IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1286 (M/S) of 2007 Rai Bahadur Narain Singh Sugar Mills Ltd. . .……… Petitioner Versus Deputy Labour Commissioner and another ……… Respondents Hon’ble Tarun Agarwala, J. Heard Shri R.K. Raizada, the learned counsel for the petitioner. No one appears for the respondents. 2. The petitioner is the Sugar Factory and is aggrieved by the order dated 13.12.1996 passed by the Deputy Labour Commissioner, Meerut respondent No.1 modifying the date of birth of the workman-Atroo under Clause (LL) of the Standing Orders governing the condition of employment of the workman in vacuum pan sugar factory of the State. 3. The brief facts leading to the filing of the writ petition is that admittedly the date of birth recorded in the service record and provident fund record of the workman was 14/12/1934. The workman received a notice of retirement in the year 1994 and, within one month of the receipt of the said notice, the workman represented the Deputy Labour Commissioner under Clause LL of the Standing Orders. An objection was raised by the employer that the date of birth recorded in the service record as well as in the provident fund record was 14/12/1934 and that the date of birth could not be modified or altered at the fag end of the career of the workman. It was also contended that the entries made in the provident fund record could not be modified or rectified and that the said date has to be taken as the correct date of birth. It 2 was also urged that Clause (LL) was modified and substituted by the Government Order dated 27th September, 1988 in which one year was granted to the workers to get their age modified, failing which the said right would lapse and, therefore, under this amended Clause (LL) of the Standing Orders, no such application could be filed before the Deputy Labour Commissioner on the verge of his retirement. 4. The Deputy Labour Commissioner, after considering the matter, repelled the submission of the employer and held that the correct date of birth of the workman is 6th June, 1938 and, consequently, directed the employer to withdraw the order of retirement and correct the date of birth in the service record. The petitioner being aggrieved by the said order, has preferred the present writ petition. 5. The learned counsel for the petitioner placed reliance on sub-clause 3 (iv) and sub-clause 6 of Clause (LL) of the Standing Orders and submitted that upon the enforcement of this provision on 27th September, 1988, the workman was only entitled to rectify and correct his date of birth within one year from the date of the enforcement of the Standing Orders. The learned counsel for the petitioner submitted that since the workman did not file any application for the correction of his date of birth, no modification of the age could be made after the expiry of the period of one year. The learned counsel for the petitioner further submitted that at the fag end of the career, no rectification in the date of birth could be made as held by the Apex Court in the case of State of Punjab and others Vs. S.C. Chadha, 2004 (2) Apex Court Judgment 251. The learned counsel for the petitioner further submitted that even otherwise on merit, the workman has no case and that the 3 date of birth cannot be corrected on the basis of a certificate issued by a school, which contained an interpolation. 6. Having heard the learned counsel for the petitioner, this Court finds that the order of the Deputy Labour Commissioner does not require any interference. For a proper appreciation, Clause (LL) as enforced from 17th September, 1998, is extracted hereunder:- “LL. Retirement of workmen on reaching the age of superannuation. 1. A workman may be retired from service on reaching the age of superannuation which shall be 60 years. 2. The Provident Fund record of the factory specifying the workman’s age should, to begin with, be taken as the reliable record of the age of a workman for purposes of retirement. 3. This record of age shall stand modified as may be warranted by the following:- (a) Date of birth as given in High School Certificate. If the school leaving certificate is below High School then such certificate must be authenticated by the District Inspector of schools or by the District Education Officer as the case may be. (b) Date of birth as certified by a Municipal Corporation, Municipal Board, a Cantonment Board, a Notified Area or a Town Area Committee. (c) An insurance policy taken before November 1, 1960 provided that : (i) where the date, month and the year of birth of a workman are recorded in provident Fund records shall be taken as final. (ii) where only the month and year of birth are given, the date shall be taken as the 1st of that month; and (iii) where the Provident Fund record of the workman does not specify the date or month of birth in that the 1st November of the year shall be deemed to be the date for retirement. (iv) the foregoing provisions regarding modification of age shall lapse on expiry of one year from the date of enforcement of these standing orders. 