IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 2974 OF 2004 PETITION NO. 2974 OF 2004 PETITION NO. 2974 OF 2004 Dominic Fernandes. ... Petitioner. V/s. Voltas Limited. ... Respondent. Arshad Shaikh with Vinod Shetty for the petitioner. C.U.Singh, senior counsel with Ankit Mehta i/b. Haresh Mehta & Co. for the respondent. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 3rd May 2007. DATED: 3rd May 2007. DATED: 3rd May 2007. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . This petition is directed against the award and judgment dated 26th April, 2004 in Reference (IDA) No.932/1999 passed by the First Labour Court holding that the petitioner is not entitled to reinstatement with full back wages and continuity service with effect from 1st December, 1997. Brief Facts : Brief Facts : Brief Facts : ----------- ----------- ----------- 2. The brief facts of the case as borne out from the petition are that the petitioner- workman was appointed on 22nd June, 1956 as ‘Mazdoor’ on temporary basis. At that time, while seeking temporary appointment, he had disclosed his date of birth as "1-1-1938". However, according to the petitioner, his correct date of birth is "1st January, 1939" and not 1st January, 1938. After completion of initial temporary service, the petitioner was again appointed from time to time on fixed temporary tenure basis till 10th April, 1962. According to the petitioner, in the temporary appointment letters dated 9th October, 1961 and 26th March, 1962, issued by the respondent- employer, his date of birth was shown as 1st January, 1939. According to him, he has taken education till 8th standard. In his perception, in the first approach to the employer, by mistake, he must have written his year of birth as 1938. But, thereafter, in the year 1961, he got it corrected as "1st January, 1939" by making representation. That is how, according to him, in all subsequent appointment letters dated 9th October, 1961; 23rd March, 1962 and 10th April, 1962 his date of birth came to be shown as "1-1-1939". 3. The petitioner’s further case is that sometime in the month of February, 1994, for the first time, he noticed from his Provident Fund Declaration and Nomination Form, that the initial entry of the year of his birth, which was shown as "1939", was cancelled - 3 - and substituted with that of "1938" by hand. The petitioner has, thereafter, sought correction with regard to the year of his birth in the record of the employer, by making representation to the respondent. According to him, even after 1994, the provident fund statements issued to him by the internal Trust of the respondent continued to show his birth date as 1st January, 1939. Thus, according to the petitioner, as per his date of birth, he ought to have been made to retire on 31st December, 1998, however, he was made to retire prematurely on 31st December, 1997. 4. The petitioner appears to have initially filed complaint under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) being Complaint (ULP) No.1182/1997 in the Industrial Court, Mumbai. However, the said complaint came to be dismissed by the Industrial Court vide its order dated 30th March, 1998 holding it to be not tenable. However, during the pendency of the complaint, petitioner retired from service. 5. Being aggrieved by the aforesaid order, Writ Petition No.1304/1998 was filed in this Court. - 4 - Pursuant to the liberty granted by this court in the said writ petition, industrial dispute was allowed to be raised. The dispute, about date of birth, ultimately came to be referred to the First Labour Court, Mumbai. The reference made reads as under: "Shri Dominic Fernandes should be reinstated with full backwages and continuity of service w.e.f. 31.12.1997." 6. On being noticed, the respondent- employer appeared and resisted the claim of the petitioner by filing written statement. The respondent pleaded therein that at the time of recruitment of the petitioner, he himself, in his application form for employment, had disclosed his date of birth as "1-1-1938". According to the respondent, on the basis of his application for employment and declaration therein, the respondent had appointed the petitioner on first occasion by its letter dated 22nd June, 1956 as a temporary employee taking his date of birth as 1st January, 1938 and that the petitioner had repeatedly, right upto June 1961, declared, in his own hand, his date of birth as "1-1-1938" and accepted the terms and conditions of service as mentioned in four temporary appointment letters which, according to the respondent, formed part of the contract of employment - 5 - between the petitioner and the respondent- employer. 7. That the notice of retirement dated 1st July, 1997 was given to the petitioner on the basis of his own declaration made by him at the time of his initial appointment. That, according to the respondent, any declaration made subsequently by the petitioner either for the purposes of provident fund or E.S.I. benefits cannot form the basis of contract of employment because those declarations were made subsequent to the contract of employment without any documentary proof. Thus, according to the respondent, in reply to the correspondence made by the petitioner with the respondent, he, in categorical terms, was informed that as per his own declaration his date of birth is recorded as "1st January, 1938" and that he was being made to retire on the basis of his own declaration treating his date of birth as "1st January, 1938". According to the respondent, had the petitioner declared his date of birth as "1st January, 1939" he would not have been employed since he was below 18 years of age (minor). The respondent has denied that the petitioner had written any letter to it in August, 1961 enclosing the copy of Baptism certificate seeking change in his date of birth and that it was accepted - 6 - by the respondent resulting in change from "1st January, 1938" to "1st January, 1939". 