Delhi District Court
Khem Chand S/O. Sh. Ram Saroop vs M/S. Autocare on 26 September, 2014
Khem Chand Vs. Autocare ID No. 02/13
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
REFERENCE CASE (ID) No. 02/13
UNIQUE CASE ID No. 02402C0026732013
In the matter of :
Khem Chand s/o. Sh. Ram Saroop
R/o. RZC4, Anoop Nagar, Uttam Nagar,
New Delhi110059.
C/o. Rastriya General Mazdoor Union,
B239, Karampura, New Delhi110015.
... Workman/Claimant.
Vs.
M/s. Autocare,
District Centre, Shivaji Place,
Vishal Cinema Road,
Near Rajouri Garden Police Station,
New Delhi110027.
...Management.
Date of Institution : 19.01.2013
Date of reserving for award : 06.09.2014
Date of award : 26.09.2014
AWARD :
1. TERMS OF REFERENCE
Vide Order No. F3(441)/12/Ref./WD/LAB/1645 dated 19.11.12
Deputy Labour Commissioner (District West), Labour Department,
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Government of N.C.T. of Delhi, made following reference u/s. 10 (1)
(c) and 12(5) of the Industrial Disputes Act, 1947 vide Govt. of
N.C.T. of Delhi, Labour Department Notification No. F.
1/31/616/Estt/2008/7458 dated 3rd March 2009 for adjudication by this
court :
"Whether the services of Sh. Khem Chand S/o. Sh. Ram
Saroop have been terminated illegally and/or
unjustifiably by the management; and if so, to what
relief is he entitled and what directions are necessary in
this respect?"
2. CASE OF WORKMAN AS PLEADED IN STATEMENTOF
CLAIM.
(i) Workman was working with management on the post of
'Pump OperatorcumSalesman' since 1977 and his last drawn monthly
wages were Rs.7,748/. Management did not issue any appointment
letter to the workman.
(ii) During the course of his employment workman did not
give any chance of complaint to management, so service record of
workman was neat, clean and unblemished.
(iii) Management took work from the workman for 12 hours
per day but management did not pay any overtime wages. During the
employment workman used to demand legal facilities, i.e.,
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appointment letter, attendance card, to maintain all record, pay slip,
leave encashment, HRA, leave book, bonus, casual leave, overtime
wages, CA, PF etc. from the management but management did not
provide the same to the workman.
(iv) Workman filed a complaint to ALC, Karampura, New
Delhi on 31.12.11 for legal facilities i.e appointment letter and
minimum wages, and on this complaint ALC appointed a labour
inspector, who visited at the establishment of management and gave
directions to management to provide legal facilities but management
did not provide the same to the workman.
(v) On 28.01.2012 and 16.04.2012 workman sent demand
notice to the management for providing legal facilities and same was
duly served upon the management but management neither sent any
reply nor provided any facilities to workman.
(vi) On 17.04.2012 workman filed a complaint to ALC
Karampura, Delhi for payment of arrears of minimum wages and
appointment letter, and labour inspector visited the establishment of
management and gave directions to management to provide the legal
facilities but management did not provide the same to the workman.
(vii) During the pendency of complaint before ALC,
Karampura, New Delhi, management issued letter to workman on
04.05.12, which was received by workman on 07.05.12. After
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receiving the said letter, workman was shocked because vide this letter
workman was retired from the services and management also sent a
cheque for Rs. 1,73,177/ bearing number 035344 dt. 05.05.12.
(viii) On 08.05.12 workman sent a letter to management and
stated that workman has received the said cheque under protest.
(ix) Action of management was completely illegal and
unjustified and against the principle of natural justice because in the
establishment of management two persons namely Mr. Virender Negi
(date of birth 01.12.1951) as Head Cashier and Mr. Rajeshwar s/o. Sh.
Budh Lal (date of birth 02.07.1950) are still working in the
management.
(x) Management violated the provisions of section 33A of
Industrial Disputes Act, 1947 because during the pendency of
complaint/general demand, management terminated the services of
workman on the ground of retirement.
(xi) Workman is still completely and physically fit and he is
able to do his job.
