HONOURABLE THE ACTING CHIEF JUSTICE B.PRAKASH RAO WRIT PETITION No. 19225of 1995 ORAL ORDER: (per Hon’ble the Acting Chief Justice B. Prakash Rao) The petitioner-Management filed the present writ petition under Article 226 of the Constitution of India assailing the correctness of the Award in I.D. No. 110 of 1990, dated 4.4.1995 and to quash the same. The brief facts of the case are that the 2nd respondent herein was employed as Worker with the petitioner—company. According to the 2nd respondent, even though he was born on 14.9.1937, his date of birth was mentioned as 25.6.1932 in the office records. He, therefore, submitted a representation dated 3.5.89 to the management to rectify the same. Subsequently, he submitted another representation dated 19.5.1990 together with a medical certificate issued by the R.M.O., of Osmania General Hospital requesting the management to send him for medical examination for determination of his age. When the management did not respond, he filed writ Petition No. 7878 of 1990 before this Court. Though initially interim order was granted by this Court in the said writ petition staying the retirement of the 2nd respondent, subsequently, the 2nd respondent withdrew the writ petition with liberty to approach the Industrial Tribunal. In pursuance of the same, he raised a dispute before the Industrial Tribunal, which was numbered as I.D. No.110 of 1991. Before the Labour Court, the 2nd respondent contended that the management unilaterally altered the date of birth of the petitioner as 25.6.1932, without giving any notice; that he should have been retired in 1995, however, he was made to retire prematurely in 1990 basing on the said date of birth. While opposing the I.D., the management contended that the 2nd respondent did not file any documentary evidence in support of his plea that he was born in 1937. Before the Labour Court, the 2nd respondent got himself examined as W.W.1 and got marked Exs.W1 to W11. On behalf of the management, no oral evidence was let in. However, Exs.M1 t M5 were marked. On a consideration of the oral and documentary evidence on record, the Labour Court through the impugned award, directed the petitioner- management to pay wages to the 2nd respondent for two years in lieu of all the dues claimed by him. Aggrieved by the said Award, the management filed the present writ petition. This Court, while admitting the writ petition on 25.8.1995 has granted interim stay on condition of the petitioner depositing 50% of the amount awarded by the Labour Court and it is stated that the said order has been complied with. Learned counsel for the petitioner contended that when a notice has been issued by the management on 7.5.1990 to the 2nd respondent informing him that he would be attaining the age of superannuation on 30.6.1990, the 2nd respondent submitted a representation dated 19.5.1990 seeking alteration of his date of birth. The 2nd respondent having kept quiet for a period of 28 years cannot seek alteration of his date of birth at the fag end of his service. He further contended that the 2nd respondent was issued a notice on 23.6.1977 informing that if he failed to produce the School Leaving Certificate n proof of his date of birth, his case would be referred to the Medical Board for determination of his age and accordingly he was referred to Medical Board and the Medical Board after examining the 2nd respondent on 25.6.1977, determined his age as 45 years as on that date and the 2nd respondent also acknowledged the receipt of the said copy. In view of the fact that the 2nd respondent did not produce any documentary evidence to show that he was born on 14.9.1937, the Labour Court was not justified in passing the impugned award directing it to pay wages for two years in lieu of his dues. He, therefore, prayed that the writ petition be allowed and the impugned award be set aside. Perused the Award of the Labour Court. Admittedly, the 2nd respondent did not file any acceptable evidence before the Labour Court to show that he was born on 14.9.1937. Even before this Court also, the 2nd respondent failed to produce any evidence to show his correct date of birth , in the absence of which, it has to be held that the Labour Court passed the impugned award basing on surmises and it is not based on any cogent and acceptable legal evidence. Further, the Labour Court in para-14 of the award having observed that there was no acceptable evidence from both the sides, was not justified in passing the impugned award. Therefore, the impugned award is unsustainable in law and is liable to be set aside. The writ petition is accordingly allowed and the impugned award of the Labour Court in I.D. No. 110 of 1991, dated 4.4.1995 is set aside. _____________________ B. PRAKASH RAO,ACJ Date: 25th November, 2010 pnb