Case: India General Navigation and Railway Company, Limited, and Another Vs. Their Workmen

Gajendragadkar, C.J.1. The industrial dispute from which this appeal arises centered round the question as to whether the management of the appellant, the India General Navigation and Railway company, Ltd. was justified in refusing to accept the age recorded in the school certificate of S. C. Paul, the sub-agent of the appellant, for the purpose of determining whether or not he had attained the age of 60 years. It is common ground that in the undertaking of the appellant, the age of superannuation is fixed at 60 years. The appellant had terminated the services of Paul as from January 1, 1961. Paul claimed that he had not completed the age of 60 years on that date and that he would reach the age of superannuation on November 1, 1962. It is this dispute which was taken up by the respondent, the union of the workmen of the appellant, and which was ultimately referred to the industrial tribunal for its adjudication by the government of Assam. Both the parties led evidence before the tribunal and the tribunal has made a finding in favour of Paul. It has also held that the appellant was not justified in refusing to accept the age recorded in the school certificate according to which Paul would reach the age of superannuation on 1 November, 1962. Consistently with this finding, the tribunal has ordered that Paul was entitled to continue in service until he attained the age of superannuation, and since the award was being pronounced on April 19, 1963 the only relief to which Paul was entitled was an order Against the appellant directing it to pay Paul all emoluments which he would have enjoyed had he remained in service until the date of his superannuation. It is against this order that the appellant has come to this Court by special leave.2. It is clear that the question raised by the appellant is a pure question of fact, the decision of which depends on the appreciation of evidence adduced by the parties before the tribunal. This court does not generally interfere with finding of fact while dealing with appeals in industrial matters brought before it under Art. 136 of the Constitution. But, in the present case, we are satisfied that the appellant is entitled to claim that the award should be reversed, because the finding recorded by the tribunal on the question of fact referred to it is patently and palpably erroneous. Besides, there is considerable force in the contention raised by the appellant that if the reasoning adopted by the tribunal in upholding Pauls claim in the present proceedings is not revered, it may have a serious impact on a large number of similar cases of retirement which would arise from year to year in the undertaking of the appellant. That at why we have heard the parties on the merits and have come to the conclusion that the award must be set aside.The appellant carries on business of inland water transport in North East India and for the purpose of its business, it posts its workmen at different places including the district of Cachar in the state of Assam.3. Surendra Chandra Paul, the workman in question, was posted at Aarisaghat in the district of Cachar prior to his retirement from the appellants employment. It appears that as a result of an agreement between the appellant and the respondent-union, the age of retirement for the workmen in the employment of the appellant has a scheme of 60 years. The appellant has scheme of provident fund institution for its employees and rule 4 framed in that behalf provides for the conditions of eligibility for membership of the said institution. Under rule 24 it has been provided that when the servants of the appellant join the said institution, they have to subscribe an agreement at the foot of a copy of the said provident fund rules in the terms prescribed. While signing this agreement, the employee is required to mention, inter alia, the date of his birth. According to this rule, when Paul joined the said institution on 24 November, 1933 he made the relevant declaration and mentioned 18 Bhadra (Sunday) 1306 B.S. as the date of his birth; this date corresponds to 3 September, 1899. It is on the basis of this date which was treated as the date of Pauls birth in all the records of the appellant that he was retired on 1 January, 1961. Before the tribunal the appellant relied upon the declaration made by Paul and contended that it was perfectly justified in retiring Paul, because so far as the appellant was concerned, the declaration made by its employees while joining the said institution are generally treated as conclusive. It may be that in some cases if the employee is able to satisfy the appellant that the declaration made by him was the result of inadvertence or mistake, the appellant may in a proper case accept the explanation and agree to change the date of birth recorded in the said declaration; that, however is another matter. In the present case no such plea was made by Paul and the appellant had no reason to doubt the correctness of the declaration made by Paul in regard to the date of his birth.It is significant that during the proceedings before the tribunal, Paul himself did not make any affidavit, nor did he step into the witness-box to explain the admission made by him in the said declaration. He might have given his version and set out the reasons how and why he made a wrong statement in the said declaration. Such a course has not been adopted by him. If a party makes an admission about a fact and erroneously made, it is obviously necessary that the party must make a statement on oath giving his explanation as to how the erroneous statement came to be made. This aspect of the matter has been completely ignored by the tribunal. The tribunal was persuaded to accept the respondents contention that the date of birth given by Paul in the declaration in question must have been given as a matter of guess without any direct evidence in his possession. This plea cannot obviously be accepted, because Paul has given not only the date of his birth, but has also stated what day it was and calendar shows that 3 September, 1899 was in fact a Sunday as stated by Paul in his declaration.4. Assuming that Paul gave his particular date as the date of his birth from memory, it is difficult to imagine that this memory could have told him what day it was. Therefore, it is plain that both the date and the day of his birth were given by Paul from some record in his possession. The failure of Paul to explain how he came to mention the said date and day thus assumes considerate significance. The respondent, however, relied upon the evidence of Sudhir Kumar Ray Chowdhury who was the Assistant Teacher in Nilmoni High School. This teacher produced an extract from the school register which showed that when S. C. Paul entered the said school on 16 January, 1918 his age was shown as 15 years 2 months and 14 days. It is on this entry that the respondent relied in support of its plea that Paul was born on November 1, 1902. The tribunal has accepted this evidence. In doing so, however, the tribunal has overlooked the important fact that the teacher who produced this extract joined the school in 1946, and all that he purported to do was to prove the handwriting of Bhattacharya and thereby show that the entry in question had been made by Bhattacharya. Bhattacharya was the headmaster of the school in 1918. The Chowdhury who gave evidence was a lad of six years in 1918 and he has obviously no personal knowledge as to what happened in 1918. The obvious question which the tribunal should have asked itself was, what is the evidence to show that S. C. Paul whose age is shown to have been 15 years 2 moths and 14 days on 16 January, 1918 when the admitted in the school, is the very person with whose case the tribunal is dealing. In other words the identity of the boy who was admitted in the school on that date with the workmen S. C. Paul with whom we are concerned has not been established at all. The extract produced by Chowdhury can afford no assistance whatever in establishing the identity of the boy with the present workman if only the tribunal had considered this obvious point, it would not have accepted the said extract in preference to the declaration made by Paul when he joined the said provident fund institution. If the workman himself had appeared and had taken the oath that he had joined the school in 1918 or had produced some other evidence to prove that fact, it may have been another matter. Therefore, it seems to us that on the record, it is impossible to hold that the appellant was not justified in retiring Paul on the basis that he was born on September 3, 1999. As a matter of fact, the order of retirement came into force as from 1 January, 1961 which means that Paul was allowed to work for some time more after he had attained the age of superannuation. As we have already indicated, the appellant has to deal with several cases of superannuation from year to year and we felt satisfied that unless the approach adopted by the tribunal in dealing with the present case was corrected, the appellant may have to face difficulties in dealing with similar problems in future. That is the main reason why we thought it necessary to interfere with the order passed by the tribunal in the present case.

