1 W.P.No.6711.99 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6711 OF 1999 Hindustan Antibiotics Ltd. & anr. ... Petitioners v/s Sadashiv Gopal Joshi ... Respondent Mr.Vijay Patil for the petitioners. Mr.Nitin A. Kulkarni for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 5TH JANUARY, 2011 ORAL JUDGMENT: 1. The petitioners have approached this Court against the judgement and order of the Industrial Court dated 27.10.1999. By this order the Industrial Court has allowed the complaint filed by the respondent workman and has held that the petitioners have committed unfair labour practices under Items 9 and 10 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (in short, ‘’the M.R.T.U. & P.U.L.P. Act’’). The petitioners were directed to correct the date of birth of the 2 W.P.No.6711.99 respondent in records of the Company in consonance with the School Leaving Certificate which shows that the date of birth of the respondent workman was 28.2.1944. 2. The facts in the present case are - The petitioners appointed the respondent workman as a Mazdoor on 20.7.1961. He was offered an appointment with the petitioners by a letter of the same date. In that letter the petitioners directed the respondent at the time of joining to furnish certified copies of the documents indicating his date of birth and educational qualifications, certificates of character and conduct, besides the attestation form enclosed with the appointment letter. It appears that the respondent did not submit any document indicating his date of birth or educational qualifications at the time of joining. However, he signed the attestation form which he claims was filled in by somebody else. His date of birth mentioned in the attestation form was 28.2.1940. After appointing him, the petitioners sent the respondent for a medical examination in order to ascertain his age. The medical officer found that the date of birth recorded in the attestation form as 28.2.1940 could be taken as correct. 3 W.P.No.6711.99 3. It appears that the respondent passed his S.S.C. Examination in March, 1963. He informed the petitioners of the same by letter dated 2.7.1966. The respondent did not request the petitioners to change his date of birth in the records maintained by them at that point of time. It appears that the respondent had not cleared one subject i.e. English examination when he passed his S.S.C. He therefore, appeared again. On 24.2.1976 he informed the petitioners that he has passed English in the examination conducted in November, 1975. 4. The respondent, for the first time on 26.7.1987, informed the petitioners that his date of birth was wrongly recorded in his service book and requested it to be corrected to 28.2.1944. It appears that the petitioners did not respond to this letter. Therefore, after three years the respondent again requested the petitioners to correct his date of birth. The request was again made by the respondent on 10.10.1990 and 26.2.1996. On 18.4.1996 the petitioners informed the respondent that it was not possible to accede to his request to change his date of birth. However, the respondent continued to submit representations to the petitioners. He finally filed a complaint under Items 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act in the year 4 W.P.No.6711.99 1997. The Industrial Court, by its impugned order concluded that the date of birth of the respondent was 28.2.1944 by relying on the School Leaving Certificate issued on 10.8.1963. 5. Mr. Patil appearing for the petitioners submits that the respondent had taken advantage of the date of birth mentioned in the Company’s records i.e. 28.2.1940 while joining service and after several years he cannot seek a change in that date. He submits that if the date of birth was to be changed as claimed by the respondent, he would not have been 18 years of age when he was appointed and therefore could not have been employed. The learned advocate further submits that the offer letter for appointment issued by the petitioners clearly indicates that several documents were required to be furnished by the workman while joining the service. These documents included the documents showing his date of birth and educational qualifications. The workman had not produced either of these documents and therefore it was necessary for him to enter his date of birth on the attestation form. Accordingly, the date of birth entered on the attestation form was shown as 28.2.1940. The learned advocate states that the respondent underwent a medical examination to verify his 5 W.P.No.6711.99 date of birth in accordance with the Certified Standing Orders. The medical officer had found him to be over 18 years of age and the age mentioned in the attestation form was accepted by the petitioners. The learned advocate submits that had the respondent produced documents indicating that he was less than 18 years of age at the time of joining service, in all probability the Company would not have appointed him. He points that the workman cannot seek a change in the date of birth recorded by the company at the fag end of his career. Mr. Patil has relied on the judgement of the Supreme Court in the case of Union of India v/s C. Rama Swamy & ors., reported in A.I.R. 1997 SC 2055, in support of his submission that the respondent is estopped from seeking a change of his date of birth in the records maintained by the Company. 