ke^.imesti-s (^} t^^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH WRIT PETITION N0. _^L3_(j_/20Q: ..1-" ./ PETITIONER ^!***" c-'-"k*^T* •••••" • ::'."'" '^^" ^•' RESPONDENT (%K rt)> /' ^^Dindayal, S/o. Shri Lakhad Master, Aged about 53 years, T/No. 657, ...-•" ....•-Textile Account Day Shift, B.N.C. Mills Rajnandgaon (C.G.) VERSUS :1. B.N.C. Mills, Rajnandgaon (an Un / dertaking of National Textile Corpo ration, New Delhi) Through General Manager Mill Chawl Rajnandgaon (C.G.) 2. Member Judge Iiidustrial Court Bench Raipur, Raipur (C.G.) WRIT PETITION^JNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA Ap^ .^.i e-is-^ HIGH COURT OF CHHAmSGARH AT BILASPUR Writ Petition No. 1134 of 2003 Petitioner Respondents Versus Dindayal B. N. C. Mills, Rajnandgaon & another K Post for Judgment & Order on this 6 day of Noveinber, 2009 Sd/- , ^ . SatishK.Agniiwtn Judge ^•iFs>:'^^'3'^f 2:221 ]"S3?1 E£!;ij!ESStf^S. H!GH_COURT OF CHHAmSGARH : BILASPUR W.P. No. 1134 of 2003 Petitioner Dindayal Versus Respondents B. N. C. Mills, Rajnandgaon & another WRIT PETITION UNDER ARTICLE^26_&_22'LQFTHE CQNSTITUTION OPINDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri Anoop Majumdar, Advocate for the petitioner. Shri N. K. Vyas, Advocate for the respondent No.l. lltBH JUDGMENT & ORDER ^ (Passed on this * day of November, 2009) The petitioner, by this petition seeks to challenge the validity and legality of the order dated 31.1.2003 (Annexure P/7), passed by the Industrial Court (Bench), Raipur in Civil Appeal No. 163/M.P.I.R.A./(A) 111/99 (General Manager, B.N.C. Mills, Rajnandgaon Vs. Shri Deen Dayal). The brieffacts, in nutshell, are that on 22.11.1991 the petitioner had filed an application (Annexure P/3) under Section 31(3) read with Section 61 of the Madhya Pradesh/Chhattisgarh Industrial Relations Act, 1960 in Labour Court, Rajnandgaon, which was registered as Case No. 16/M.P.I.R. Act Si/96. The case of the petitioner before the Labour Court was that he was working in the respondent No.l Mill as a regular employee in second shift, having Ticket No. 657 for the last 25 years. As per the school leaving certificate (Annexure P/4), issued on 17.9.1987, the date of birth of the petitioner is 5.3.1938. In service records the date of birth of the petitioner was wrongly recorded as year 1933', therefore, the petitioner filed an applicadon on 3.10.1987 (Annexure P/l) for correction of his date of birth in the service r TT t/''°s'~"4>> r c... -1 '';, 'VfSa^ >. '» ^. f-'^. -..• ""»assssy l:N!!pB8!S8i records. As no action was taken on his earlier application, the petitioner again submitted an application on 27.11.1990 (Annexure P/2) to the respondent No.l for correction of his date of birth. Thus, the petitioner had prayed for correction of his date of birth in the service record as 5.3.1938 and a direction to the respondent No.l to retire him accordingly. The respondent No.l filed its written statement (Annexure P/5) and denied the allegations of the petitioner. Leamed Labour Court by order dated 4.11.1999 (Annexure P/6) allowed the application filed by the petitioner, holding that the actual date of birth of the petitioner was '5.3.1938' and not the 'year 1933'. Accordingly, it was directed to the respondent No.l to retire the petitioner as per his actual date of birth with all consequential benefits like back wages and other allowances. Being aggrieved by the order dated 4.11.1999, the respondent No.l/employer preferred Civil Appeal No. 163/M.P.I.R.A./(A) III/99 before the Industrial Court, Raipur, which was allowed by the impugned order dated 31.1.2003 (Annexure P/7). Thus, the petitioner has filed this petition. Shri Anoop Majumdar, leamed counsel appearing for the petitioner would submit that leamed Labour Court on the basis of the statement made by the Head Master of the school and having verified the relevant school records from the year 1931 to 1948, had rightly held that the date of birth of the petitioner is 5.3.1938. The petitioner had submitted applicadons on 3.10.1987 and 27.11.1990 for correction of his date of birth in service records, on which no action was taken by the respondent. The respondent had failed to establish asto on what basis "year ,^'.<" /.'• ^.. liiiy^ ^%,f- ^ i '.^ils'i /^ ..^y 7. 8. 