IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 1320 OF 2007 (M/S) Bharat Heavy Electricals Limited ………………Petitioner. Versus State of U.P. and others. ……….Respondents. Mr. V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the petitioner. Mr. H.M. Raturi, learned Standing Counsel for the respondent no.1. 21.7.2008 Hon’ble P.C. Verma, J. Heard Mr. V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the petitioner and Mr. H.M. Raturi, learned Standing Counsel for the respondent no. 1. 2. By means of present writ petition, the petitioner has challenged the award dated 23.11.1996 passed by the Labour Court, Dehradun in Adjudication Case No. 34 of 1996, which was published by the State Government under Section 6 of the Industrial Disputes Act on 25.10.1997. 3. The industrial dispute decided by the impugned award was referred in the following terms: - “Whether the superannuation of the applicant/workman Shri Santosh Singh S/o late Sri Jeewan Singh by the Employer on attaining the age of retirement is illegal and/or justified?, if not, , to which benefit/compensation the applicant/workman is entitled and to what extent?” 4. Brief facts of the case are that the workman Santok Singh was appointed on the post of Tradesman Grade-III (Rigger) vide appointment letter dated 15.11.1967. In Clauses 7 and 8 of the appointment letter as well as in terms of Clause 8 of the General Terms and Conditions, the workman was required to give proof of his date of birth either by giving a School leaving certificate, High School Certificate or Birth Certificate from Municipality. The workman did not submit any of the required document, but filed an affidavit dated 16.11.1967 stating therein that according to his parents, his date of birth is 9.10.1936. Since, the workman did not produce the required documents, therefore, the Management of the petitioner referred the case of the workman to the Medical Officer in order to determine his age and also with regard to his fitness. On 18.11.1967, the Doctor submitted the report certifying that the age of the workman was 34 years. After the receipt of the medical report, the date of birth mentioned in the service –sheet of the workman as 9.10.1936, was corrected as 9.10.1933. The date of birth was duly certified by Shri L.M. Goel Assistant Personnel Officer and the workman also appended his thumb impression over the date of birth in the service sheet. The age of the retirement of the workman is 58 years and on attaining age of 58 years, he superannuated on 24.10.1991. Before his retirement, the workman filed a writ petition No. 32290 of 1991 before this Hon’ble Court challenging his superannuation and alleging that his date of birth is wrongly recorded as 9.10.1933 though it should have been 9.10.1936. It was also alleged in the said writ petition that the Management has interpolated the service sheet, where the date of birth was 9.10.1936. The said writ petition was dismissed on 26.10.1991 holding that no alteration was made by the Management. After the dismissal of the writ petition and superannuation on 24.10.1991, the workman raised a dispute before the Conciliation Officer, Hardwar which was numbered as C.P. case No. 24 (H) of 1992. The Conciliation Officer failed and the matter was referred to Deputy Labour Commissioner, Meerut, who declined to refer the dispute by order dated 18.2.1995. The order dated 18.2.1995 was based upon the report of Conciliation Officer, where it was mentioned that the services of the workman has not been wrongly terminated, but he is being retired after attaining the age of superannuation. The workman approached the Deputy Labour Commissioner, who, according to the petitioner, without any notice to the petitioner passed an order dated 9.4.1996 after 5 years and referred the dispute to the Labour Court, Dehradun. 5. The workman filed his claim before the labour Court alleging that when the workman was appointed in the regular cader, he had given affidavit on 16.11.1967 in which his date of birth was indicated as 9.10.1936 based on Janam Patri. He further alleged in the claim that the Management without his knowledge altered his date of birth in the service sheet and he came to know first time in the year, 1989, when he made a representation, which was duly rejected by the Management. It was also alleged in the claim that alteration of his date of birth was never informed, therefore, he prayed before the Labour Court that he has wrongly been superannuated as his date of birth is 9.10.1936. 6. The petitioner filed his written statement denying the claim of the workman. The petitioner also raised a preliminary objection to the effect that the dispute is belated and that no industrial dispute existed. It was also contended that no dispute should be referred under Section 2-A of the U.P. Industrial Disputes Act as it is neither a discharge, dismissal or retrenchment of the workman. It was further objected that the dispute could not have been referred under Section 4-K of the Act by the Deputy Labour Commissioner, Meerut as the powers to refer a dispute is only with the State Govt. and this power could not be delegated by the State Govt. to a Deputy Labour Commissioner as no guidelines or rules have been laid down including standard of qualifications and experiences of the person to be appointed under Section 11-A of the Act. Against this, the workman filed his rejoinder on 26.6.1996. The same was replied by the petitioner by filing a reply on 28.6.1996. 7. The Labour Court after going through the records recorded a finding that it was not in the knowledge of the workman that his date of birth has been altered as 9.10.1933 in place of 9.10.1936, but he came to know about it when he received a new Identity Card in the year, 1989 and thereafter, he gave an application in order to rectify the same on 19.10.1989 and the same was replied by the Employer on 30.11.1989, where it has been held that on the basis of the report of Medical Officer at the time of joining, the date of birth has been recorded as 9.10.1933 and now nothing can be done. The plaintiff again raised a question on 10.8.1991 and the same was similarly replied by the Employer. The finding has been recorded that there is no ground to replace the date of birth by 9.10.1933 as the Medical Inspection which had been conducted was for the general fitness and not about the age. A finding has further been recorded that the workman has already filed his affidavit regarding date of birth along with the Janam Patri, and if there was any doubt in the mind of the Employer, they could have got an medical inspection done regarding the age of the workman and once they had endorsed the date of birth as 9.10.1936 on the basis of affidavit submitted by the workman, there was no occasion to alter the same without giving any opportunity to the workman. The Labour Court has directed the petitioner to pay full salary for the period 3 years along with consequences and Rs. 1000/- as litigation expenses. 8. Learned counsel for the petitioner has submitted that Janam Patri which the workman has filed before the Labour Court has no genuineness in the eyes of law and it is not a birth certificate given by a hospital or by any Municipality or by a School. The petitioner has further submitted that the Medical Report was taken into account while passing the award. 9. Counsel for the petitioner has referred the judgment of the Allahabad High Court passed in Civil Misc. Writ Petition No. 32290 of 1991 Santokh Singh Vs. M/s Bharat Heavy Electricals Ltd., where the High Court has observed that ‘Here in the instant case no alteration has been made. Only an entry of date of birth has been made on the basis of material supplied by the petitioner.’ 10. In view of the aforesaid submissions of the learned counsel for the petitioner, the matter deserves to be remanded to the court below. The case is remanded to the court below for deciding afresh after taking into account the Medical Report dated 18.11.1967 (Annexure No. 4 to the writ petition) and the judgment dated 26.10.1991 passed in Civil Misc. Writ Petition No. 32290 of 2001 (Annexure No. 9 to the writ petition). 11. Accordingly, writ petition is allowed. No order as to costs. (P.C. Verma, J.) 21.7.2008 Rathour