Kerala High Court
Dvl.Personnel Officer vs P.Kasu on 9 April, 2008
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 9004 of 1998(V)
1. DVL.PERSONNEL OFFICER,S.RAILWAY
... Petitioner
Vs
1. P.KASU
... Respondent
For Petitioner :SRI.M.C.CHERIAN
For Respondent :SRI.B.GOPAKUMAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :09/04/2008
O R D E R
S. Siri Jagan, J.
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O.P. No. 9004 of 1998
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Dated this, the 9th April, 2008.
J U D G M E N T
The Divisional Personnel Officer, Southern Railway, Palghat is the petitioner in this original petition. He is challenging Ext. P18 award of the Industrial Tribunal, Palakkad in I.D.No. 71/96 (C), wherein he is the management and the 1st respondent herein is the workman. The issue referred for adjudication was:
"Whether the claim of the workman Smt. P. Kasu that she was born on 16-12-52 is justified ? If so, whether the action of the Management of D.P.O. S. Rly, Palghat in superannuating the workman on 30-4-94 is legal and justified? If not, to what relief is the workman entitled to?"
The management superannuated the workman on the basis of the age recorded in the service records, which was 40 years as on 21-4-1976. The workman claimed that her date of birth was 16-12-1952 and therefore her date of superannuation would fall only on 15-12-2010. The Tribunal, after entering a finding that the workman has not produced any reliable documentary evidence to substantiate her claim that her date of birth was 16-12-1952 and in the absence of any such documentary evidence, the management would have been justified in its refusal to carry out the correction of date of birth, relied on the order of the Central Administrative Tribunal, Ernakulam in O.A.No. 1941/93, filed by the petitioner, to hold that the management had agreed to accept the affidavit of the workman regarding her date of birth and based on two affidavits of the workman attested by a notary and a Judicial First Class Magistrate, accepted the case of the workman directing the management to reinstate the workman with backwages and consequential benefits. That award is under challenge before me.
2. The contention of the management is that the first respondent-workman was engaged as a casual labourer on 21-4-1976 O.P.No. 9004/1998 -: 2 :- by the Permanent Way Inspector, Palghat. At that time, the personal details of the workman as declared by her was entered in a register called LTI Register, and her left hand thumb impression was obtained therein. In that register, a copy of which was marked as Ext. M1 in the award and produced herein as Ext. P1, the age of the workman was shown as 40 as on her date of entry in service, namely, 21-4- 1976. Later her casual employment was terminated and she was later reinstated in service as a casual labourer pursuant to directions of this Court. At that time, the LTI Register was with the Industrial Tribunal, Alleppey, the same having been produced in cases involving the workman and others. Even at the time of regular absorption of the workman the same was not available. Therefore, the workman was asked to produce the original casual labour card and an affidavit declaring her date of birth as entered therein, in accordance with Rule 225 of the Rail;way Establishment Code, Vol. I (1985 Edition) and the Railway Ministry's decision underneath the same. The workman refused to do so. Instead, she along with some other similarly placed workmen, filed O.A.No. 1941/93 before the Central Administrate Tribunal for a direction to the petitioner to act in accordance with the notarised affidavits submitted by them declaring their age. The petitioner filed a written statement stating that the respondents in the O.A have no objection in accepting affidavits signed before a Notary, provided the dates of birth provided therein tally with what was recorded in the LTI Register as per the declaration given by the workman. By Ext. P7 order, the Central Administrative Tribunal, disposed of the O.A., recording that in the statement filed by the petitioner herein, the petitioner has stated that the affidavit attested by a Notary will be taken on record and considered. Ext. P6 communication was earlier issued to the O.P.No. 9004/1998 -: 3 :- workman directing her to file an affidavit in accordance with the age already declared by her, failing which action will be taken to record her date of birth in the service register as 21-4-36 for all purposes including superannuation/retirement, which communication was not challenged in the O.A., although the same was produced therein. In spite of the same, the workman did not produce an affidavit in accordance with her age already declared and therefore the workman was superannuated with effect from 30-4-1994. It is under the above circumstances the workman raised the industrial dispute, which was referred for adjudication of the Industrial Tribunal. The petitioner contends that the Tribunal, after finding that there is no reliable evidence to show that the workman's date of birth was 16-12- 1952, ought not to have directed reinstatement based on the order of the Central Administrative Tribunal (CAT for short) in so far before the CAT, the petitioner never undertook to accept the affidavit of the workman, but only agreed to accept the same on record and consider it. According to the petitioner, since there was no supporting documents to prove her date of birth, the age entered in the service records could not have been corrected based on a mere self-serving affidavit of the workman. On these averments, the petitioner seeks to justify their action in superannuating the workman on 30-4-1994 and quashing of Ext. P18 award.
3. The 1st respondent-workman contests the original petition on the following grounds. Counsel for the workman first contends that this Court cannot exercise jurisdiction under Article 226 of the Constitution of India in this case, in so far as, as per the law laid down by the Supreme Court in the two decisions cited by him, this Court cannot re-appreciate evidence in an industrial dispute to come to a different conclusion from that of the Industrial Tribunal. He O.P.No. 9004/1998 -: 4 :- would submit that merely because another view is possible on the same material and even if there is an error, this Court cannot interfere with the award while exercising certiorari or supervisory jurisdiction. Therefore, this Court shall not interfere with Ext. P18 award, is the first contention raised. On merits, he would rely on Rule 225 referred to by the petitioner himself in the original petition. He would point out that the workman is admittedly an illiterate lady and she has never made any conscious declaration of her age or date of birth. He further argues that the age in Ext. P1 was recorded not at the time of her entering service and that the age was also not recorded in accordance with the procedure prescribed in Rule 255. He points out that Ext. P1 is not a declaration by the workman but only an entry by a careless or irresponsible clerk of the petitioner against which the thumb impression of an illiterate lady was obtained, which cannot be relied upon to decide the petitioner's age and date of birth. He also points out that the entry in Ext. P1 is not the date of birth of the workman, but only the date of entry in service and the alleged age of the workman which cannot be relied upon as evidence to determine the date of birth of the workman. According to him, the workman had declared her age and date of birth as required in Rule 225 in two affidavits attested by a Notary and a Magistrate and the same is the declaration as contemplated by the Rules, which cannot be refused to be acted upon. He supports the reasoning of the Tribunal that after undertaking before the CAT, to accept the affidavit of the workman, the petitioner is estopped from taking a different stand. He submits that the view taken by the Tribunal was the only decision which could have been arrived at on the basis of the material available before it and therefore there is no merit in the challenge against Ext. P18 award.
O.P.No. 9004/1998 -: 5 :-
4. In reply, counsel for the petitioner would argue that the embargo as per the law laid down by the Supreme Court does not apply to perverse decisions of the Tribunal and since the Tribunal has totally misread the order of the CAT to find in favour of the workman, that too, after finding that the workman has not produced any reliable evidence to prove her date of birth as 16-12-1952, the decision is perverse and this Court has jurisdiction to interfere with such perverse decision. She also points out that in Ext. P18 award, the Tribunal has went to the extent of finding that by Ext. W6 order (which is Ext. P7 herein) of the CAT, Ext. M3 memo (which is Ext. P6 herein) stands quashed, which order is patently absent in Ext. P7 order, adding to the perversity of Ext. P18 award. Relying on Ext. P4 copy of the O.A filed before the CAT by the workman and others, she argues that Ext. P6 was not even challenged before the CAT and therefore the question of quashing the same by the CAT does not arise.
5. I have considered the rival contentions. First, I shall consider the arguments regarding the jurisdiction of this Court in interfering with awards of Labour Courts/Industrial Tribunals raised by the learned counsel for the workman based on the decisions cited by him. He relies on two decisions. The first is Jithendra Singh Rathor v. Shri. Baidyanath Ayurveds Bhawan Ltd., and another, (1984) 3 SCC 5. This decision deals with the scope of interference by this Court under Article 227 in an award granting relief to a workman in exercise of powers under Section 11A of the Industrial Disputes Act. The Supreme Court has in paragraphs 4 and 5 of the said decision, held thus:
"Under Section 11-A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under O.P.No. 9004/1998 -: 6 :- Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well-accepted limitation and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. . . . . . We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power to the High Court in every type of cases. . . . . ."
