IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 15653 of 2007(L) -------------------------- PETITIONER: -------------------- HARRISONS MALAYALAM LTD, 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 RESPONDENTS: -------------------- 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 GOVT.PLEADER NOBLE MATHEW ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON 08/12/2011 DELIVERED THE FOLLOWING: JM WPC NO. 15653 OF 2007 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF CLAIM SATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT BEFORE THE 2ND RESPONDENT IN I.D. NO. 68/2001 DT. 30.11.2002 P2: COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN I.D. 68/2001 DT. 30.11.2002 P3: TRUE COPY OF AWARD PASSED BY THE 2ND RESPONDENT IN I.D 68/2001 DT. 12.12.2006 RESPONDENT'S EXHIBITS: NIL \\ TRUE COPY\\ PA TO JUDGE JM S.SIRI JAGAN, J. ================== W.P.(C).No. 15653 of 2007 ================== Dated this the 8th day of December, 2011 J U D G M E N T The management in I.D.No.68/2001 before the Industrial Tribunal, Kollam, is the petitioner herein. They challenge Ext.P3 award passed by the Tribunal in that industrial dispute. 2. The issue referred for adjudication was: “Whether the premature superannuation of Damodharan 1352 from service of Konni Estate is justifiable ? If not what relief he is entitled to ? 3. The management took the contention that the workman involved was superannuated from service on the basis of the date of birth entered in the service records of the management as declared by the workman himself and with the Provident Fund Organization. Just before the date of superannuation, on 11.12.1999, he filed a request dated 25.10.1999, stating that his actual date of birth is 1.6.1919 ME (19.1.1944), as per which, he had three more years of service before superannuation. After his retirement and after receiving all retirement benefits he raised an industrial dispute, which culminated in Ext.P3 award, whereby the Tribunal upheld the claim of the workman holding that the termination of service of the workman on 11.12.1999 is unsustainable and that he shall be deemed to be in service till 14.1.2002 and he is eligible for full backwages, continuity of service w.p.c.15653/07 - : 2 :- and terminal benefits accordingly. The petitioner challenges the same mainly on the ground of delay and laches in seeking correction of the date of birth and raising the dispute. It is submitted that the Supreme Court has frowned upon the Government employees and workmen under the Industrial Disputes Act seeking correction of date of birth at the fag end of their service. They particularly refer to the decision of the Supreme Court in HINDUSTAN LEVER LTD. v. S.M.JADHAV AND ANOTHER, (2001) 4 SCC 52, wherein the Supreme Court has held that after retiring on the date mentioned in the company's notice and receiving all retirement benefits raising of an industrial dispute seeking post dating of his date of birth and raising a dispute after superannuation cannot be permitted. 4. I have heard the learned counsel for the 1st respondent union also. 5. From Ext.P3 award I find that the question of delay raised by the management in Ext.P2 written statement filed by them has not even been adverted to. In view of various Supreme Court decisions, that was a very relevant aspect, which the Tribunal ought to have considered. Here admittedly the workman filed a request regarding his date of birth only about one month prior to his age of superannuation. The management had given notice regarding his superannuation and the workman received all retirement benefits. It is thereafter the w.p.c.15653/07 - : 3 :- workman raised the industrial dispute. That issue is squarely covered against the workman, by the decision in S.M.Jadhav's case (supra), wherein the Supreme Court has held as follows in paragraphs 9 to 11: “9. We have heard the parties. It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. The case of the 1st Respondent that he had intimated the Company in 1953 itself is not believable. In the application, which had been filed by the 1st Respondent he himself had given his date of birth as 12th of June, 1927 and also mentioned that his age as 25 years. On the basis of this application and the Matriculation Certificate the Manager had issued a certificate. Thereafter his service record, Provident Fund Booklet and even the Annual Reports contained the 1st Respondent's date of birth as 12th June, 1927. It is impossible to believe that for all these years the 1st Respondent was not aware of the date of birth in his service record or the Provident Fund Booklet. It is impossible to believe that he has not read a single Annual Report in all these years. If, as claimed by him, he had informed the Company in 1953, he would surely have made some enquiry whether the service record was corrected. This would have been done, if not earlier, at least at the time when the settlement took place between the Union and the Company. That was the time when other employees were getting their age corrected and therefore it is impossible to believe that the 1st Respondent would not have at that time ascertained what his date of birth was in the service record. 10. No reliance can be placed on the letter dated 15th May, 1953. This is produced for the first time in the High Court. There is no reference to this letter in the Advocate's reply. In the suit, which had been filed by him, there was no reliance on any such written intimation. The learned Judge hearing the interim application noted that no document was produced. Significantly there is no endorsement of the Company or proof of service of such a letter on the Company. 11. In our view, the impugned Order cannot be sustained at all. The 1st Respondent cannot be allowed to raise such a dispute at the fag end of his career. Accordingly, the Appeal is allowed. The impugned Order dated 24th June, 1998 is set aside. The Order of the learned single Judge dated 13th June, 1996 is restored. There will be no order as to costs.” In fact in this case, no fault can be attributed to the management to make them liable. The entry of the date of birth in the service record was as per the declaration of the workman himself and the workman was superannuated on the basis of that entry. The workman did not w.p.c.15653/07 - : 4 :- seek correction of the date of birth entered in the service record within any reasonable time. He approached the management only at the fag end of his service barely one month before his date of superannuation. He raised the industrial dispute only after his date of superannuation, that too, after receiving all retirement benefits. The Supreme Court and this Court have time and again held that correction of date of birth cannot be permitted at the fag end of service. The workman has also not been able to put forward the existence of any extra-ordinary circumstances warranting deviation from the settled principle. In the above circumstances, following the said Supreme Court decision, I quash Ext.P3 award and hold that in the industrial dispute, the union and the workman concerned are not entitled to any relief. This writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge