRS scheme in the Company, wherein the respondent - Management 5 prepared the worksheet showing the benefits and deductions of the workman who were opting to take VRS. The respondent - Management also prepared the work sheet of the appellant - Workman and mentioned his date of birth as 09.10.1955 and joining date as 01.04.1982 and normal retirement date as 13.10.2013 and the same was prepared on 15.04.1993.
5. The appellant - Workman states that without considering the above facts the respondent - Management issued a premature retirement of the appellant - Workman from service with effect from 27.08.2010 as per the letter dated 30.06.2010. Therefore, the appellant
- Workman gave a representation on 17.07.2010 with a request to correct his date of birth as notified at the time of regular appointment on 01.04.1982. However, the respondent - Management retired the appellant - Workman from the service prematurely on 01.09.2010, which 6 according to the appellant - Workman is illegal termination from the service. Hence, appellant - Workman raised a dispute before the Addl. Labour Court, Hubli under Section 10 of the Industrial Disputes Act, 1947. The dispute is numbered as KID No.99/2010.
6. Before the Addl. Labour Court, Hubli, the respondent - Management filed a written statement and took up a plea that at the time of appointment the appellant - Workman had not produced any birth certificate or school leaving certificate and therefore, the respondent - Management's Medical Officer certified the age of the appellant - Workman as 28 years and taking the date of birth as 27.08.1952 as per the applicable Standing Orders of the respondent - Company. Therefore, the respondent - Management denied the date of birth of the appellant - Workman to be 09.10.1955 and 7 confirmed 27.08.1952, which was duly counter signed and accepted by the appellant - Workman.
7. Based on these pleadings before the Addl. Labour Court, Hubli, the issues were framed and the parties lead in their evidence and the appellant - Workman got examined himself as WW1 and got marked Ex.W1 to 37, whereas the respondent - Management examined three witnesses as MW1 to 3 and got marked Ex.M1 to
18. The Labour Court allowed the claim petition made by the appellant - Workman and passed the order in the following manner:
" ORDER a. Award is passed.
b. The claim petition is hereby allowed partly with costs.
c. The order of the management retiring the workman prematurely as on 1.9.2010 is hereby set aside.
d. The management is hereby directed to reinstate the workman into service with continuity of service, within 30 8 days from the date of publication of the award by the Government.
e. The management is directed to pay full back wages from the date of premature retirement ie 1.9.2010 till he is reinstated into service and other consequential benefits.
f. The management shall pay cost of this litigation to the workman which is fixed at Rs.10,000/-."
8. The respondent - Management aggrieved by the said award of the Tribunal preferred a writ petition in W.P. No. 64218/2012. The learned Single Judge after hearing the appellant - Workman and the respondent - Management, allowed the writ petition of the respondent - Management and set aside the award passed by the Labour Court, Hubli dated 21.02.2012. Further, the learned Single Judge passed an order directing that the respondent - Management will be entitled to recover back the salary and wages paid to the workman after 01 s t September 2010, except his retrial benefits due to 9 him as per the Company's Rules as on the date of his retirement on 01 s t September 2010 from his retrial dues or otherwise.
9. This being the facts of the case the appellant - Workman has challenged the said order of the learned Single Judge before us.
10. We have heard the learned counsel for the appellant - Workman and the respondent - Management.
11. The learned counsel for appellant - Workman contends that his date of birth has been shown in the records and Register of Birth and Deaths as 09.10.1955 and he has produced extract of the birth register from January 1955 to August 1955. He has produced his appointment letter, which is marked as Ex.W20, wherein the declaration is made by the appellant - Workman about the date of birth as 09.10.1955 and that the said document is produced on 03.04.1982 and 10 even prior to that the ESI Corporation Identity Card is issued in favour of the workman as on 27.08.1980, wherein also his date of birth is mentioned as 09.10.1955.
