1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6426 OF 2008 1. Executive Engineer, Maharashtra State Electricity Distribution Company Limited, Urban Division-1, Tilak Path, Nashik Road, Nashik. 2. Superintending Engineer, Maharashtra State Electricity Distribution Company Limited, Chandra Niwas, Tilak Path, Nashik Road, Nashik. ...Petitioners. Vs. Prakash Gajanan Shimpi, Aged 58 years, Occup.Service, Resident of 2, Dhrupad Apartments, Vise Mala, College Road, Nasik-422005. ... Respondent. .... Mr. L.M. Acharya for the Petitioners. Ms.Seema Sarnaik for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 30, 2008. ORAL JUDGMENT: Rule, by consent of Counsel returnable forthwith. Counsel 2 appearing on behalf of the Respondent waives service. By consent of Counsel and at their request taken up for hearing and final disposal. 2. The Respondent joined the services of the Maharashtra State Electricity Board on 3rd January 1972. In the service book of the Respondent, the date of birth of the workman was shown to be 29th November 1949. The service book bears the signature of the workman. The aforesaid date of birth, was entered on the basis of the School Leaving Certificate issued to the Respondent on 1st August 1968 by the Maharashtra State Board of Secondary Education. On 5th April 1989, the Respondent made an application to the Petitioner for altering his date of birth from 29th November 1949 to 29th November 1950, purportedly relying on a School Leaving Certificate bearing the later date. The request made by the Petitioner was rejected on 24th July 1990 on the ground that under the applicable rules, such a request ought to have been made within a period of one year from the date of the entry of the birth date in the service record. 3 3. On the basis of the entry made in the service book, the Respondent was due for retirement on 30th November 2007. On 31st July 2006, the Respondent applied for the encashment of 1/3rd of his gratuity stating that his date of birth was 29th November 1949. An amount of Rs. 1.4 lakh was sanctioned by the Petitioner towards gratuity in 2007. The Respondent similarly made an application in respect of Provident Fund dues in which the date of birth was again mentioned as 29th November 1949. On 23rd February 2007, the Respondent was informed of his impending retirement on 30th November 2007. On 13th November 2007, the terminal dues payable to the Respondent were computed at Rs.3,79,749/- by the Petitioners. 4. Four days before he was to retire from service, the Respondent instituted a complaint of unfair labour practices before the Industrial Court under Items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 seeking a change in his date of birth with consequential reliefs. On 30th November 2007 – the date on which the Respondent was to retire – an interim order was passed by the 4 Industrial Court extending the date of retirement of the Respondent from 30th November 2007 to 30th November 2008. The interim order of the Industrial Court was set aside by a Learned Single Judge of this Court on 28th January 2008 in a petition filed by the employer. The order of the Learned Single Judge was confirmed in appeal by the Division Bench. The complaint of unfair labour practices was heard thereafter and by the order which was impugned in these proceedings, the Industrial Court has held the Petitioners to be guilty of unfair labour practices. There is a direction that the Respondent shall be regarded as superannuated on and from 30th November 2008. 5. Counsel appearing on behalf of the Petitioners submitted that (i) Under the service rules, normally no application for the alteration of an entry regarding the date of birth as recorded in the service book would be entertained after the period of one year from the date of his joining service; (ii) Though the service rules do permit an alteration in the date of birth in deserving cases, in accordance with the 18th Schedule of the MSEB Regulations, it was impossible to 5 hold that this was a deserving case; (iii) The Respondent was informed as far back as on 24th July 1990 that his request for the alteration of his date of birth in the service book recorded is rejected. No steps were thereafter taken. The Respondent has relied upon the School Leaving Certificate, but even the said certificate which was issued purportedly on 13th February 1976 was not produced until February 2002. An application for the payment of gratuity and later on for the payment of Provident Fund dues were made on the basis of the date of birth as entered in the service records. The SSC Certificate was purported to be rectified by the Maharashtra State Board of Secondary and Higher Secondary Education on 12th December 2007 after the date of retirement. In these circumstances, Counsel submitted that an application for the change in the date of birth on the eve of retirement ought not to have been countenanced by the Industrial Court, particularly having regard to the service rules. 