Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.5300 OF 2007 Mr.Sudam Krishna Kamble, 92/51, BDD Chawl, Mumbai-400 0018. ..Petitioner Versus 1. Municipal Commissioner of Gr.Bombay, Mahapalika Marg, Mumbai-400 001. 2. Office of the Superintendent, Transport City, Municipal Corporation of Gr.Mumbai, Dr.E.Moses Road, Worli Naka, Mumbai-400 018. 3. Executive Engineer(City) Municipal Office, Worli Carriage, Dr.E.Moses Road, Worli Naka, Mumbai- 400 018. ..Respondents Mr. Arshad Shaikh with Mr. Mahesh Londhe iby M/s. Sanjay Udeshi and Co., Advocates for the Petitioner Mr.A.J.Bhor, Advocate for Respondents CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 5th February , 2008 : 5th February , 2008 : 5th February , 2008 P.C. P.C. P.C. Heard Mr.Arshad Shaikh with Mr. Mahesh Londhe i/by M/s. Sanjay Udeshi & Co. for the Petitioner and Mr. Bhor, the Learned Counsel for the Respondent Municipal Corporation. Being aggrieved by the Judgement and Order dated 16-9-2005 rendered by the Learned President, Industrial Court, Maharashtra allowing Revision 2 Application (ULP)No. 1/2004, the petitioner has approached this Court. 2. The Petitioner had joined the employment of the Respondent Corporation as a cleaner on 5-2-1963 and subsequently in the year 1965 he was appointed as a driver. In the Service Book his date of birth was recorded as 5-1-1939 on the basis of the School Leaving Certificate submitted to the Corporation. On reaching the age of 58 years he was due to retire and, therefore, by notice dated 17-10-1996 the Municipal Corporation had informed him that he would retire from service on 1-2-1997 on the basis of his date of birth recorded as 5-1-1939. He approached the Tehsildar, Tal. Satara, with an application dated 3-12-1996 with a request to correct his date of birth as 5-1-1943 and on the same day a certificate was issued by the Tehsildar. The Petitioner submitted a representation to the Municipal Commissioner on 7-12-1996 and requested to effect the correction in the service record so as to change his date of birth from 5-1-1939 to 5-1-1943 and the said representation was rejected vide letter dated 22-1-1997 on the ground that request was made belatedly and, therefore, it was not permissible to correct the record at the fag end of the service. On the same day he submitted a fresh representation and in the meanwhile he retired on 1-2-1997. As per the letter dated 17-03-1997 3 he was called upon to collect the legal dues on his retirement from 1-2-1997. The Petitioner filed Complaint(ULP)No. 241/1997 before the Labour Court at Mumbai under Section 28(1) read with items 1(a), 1(b) & 1(f) of Schedule IV of the MRTU & PULP Act, 1971 (the Act, for short) on or about 21-4-1997. The Respondent Corporation filed its written-statement and opposed the complaint. It was submitted that after the retirement notice was issued, the Complainant had approached the Tehsildar vide his application dated 3-12-1996 for correction in the date of birth and obtained a certificate to the same effect which could not be relied upon as against the School Leaving Certificate on the basis of which the date of birth of the Complainant was recorded when he had joined the service of the Corporation. The act of the Complainant suffered from malice and he was trying to put up a false claim. In any case at the fag end of the service, such a request could not be entertained and despite circulars issued in the year 1978 and 1985, the Complainant had not taken any steps to apply for correction of his date of birth if he was so sure that the date of birth recorded was wrong. 3. The Complainant examined himself and one more witness Shri Prakash Jadhav insupport of his case whereas the Respondent Corporation examined 3 witnesses 4 namely Dr. Nayantara Shankarnarayan Nayar- Retired Medical Officer, Pramila Abasaheb Kamble- Head Mistress of Zilla Parishad Primary School at Khed and Rajaram Jadhav -Assistant Commissioner (Estate). The Labour Court after hearing the parties and considering the evidence adduced by them held by its Judgement and Order dated 15-11-2003 that the Complainant had proved unfair labour practices on the part of the Corporation and, therefore, he was entitled for reinstatement from 1-2-1997 and was required to be continued in service till 1-2-2001 and was required to be paid full backwages for the said period with consequential benefits. The Corporation, therefore, challenged the order of the Labour Court in Revision Application (ULP)No. 1 of 2004 and the same came to be allowed by the Industrial Court holding that the finding recorded by the Labour Court was grossly erroneous and contrary to the evidence placed on record. 4. While in the witness box the Complainant admitted that when he had joined the employment with the Corporation in the year 1963, he had furnished the School Leaving Certificate issued by Jeevan Shikshan Mandal, Khed and he had studied in the said School upto IVth standard and as per the said certificate his date of birth was 5-1-1939. He further admitted that for the first time he submitted an application to the Municipal 5 Corporation on 7-12-1996 i.e. after receiving the retirement notice for correction of date of birth. He also admitted that the said representation was rejected by the letter dated 20-1-1997 (Exhibit U-10). The Complainant’s witness Shri Prakash Jadhav is the Record keeper from the Tehsildar office at Satara and he had brought before the Court original record. He was shown the certificate issued on 3-12-1996 by the Tehsildar at Exhibit U-7 and stated that it tallied with the original record and as per the same the Complainant’s date of birth was 5-1-1943. In his cross-examination when his attention was invited to the interpolation, he declared his ignorance. He also admitted that there is an Act of 1996 and as per the same it is necessary to get registered birth and death within one year of occurrence. He also admitted that once an application for correction is received, it takes about 3 days to effect the corrections but in the instant case he could not give reasons as to how the application was dated 3-12-1996 and the correction was effected and certificate was issued on the same day. 5. Pramila Abasaheb Kamble, the first witness of the Corporation had come before the Court on receipt of summons and she produced the General Register Book No.5 for the period from 1-7-1954 to 1-9-1958 maintained by the Zilla Parishad, Primary School at Khed. From the 6 said register she stated that the Complainant had taken admission in the School on 1-7-1946 (Balwadi Section) and in those days one had to get admission in the ’Balwadi’ Section after his completing 7 years of age. She further stated that the Complainant left the School on 4-2-1957 after completing IVth standard. She further pointed out that as per the entry in the said Register the Petitioner’s date of birth was recorded as 5-1-1939. This evidence remained intact in her cross-examination. Second witness of the Corporation namely Dr.Nayantara Nayar stated that she had completed her MBBS degree in 1966 and had joined the Corporation in November 1967 as Assistant Medical Officer at Mulund General Hospital. She had retired on 1-1-1998. Regarding the medical examination for determining the age of an employee of the Corporation she stated that when the documentary proof is submitted like the School leaving certificate by the employee, he/she is not sent for medical examination to determine the age and such examination is undertaken only when the employee concerned had no documentary proof regarding the date of birth. The 3rd witness of the Corporation Shri Rajaram Jadhav stated that any person seeking employment with the Corporation applies for the concerned post alongwith documents. He referred to the School Leaving Certificate submitted by the petitioner and issued to him on 31-1-1963 in which the date of birth was mentioned as 5-1-1939 (Exhibit 7 C-20). He also referred to the circulars dated 16-10-1978 and 10-2-1978 (Exhibit C-21 and Exhibit C-22) and pointed out that the employees were called upon to submit their applications to get the date of birth corrected if required. He referred to yet another circular dated 15-9-1986 Exhibit C-23 for the same purpose and pointed out that the Complainant had never applied for correction of date of birth till he was issued the notice of retirement. In the cross-examination of this witness nothing was brought out to disbelieve his testimony. 6. It is a well settled position in law that the correction of date of birth cannot be sought towards the fag end of the service and in the instant case the date of birth was entered in the service record on the basis of the School Leaving Certificate. The said certificate was duly proved by the evidence of Mrs. Pramila Kamble, Head Mistress of Zilla Parishad Primary School, Khed. The Petitioner’s case was only on the basis of the certificate he obtained from the Tehsildar on 3-12-1996. The Labour Court accepted the same and held that the Corporation was guilty of unfair labour practice. The Industrial Court considered the record and pointed out that the Register maintained by the Tehsildar office was interpolated and the certificate was issued by manipulation of the record on 3-12-1996. As per the 8 Industrial Court the Labour Court fell in gross errors in discarding the school record and relying upon the fabricated record submitted from the Tehsildar office. 7. Pursuant to the order passed on 14-12-2007, the Tehsildar has submitted the original registers before this Court and on perusal of the same it is clear that the entry of Petitioner’s date of birth is subsequently made and it is a clear case of interpolation/manipulations. The Industrial Court was right in holding that the Petitioner had manipulated and obtained the certificate from the Tehsildar office on 3-12-1996 and on the basis of such a certificate, the employer could not be held to be guilty of unfair labour practice. The Industrial Court rightly stepped in and corrected the manifest error committed by the Labour Court. It was pointed out that some other employees’ date of birth was corrected and when it came to the Petitioner’s case, the Corporation acted arbitrarily. First of all, the applications of these employees were submitted in the year 1990 i.e. much before their due date of retirement and in any case when it is proved from the record that a fabricated certificate was the basis for the Petitioner’s application for correction of date of birth, there was no question of holding the employer guilty of an act of unfair labour practice as defined under the Act. On the other hand the Municipal 9 Corporation proved that the date of birth entered originally based on the School Leaving Certificate was correct as per the evidence of the Head Mistress before the Labour Court and on the basis of the original record that she produced before it. Hence, the impugned Judgement and order rendered by the Industrial Court does not call for interference under Article 227 of the Constitution and this petition must fail at the threshold. 8. Hence, the petition is rejected summarily. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]