(xii) Workman filed a statement of claim before Asstt. Labour
Commissioner, Karampura, New Delhi, against the management for
reinstatement in service with full back wages but no proper settlement
could be arrived between the parties. Hence, this reference.
(xiii) After 04.05.12 workman regularly visited at the office of
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management and requested the management to take him back on duty
on the same post but management did not allow him to join his duties
on the same post.
(xiv) Workman searched for job at many places but workman
did not find any work. Workman is unemployed since 05.05.12 till
now and wants to join duty with management on the same post with
full back wages with all attendant benefits.
With these averments workman prayed for an award of
reinstatement in service with full back wages and all attendant
consequential benefits in his favour and against the management.
3. STAND TAKEN BY THE MANAGEMENT IN THE
WRITTEN STATEMENT OF DEFENCE
Management, while denying the case as pleaded by workman in
the statement of claim, pleaded that workman was employed as
"Helper" vide appointment letter dated 25.02.1977. Management
further pleaded that last drawn salary is a matter of record and, hence,
no comments are called for at this stage. Also management pleaded
that service record of workman was not unblemished and workman
was served chargesheet and workman tendered unqualified apologies.
Management denied the averments made by workman regarding
management taking work from workman for 12 hours and not paying
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the overtime wages, and management not providing legal facilities to
workman. As regards, complaints dated 31.12.11 and 17.04.12 made by
workman to ALC, Karampura, New Delhi, and demand notices sent
by workman to management on 28.01.12 and 16.04.12 management
pleaded that workman started making false and baseless complaints
against the management to preempt the action of management to retire
him from service on attaining the age of superannuation (i.e 58 years)
as per appointment letter dated 25.02.1977. Management further
pleaded that vide letter dated 19.03.12 management informed the
workman in advance about his date of retirement as per appointment
letter (i.e 04.05.12) and advised the workman to collect his dues on
04.05.12, which workman had acknowledged in his letter dt. 26.03.12.
On 04.05.12 management offered the workman a cheque no. 035344
dt. 04.05.12 for Rs. 1,73,177/ alongwith letter dt. 04.05.12 but
workman refused to receive the cheque and the letter. Subsequently
cheque was sent to workman by Regd. AD and same was received by
him. As per management, workman got retirement on attaining the
age of superannuation (58 years) as per appointment letter dated
25.02.1977 and workman cannot claim extension of employment as a
matter of right after attaining age of superannuation. The extension of
employment or reemployment on attaining the age of superannuation
is absolutely within the discretion of management and the same cannot
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be challenged in any court of law on the mere ground of violation of
principles of natural justice. Management, further, pleaded that
conciliation officer did not consider the pleadings of the management
and reference was made without application of mind and same is
liable to be quashed outrightly. Management also pleaded that
workman has no legal right to claim duty after workman got
retirement as per contract of employment and workman is prosecuting
this case just to harass and blackmail the management. Management
also took a preliminary objection to the effect that present matter of
dispute referred by Govt. of NCT of Delhi u/s. 10 (1) (c) and 12 (5) of
the Industrial Disputes Act, 1947 is not legally maintainable as present
dispute is an individual dispute between workman and management
u/s. 2 A of Industrial Dispute Act, 1947. As per provisions of section 2
A of Industrial Dispute Act, 1947, an individual dispute shall be
deemed to be an "industrial dispute" where the services of the
workman have been terminated by way of discharge, dismissal,
retrenchment and in the present case services of workman came to an
end automatically on attaining the age of superannuation (58 years).
At last, management prayed to reject the claim of the workman with
exemplary cost in favour of the management and against the workman.
4. ISSUES
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Vide order dated 29.05.2013, ld. predecessor of this Court,
framed the following issues :
1. Whether the workman had retired as per details given in
the WS, if yes from what date and with what effect? OPM.
2. As per terms of reference.
3. Relief, if any.
5. EVIDENCE
Workman appeared in witness box as WW1 Khem Chand.
Workman also examined WW2 Ajit Kumar, clerk from S.B. Inter
College, Salarpur (Hapur). Workman relied upon documents Ex.