12. The learned counsel for the appellant - Workman contends that he has produced the extract of birth Register issued by the Tahsildar, Udupi at Ex.W35, wherein at Sl. No.46, the date of birth of the appellant - Workman is shown as 09.10.1955 and that in the said extract at Ex.W35(a), the name of the father, mother and place of birth has also been clearly mentioned. The appellant - Workman contends that when the birth certificate is issued initially the name is not mentioned and thereafter it could be included in the birth certificate and he says, thereafter his name is mentioned while he obtained the birth certificate in the year 2010-11. The learned counsel for the appellant - Workman also contends that he could not produce the school 11 leaving certificate of the appellant - Workman and also his SSLC marks card, as he studied in the night School at Belgaum and that School is not in existence any more. Therefore, there was nothing wrong in the appellant - Workman including his name in the birth certificate, which has been accepted by the respondent - Management and therefore, the order passed by the Labour Court, Hubli, is perfectly in order and quashing of the said order by the learned Single Judge is not in accordance with law and facts on record. The appellant - Workman has supported the order of the Labour Court terming the premature retirement of the appellant - Workman as illegal termination.
13. The learned counsel for the appellant - Workman further contended that the declaration made by the employer at Ex.W20 has been accepted by the respondent - Management by putting signature to the same. The learned 12 counsel for appellant - Workman seriously disputes Ex. M4(a) to (d), which is produced by the respondent - Management, by stating that the endorsement made at Ex.M4(a) is manipulated by the respondent - Management and the said declaration to the effect that 'I have produced my school leaving certificate as age proof and my date of birth is 09.10.1955', has been scored off by the respondent - Management, which is marked at Ex.M4(b).
14. It is further contended by the learned counsel for appellant - Workman that the respondent - Management has accepted the date of birth to be 09.10.1955 as on 15.04.1993, but later the same has been manipulated with malafide intention by the respondent - Management. The learned counsel for the appellant - Workman further contends that the order of the learned Single Judge is perverse and arbitrary to the effect that it has passed the order for recovery of salary 13 and wages paid to the appellant - Workman from 01.09.2010 and further the order directing the appellant - Workman to handover the vacant and peaceful possession of the company residential quarter to the Company forthwith, is arbitrary and not sought for by the respondent - Management. Therefore, the learned counsel for appellant - Workman contends that viewed from any angle the order of the learned Single Judge is to be set aside by restoring the order of the Labour Court, Hubli.
15. Per contra, the learned counsel for the respondent - Management took up initial defense about maintainability of the present writ appeal itself, wherein he seriously contends that the writ appeal filed by the appellant - Workman is not maintainable in view of the fact that the learned Single Judge has exercised the jurisdiction under Article 227 of the Constitution of India, which is supervisory in nature and has not 14 exercised its jurisdiction under Article 226 of the Constitution of India, therefore, the writ appeal under Section 4 of the High Court Act, 1961, is not maintainable and the same would not be applicable to the facts of the present case.
16. The learned counsel for the respondent - Management relied on the judgment of the Hon'ble Apex Court in the case of SH. JOGENDRASINHJI VIJAYASINGHJI vs STATE OF GUJARAT AND OTHERS reported in AIR 2015 SC 3623 and the Larger Bench judgment of this Court in the case of GURUSHANTH PATTEDAR vs MAHABOOB SHAHI KULBURGA MILLS AND ANOTHER reported in ILR 2005 KAR 2503, to contend that the writ appeal could not be maintainable when the jurisdiction is exercised under Article 227 of the Constitution of India.
17. The learned counsel for the respondent - Management further contends that 15 the appellant - Workman failed to produce any evidence in support of his date of birth in his original application form in the year 1982, wherein neither the school leaving certificate nor the birth certificate was produced by the appellant - Workman. Accordingly, as per the standing orders which prescribes recruitment and employment procedure for the employment workman, the medical examination was conducted by the respondent - Management and the date of birth was arrived and accepted as 27.08.1952.
