IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 15684 of 2007(P) -------------------------------------- PETITIONER(S): ---------------------- HARRISONS MALAYALAM LIMITED, KONNI ESTATE, KONNI P.O., PATHANAMTHITTA-689 662, REPRESENTED BY ITS GENERAL MANAGER, K.C.CARIAPPA. BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.P.BENNY THOMAS SRI.ANIL D. NAIR SRI.A.M.SHAFFIQUE RESPONDENT(S): ------------------------ 1. PATHANAMTHITTA DISTRICT THOTTAM THOZHILALI UNION, H.M.S. (H.O) RANNI, PERUNAD-689 711, REPRESENTED BY ITS GENERAL SECRETARY SRI.S.NATARAJA PILLAI. 2. INDUSTRIAL TRIBUNAL, KOLLAM. R1 BY ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL R2 BY ADV. SRI. NOBLE MATHEW, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON 07/12/2011 DELIVERED THE FOLLOWING: DG WP(C).No. 15684 of 2007(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF COMPLAINT BY THE 1ST RESPONDENT TO THE PETITIONER DATED 10.11.2000. EXT.P2 : COPY OF REFERENCE ORDER NO.G.O(Rt.) 2156/2001/LBR ISSUED BY THE GOVT.OF KERALA DATED 16.07.2001. EXT.P3 : COPY OF CLAIM CTATEMENT FILED BY THE 1ST RESPONDENT IN I.D NO.67/2001 DATED 13.12.2001. EXT.P4 : COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN I.D 67/2001 DATED 30.11.2002. EXT.P5 : COPY OF AWARD PASSED BY THE 2ND RESPONDENT IN I.D.67/2001 DATED 12.12.2006. RESPONDENT'S EXHIBITS - NIL /TRUE COPY/ P.A.TO JUDGE DG S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.15684 of 2007 ---------------------------------------------- Dated this the 7th day of December, 2011 JUDGMENT The Management in I.D.No.67/2001 before the Industrial Tribunal, Kollam is the petitioner herein. They are challenging Ext.P5 award passed by the Tribunal in that Industrial Dispute in this writ petition. The issues referred for adjudication to the Tribunal were; “Whether the superannuation of Sri. M.T. Pappan, C. Roll No.1219 from service of Konni Estate is justifiable? 2. If not what relief he is entitled to?” The dispute was relating to the date of superannuation of the workman involved. The workman was superannuated on 1.1.1992, after he attained the age of 58 years. The Union representing the workman raised an industrial dispute in the year 2000. The contention of the Union was that, as per the school records of the workman, his date of birth was 9.1.1937 and he attained the age of superannuation only in 1995. Accepting the contention of the Union regarding the date of birth of the W.P.(C)No.15684/07 2 workman, the Tribunal held that the termination of service of the workman on 1.1.1992 is unsustainable and that he shall be deemed to be in service till 9.1.1995 with full backwages, continuity of service and terminal benefits. That award is under challenge in this writ petition. 2. The contention of the management is of unexplained delay and laches on the part of the workman and the Union. They would contend that the date of birth of the workman was declared by himself which had been entered in the service records as well as the records of the Provident Fund Organisation. At no point of time before the date of superannuation, the workman claimed correction of date of birth in the service records. He raised the industrial dispute only eight years after his superannuation. Therefore, the management cannot be expected to correct the date of birth as claimed by the workman, eight years after the superannuation that too even beyond the date of superannuation as claimed by the workman, is the contention raised by the management. They also rely on the various decisions of the Supreme Court holding that belated applications for correction of date of birth W.P.(C)No.15684/07 3 in service records cannot be entertained under law. 3. The contention of the Union is that as per the extract from the school register produced before the Tribunal and accepted by the Tribunal, the date of birth of the workman was in 1937 and therefore his year of superannuation is 1995 and consequently he is entitled to service benefits for the three years during which he was kept out of service on the basis of a wrong date of birth entered in the service records. It is submitted by the counsel for the Union that the workman approached the authorities immediately when the workman realized the mistake. 4. I have considered the rival contentions in detail. Admittedly the workman was superannuated on 1.1.1992 and the dispute was raised in 2000. In fact the industrial dispute is of the year 2001. In Ext.P4 written statement of the management before the Tribunal, it is specifically stated that the workman was given notice for his superannuation on 1.1.1992 and he accepted the same and left service of the Company. According to the management, as per the rules applicable to workmen of the estate, any request of change of W.P.(C)No.15684/07 4 date of birth has to be submitted with a valid and acceptable document one year prior to the date of superannuation of the workmen. According to them, the workman never approached the management with any request for change of date of birth in the service records or with a claim that he is entitled to continue in service till 1995. Correction of date of birth is not a statutory right. That is a concession extended to employees by the employer. That benefit has to be availed of within at least a reasonable time before the date of superannuation as per the existing service records. Unless the employer is guilty of delay in considering such a claim, they cannot be penalised by directing payment of wages and other benefits during which the workman has not worked for no fault of the management. The Supreme Court has been consistently frowning upon requests by Government employees and industrial workmen claiming correction of date of birth either at the fag end of their service or immediately after their superannuation. In the decision of HINDUSTAN LEVER LTD. V. S.M. JADHAV AND ANOTHER [2001(4) SCC 52), the Supreme Court has categorically held that after retiring on the date mentioned in W.P.(C)No.15684/07 5 the Company’s notice and receiving retiral benefits, raising of an industrial dispute seeking post-dating of his date of birth is impermissible. The ratio of that decision squarely applies to this case. In fact, the Tribunal has not even referred to the contention of the management that the claim of the workman is highly belated. All what the Tribunal has done is to consider the merits of the contention of the workman based on the extract from the school records produced by the workman. There is not even a reference to the objection of the management regarding delay. In view of the above Supreme Court decision, I have no hesitation to hold that the industrial dispute raised by the Union, after eight years of superannuation of the workman is clearly highly belated and could not have been entertained under law. Further, at no point of time, the workman had requested for correction of date of birth in the service records. In the above circumstances, the Tribunal went wrong in allowing the claim of the Union for wages of the workman for the period subsequent to the date of superannuation till the date of superannuation and other benefits on the basis of the W.P.(C)No.15684/07 6 date of birth entered in the school records. Accordingly, Ext.P5 award is quashed. It is declared that the Union and the workman are not entitled to any reliefs in the industrial dispute. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.15684/07 7