WW1/1 - Settlement dated 21.02.12 between workmen and
representative of management before ALC, Karampura, New Delhi;
Ex. WW1/2 Protest letter dated 08.05.12 written by workman to
management; Ex.WW1/3 Postal Receipt dt. 08.05.12; Ex.WW1/4
Copy of statement of claim filed before ALC; Ex.WW1/5 School
leaving certificate issued by InterCollege, Ghazibad, U.P; Ex.
WW2/A and Ex. WW2/A1 - Gazette; Ex.WW2/B Relevant extracts
from Scholar Register and Transfer Certificate form and Ex.WW2/C
- Receiving regarding transfer certificate. In his crossexamination
workman was confronted with documents: Ex.WW1/M1
Appointment letter of the workman; Ex.WW1/M2 Declaration form;
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WW1/M3 Letter dated 19.03.12 issued by management to workman;
WW1/M4 Letter dated 26.03.12 written by workman to management;
Ex.WW1/M5 (initially marked as Mark B) Driving Licence details
of workman; WW1/M6 Declaration form submitted before ESIC and
Mark ALetter dated 02.04.12 written by management to workman.
WE was closed on 26.05.14 by workman. Management examined
MW1 Mr. Ravi Kumar Bassi. Management relied upon documents
already exhibited as Ex.WW1/M1 to WW1/M5 and two additional
documents - Ex.MW1/1 - Postal receipts and Ex. MW1/2 Letter
dated 02.04.2012 written by management to workman. ME was closed
by Mr. Ravi Kumar Bassi (Partner) on 20.08.14.
6. ARGUMENTS
I have heard Mr. Ajit Singh, Adv. for workman and Mr. A. K.
Sandhu, ARM. Written submissions have also been filed by
management. Management relied upon case laws reported as (i)
Hindustan Lever Ltd. Vs. S. M. Jadhav and Anr. 2001 (I) LLJ 1695;
(ii) Union of India & Ors. Vs. Kantilal Hematram Pandya 1995 (II)
LLJ 659 (SC); (iii) Union of India Vs. Harnam Singh 1994 (I) LLJ 318
(SC); (iv) Surendra Pal Singh Vs. Union of India 1997 (II) LLJ 336;
(v) A. Devadass Vs. Managing Director, Karnataka State Road
Transport Corporation & Anr. 1994 (85) FLR 664; (vi) Smt. Pushpa
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Rani Chakraborty & Ors. Vs. Allahabad Bank and Ors. 2000 (85)
FLR 931; (vii) C. H. Narayana Vs. M/s. Bharat Heavy Electricals Ltd.
1995 LLR 497 and (viii) Devi Prasad Vs. Taj Sats Air Catering Ltd.
2014 (142) FLR 834 by filing copies of these judgments on judicial
file.
7. My ISSUEWISE findings are as under:
ISSUE No.1:
Whether the workman had retired as per details given in the WS, if yes
from what date and with what effect? OPM
ISSUE No.2: As per terms of reference.
("Whether the services of Sh. Khem Chand S/o. Sh. Ram Saroop have
been terminated illegally and/or unjustifiably by the management; and
if so, to what relief is he entitled and what directions are necessary in
this respect?")
Both the issues being interconnected are being taken up under a
common discussion. In nutshell case of workman is that workman,
who joined in management in 1977, had made demand for legal
facilities vide notices dated 28.01.2012 and 16.04.2012 and had also
made complaints, dated 31.12.2011 and 17.04.2012, regarding
management not providing legal facilities to Assistant Labour
Commissioner, Karampura, Delhi. Further, case of the workman is
that management violated the provisions of section 33 A of the
Industrial Disputes Act, 1947 because during the pendency of
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complaint / general demand management terminated the services of
workman on the ground of retirement. On the other hand, case of the
management is that workman was made to retire on the basis of
service conditions as mentioned in appointment letter dated
25.02.1977 (Ex. WW1/M1) issued to the workman at the time of his
appointment. Management also pleaded that workman started making
false and baseless complaints against the management to preempt the
action of management to retire him from services on attaining the age
of superannuation (58 years) as per appointment letter dated
25.02.1977.
The question which requires determination is that whether
management terminated the services of workman illegally in terms of
averments made by workman in statement of claim or management
made the workman to retire from services in a lawful manner.
