THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 25078 of 2007 and 17334 of 2009 COMMON ORDER: The petitioner joined the service of the Krishna District Milk Producers Mutually Cooperative Union Limited, 1st respondent herein in the year 1969 as a cleaner. Thereafter, he was promoted as a Junior Driver in 1975 and Driver, in the year 1990. The petitioner states that his date of birth is 01.07.1948 and on that basis, he is entitled to continue in service till 30.06.2006. In fact, he was continued up to 29.03.2006. However, it was noticed that his date of birth is 01.06.1947 and he was liable to retire on 31.05.2005. Accordingly, the respondents issued proceedings, dated 22.04.2006 directing that the petitioner shall be deemed to have retired from service with effect from 31.05.2005. The petitioner filed I.D.NO.152 of 2006 in the Labour Court, Guntur challenging the pre-mature retirement. The Labour Court dismissed the I.D. through its award, dated 05.05.2009. W.P.No17334 of 2009 is filed against the award. The petitioner filed W.P.No.25078 of 2007 alleging that the respondents did not settle his retirement benefits and that withholding of substantial part thereof is illegal and arbitrary. On behalf of the respondents, counter affidavits are filed, stating that the date of birth of the petitioner as recorded in the service register is 01.06.1947 and that the same was taken into account in the context of retiring the petitioner or extending the service benefits. Heard Sri M.Pitchaiah, learned counsel for the petitioner, Sri N.Rajeswara Rao. learned counsel for the 1st respondent and Sri M.Dilip Rao, learned counsel for the 2nd respondent. Two issues arise for consideration. The first is as to the actual date of birth of the petitioner and the second is about method of settlement of the retirement benefits. The petitioner no doubt has pleaded that his date of birth is 01.07.1948. That however is imaginary and except that the said date was mentioned in the seniority list half way through the service of the petitioner, nowhere it is mentioned in the service record. The record discloses that the date of birth of the petitioner is 01.06.1947. The Labour Court has dealt with this issue extensively with reference to the oral and documentary evidence and recorded a clear finding to the effect that the date of birth of the petitioner is 01.06.1947. This Court cannot sit as an appellate authority nor the petitioner is able to place any clinching material before this Court to take a different view. Hence, it is held that the date of birth of the petitioner is 01.06.1947 and W.P.No.17334 of 2009 is dismissed upholding the award passed by the Labour Court. Notwithstanding the fact that the date of birth of the petitioner is 01.06.1947 and that he is liable to retire with effect from 31.05.2005, he was permitted to continue in service till 29.03.2006. The respondents have furnished the particulars of the amounts that are payable to the petitioner and those have been in fact paid to him. One of the amounts deducted from the retirement benefits of the petitioner is a sum of Rs.1,11,781/-, representing the salary for the period between 31.05.2005 and 29.03.2006. The salary was paid after extracting the work from the petitioner. Therefore, the respondents ought not to have deducted that amount. Another item is the penal rent for the period up to month of March 2008. This Court is of the view that due to the impending dispute as to the correctness of the date of birth and the delay in settlement of the accounts, the petitioner was entitled to remain in the Quarter till March 2007 on payment of ordinary rent. However, he remained in the occupation of the quarter till March 2008. For that period, he shall be liable to pay the penal rent. Therefore, the W.P.No.25078 of 2007 is disposed of, directing that- (a) the petitioner shall be entitled to be paid gratuity and other benefits, treating the date of retirement from service as 31.05.2005; (b) the respondents shall not be entitled to deduct the salary for the period from 31.05.2005 and 29.03.2006 and the said amount shall be paid to the petitioner with interest at the rate of 6% per annum and in case the petitioner is paid pension for that period, the corresponding amount shall be deducted; and (c) the respondents shall be entitled to deduct ordinary rent from the petitioner up to March 2007 and penal rent calculated at 50% over and above the ordinary rent up to March 2008. There shall be no order as to costs. __________ 19.09.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 25078 of 2007 and 17334 of 2009 Date: 19.09.2011 JSU