6. The second decision [Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682] relied on by the learned counsel for the workman is not one under the Industrial Disputes Act, but lays down the general scope of jurisdiction of the High Court under Articles 226 and 227 of the Constitution in certiorari proceedings. In paragraph 4 of that decision, it is held thus:
" . . . . . In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the court or authority on whose judgment the High Court was exercising jurisdiction , should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. . . . . ."
7. The Supreme Court has, in innumerable decisions, held that the High Court can interfere with awards of Labour Courts/Industrial Tribunals only when the findings entered therein are demonstrably perverse. I shall now examine whether there is any patent error in O.P.No. 9004/1998 -: 7 :- Ext. P18 award for finding which lengthy and complicated arguments or a long drawn out process of reasoning is required and whether the finding is perverse which are the tests laid down by the Supreme Court in such matters.
8. Two findings have been recorded by the Tribunal in Ext. P18. The first is as to whether the workman has proved that her actual date of birth is 16-12-1952. The finding on that point is in paragraph 6 of the award which reads thus:
"6. I also agree with the contention of the Management that the subsequent declaration made by the worker in this dispute by filing affidavits attested by Notary and Judicial Magistrate of the First Class are, not the conclusive proof for the correct date of birth. These affidavits containing self interested statement of the worker alone cannot be taken into account for determining the date of birth. In addition to Ext. W1 and W5 affidavits the worker has produced Ext. W8 horoscope written on palm leaf. But there is nothing in Ext. W8 to suggest that the said horoscope is in respect of the worker. The names of the worker and her parents are not mentioned in Ext. W8. Ext. W8 was also not proved by examining its author. The worker has not produced any other documents viz. the ration card voters list, records relating to birth/death registrations maintained in the Panchayath/Village Office etc. to substantiate her claim that her date of birth is 16.12.52. In the absence of any such documentary evidence, the Management would have been justified in its refusal to carry out the correction of date of birth."
This finding is in favour of the management and based on this finding the workman should have been denied relief.
9. The second is on the basis of Ext. P7 order of the CAT. That finding is in paragraph 10, which runs thus:
"10. From Ext. W3 dt. 2.11.93 it is clear that when the matter came up for final hearing on 22.11.93 before the Administrative Tribunal, the Management was well aware that the age declared by the worker as per Ext. M1 LTI Register was 40 years as on 21-4-76. But the Management unconditionally agreed to accept the affidavit attested by the Notary. In addition to Ext. A1 affidavit attested by Notary the worker had also submitted Ext. W5 affidavit dt. 4.5.93 attested by Judicial First Class Magistrate, Palakkad declaring her date of Birth as 16.12.52. I find that by Ext. O.P.No. 9004/1998 -: 8 :- W6 order dt. 22.11.93 of the Administrative Tribunal, the Ext. W3 memo dt. 2.11.93 stands quashed and the Management is liable to accept Ext. W1 and W5 affidavits."
The parties are at issue regarding the second finding finding, in so far as the workman has not challenged the award. So, I shall consider whether this finding is perverse and is a patent error ascertainable as such without a long drawn out process of reasoning or whether two opinions are reasonable possible on the point.
10. Ext. P7 reads thus:
"Proof of Date of Birth attested by a Notary was not received by respondents, as the Permanent Way Inspector held the view that such a document will have to be attested by a Magistrate of First Class.
2. In the reply statement filed, respondents state that the affidavit attested by a Notary will be taken on record, and considered.
3. We are not called upon to decide any other matter. We record the submission and dispose of the application. No costs."