6. Mr. Kulkarni appearing for the respondent submits that the workman has been informed by the letter dated 18.4.1996 that his request for a change in his date of birth was rejected. The petitioners were not willing to comply with the request since he had made a false declaration regarding his date of birth when he joined the service and threatened to take disciplinary action against him. The learned advocate however submits that no disciplinary action was in fact taken 6 W.P.No.6711.99 against the respondent workman and, therefore, the petitioners ought to have changed his date of birth in their records. He submits that the Factories Act,1948 did not bar the employment of persons who were less than the age of 18 years. He has relied on the judgement of a learned Single Judge of this Court (Daga, J.) in the case of Dominic Fernandes v/s Voltas Ltd., reported in 2007 (5) Bom.C.R. 392 in support of this submission. According to the learned advocate the workman had merely signed the attestation form which was filled in by somebody else in English. He urges that the date of birth recorded in the attestation form cannot be accepted when the workman has certificates to prove that he was born in 1944. He submits that the date of birth recorded on the school leaving certificate ought to have been accepted by the petitioners instead of relying on the date mentioned in the attestation form filled in while securing employment. He relies on my judgement in the case of Ardeshir B. Cursetji & Sons v/s Abdulla Fakir Jambarkar & anr., reported in 2002 (5) Bom.C.R. 236, where according to the learned advocate the facts were similar to the present case. The learned advocate then submits that it would be erroneous to rely merely on the medical examination to ascertain the date of birth. According 7 W.P.No.6711.99 to him, when the documents produced indicate that the respondent’s date of birth was 28.2.1940, the Industrial Court was correct in accepting this date. He relies on the judgement of a learned Single Judge of this Court (Kantharia, J.) in the case of Sukhdeo Chokha Waghmare v/s Trustees of Bombay port Trust & ors., reported in 1991 II L.L.J. 557. Mr. Kulkarni then submits that the workman has not approached the petitioners for correcting his date of birth maintained in their records at the fag end of his career. He points out that several representations made by the workman to the management for this purpose went unheeded. The learned advocate urges that the Industrial Court has taken a possible view and therefore there is no need to interfere with the order under the writ jurisdiction of this Court. 7. The submission of Mr. Patil is that the workman could not have been employed in 1961 had he disclosed his age was less than eighteen years. According to him, the Factories Act does not permit employment of persons who are less than eighteen years of age. To consider the validity of this argument, it is necessary to note some of the provisions of the Factories Act. Section 67 of the Factories Act prohibits the employment of a child who has not completed his fourteenth year. Under Section 68, a child 8 W.P.No.6711.99 who has completed fourteen years of age or is an adolescent, is not permitted to work in a factory unless – (a) a certificate of fitness is granted to him under Section 69 and is in the custody of the manager of the factory, and (b) such child or adolescent carries with him a token giving a reference to such a certificate. Under Section 69, a certificate of fitness may be issued by a surgeon to a young person i.e. an adolescent or his parent or guardian after examining such a person to ascertain his fitness for work in a factory. Such a certificate may be granted if the certifying surgeon is satisfied that the young person has completed his fourteenth year, had attained the prescribed physical standards and that he is fit for such work. If the young person has completed the age of fifteen, a certifying surgeon may issue a certificate of fitness to work in a factory provided he is satisfied that such a person is fit for a full day’s work in a factory. Such a certificate cannot be granted by a certifying surgeon unless he has personal knowledge of the place where the young person proposes to work or has examined the place. The certificate granted under Section 69 is valid for a period of twelve months and it may be renewed only after re-examination of the young persons on the expiry of the period of twelve months. Such a certificate can be revoked if the certifying surgeon is of the opinion that 9 W.P.No.6711.99 the holder of the certificate is no longer fit to work in the capacity stated therein in a factory. When a certificate is granted under Section 69 sub-section (2)(b) of the Factories Act to a young person, he or she shall be deemed to be an adult for the purposes of Chapter VI and VII of the Act. However, such persons are not permitted to work beyond the time specified in Section 70. An adolescent who has not been granted a certificate of fitness to work in a factory as an adult under Clause (b) of sub-section (2) of Section 69, shall, notwithstanding his age, be deemed to be a child for the purposes of the Act. An “adult” under the Factories Act means a person who has completed the age of eighteen years. An “adolescent” is defined in Section 2(b) as a person who has completed his fifteenth year of age but has not completed his eighteenth year. The term “child” has been defined in Section 2(c) to mean, a person who has not completed his fifteenth year of age. 8. Considering these provisions of the Factories Act, in my opinion, there is no absolute bar to the employment of a person who is below eighteen years of age. However, any person between the ages of fourteen and eighteen years who wants employment in a factory, must abide by the aforesaid conditions contained in Sections 67, 68 and 69 of the 10 W.P.No.6711.99 Factories Act. Thus, a person who is below the age of fourteen, is banned from working in a factory. A child who is between the age of fourteen and fifteen years is permitted to work in a factory provided a certificate of fitness is granted by a certifying surgeon that he is physically fit to work in the factory. A similar view has been taken by Daga, J. in the case of Dominic Fernandes (supra). 9. In the present case, the respondent was employed in the year 1961. His date of birth mentioned in the attestation form was 28.2.1940. The medical officer of the factory found that the date of birth recorded in his attestation form was correct and that he was physically fit to work in the factory. Thus, he was 21 years of age when he started working. If the case of the respondent is to be believed that he was born on 28.2.1944, he would have been seventeen years of age at the time when he was recruited. There is no material on record to indicate that a certifying surgeon had declared the respondent fit to work as required under Section 69 of the Factories Act or that a certificate of his fitness was in the custody of the factory manager, immediately after he was recruited. In my opinion, the provisions of Sections 67, 68 and 69 are mandatory. They are salutary provisions to prohibit persons who are under age from being employed in a 11 W.P.No.6711.99 factory where great physical labour may be involved. These provisions also regulate the employment of young persons. The respondent was unable to demonstrate that the aforesaid provisions had been complied when he was recruited and, therefore, in my opinion, it would not be proper to accept the respondent’s contention that his date of birth was 28.2.1944. 10. Further more, the respondent has taken advantage of the fact that his date of birth at the time of recruitment was recorded as 28.2.1940 in order to secure employment. When he was recruited he had not produced any document to establish that he was over the age of eighteen years. Therefore, on medical examination, the medical officer of the petitioners had found that the date of birth mentioned on the attestation form was correct. The Supreme Court in the case of Union of India v/s C. Rama Swamy (supra) has observed thus while considering an employee was entitled to ask for an alteration of his date of birth as entered in his service record when he joined service: ‘’24. Before concluding we may note that learned counsel for the appellant referred to certain decisions where amendment to the date of birth had been allowed. It is not necessary to deal with the said decisions because none of them relates to the relevant Rule 16-A on the interpretation of which we find that this statutory rule, except in cases where a clerical error has occurred, does not entitle an officer to ask for 12 W.P.No.6711.99 change in the date of birth which is once recorded in his application as mentioned in sub- rule (ii) or in the service book as mentioned in sub-rule (iii) of Rule 16-A. It is, however, appropriate to refer to one decision relied upon by Mr.H.S.Gururaja Rao, learned senior counsel for the respondents which is of the Himachal Pradesh High Court in Shri Manak Chand Vaidya v. State of Himachal Pradesh, (1976) 1 Serv LR 402 : (1976 Lab.I.C. 1233). In that case correction of date of birth was sought by the petitioner. It was contended on behalf of the State that the petitioner therein was estopped from pleading a different date of birth when the entry in that regard in his service record had been entered on his representation at the time when he entered service. This contention was repelled by the High Court with the observation that it had not been shown that the petitioner gained any advantage by representing a particular date of birth at the time of entry into the service. 25. In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a 13 W.P.No.6711.99 situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.’’ In the present case, it is obvious that the respondent has secured employment by contending that he was over the age of eighteen. In fact, the respondent has admitted in his cross-examination that he was eighteen years of age in the year 1961 when he joined service. Therefore, in my opinion, it is not possible to accept the contention that the certificates produced now by the respondent are correct and that the date of birth in those certificates should be accepted. Mr. Kulkarni has relied on the judgement in the case of Sukhdeo Chokha Waghmare (supra), in support of his submission that a medical test is not sufficient to refuse the change in the date of birth. A learned Single Judge of this Court has held that it is not possible to establish a date of birth of a person purely by medical examination as such a method was irrational. 11. In the present case, while recruiting a workman, he was expected to furnish his birth record. He did not do so and instead filled in the attestation form. The only method 14 W.P.No.6711.99 envisaged at that point of time to ascertain the age of the workman was a medical examination which he underwent. The respondent was recruited on the basis of this medical examination, in compliance with the Factories Act. The workman became aware in the year 1976 itself that his date of birth was wrongly recorded with the Company and that it was not based on the relevant documents which were then in his possession. However, he approached the Company for a change in this date only in the year 1987 and filed the present complaint in the year 1997, at the fag end of his career. 12. In my opinion, the Industrial Court has committed an error by directing the petitioner to change the date of birth of the respondent who had taken advantage of his date of birth being recorded as 28.2.1940 in order to secure employment. 13. The order of the Industrial Court is set aside. 14. The writ petition is allowed. 15. Rule made absolute. No order as to costs. ..... 15 W.P.No.6711.99