1933' was written in column of date of birth in Ex.D/1, relatin^ to the nomination register of General Provident Fund. Learned counsel would further submit that learned Industrial Court has set aside the order passed by the Labour Court on the presumption, merely on the basis of surmises and conjectures. It appears that the Industrial Court has suspected the authenticity of the school leaving certificate, produced by the petitioner, on the basis that normally the language of the docuraent of an Urdu School, should be in Urdu language. Shri N. K. Vyas, learned counsel appearing for the respondent No.l would submit that the petitioner had filed the application before the Labour Court after about six months from the date of his retirement, such belated approach is condemned by the Supreme Court in State of Osrissa & others Vs. Shri Rainnath Patnayak1. He would further submit that as per clause 14 (A) of the M.P./C.G. Industrial Employment (Standing Orders) Rules, 1963 (for short 'Rules, 1963'), the dispute regarding date of birth should have been raised by the petitioner before the Labour Court, before sbe months from the date of retireinent. I have heard leamed counsel appearing for the parties and perused the documents appended thereto. The Industrial Court has held that the burden of proof of the date of birth of the petitioner as 5.3.1938, is on the petitioner. The petitioner had filed the application before the Labour Court on 25.11.1991, after his retirement from the service on 15.6.1991. The petitioner was required to file application before the Labour Court five years before his date of retirement in ' 1997(n) LLJ 1023 9. accordance with the Rule 14 (A) of the Rules, 1963. The petitioner in his statement has stated that at the time of filling of the Provident Fund form he was having the school leaving certificate dated 17.9.1987 but he could not produce. This statement of the petitioner appears to be wrong as he had entered in service long back, say in the year 1966. When the petitioner filed application before the Labour Court in the year 1991 he had completed 25 years of service, fhus the petitioner might have entered the service in the year 1966. When the form of Provident Fund was filled up the petitioner had five children. In normal course birth of five children within a period of five years is not sustainable. Admittedly, the petitioner submitted his first applicadon for correction of date of birth on 3.10.1987 and thereafter on 27.11.1990. According to the respondent the petitioner was retired from service on 15.6.1991 and the school leaving certificate was obfained on 17.9.1987. The service record of the respondent does not indicate the date of birth of the pedtioner. It simply mentions the year as '1933', which cannot be said to be a date ofbirth. Rule 14-A (3) ofthe Rules, 1963 provides that ifany dispute arises regarding the date of birth initiated at the time of employment or declared in the declaration card for the purpose of membership of the Employees Provident Fund, then the date of birth shall be determined on the basis of School Leaving Certificate. It further provides that any such dispute shall not be entertained within the period of sbc months before the date of retireinent. •'s. 10. The contention of the respondent that the petitioner has already retired on 15.6.1991 and thereafter he raised the dispute before the Labour Court by filing an application on 25.11.1991, thus it was not maintainable, is not sustainable in the eyes of law. 11. The obserii-ations of learned Industrial Court that the petitioner was required to file an application before the Labour Court, five years before his date of retirement, is contraiy to legal provisions. Sub-mle (3) of Rule 14-A of the Rules, 1963 provides that °ifany dispute arises regarding the date of birth intimated at the dme of employinent or declared in the declaradon card for the purpose of membership of the Employees Provident Fund, as the case may be, then the date of birth shall be determined on the basis of School Leaving Cerdficate and in its absence, the date of birth determined by a Registered Medical Practitioner, not below the rank of Civil Surgeon, shall be considered as final, but any such dispute shall not be entertained within the period of sbt months before the date of retirement." In fact the petitioner had raised the dispute regarding correction in his date of birth on 3.10.1987 when he submitted his first application to the respondent No.l/employer. 12. Having regard to the facts situation of the case, where it appears that the Industrial Court could not apply the legal provisions in its right perspective, this Court is of the opinion that it would be just and proper to remand back the case to the Industrial Court for decision afresh. 13. In view of the foregoing, the impugned order dated 31.1.2003 (Annexure P/7) is quashed. The Industrial Court is directed to consider and decide the inatter afresh, in accordance with law. ^""—.a1"^ '^sT^ "n. '.,. '^J'/ "*teia,>a'K'' Thakur The Industrial Court may conduct necessary enquiry, if required, in regard to the veracity of the School Leaving Certificate. 14. Having regard to the pendency of the matter at several stages, the Industrial Court, Raipur is directed to consider and decide the matter as expeditiously as possible, preferably within a period of three inonths from the date of receipt of a copy of this order. 15. The observations, if any, made herein above shall not be construed as opinion of this Court on merits of fhe case. 16. The petition is allowed to the above extent. No order as to costs. Sd/- SatishK:Agniiiotri Judge