6. On the other hand, it has been submitted on behalf of the Respondent that (i) The Respondent had submitted all documents including the School Leaving Certificate when he applied for the job in 6 1971; (ii) The original date of birth as contained in the SSC Certificate was corrected by the Board albeit on 12th December 2007; (iii) In 2002, the Respondent did submit a School Leaving Certificate of 1976 for verification which is borne out by the entry in the service record; (iv) There is a letter addressed by the Executive Engineer on 13th March 1973 which refers to the date of birth as 29th November 1950 and (v) The Petitioners failed to produce the original personal file and the application for employment has not been traceable. 7. The rival submissions now fall for consideration. The conditions of service of employees of the erstwhile Maharashtra State Electricity Board came to be prescribed by service regulations. Rule 9(2) deals with age and clause (a) thereof is to the following effect: “(a) Age shall be computed from the date of birth, evidence of which shall be produced by the employee to the satisfaction of the Competent Authority at the time of employment or within such period as the Competent Authority may direct, in any case within six months of appointment failing which his services shall automatically stand terminated after expiry of six months.” There are explanatory notes appended to the aforesaid rule and 7 Notes (i) and (ii) are relevant for the purposes of these proceedings. They provide as follows: “Note (i): Normally, no application for alteration of the entry regarding date of birth as recorded in the Service Book of an employee should be entertained after a period of one year from the date of his entry in the Board's service. Note (ii) : Subject to the instruction No.(i) above, in deserving cases the correct date of birth of an employee may be determined in accordance with the directions given in the Eighteenth Schedule of the Maharashtra State Electricity Board Employees' Service Regulations.” 8. The rules provide that the age of an employee shall be computed with reference to the date of birth. Evidence as to age has to be produced by the employee to the satisfaction of the Competent Authority at the time of employment or within an extended period not exceeding six months. Normally, no application for alteration of the date of birth as entered in the service record can be entertained after the expiry of a period of one year from the date on which the employee joined service. This is subject to an exception as provided for in Note (ii), in deserving cases, in accordance with the directions contained in the Eighteenth Schedule to the Regulations. The Eighteenth Schedule, in so far as it material, provides as follows : 8 “DIRECTIONS FOR DETERMINING THE CORRECT DATE OF BIRTH OF AN EMPLOYEE. I. A candidate will usually furnish proof of age in any of the following forms: (a) His own statement or that of a parent, guardian, friend, or relative. (b) School Leaving Certificate, S.S.C. Examination/ Matriculation Certificate or University Certificate. (c ) Extract from a birth or baptismal register. (d) Horoscope. (e) Entry in family records or accounts book. P.S. (i): (a) above should not be accepted as sole proof of candidate's age. (ii): (b), (d) & (e) separately cannot always be depended as reliable proof of age, while (c ) cannot also furnish absolute proof unless the name of the child is registered. II. To ensure, as far as possible, that convincing and conclusive proof of age is forth-coming, all candidates should be asked to produce both an extract from a birth or baptismal register and a school leaving certificate or S.S.C.Examination/Matriculation Certificate or University Certificate giving the date of birth. An extract of certificate of birth (such as baptismal certificate) where the name of the candidate has been entered in original birth register at the time of birth, should however, be accepted as a sufficient proof.” 9 9. Of the aforesaid provisions, reference may be made to Note (ii) under which it has been stated that a School Leaving Certificate, SSC/Matriculation Certificate or University Certificate, extract from a birth or baptismal register or entry in family records separately cannot be depended upon as reliable proof of age. Clause II provides that in order to ensure that convincing and conclusive proof is forthcoming, the candidate should be asked to produce both an extract from a birth or baptismal register and a School Leaving Certificate or SSC Examination/Matriculation or University Certificate. In the present case, it is an admitted position that the birth certificate, based on an extract from the Birth Register is not forthcoming. 10. The admitted position is that the Respondent did not make any application for the correction of his date of birth within six months of the date of his appointment as provided in Regulation 9(2)(a). Moreover, the Respondent was not within the time specified in Note (i) of Regulation 9(2) under which normally no application should be entertained more than one year after an employee has joined service. The question that falls for consideration before the Court is 10 as to whether the case of the Respondent fell within the exception carved out for deserving cases within the meaning of Note (ii) read with the Eighteenth Schedule to the Regulation. In determining this issue, the admitted circumstances which merit consideration and the evidence on record need to be alluded to. Firstly, in the original service record, the date of birth which was mentioned was 29th November 1949 and the signature of the Respondent appears