Decision:
1[ds]2. It is clear that the question raised by the appellant is a pure question of fact, the decision of which depends on the appreciation of evidence adduced by the parties before the tribunal. This court does not generally interfere with finding of fact while dealing with appeals in industrial matters brought before it under Art. 136 of the Constitution. But, in the present case, we are satisfied that the appellant is entitled to claim that the award should be reversed, because the finding recorded by the tribunal on the question of fact referred to it is patently and palpably erroneous. Besides, there is considerable force in the contention raised by the appellant that if the reasoning adopted by the tribunal in upholding Pauls claim in the present proceedings is not revered, it may have a serious impact on a large number of similar cases of retirement which would arise from year to year in the undertaking of the appellant. That at why we have heard the parties on the merits and have come to the conclusion that the award must be set aside.The appellant carries on business of inland water transport in North East India and for the purpose of its business, it posts its workmen at different places including the district of Cachar in the state ofappears that as a result of an agreement between the appellant and thethe age of retirement for the workmen in the employment of the appellant has a scheme of 60In the present case no such plea was made by Paul and the appellant had no reason to doubt the correctness of the declaration made by Paul in regard to the date of his birth.It is significant that during the proceedings before the tribunal, Paul himself did not make any affidavit, nor did he step into theto explain the admission made by him in the said declaration. He might have given his version and set out the reasons how and why he made a wrong statement in the said declaration. Such a course has not been adopted by him. If a party makes an admission about a fact and erroneously made, it is obviously necessary that the party must make a statement on oath giving his explanation as to how the erroneous statement came to be made. This aspect of the matter has been completely ignored by the tribunal. The tribunal was persuaded to accept the respondents contention that the date of birth given by Paul in the declaration in question must have been given as a matter of guess without any direct evidence in his possession. This plea cannot obviously be accepted, because Paul has given not only the date of his birth, but has also stated what day it was and calendar shows that 3 September, 1899 was in fact a Sunday as stated by Paul in his declaration.Assuming that Paul gave his particular date as the date of his birth from memory, it is difficult to imagine that this memory could have told him what day it was. Therefore, it is plain that both the date and the day of his birth were given by Paul from some record in his possession. The failure of Paul to explain how he came to mention the said date and day thus assumes considerate significance.The respondent, however, relied upon the evidence of Sudhir Kumar Ray Chowdhury who was the Assistant Teacher in Nilmoni High School.This teacher produced an extract from the school register which showed that when S. C. Paul entered the said school on 16 January, 1918 his age was shown as 15 years 2 months and 14 days. It is on this entry that the respondent relied in support of its plea that Paul was born on November 1, 1902. The tribunal has accepted this evidence. In doing so, however, the tribunal has overlooked the important fact that the teacher who produced this extract joined the school in 1946, and all that he purported to do was to prove the handwriting of Bhattacharya and thereby show that the entry in question had been made by Bhattacharya. Bhattacharya was the headmaster of the school in 1918. The Chowdhury who gave evidence was a lad of six years in 1918 and he has obviously no personal knowledge as to what happened in 1918. The obvious question which the tribunal should have asked itself was, what is the evidence to show that S. C. Paul whose age is shown to have been 15 years 2 moths and 14 days on 16 January, 1918 when the admitted in the school, is the very person with whose case the tribunal is dealing. In other words the identity of the boy who was admitted in the school on that date with the workmen S. C. Paul with whom we are concerned has not been established at all. The extract produced by Chowdhury can afford no assistance whatever in establishing the identity of the boy with the present workman if only the tribunal had considered this obvious point, it would not have accepted the said extract in preference to the declaration made by Paul when he joined the said provident fund institution. If the workman himself had appeared and had taken the oath that he had joined the school in 1918 or had produced some other evidence to prove that fact, it may have been another matter. Therefore, it seems to us that on the record, it is impossible to hold that the appellant was not justified in retiring Paul on the basis that he was born on September 3, 1999. As a matter of fact, the order of retirement came into force as from 1 January, 1961 which means that Paul was allowed to work for some time more after he had attained the age of superannuation. As we have already indicated, the appellant has to deal with several cases of superannuation from year to year and we felt satisfied that unless the approach adopted by the tribunal in dealing with the present case was corrected, the appellant may have to face difficulties in dealing with similar problems in future. That is the main reason why we thought it necessary to interfere with the order passed by the tribunal in the present case.