8. With the aforesaid pleadings, issues were framed by the Labour Court. Parties were permitted to lead evidence in support of their rival contentions. 9. The petitioner had sought production of certain documents. The said prayer was opposed by the respondent. However, the learned Labour Judge vide his order dated 21st March, 2002 directed the respondent- employer to produce copies of Certified Standing Orders, appointment letter dated 9th October, 1961, Provident Fund Register declaration and nomination forms, original documents of Life Insurance Policy and appraisal reports from 1962 to 1997. It appears that appraisal reports for the years 1978 to 1980 and 1992 along with temporary appointment letters dated 22nd June, 1956; 7th March, 1961; 5th June 1961 and office copy of the letter dated 31st May, 1996 were produced. However, respondent did not produce documents, namely, appointment letter dated 9th October, 1961, Provident Fund declaration and nomination forms, original documents of Life Insurance Policy and appraisal reports from 1962 to 1977 and - 7 - 1981 to 1991. An objection leading to non-production of documents as ordered by the Labour Court was raised by the petitioner- workman before the Labour Court. 10. With the aforesaid material on record, the Labour Court was pleased to hear the reference and disposed it of vide its award dated 24th June, 2004. According to the Labour Court, if the date of birth of the petitioner was "1st January, 1939" and while securing initial appointment the date of birth was disclosed as "1st January, 1938", then it must not be a clerical error or unintentional mistake because the first letter of appointment was issued to the petitioner on 22nd June, 1956. Had the employer known the date of birth of the petitioner as "1st January, 1939", then appointment could not have been given to the petitioner in the respondent company since he was minor on that date. 11. The Labour Court further held that if the petitioner had obtained appointment by mentioning wrong date of birth in his application form, then such act could not be said to be unintentional. Thus, the Labour Court was of the opinion that the petitioner having obtained service by concealing true fact as - 8 - regards his date of birth, the entries of date of birth made in the subsequent appointment orders or in Provident Fund Register reading as "1st January, 1939" in the absence of any order by the employer in the absence of any request letter by the petitioner on record and in absence of any order from the employer, it could not be said that the said entries were made after due verification and enquiry under the orders of the employer, as such the Labour Court came to the conclusion that the petitioner was not entitled to additional service of one more year. In the result, the reference came to be rejected by the Labour Court vide its order dated 26th April, 2004. 12. Being aggrieved by the aforesaid award of the Labour Court, the petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India to challenge the legality and validity of the aforesaid award. Rival Submissions : Rival Submissions : Rival Submissions : ----------------- ----------------- ----------------- 13. At the outset, learned counsel for the petitioner submits that the finding of fact recorded by the Labour Court that the correct date of birth of the petitioner is 1st January, 1939 has not been - 9 - seriously disputed by the respondent in the present petition which was the main bone of defence before the Labour Court. He further submits that in spite of having come to the conclusion that the correct date of birth of the petitioner was 1st January, 1939 and the records of the respondent company after 1961 having shown date of birth of the petitioner as 1st January, 1939, the Labour Court could not have rejected reference made to it. In his submission, the Labour Court has committed an error of law in rejecting the claim of the petitioner on an ex facie erroneous premise that on 22nd June, 1956 the petitioner was not eligible for appointment in the company as he had not completed 18 years of age. According to him, in support of this finding, the Labour Court could not have relied upon the provisions of section 62(1A) read with section 2(a) of the Factories Act, 1948. In his submission, the Labour Court ought to have appreciated that at the time when the petitioner joined as temporary employee in the year 1956 or even when he became a permanent employee in the year 1962, section 62(1A) of the Factories Act was not on the statute book. The same was inserted in the Act by an amendment by Act 94 of 1976 and came into effect from 26th October, 1976. He, thus, submits that while - 10 - coming to such a conclusion, the Labour Court ex facie failed to take into consideration Chapter VII of the Factories Act which deals with the provisions relating to employment of young persons. According to him, had the Labour Court considered this Chapter, then it would have appreciated that an adolescent person, that is someone who had completed 15 years of age but has not completed his 18 years of age, was also entitled to the employment in a factory under the Factories Act. That the entire premise for disbelieving the petitioner is based on unsustainable and erroneous belief that persons below 18 years could not have been engaged in the employment in the year 1956. He, thus, submits that the impugned award is liable to be set aside on this ground alone. 