4. The age of new entrants shall be accepted on the following basis : (i) Date of birth given in the High School Certificate/Transfer Certificate; (ii) Date of birth as certified by Nagar Mahaplika/Nagar Palika/Cantonment Board/Notified Area, Committee/Town area Committee/Gram Panchayat: 4 Provided that the new entrants shall furnish proof of his age within three months of the date of his appointment and the management shall accept within six months of the date of appointment. The date of birth so accepted shall be final. 5. The management shall give two months notice to a workman before retiring him. 6. The workman who are in employment at the time of enforcement of these standing orders shall have the right to get their age record modified as per clause 3 above with one year of enforcement of these standing orders. He shall have the right to represent to the Regional Additional/Deputy Labour Commissioner of the area concerned within one month of notice of retirement. Such representations shall normally be disposed off within a period of one month of the date of receipt of representation from the workmen, and the orders passed by the Additional/Deputy Labour Commissioner regarding the age of the concerned workman shall be final and shall not be questioned by any party before any court. In case the Regional/Additional/Deputy Labour Commissioner allows the representation, the employer shall modify the record of age of the workman immediately on receipt of the said orders. 7. Sub-clause 3 (iv) of Clause (LL) of the Standing Orders provides that the modification of the age shall lapse on the expiry of one year from the date of enforcement of the Standing Orders. The said provision was incorporated by the Government Order dated 27.09.1988 and, therefore, it would lapse on 26th September, 1989. This theory of the employer that an application for modification of the age could not be entertained after the expiry of one year is patently erroneous and it can be seen by a reading sub- clause 6 of Clause (LL) of the Standing Orders. The said provision further provides that the workman would have a right to represent to the Regional Additional / Deputy Labour Commissioner of the area concerned within one month of the notice of the retirement. 8. On a harmonious reading of sub-clause 3(iv) of Clause (LL) of the Standing Orders it would indicate that a workman had a right to represent the employer for rectification of his date of birth in the service record within one year from the date of enforcement 5 of the Government Order. But upon the expiry of the aforesaid period, the right to get the age modified did not come to an end. The workman was given an additional right to cure this defect within one month from the date of the receipt of the notice of retirement during which the workman could represent a statutory authority, namely, the Regional Additional/Deputy Labour Commissioner. Consequently, the Court is of the opinion that the workman had two forum to get his date of birth rectified. One within one year from the date of the enforcement of the Government Order by which Clause (LL) was modified. Two, within one month from the date of the notice of retirement before the Deputy Labour Commissioner. In the present case, the workman represented the matter before the Deputy Labour Commissioner within one month from the date of the retirement. The application was perfectly maintainable and within time. 9. The contention of the employer that the date of birth recorded in the provident fund cannot be altered on the basis of certificate issued by a school is patently erroneous. A Division Bench of the Allahabad High Court in the case of M/s Deoria Sugar Mills Ltd. Vs. The Deputy Labour Commissioner, Allahabad Division, Allahabad 1977 Lab. I.C. 102, upon reading the Standing Orders and considering its objects and effects, held as under:- “(1) There is a presumption in favour of the age of the workman concerned mentioned in the Provident Fund records but this presumption is rebuttable. (2) The presumption mentioned above shall stand rebutted by the production of one or more of the documents enumerated in sub-clauses (a), (b), (c) and (d) of Clause (3) and these documents are conclusive evidence of the age of the workman concerned. (3) If more than one of the documents mentioned in sub-clauses (a), (b), (c) and (d) are produced and there is difference in the age given in them, then it is 6 for the Labour Commissioner to decide which of these documents is the most reliable and that document will have the status of conclusive evidence. (4) If none of the documents mentioned in sub- clauses (a), (b), (c) and (d) are available, then it is permissible for the workman concerned to produce any evidence of his age and in that event it will be for the Labour Commissioner to decide whether the evidence is relevant, whether it relates to the workman concerned and what is its probative value and whether it is sufficient to rebut the initial presumption in favour of the entry in the Provident Fund Records.” 10. Similar view was taken by me in the case of M/s U.P. State Sugar Corporation Ltd. Pipraich, Gorakhpur Vs. Dy. Labour Commissioner, Gorakhpur & others, 2009 (123) FLR 347. 11. In the light of the aforesaid, this Court is not inclined to interfere in the findings of fact recorded by the Deputy Labour Commissioner, which is not perverse. 12. For the reasons stated aforesaid, the writ petition fails and is dismissed. In the circumstances of the case, there shall be no order as to cost. (Tarun Agarwala, J.) Dated 04.12.2009 LSR/Shiv