SECTION 2 (oo) of the INDUSTRIAL DISPUTES ACT, 1947
READS AS UNDER:
"2. Definitions. In this Act, unless there is anything repugnant in the
subject or context;
(a).....
(b) .......
........
(oo) "retrenchment" means the termination by the employer of the service of a workman for any Page 11 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued illhealth;"
As per section 2 (oo) (b) retirement of workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation on that behalf does not amount to retrenchment. Here, workman in the statement of claim referred to complaint dated 31.12.2011 made to ALC, Karampura, Delhi for legal facilities, another complaint dated 17.04.2012 made to ALC, Karampura, Delhi, and demand notices dated 28.01.2012 and 16.04.2012 but workman has not even filed the copies of abovesaid complaints / demand notices on judicial file. However, workman has relied upon one settlement dated 21.02.2012 Page 12 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 which is Ex.WW1/1.Workman in the statement of claim also pleaded that management did not issue any appointment letter to workman. It is pertinent to note that settlement Ex.WW1/1 refers to certain legal facilities (such as pay slip, leaves as per law, over time, half an hour lunch time) to be provided by the management to its workmen but the said document Ex. WW1/1 does not mention about providing of appointment letter by the management to its workmen. As workman himself has not placed on record copy of complaints dated 31.12.2011, 17.04.2012 and demand notices 28.01.2012 and 16.04.2012 it cannot be said with certainty that above said complaints / demand notices contained a complaint / grievance against the management on account of management not providing appointment letter to the workman herein / its workmen. As document Ex.WW1/1 is also silent about issue as regards providing of appointment letter by the management to the workman herein / its workmen, possibility of workman having been provided with the appointment letter cannot be ruled out altogether. Further, workman in his cross examination has deposed that, "... I admit my signatures at point A on each page of the document i.e. appointment letter which is exhibited as Ex.WW1/M1....". Document Ex.WW1/M1 is a three page(s) document admittedly bearing signatures of workman on each page Page 13 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 with date (i.e. 25.02.1977). Workman at the time of admitting his signatures on each page of Ex.WW1/M1 did not utter anything voluntarily regarding the unusual circumstances, if any, in which workman signed Ex.WW1/M1. Also, in the statement of claim or in evidence affidavit of workman there is no averment / deposition that management at any point of time took signatures of the workman on blank papers or workman was made to sign on documents Ex.WW1/M1 under unusual circumstances or under threat / coercion or pressure. This suggest that workman had put his signatures on appointment letter Ex.WW1/M1 as per the face value of contents of Ex.WW1/M1. When so understood, by applying the principle of preponderance of probabilities, it can be safely concluded that management did issue an appointment letter Ex.WW1/M1 to the workman at the time of his appointment and stand of the workman that management did not issue any appointment letter is not believable for a judicial mind. It is pertinent to note that clause 10 of appointment letter Ex.WW1/M1 reads as follows: "10. Retirement: You are liable to be retired on your reaching the age of 58 years or earlier if found medically unfit in case you are confirmed in your service."
