1 wp3524-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3524 OF 2011 Baban Khandu Ghorpade .. Petitioner Vs. Kirloskar Brothers Ltd. .. Respondent Mr.Nitin A. Kulkarni for the petitioner Mr.K.S.Bapat i/b M/s.Desai and Desai Associates for the respondent CORAM: K.K. TATED, J. DATE: 28th JUNE, 2011 P.C. 1. Heard the learned counsel for the parties. 2. By consent, rule. Rule made returnable forthwith. The matter is taken up for final hearing at the stage of admission itself. 3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner original complainant challenges the order dated 31.3.11 passed by the learned Member, Industrial Court, Sangli in complaint (ULP) No.116 of 2010 rejecting the same. Few facts of the matter are as under: 4. The petitioner original complainant joined respondent s services in 1977 ’ 2 wp3524-11.doc as a Tea Vendor­cum­Server. At the time of taking employment, he submitted birth certificate issued by school showing his birth date as 1.6.53 and qualification as 6th standard Pass. Thereafter, he made another application with the respondent for correcting entry in his personal history card to show that his qualification as 9th standard pass. The said correction is made on 19.9.00. At that time also, he showed his birth date as 1.6.53. Some time, in the year 2006, he obtained certificate from Tahsildar showing his birth date as 17.6.54. On the basis of said certificate issued by Tahsildar, petitioner initially made an application to the respondent on 20.12.06 for changing his birth date from 1.6.53 to 17.6.54. Respondent did not reply his application. Petitioner again made application on 13.2.09 for want of communication from respondent company. The petitioner third time made application dt.21.6.10 requesting respondent to correct his birth date. At that time, respondent refused petitioner s request stating that the Complainant has no legal right to ’ “ change the date of birth at the fag­end of the services.” 5. Being aggrieved by the said endorsement / order on his application dt. 21.6.10 petitioner filed complaint (ULP) No.116 of 2010 under section 28(1) read with Item Nos.9 and 10 of Schedule IV of MRTU and PULP Act, 1971 in the Industrial Court at Sangli with a direction to the respondent company to correct the birth date entry in the service record of petitioner / complainant as 17.6.54 instead of 1.6.53. The said complaint was 3 wp3524-11.doc rejected by the learned Member of Industrial Court, Maharashtra at Sangli by impugned judgment dt.31.3.11 on the ground of delay and the certificate produced by the petitioner from revenue department was not according to the Registration of Births and Deaths Act, 1969. Being aggrieved by the above judgment and the order, the present writ petition is filed. 6. The learned counsel for the petitioner submits that in the year 2006 petitioner decided to purchase flat and therefore he approached the Revenue Authority for birth certificate. At that time, Tahsildar issued the birth certificate showing his birth date as 17.6.54. First time, he learnt that there is a mistake in mentioning his birth date in the school record as well as in his service record. Therefore, immediately, he made an application to the respondent company on 20.12.06 for changing his birth date. As there was no response from the respondent company, again he made an application on 13.2.09. Lastly, he made application on 21.6.10. On the said application, respondent endorsed that it is not possible for them to accept the petitioner s request for changing the name at the fag end ’ of the service. 7. Therefore, the petitioner immediately filed complaint in the month of July 2010 in the Industrial Court. He submits that as soon as the petitioner learnt about the mistake of his birth certificate, he immediately made an application to the respondent company in the year 2006. As there was no 4 wp3524-11.doc response from the respondent company till 2010, he filed complaint before the Industrial Court. Therefore, there is no question of delay on the part of the petitioner to approach the respondent company for correcting the birth date in the service record. 8. The learned counsel for the petitioner submits that the Industrial Court erred in coming to the conclusion that the petitioner approached the respondent company at the fag end of his service. He submits that initially he approached the respondent company in the year 2006. The learned counsel for the petitioner further submits that the Industrial court erred in coming to the conclusion that the birth certificate issued by the Revenue Department is not according to law. He submits that the Registration of Births and Deaths Register Act came into force in the year 1969. Therefore, the certificate issued by the Revenue Authority was as per the prevailing provisions of law at that time. In support of his submission, he relies on the following judgments: (i) Vinayak Narhari Kolshikwar Vs. State of Maharashtra and Ors. Reported in (2008) 1 Bom.C.R. 126 (ii) CIDCO Vs. Vasudha Gorakhnath Mandevlekar reported in (2010) 1 Mh.L.J. 41 (iii) Dy.Commissioner of Police, Special Branch and Ors. Vs. Bhupesh Chandra Karanjai & Moti Ranjan Bhattacharya reported in (1993) 4 Service Law Reporter 732. 5 wp3524-11.doc 9. On the basis of these submissions and the authorities, the learned counsel for the petitioner submits that the impugned order dt.31.3.11 passed by the learned Member Industrial Court is liable to be set aside. 10. On the other hand, the learned counsel for the respondent company vehemently opposed the present petition. He submits that the Industrial Court rightly rejected the petitioner s complaint on the ground of delay. ’ He submits that the petitioner joined the respondent company in the year 1977. He worked with the company for more than 29 years. First time in the year 2006, he made an application for correcting his birth date. Even in his applications dt.20.12.06, 13.12.09 and 21.6.10, he failed to disclose on what basis he wants to change his birth date in service record. He submits that the petitioner in his application only stated that he obtained a certificate from the Tahsildar and on the basis of that certificate, his birth date is to be corrected in his service record. 