14. The learned counsel for the petitioner further submits that the Labour Court also failed to appreciate that it was not the petitioner who had sought correction of date of birth at the fag end but the respondent, without following due process of law, had changed the date of birth of the petitioner at the fag end, which is not permissible, being against the settled principles of law. Learned counsel pointed out that the respondent has neither in its written - 11 - statement nor in the oral evidence came out with a case that the petitioner- workman would not have been appointed for want of having completed 18 years of age or that he deliberately suppressed his date of birth to obtain employment. That despite the order of the Labour Court the respondent failed to produce documents, of which the originals were in their possession and the Labour Court ought to have drawn an adverse inference against the respondent as they failed to produce the original documents relied upon by the petitioner. 15. The learned counsel for the petitioner further submits that when the petitioner was first employed, he was treated as temporary appointee for a period of six years i.e. 1956 to 1962. The appointment letters during this period state that the appointment was on a "purely temporary basis". He, however, submits that subsequent two more letters of temporary appointment dated 9th October, 1961 and 26th March, 1962 showed the correct date of birth of the petitioner. Therefore, according to him, the same cannot be a permanent contract of service. That at the time when the petitioner was given permanent employment, he was 23 years of age. According to him, the permanent - 12 - appointment letter would be the permanent contract of employment between the petitioner and the respondent. In the permanent appointment letter dated 10th April, 1962 the date of birth of the petitioner is mentioned as "1st January, 1939". 16. The learned counsel for the petitioner submits that the respondent cannot be allowed to rely on the appraisal forms of the petitioner wherein the dates were filled in by the respondent itself, and, as per their own admission in the evidence, these appraisal forms were confidential and never shown to the petitioner. He, therefore, urged that the impugned award is liable to be quashed and set aside with directions to the respondent to notionally reinstate the petitioner with full back wages, continuity of service and consequential reliefs including interest on the arrears of back wages. 17. Per contra, Mr.Singh, learned senior counsel appearing with Mr.Mehta for the respondent urged that at the time of recruitment of the petitioner along with other employees certain practices and procedures - 13 - were followed whereby the petitioner had to fill in the application form giving all the details with date of birth. The petitioner- workman had to give declaration that whatever information was filled in the application for employment was true to the best of his knowledge and belief. Accordingly, the petitioner had clearly disclosed and stated in his own handwriting; in his application seeking employment; his date of birth as 1st January, 1938. The application for employment, which was filled in by the petitioner, was accepted by the respondent and an appointment letter appointing him as temporary employee was given to him on 22nd June, 1956 mentioning his date of birth as "1st January, 1938". Mr.Singh, thus, submits that the said application form for employment is a service record of the petitioner and the appointment letter was issued to him formed a contract of employment between the petitioner- workman and the respondent- employer. The respondent had accepted the date of birth of the petitioner as 1st January, 1938, as such the said date of birth has to be treated as date of birth of the petitioner for all purposes including for the purpose of his superannuation. - 14 - 18. Mr.Singh urged that this Court should take judicial notice of the fact that for getting employment in the company, a person needs to be 18 years of age. Employing a person below 18 years of age was and is strictly prohibited by law. Therefore, according to him the petitioner himself has made false statement in his application for employment by mentioning his date of birth as "1st January, 1938" to show that he was of 18 years of age at the time of his first appointment i.e. on 22nd June, 1956, which clearly shows that the petitioner had obtained employment on the false statement suppressing material facts, as such he is not entitled to claim any relief. 19. Mr.Singh submits that had the petitioner declared his correct date of birth i.e. 1st January, 1939 in his application in June 1956, he would not have got employment at that point of time because he was below 18 years of age. He submits that subsequently in the appointment letter dated 5th June, 1961 also the respondent had mentioned his date of birth as "1st January, 1938". He, thus, submits that it is well settled that if the workman obtains employment by suppression of material facts i.e. by suppression of his date of birth or by misleading true - 15 - and correct facts at the time of recruitment, then at the time of retirement he is not entitled to contend contrary. 20. Mr.Singh further submits that if the wrong date of birth was recorded, it was obligatory on the part of the petitioner to apply for getting it corrected. However, no such steps were taken by the petitioner- workman, as such there was no question of changing his date of birth by the responded- employer. He seriously disputed the assertion made by the petitioner that he had sought correction with regard to his date of birth in the month of August, 1961. That no such application was made is a finding of fact which cannot be disturbed in the writ jurisdiction. 21. Mr.Singh further submits that perusal of the evidence shows that Voltas Employees Provident Fund Trust is an independent and separate Trust registered under the Bombay Trust Act. The said Trust is run by the representatives of the employees and the management, which is independent and separate Trust in the eye of law. Therefore, in the submission of the respondent, any declaration given by the petitioner- workman to the said Trust has no relevance to decide - 16 - issue of date of birth of the workman. He further submits that even in appraisal reports produced on record, the date of birth is shown as "1st January, 1938". 22. Mr.Singh urged that the petitioner has taken advantage of employment of one year when, actually, he was not entitled to such employment and has derived advantages of one year service, as such the petitioner cannot be allowed to take further advantage of one more year of service. Thus, in his submission, the view taken by the Labour Court is legal and valid and cannot be said to be perverse warranting interference at the hands of this Court. 23. Mr.Singh further submits that while entering into contract of service, the petitioner himself has believed that his correct date of birth is 1st January, 1938. It is not a case that his date of birth was incorrectly recorded by the respondent- employer, as such, at this stage, the contentions sought to be raised by the petitioner- workman need not be entertained by this Court. 24. Mr.Singh, relying on the judgment of the Apex - 17 - Court in the case of Burn Standard Co.Ltd. v. Dina Burn Standard Co.Ltd. v. Dina Burn Standard Co.Ltd. v. Dina Bandhu Majumdar Bandhu Majumdar Bandhu Majumdar, (1995) 4 SCC 172, urged that the entry in the service record made on the basis of the employee’s statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. He further submits that while considering the prayer seeking to change the date of birth, the first thing which is required to be considered is whether on the date of entry into service, the employee would have been eligible for service on the revised date of birth. In his submission, if the answer is in negative, then change of date of birth or advantages therefrom are not permissible in the eye of law. He, thus, submits that the petition is liable to be dismissed holding it to be without any substance. The Issues : The Issues : The Issues : ---------- ---------- ---------- 25. On the basis of the rival pleadings and the contentions referred to hereinabove, one has to determine the following issues in order to answer the reference made to the Labour Court in para-5 (supra): (i) Whether the year of birth of the - 18 - petitioner on the material available on record is "1938" or "1939"? (ii) Whether the view taken by the Court below is a reasonable and possible view? Consideration : Consideration : Consideration : ------------- ------------- ------------- 26. Having noticed rival pleadings, submissions and the evidence available on record, the emerging undisputed facts are that at the time of seeking temporary employment the date of birth disclosed by the petitioner in the application was "1-1-1938". The initial three temporary appointment orders dated 22nd June, 1956; 7th March, 1961 and 5th June 1961 incorporate the date of birth of the petitioner as "1-1-1938", whereas the subsequent two orders of temporary appointment dated 9th October, 1961 and 26th March, 1962 incorporate date of birth as "1-1-1939". The petitioner was, subsequently, appointed on probation on the post of "Assembler" by an order dated 10th April, 1962; wherein the date of birth of the petitioner is mentioned as "1-1-1939". The date and month of the birth is not in dispute. The dispute is - 19 - only with regard to the year of birth. 27. The above factual matrix reveals that the period, during which the petitioner was employed on temporary basis, he was given as many as five appointment letters from time to time. The first three letters carried year of birth of the petitioner as "1938", whereas the subsequent two appointment letters carried year of birth as "1939" followed by an order of substantive appointment dated 10th April, 1962; carrying the year of birth as "1939". With the result, the date of birth viz. "1-1-1938" initially mentioned in the temporary appointment orders stood superseded and substituted with that of "1-1-1939". This change happened in the month of October, 1961 itself. The said date of birth came to be reiterated in all the subsequent appointment letters. In this view of the matter it was not open for the respondent to treat the date of birth of the petitioner as 1st January, 1938 relying on the application of the petitioner followed by three temporary appointment letters ignoring the subsequent appointment letters in which the date of birth viz. "1-1-1938" was superseded and substituted with that of "1-1-1939". All subsequent appointment letters carried date of - 20 - birth as "1-1-1939". 28. In the light of above undisputed factual documentary evidence on record, if one proceeds to consider further documentary evidence available on record in the form of "Family Declaration and Nomination Form" dated 24th February, 1994 submitted by the petitioner to the Voltas Limited Provident Fund, which carries the certificate and signature of one Mr.S.Y.Patil, Regional Personnel Manager (WZ); duly constituted authority of the respondent certifying the correctness of the facts stated therein, would unequivocally demonstrate that the year of birth originally mentioned therein was "1939". Subsequently, year "1939" has been scored and substituted with that of "1938". The scored portion does not carry signature of anybody by way of attestation. Had the scoring or correction been made at the time of certification by Mr.Patil, it would have carried his signature or that of the petitioner. The custody of the said form was parted by the petitioner and the said form remained, initially, in the custody of the employer and