18. In order to substantiate the claim the learned counsel for the respondent - Management draws our attention to Ex.M1, which is the Certified Standing Order of the respondent - Management - Indian Aluminium Co. Limited. Belgaum Works, wherein as per Clause 4 - Recruitment and Employment, procedure is laid down and under the said head, Clause 4 (b) reads as under:
16
"At the time of employment, prospective workmen shall produce proof of age, that is:
i) Birth Certificate where name is mentioned, or
ii) School leaving certificate.
iii) Insurance policy taken before employment commences, where age has been admitted.
In the absence of this proof, the decision of the Company Medical Officer about the age shall be final."
19. Therefore, relying on the above said Standing Orders, where it is clearly held that in the absence of any document mentioned in Clause 4(b), the decision of the Medical Officer of the Company would be final and accordingly, since the appellant - Workman had not produced any of the documents as sought for, the Medical Officer had examined and arrived at a conclusion that the date of birth of the appellant - Workman to be 27.08.1952, which is accepted by the appellant - 17 Workman till the notice of retirement was given to him on 30.06.2010.
20. The learned counsel for the respondent - Management contends that all was well till 30.06.2010 when the respondent - Management issued a notice on 30.06.2010 offering the VRS Scheme and on receipt of this notice from the respondent - Management, the appellant - Workman sent a reply on 17.07.2010, which is marked and produced as Ex.M7 seeking for correction of his date of birth and to rectify his date of birth from 27.08.1952 to 09.10.1955 and while sending this letter for correction of his date of birth, the appellant - Workman has produced his original birth certificate to the Company, which is produced at Ex.W22, wherein the name of the appellant - Workman is mentioned in the birth certificate. The learned counsel for respondent - Management further contends that this very birth certificate itself is fabricated and manipulated 18 document and the same has been applied and got issued on 09.07.2010, which is post the date of letter issued by the management for retirement on 30.06.2010.
21. Therefore, the learned counsel contends that the appellant - Workman has manipulated, fabricated and created and produced with an intention to seek extension of three years only after he received notice from the respondent
- Management. The learned counsel for respondent - Management further contends that they had filed an application before the Labour Court for referring the matter to the Hand Writing Expert to verify the signature of the appellant - Workman admitted his signature at Ex.M18, which came to be rejected by the Labour Court. Therefore, the non-production of the details of the school that the appellant - Workman studied, creates doubt with regard to the statement made by the appellant - Workman in the application for 19 his employment, which is produced as Ex.M2 and therefore, the theory so put forth by the appellant
- Workman is unbelievable and fraudulent with only an intention to gain another three years of employment in the respondent - Company.
22. We have given our anxious consideration to the submissions made by the learned counsel for appellant - Workman and the learned counsel for respondent - Management and carefully perused the material documents and the order of the Tribunal as well as the order of the learned Single Judge.
23. Now, we would like to deal with the contentions put forth by the learned counsel for respondent - Management with regard to the maintainability of the appeal. The instant writ appeal is filed under Section 4 of the Karnataka High Court Act, 1961, (in short 'the Act'). Section 4 of the Act, reads as under:
20
"Appeals from decisions of a single Judge of the High Court. -- An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court."
24. The learned counsel has relied on the judgment in the case of GURUSHANTH PATTEDAR vs MAHABOOB SHAHI KULBURGA MILLS AND ANOTHER reported in ILR 2005 KAR 2503, wherein the larger Bench of this Court has dealt with regard to the appeals maintainable under Section 4 of the Act. In para-5, it is held as follows:
"It is thus clear that proceedings under Article 226 are in exercise of original jurisdiction of the High Court whereas proceedings under Article 227 of the Constitution are in the exercise of its supervisory powers. Section 4 of the Act when read in this context would 21 make it clear that an intra Court appeal is provided only against the order of a learned Single Judge passed in the exercise of original jurisdiction under Article 226 and not when he exercises the supervisory powers under Article
227."
