:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 308 OF 2008 Executive Engineer Maharashtra State Electricity Distribution Company Ltd. and anr. .. Petitioners Vs. Prakash Gajanan Shimpi .. Respondent Mr. L.N. Acharya for petitioners. Ms. Seema Sarnaik for respondent. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 28, 2008. Date : January 28, 2008. Date : January 28, 2008. P.C.: P.C.: P.C.: 1. Heard the learned counsel for the petitioners. 2. Rule. Ms. Seema Sarnaik waives service for the respondent no.1. Petition is taken up for final hearing forthwith, more so when it challenges an interlocutory order passed below Exh.U-2 filed in Complaint (ULP) No. 87 of 2007 before the Industrial Court at Pune. 2. The respondent-complainant joined the employment of Maharashtra State Electricity Board (the predecessor of the Maharshtra State Electricity Distribution Company Ltd.) as a Clerk on 3/1/1972 and :2: in his service book his date of birth was recorded as 29/11/1949. He also endorsed the same as the correct date of birth. However, he had claimed that in the year 1978 when the seniority list is published, he noticed that his date of birth was wrongly recorded and as per him in the school leaving certificate issued by the school where he had studied, the date of birth was 29/11/1950 and though the said certificate was submitted to the employer, his date of birth was erroneously recorded as 29/11/1949. However, for the first time he submitted a representation to the Board on 5/4/1989 and requested for correction in the date of birth on the basis of the school leaving certificate. This representation was rejected on 24/7/1990 informing him that the correction in date of birth under the service Rules i.e. Note (1) to Rule 9 was required to be done within a period of one year from the date of joining. The respondent was informed by the petitioner no.1 by the communication dated 23/3/2007 that he was retiring from the Board service on attaining the age of superannuation on 30/11/2007. On or about 26/11/2007 the respondent approached the Industrial Court in Complaint (ULP) No. 87 of 2007 filed under Items 5 and 9 of Schedule IV read with :3: Section 28 of the M.R.T.U. and P.U.L.P. Act, 1971 (the Act for short). The petitioners filed reply to the said complaint as well as the application for interim relief and pointed out that once the respondent’s case was rejected on 24/7/1990, he could not have approached the Industrial Court at the time of end of his service and, therefore, there was no case made out to grant interim relief on the basis of the prima facie finding of unfair labour practice against the employer. It was the case of the respondent-complainant that on 30/9/91 he had submitted a fresh representation, however, the Board pointed out that on 13/2/1992 the same was rejected and even the subsequent representation dated 30/2/1992 was also rejected. No further remedy was sought by the respondent by approaching to the competent forum challenging the action of the Board. 3. The respondent passed his SCC examination held in March, 1968 and on 1/8/1968 he was issued the SCC Passing Certificate. As per the said certificate the respondent’s date of birth is 29/11/1949. On or about 31/7/2006 the respondent applied for 1/3rd gratuity :4: amount on the basis of his date of birth as 29/11/1949. As per him the SCC Board has carried out correction in the SCC certificate on or about 11/12/2007 and his date of bith has been corrected as 29/11/1950. Obviously, these are the subsequent developments and all these documents will have to be considered by the Industrial Court in the trial of the main complaint on the basis of the evidence that the parties may adduce. But, certainly it cannot be held that the employer was guilty of unfair labour practice on the basis of these subsequent documents, even for prima facie considerations. From the year 1992 onwards, obviously as the record stands, the complainant did not take any steps for at least 15 years for getting his date of birth corrected and he has approached the Court only after he received the notice dated 23/2/2007 informing him that he was attaining the age of superannuation on 30/11/2007. 4. Ms. Sarnaik submitted that respondent - complainant would submit an undertaking that he would refund the amount of backwages if the complaint is dismissed but the order passed by the Industrial Court should not be disturbed and the complainant should :5: allow to continue in service till 28/11/2008. As is well settled under Section 30(2) of the Act, an application for interim relief cannot be allowed unless a prima facie finding is recorded of unfair labour practice on the part of the employer and in the instant case the correction in the SCC certificate as relied upon by the complainant is subsequent to his date of superannuation i.e. 30/11/2007 and the same will have to be proved by leading evidence. The finding of the Industrial Court that employer was guilty of unfair labour practice is, therefore, patently erroneous and the interim order will have to be set aside. 5. Hence the petition succeeds and the same is hereby allowed. The impugned order is quashed and set aside. It is directed that Complaint (ULP) No. 87 of 2007 shall be heard and decided as expeditiously as possible and preferably by 30/6/2008. Writ to go to the Industrial Court forthwith. Rule is made absolute accordingly. 6. Ms. Sarnaik has made an oral application for stay to this order. The application is hereby :6: rejected. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)