11. The learned counsel for respondent further submits that first time in his complaint petitioner stated that in the year 2006, at the time of purchasing the flat, he obtained a certificate from the Revenue Department and at that time, he learnt his correct date of birth. 12. There is no explanation and or evidence on record produced by the petitioner under which provision he required birth certificate at the time of purchasing the flat. Therefore, the reason given by the petitioner about the knowledge of his birth date is not acceptable. 6 wp3524-11.doc 13. The learned counsel for the respondent further pointed out from the cross examination of petitioner that he admitted that his birth date in the passport also is shown as 1.6.53 which is as per his service record with the respondent. The petitioner further admitted in his cross examination that he has not made any application to the passport authority for correcting his birth date. 14. Therefore, there is no substance in the contention of the petitioner that he learnt about his correct birth date in the year 2006. In the certificate issued by the Tahsildar, it is not stated on what basis and under what provision of law the Tahsildar issued the certificate. 15. The learned counsel for the respondents further submits that the Industrial Court rightly held that at the fag end of his retirement, the petitioner cannot make application for the change of his birth date in service record. In support of his contention, he relies on the judgment in the matter of State of Haryana Vs. Satish Kumar Mittal and Another reported in (2010) 9 Supreme Court Cases 337. In this case, the Apex Court held that at the fag end of the retirement, a person cannot apply for correcting his birth date. Head note of that judgment reads as under: Service Law ­ Date of birth ­ Correction of entry in official “ records Time limit Need for strict adherence to Held, – – – – request for correction of entry m ust be made within time­limit prescribed in relevant rules, and if no time­limit has been 7 wp3524-11.doc precribed, within reasonable period after entry into service – Belated requests, particularly those made at fag end of service of employee, if accepted, mar chances of promotion of other employees who expect promotion on retirement of employee seeking correction of entry Such requests ought not to be – entertained On facts held, belated request made by first – respondent after period of two years from date of entry in service, as prescribed in relevant rules, rightly rejected by appellant State – Further held, Noti. dt.13­8­2001 was not applied retrospectively in his case Even prior provisions also provided two years time­limit – ’ Punjab Civil Services Rules, 1994 ­ R.2.5 Punjab Financial – – Rules R.7.3, Note 3, Annexure (A), Para 1 Punjab Financial – – Volume I (Haryana First Amendment) Rules, 2000 Promotion – – Chances Constitution of India Art.283(2) Civil Procedure Code, – – – 1908 S.80 Delay/Laches in respect of subject­matter of claim. – – ” 16. On the basis of these submissions and the authority in the matter of State of Haryana Vs. Satish Kumar Mittal and Another, (Supra), the learned counsel for respondent submits that there is no substance in the present writ petition and the same is liable to be dismissed with costs. 17. With the assistance of both the counsel, I have gone through the impugned judgment dt.31.3.11, evidence of petitioner and the authorities cited by them. It is an admitted fact that the petitioner is in the service with the respondent as Tea Vendor cum Server since 1977 for more ‘ ’ than 25 years. First time, in the year 2006, he made application for change of his birth date. Thereafter in the month of July 2010, he filed a 8 wp3524-11.doc complaint before the Industrial Court. His date of retirement is 30.6.11. This shows that he applied to the respondent company for change of his birth date at the fag end of his retirement. Therefore, the Industrial Court rightly rejected his complaint on this ground. The Industrial court rightly held that the petitioner has not placed on record any evidence to show under which provision, the Tahsildar issued the said birth certificate showing the petitioner s birth date as 17.6.54. The authorities relied by the ’ petitioner are not applicable to the facts and circumstances of the present case. 18. In the matter of CIDCO Vs. Vasudha Gorakhnath Mandevlekar (Supra), the Apex Court held that Births and Deaths register maintained by the statutory authorities raises a presumption of correctness. In the present case, the petitioner produced the birth certificate issued by the Tahsildar without disclosing under which provision, the said certificate was issued by Tahsildar. The Industrial Court rightly held that the said certificate is not according to law. Other authorities are on different issue. They are distinguishable on facts. 19. The authority relied by the respondent in the matter of State of Haryana Vs. Satish Kumar Mittal and Another, the Supreme Court specifically held that at the fag end of retirement, court should not entertain an application for changing the birth date because the same affects the other employees in their promotional and other benefits. 9 wp3524-11.doc 20. Considering the reasons given by the Industrial Court and the authority cited by the learned counsel for the respondent, I do not find any reason to interfere with the well reasoned order passed by Industrial Court dated 31.3.11. 21. Writ Petition is dismissed accordingly. No order as to costs. (K.K. TATED, J.)