25. In para-11 of the said judgment, it is held as follows:
"A careful perusal of the provisions contained in Section 4 of the Karnataka High Court Act would make it very clear that an appeal would lie against a judgment or order of the learned Single Judge in the exercise of the original jurisdiction of the High Court and not in exercise of its supervisory jurisdiction."
26. In para-12 of the said judgment, it is held as follows:
"It is needless to point out that Article 227 of the Constitution confers power of 22 superintendence over all Courts and Tribunals throughout the territories in relation to which the High Court exercises jurisdiction and such power of superintendence is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. It is equally needless to point out that there is difference between a writ of certiorari under article 226 and supervisory jurisdiction under article 227 of the Constitution. The difference between these two articles of the Constitution was well brought out in the case of Umaji Keshao Meshram and others VS Smt. Radhikabai and another, reported in AIR 1986 SC 1272.
Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original, but only supervisory."
It is very clear that the conclusion drawn by the larger Bench of this Court in the aforesaid 23 judgment, that no appeal would lie under Section 4 of the Act, against the order passed by the learned Single Judge in a petition filed under Article 227 of the Constitution.
27. The learned counsel for the respondent
- Management has also relied on the judgment of the Hon'ble Apex Court in the case of SH. JOGENDRASINHJI VIJAYASINGHJI vs STATE OF GUJARAT AND OTHERS reported in AIR 2015 SC 3623. In para-21 of the said judgment it is held as follows:
"In Lokmat Newspapers Pvt. Ltd. V. Shankarprasad, (AIR 1999 SC 2423), the controversy arose from the order passed by the Labour Court which had secured affirmation from the Industrial Tribunal. The said orders were challenged by the respondent therein by filing a writ petition under Articles 226 and 227 of the Constitution of India before the high Court."24
Wherein the High Court held thus:
"As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent."
Thereafter, in the very same judgment it is further referred to the case of UMAJI KESHAO MESHRAM AND OTHERS VS SMT. RADHIKABAI AND ANOTHER, reported in AIR 1986 SC 1272, wherein it was held thus:
"The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his 25 writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge."
28. In para-25 of the aforesaid judgment, it is held thus:
"From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional 26 perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasize, would depend upon various aspects that have been emphasized in the afore stated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition 27 to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court."
29. In para-36 of the aforesaid judgment , it is held thus:
"In view of the aforesaid analysis, we proceed to summaries our conclusions as follows:-
(A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
(B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of 28 the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. (C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party."
30. Therefore, considering the authorities relied on the Larger Bench judgment of this Court, which has squarely laid down as to which are the appeal that would be maintainable under Section 4 of the Act. After analyzing the submissions made by the learned counsel and after going through the Larger Bench decision of this Court and judgments of the Hon'ble Apex Court and considering the facts and circumstances of the case and the order passed by the learned Single Judge, we are of the 29 opinion that the learned Single Judge has exercised his jurisdiction under Articles 226 and 227 of the Constitution of India and it could be clearly construed that the subject matter involved are of comprehensive and composite manner and therefore, both the Articles 226 and 227 of the Constitution of India, in the present case, co- exist, coincide and imbricate. It is not in dispute that the writ petition filed by the respondent - Management is admittedly under the Articles 226 and 227 of the Constitution of India. Therefore, after taking the benefit of the order of the learned Single Judge wherein several directions have been issued in exercise of Articles 226 of the Constitution of India, it would not be permissible for the respondent - Management to contend, at this stage, that the appeal filed by the appellant - Workman is not maintainable as intra court appeal. Therefore, we are not inclined to accept the arguments canvassed by the learned counsel 30 for the respondent - Management with regard to appeal not being maintainable.