Accordingly, it is observed that contract of employment between the workman herein and management did contains a stipulation Page 14 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 regarding the retirement age of workman being 58 years. At this point only it deserves to be noted that, as appointment letter Ex.WW1/M1 of the workman herein contained a stipulation regarding retirement age of workman herein being 58 years, none of the right of workman nor the principle of natural justice can be taken / said to have violated by the management merely because management continued to employ two persons namely Mr. Virender Negi and Mr. Rameshwar in terms of averments made in statement of claim. To determine whether or not right of the workman has been violated this Court is supposed to keep into mind the terms of contract of employment entered into between management and workman herein only. On what other terms, management employed its other employees is not material. Even section 2 (oo) (b) stipulates that contract of employment between the employer and workman concerned is to be considered. It is to be noted that management herein is not having any certified standing orders or specific service conditions / rules applicable to all of its employees and MW1 Mr. Ravi Kumar Bassi in his cross examination deposed that, "....Management is not having any specific written service rules applicable to its employees except the appointment letter given to workman.....". Nor has the workman brought to the notice of the court any rules / regulations binding upon the management Page 15 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 regarding service conditions of employees of management. Meaning thereby service conditions of each individual employee of the management deserved to be governed by specific terms of contract entered into between the management and concerned individual employee. Also, it is noted that MW1 Mr. Ravi Kumar Bassi has clarified the circumstances under which management continued to employ Mr. Virender Negi and Mr. Rameshwar. In this regard, MW1 Mr. Ravi Kumar Bassi deposed as under : "... It is correct to suggest that Mr. Virender Negi is still working with the management. (vol. Mr. Virender Negi as a Head Cashier handles the cash worth lacs of rupees and till and till date he has not misappropriated any amount of money and also he is handling technical aspects density, temperature, sealing samples of petroleum products and storing the samples properly. To find such a person capable of doing all such acts, is very difficult for us and for this reason he has been retained in service with the management). It is correct that date of birth of Mr. Virender Negi is 01.12.1951. Mr. Rameshwar worked with the management till the year 2013. I do not remember the month. It is correct that date of birth of Mr.Rameshwar is 02.07.1950. (vol. Rameshwar was a tank lorry driver bringing petrol and diesel from Bharat Petroleum depot and this is also a specilized job. He can only drive the vehicle after having certificate for carrying petroleum products and going through a training of fire fighting in case of any eventuality either at depot or at the retail outlet or in the products in transit. He has also to take Page 16 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 clearance from traffic police to run the vehicle so we could not find alternative of Mr. Rameshwar but now we have found the same)...."
It is noted that, firstly, employment / nonemployment of Mr. Virender Negi and Mr. Rameshwar Kumar is none of the concern of workman and, secondly, management has attempted to justified employment of Mr. Virender Negi and Mr. Rameshwar Kumar. Workman in his cross examination deposed that, "....I received the letter dated 19.03.2012 issued by the management and same is exhibited as Ex. WW1/M3 which bears my signature at point A. After receiving the letter dated 19.03.2012 issued by management, I have also written a letter dated 26.03.2012 which bears my signatures at point A and the document is exhibited as Ex. WW1/M4...". What is pertinent to note is that in letter dated 26.03.2011 (Ex.WW1/M4) workman stated that management cannot terminate the services prior to workman attaining 60 years of age. The stand of workman regarding his age of retirement being 60 years cannot be accepted in view of above discussion, particularly in view of terms of appointment letter Ex.WW1/M1.
It is noted that at no stage upto the date of filing of statement of claim before the Court workman pleaded that what is his date of birth or that he did not attain the age of 58 years on 04.05.2012 on which Page 17 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 date management made the workman to retire on workman attaining age of 58 years in terms of contract of employment between workman and management vide appointment letter Ex.WW1/M1. However, during the proceedings before this Court workman raised an issue as regards his date of birth. Workman tried to prove that his date of birth being 05.07.1956 he could not have been made to retire on 04.05.2012 on the pretext that workman having attained the age of 58 years on 04.05.2012. On the other hand, management took the stand that date of birth of workman being 06.05.1954 workman deserved to be retired from the services on 04.05.2012 on workman attaining the age of 58 years, when calculated keeping in mind date of birth of workman as 06.05.1954. To prove that date of birth of workman is 06.05.1954 management is relying upon documents Ex.WW1/M2 (mentioning date of birth as 06.05.1954), Ex.WW1/M5 (Mark - B also) (mentioning date of birth as 06.05.1954) and Ex.WW1/M6 mentioning the year of birth of workman as 1954. At this juncture, following depositions of workman are noteworthy: ".... I do not have any driving license. I never applied for the same. It is correct that in driving license bearing no. DL0419940051028 and same is marked as Mark B which bears my name, my father's name as well as my address. Again said, I had applied for the driving license. It is correct that document Mark B contains the correct Page 18 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 particulars of D/L which was issued to me.
(In view of the admission of the witness document Mark B is exhibited as Ex. WW1/M5).
It is correct that I had declared my date of birth as 06.05.1954....."
"....I did not remember my date of birth prior to obtaining the certificate Ex. WW1/5. I even did not remember the date of birth while applying for the ESI. (Vol. I had mindlessly mentioned the said date). Even in my driving license I had mindlessly mentioned my date of birth. I have my bank of account in Bank of India, Rajouri Garden and my account no.1652. Presently my account number is 603410100045749. It is correct that I had given my date of birth as 06.05.1954 in my bank..."