at the foot thereof. Secondly, the representation made by the Respondent on 5th April 1989 for an alteration of his date of birth was rejected on 24th July 1990 after which no immediate steps whatsoever were taken by the Respondent to challenge the decision. No explanation whatsoever is forthcoming for this unexplained delay on the part of the Respondent. Thirdly, the Respondent's letter (Exh.10 to the affidavit in reply) dated 26th September 2008 contains a categoric statement that it was in 1978 that he realized that the correct date of birth, namely, 29th November 1950 was not entered in the service records. Even after 1978, there was an unexplained delay on the part of the Respondent. Moreover, even the aforesaid letter makes no reference whatsoever to the School Leaving Certificate of 13th 11 February 1976 issued by the Secondary School. Fourthly, when he applied for the disbursement of his gratuity in July 2006 and for the Provident Fund dues in 2007, the Respondent mentioned his date of birth as 29th November 1949. Fifthly, it was four days prior to the retirement, that the Respondent moved the Industrial Court with a complaint of unfair labour practices and it was on the date on which he was to superannuate that the Industrial Court was moved for an interim order which was passed in favour of the Respondent. That order was vacated and the Division Bench confirmed the order of the Learned Single Judge in appeal. The aforesaid circumstances would negate the hypothesis that the case of the Respondent was a deserving case within the meaning of Note (ii) to Regulation 9. In any event, it was impossible on any cogent line of reasoning for the Industrial Court to hold that the Petitioners were guilty of unfair labour practices. The Petitioners acted on a bonafide interpretation of Regulation 9 and this action could not be held to constitute an unfair labour practice or a breach of Items 5, 9 and 10 of Schedule IV. 11. The submission which was urged on behalf of the 12 Respondent, that all the documents were submitted or tendered at the time of the original application for employment would really not carry the case any further. The entry in the service records shows that the date of birth is 29th November 1949. The Respondent by his own case became aware of what according to him was a mistake as far back as in 1978 but he chose not to agitate such remedies which were open to him in law at that stage also. The correction in the SSC Certificate, it is significant, has been effected on 12th December 2007 after the date of superannuation on the basis of the original service records. The Respondent waited until February 2002 to submit the School Leaving Certificate of 13th February 1976. The unexplained delay on the part of the Respondent would clearly disentitle him to an extension of service based on a correction in the date of birth. 12. The law on the subject is clear. In Secy & Commr., Home Deptt. v. R. Kirubakaran,1 1994 Supp (1) SCC 155, the Supreme Court summarized the legal position thus: “An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for 1 1994 Supp (1) SCC 155 13 correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as other waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the Respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book. ... As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal.” (emphasis supplied). The same principle has been reiterated by the Supreme Court in a 14 long line of cases, namely: Govt. of A.P. v. M. Hayagreev Sarma, (1990) 2 SCC 682; Executive Engineer v. Rangadhar Mallik, 1993 Supp (1) SCC 763; Union of India v. Harnam Singh, (1993) 2 SCC 162; State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302; Burn Standard Co. Ltd. v. Dinabandhu Majumdar, (1995) 4 SCC 172; State of U.P. v. Gulaichi, (2003) 6 SCC 483; State of U.P. v. Gulaichi, (2003) 6 SCC 483; U.P. Madhyamik Shiksha Parishad vs. Raj Kumar Agnihotri, (2005) 11 SCC 465; and State of Uttaranchal v. Pitamber Dutt Semwal, (2005) 11 SCC 477. 13. The Industrial Court was manifestly in error in entertaining the complaint of unfair labour practices which was instituted on the eve of the retirement of the Respondent. The Industrial Court has observed that “not much harm and prejudice would be caused to the Respondents”, the Petitioners herein, “by extending the services of the complainant by one year”. This approach is manifestly fallacious. As the Supreme Court observed in Kirubakaran's case any such direction for a change in the date of birth has consequences for other persons waiting for promotion. The adverse impact of judicial 15 orders extending the age of retirement on the basis of an application for the correction of the date of birth upon public administration has been adverted to in the judgment of the Supreme Court. The Industrial Court has manifestly been in error and the interference of this Court under Article 226 of the Constitution is necessary in order to correct a miscarriage of justice. 14. The petition will have to be allowed and is accordingly allowed. Rule is made absolute in terms of prayer clause (a). The judgment and order dated 27th August 2008 passed by the Industrial Court in Complaint (ULP) 87 of 2007 shall stand set aside and the complaint shall stand dismissed. There shall be no order as to costs. ......