The Tribunal held that this contains an unconditional agreement to accept the affidavit of the workman attested by a Notary and by Ext. P7 order, Ext. P6 stands quashed. From Ext. P7, I am unable to come to both conclusions with any process of reasoning. What is stated therein is that "In the reply statement filed respondents state that the affidavit attested by a Notary will be taken on record and considered." There is no unconditional agreement therein that the affidavit of the workman would be accepted and acted upon by the management, but only that it would be taken on record and considered. Further, if it is to be construed as an unconditional agreement to accept the affidavit as proof of the workman's date of birth, the industrial dispute itself was unnecessary. All what was required was to file a petition before the CAT for initiating proceedings for contempt for which the CAT had powers. There is also no express or implied quashing of Ext. P6 O.P.No. 9004/1998 -: 9 :- in Ext. P7 as held by the Tribunal. In fact, in Ext. P4 copy of the OA filed before the CAT there is no prayer to quash Ext. P6 at all. Therefore, without any lengthy and complicated arguments or a long drawn out process of reasoning, I can without an iota of doubt hold that the second finding is not only patently erroneous but also perverse. I am also of opinion that no two views are possible on this, by any stretch of reasoning.
11. This is further clear from Ext. P5 statement of the management in the O.A before the CAT, which only has been stated to be recorded in Ext. P7. The only concession given therein is at paragraph, which reads thus:
"3. It is also submitted that the respondents have no objection in accepting affidavits signed before a Notary, provided the dates of birth given therein tally with that was recorded in the LTI Register as per the declaration given by the applicants."
That states that the respondents have no objection in accepting affidavits signed before a Notary provided the dates of birth given therein tally with that was recorded in the LTI Register as per the declaration given by the applicants. Therefore, there is absolutely no unconditional agreement by the management as concluded by the Tribunal by even a stretch of reasoning. Therefore, clearly, the findings of the Tribunal on that point is clearly perverse and liable to be interfered with in exercise of my jurisdiction under Articles 226 and 227 of the Constitution of India going by the law laid down by the Supreme Court in the decisions cited by the counsel for the workman himself. This finding is sufficient to set aside the award. However, since arguments have been advanced on the merits of the claim of the workman, I shall deal with the same also.
12. The contention is that going by Rule 225 quoted in the original petition itself, the workman's affidavit regarding the date of O.P.No. 9004/1998 -: 10 :- birth should have been accepted. The said Rule and the decision of the Railway Ministry read thus:
"Rule 225 - Date of Birth
1. Every person, on entering Railway Service, shall declare his date of birth which shall not differ from any declaration expressed or implied for any public purpose before entering Railway Service. In the case of literate staff, the date of birth shall be entered in the record of service in the Railway servant's own handwriting. In the case of illiterate Staff, the declared date of birth shall be recorded by a senior Railway Servant and witnessed by another Railway Servant.
2. A person who is not able to declare his age should not be appointed to Railway Service.
3. (A) When a person entering service is unable to give his date of birth but gives his age, he should be assumed to have completed the stated age of the date of attestation, e.g. if a person enters service on 1st January, 1980 and if on that date his age was stated to be 18, his date of birth should be taken as 1st January, 1962.
(B) When the year or year and month of birth are known but not the exact date, the 1st July or 16th of that month respectively shall be treated as the date of birth.
RAILWAY MINISTRY'S DECISION
(a) When a candidate declares his date of birth he should produce documentary evidence such as a Matriculation Certificate or a Municipal Birth Certificate. If he is not able to produce such an evidence he should be asked to produce any other authenticated documentary evidence to the satisfaction of the appointing authority. Such authenticated documentary evidence could be the School Leaving Certificate, a Baptismal Certificate in original or some other reliable document. Horoscope should not be accepted as an evidence in support of the declaration of age.
(b) If could not produce any authority in accordance with
(a) above he should be asked to produce an affidavit in support of the declaration of age.
(c) In the case of Group D Employee care should be taken to see that the date of birth as declared on entering regular Group D service is not different from any declaration expressed or implied, given earlier at the time of employment as a casual labourer or as a substitute."
O.P.No. 9004/1998 -: 11 :- From this rule, it is clear that every person entering Railway Service is bound to declare his date of birth. The workman claims that she has not so declared and her first declaration is the affidavit produced by her. That affidavit has been filed at the fag end of her service as per the age entered in the service record. Ext. P1 is a record kept in the normal course of business of the Railways. It contains the thumb impression of the workman. Either Ext. P1 or the thumb impression therein is not disputed by the workman. A procedure is provided in sub-rule 3 to be adopted in a case where the person entering service is unable to give his/her date of birth. Ext. P1 is in perfect tune with that procedure. Further, the Railway Ministry's decisions require documentary evidence or affidavit in support of the declaration of age. Therefore, the affidavit has to be in support of the declaration already made. The workman claims that she has not declared her age earlier. She is unable to produce any reliable evidence in support of her date of birth. Admittedly, in the service records of the workman kept in the normal course of business, her age is recorded as 40 as on 21-4-1976. The petitioner is disputing the correctness of that record at the fag end of her career. This Court and the Supreme Court have time and again held that requests for correction of dates of birth entered in the service records shall not be entertained at the fag end of service. Here, not only is the petitioner disputing the correctness of the service record at the fag end of her service, but she also does not have any reliable evidence worth the name to prove her claim except her own self-serving affidavit, which fact has been accepted by the Tribunal also in Ext. P18 award.
13. While at it, I am constrained to note a particular aspect of the case. Exts. P16 and P17 are the affidavits submitted by the workman regarding her date of birth. The workman is an illiterate O.P.No. 9004/1998 -: 12 :- lady. Both the affidavits are in English. The attestation does not state that the contents of the affidavit have been read over to her and explained to her in a language known to her or in her mother tongue, which is a requirement while attesting affidavits of illiterate persons. There is also no indication as to who prepared the affidavit. That being so, I am seriously in doubt whether the affidavits were valid affidavits at all.
14. Further, if disputes regarding dates of birth of workmen are to be decided on the basis of the affidavit of the workman who claims that his age is lower than what is mentioned in the service records, without any supporting documents, then no such dispute can even be decided against the workman. Therefore, I am of opinion that even if such affidavits are to be accepted, the same should be supported by some other independent material. Otherwise, managements would be flooded with such requests for correction of dates of birth in service records, which would not be in the interest of industrial peace, maintaining of which is the cardinal object of industrial adjudication, especially when such requests for correction are made at the fag end of the career of the workmen.
15. Therefore, the findings against the management and in favour of the workman in Ext. P18 award are liable to be set aside. I do so.
16. However, in view of the vast difference of 16 years between the age recorded in Ext. P1 and that claimed by the workman, my sense of justice does not permit me to let it go at that, especially since the workman is an illiterate lady. I feel that the workman should be given another opportunity to prove her age. In the absence of any other acceptable documentary evidence available, the only course now open to her is to get her age determined by medical O.P.No. 9004/1998 -: 13 :- examination, although by medical examination age cannot be determined by exactitude but only approximately. Therefore, I remand the matter to the Tribunal for fresh consideration, after affording an opportunity to the workman to produce proof of her age through medical examination by a Medical Board constituted by Medical Administration of the District. The management should also be given appropriate opportunity to controvert such evidence. The Tribunal should, on the basis of the medical opinion, come to a reasonable conclusion regarding the age of the workman. If, after fresh evidence, the Tribunal finds that the workman is/was entitled to continue in service beyond 30-4-1994, the question of payment of backwages shall be decided taking into account the facts and circumstances of the case in the light of the recent decisions of the Supreme Court, which hold that on reinstatement, backwages is not automatic but depends on the facts and circumstances of each case. Fresh award shall be passed by the Tribunal within four months from the date of receipt of a copy of this judgment. To avoid delay, parties shall ascertain the date of posting of the case from the Tribunal for which they shall approach the office of the Tribunal on 2-5-2008 or on any subsequent date as directed by the Tribunal. The Registry shall forward a certified copy of the judgment to the Tribunal urgently for enabling the Tribunal to fix a date of posting accordingly.
The original petition is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/