31. Now, coming to the factual aspect of the matter, the appellant - Workman while giving his application has clearly stated in his application with regard to his date of birth being 27.08.1952 and he has kept quite with regard to correctness of his date of birth till 17.07.2010, only after the receipt of notice for retirement from the respondent - Management on 30.06.2010. Hence, the silence of the appellant - Workman for such a long period of time does not auger well and conduct and intent of the appellant - Workman.
32. The appellant - Workman has also accepted his date of birth as 27.09.1952 and has signed the application with regard to correction of the same. The appellant - Workman has also stated that he has completed his education in Bombay, but has not produced his school leaving 31 certificate and has stated that he has mis-placed the same. He has not made any attempts to procure the copy of the said school certificate where he completed schooling. What is more concerning is, the withdrawal of the Provident Fund, wherein the appellant - Workman has given his date of birth as 27.08.1952 and his date of retirement on 01.09.2010, copy of which is produced at Ex.M5. The appellant - Workman, has later on, as an after thought and with an intention to get an extension of three years after receipt of the retirement notice from the respondent - Management, has furnished his date of birth certificate, wherein his name is included in the birth certificate and where he has got correction made with regard to his date of birth to read as 09.10.1955, which is contrary to the initial application furnished by the appellant - Workman where his date of birth is mentioned as 32 27.08.1952 as on the date of initial appointment on 01.04.1982.
33. If the appellant - Workman was really honest with regard to his submitting of the age details and when there was really an error in submitting his correct date of birth nothing prevented him from producing the correct date of birth along with necessary proof of his date of birth to the respondent - Management from the time of his appointment till the notice for retirement was given by the respondent - Management. It would be necessary to mention here that since the appellant - Workman did not have any document for his proof of birth, the respondent - Management as per their standing orders conducted the medical examination and secured a medical report of the doctor to arrive at his date of birth, which was 27.08.1952. It is appalling to note here that during the fag end of his career that too when the retirement notice is 33 served on him, the appellant - Workman has come up with a concocted theory with malafide intention. It is also pertinent to note from the records that the appellant - Workman has produced Ex.M35 wherein at Sl. No.46 particulars of birth details, wherein there are corrections made with regard to date of birth and endorsement bearing No.266/1980-81 by virtue of which such correction has been made. The appellant - Workman has not substantiated the same by either producing before the Tribunal or before the learned Single Judge or even before us, when questioned across the Bar said what is the endorsement and documents which is marked as No.226/1980-81. The appellant had no answer.
34. Therefore, it is hard to believe the theory put forth by the appellant - Workman at this stage. Further, appellant - Workman after withdrawal of the PF amount by showing his date of birth as 27.02.1952, cannot now turn around 34 and say that his date of birth is different as that of 09.10.1955. Therefore, the appellant - Workman has acquiescenced and is estopped from making such claim.
35. On this aspect the learned counsel for respondent - Management relied on the judgment of the Hon'ble Supreme Court in the case of BHARAT COKING COAL LTD. & ORS. Vs SHYAM KISHORE SINGH reported in Civil Appeal No.1009 of 2020, wherein the Apex Court has held in the said case at Para-12, as hereunder:
"On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did 35 not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified."
36. The above said judgment is of the assistance to the respondent - Management, it is also similar to the facts of the present case. In the facts and circumstances of the case, after consideration of the entire materials placed before us, we are not inclined to accept the theory put forth by the appellant - Workman with regard to discrepancy in the date of birth at the time of submission of his application form for appointment, because according to us there is no material produced to show genuineness of present birth certificate to show his date of birth as 36 09.10.1955 and his approach before the Court considering the over all circumstances and situation appears to be mis-leading, fabricating and concocting and there is no element of truth in either documents or submissions of the appellant - Workman.
37. Though this Court is generally sympathetic towards the appellant - Workman but considering the facts and circumstances of the case, we are not inclined to interfere and disturb the order passed by the learned Single Judge, the same is affirmed. Therefore, the appeal deserves to be rejected.
38. Accordingly, appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE VK