The depositions made by workman regarding his not remembering his date of birth prior to receiving Ex.WW1/5 is not worth credence from a judicial mind. Date of issue as mentioned in details of driving licence of workman Ex.WW1/M5 (Mark - B also) is 17.08.2009. Date of birth as mentioned in this document is 06.05.1954. Consistently workman mentioned his date of birth as 06.05.1954 in records with management, driving licence as well as his bank account.
In view of above depositions of workman, workman cannot be permitted to say that his date of birth for the purposes of retirement from services deserves to be taken as 05.07.1956 merely on the basis of Ex.WW1/5 School Leaving Certificate issued by Inter College, Page 19 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 Ghaziabad, UP. Workman repeatedly mentioned his date of birth in the documents as mentioned above as 06.05.1954. Admittedly workman mentioned the same date of birth in his bank namely Bank of India, Rajouri Garden vide account no. 1652. The stand of workman that he did not remember his date of birth prior to obtaining certificate Ex.WW1/5 does not at all inspire confidence on the totality of facts and circumstances of this case. Workman at one time deposed that workman does not have any driving licence and never applied for the same but subsequently workman admitted that workman had applied for driving licence, and further, admitted the particulars as given in Ex.WW1/M5 (Mark - B also) (driving licence details). The possibility of workman having a inclination intentionally / voluntarily deposing falsely before the Court cannot be ruled out altogether. It is also noted that at no point of time during his employment with the management since 1977 till 2012 workman ever raised any issue with the management as regards his date of birth. As per case law reported as Smt. Pushpa Rani Chakraborty & Ors. Vs. Allahabad Bank and Ors. 2000 (85) FLR 931 the right to get date of birth corrected either on the basis of matriculation certificate or otherwise is not a legal right far less a constitutional right and even if such a right was legal one, the same could be waived. MW1 Mr. Ravi Kumar Bassi in his cross examination deposed as under: Page 20 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 ".... It is correct that workman worked with the management from the date of appointment in the year 1977 till the year 2012 when he was retired. It is correct that document Ex. WW1/M2 mentions the date of joining as 01.01.1987 at points B and C. (vol. it is the date when it is the date when ESI card with photographs of the workman were started to be issued. However, even prior to 01.01.1987 workman was availing ESI facilities with card without a photograph)..."
In the totality of the facts and circumstances of this case merely because documents Ex.WW1/M2 and Ex.WW1/M6 mentions the date of appointment of workman 01.01.1987 does not in any way strengthen the case of workman inasmuch as MW1 Mr. Ravi Kumar Bassi in his cross examination was suggested that workman worked with the management since year 1997 till year 2012 and this suggestion was admitted by MW1 Mr. Ravi Kumar Bassi. Thus, no questions arises for appointment, as such, of workman on 01.01.1987.
In view of above detailed discussions it can be safely concluded that in this case date of birth of workman deserves to be taken as 06.05.1954 and workman deserved to be retired on attaining the age of 58 years as per terms of his contract of employment Ex.WW1/M2 and, accordingly, it cannot be said that management terminated his services illegally. Termination of services of workman in this manner does not amount to "retrenchment". Also in the totality of facts and Page 21 to 22 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:26.09.2014 Khem Chand Vs. Autocare ID No. 02/13 circumstances of this case it can be observed that workman has failed to prove the violation of provisions of section 33 / 33 A of Industrial Disputes Act, 1947. Even no malafide can be attributed to management inasmuch as it also offered a cheque for Rs.1,73,177/ dated 04.05.2012 alongwith letter dated 04.05.2014 (date of retirement of workman). Workman did receive the same vide Ex.WW1/2.
THUS, issue no. 1 is decided in favour of management and issue no.2 is decided against the workman. Workman is entitled to no relief in his favour.
ISSUE No.3: Relief, if any.
In view of my findings on issue no.1 and 2, workman is held to be entitled to no relief.
8. Parties to bear their own cost.
9. Reference is answered accordingly.
10. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 26.09.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
Page 22 to 22 (ANAND SWAROOP AGGARWAL)
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