CWP No. 9743 of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 9743 of 2005 Date of decision July 10, 2009 The Batala Cooperative Sugar Mills Ltd. Distt. Gurdaspur, Punjab. ....... Petitioner Versus Gurnam Singh and another. ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. R. S. Ahluwalia, Advocate for the petitioner. Mr. T. N. Sarup, Advocate for respondent. No.1. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. The subject of reference for determination before the Labour Court has whether the termination of service of the workman by the Management was justified. 2. Admittedly the services of the workman were terminated on 31.12.1998 after he was ordered to be paid all the retrial benefits. The termination was on the ground that the workman had reached the age of superannuation, as per the term of employment, viz. 60 years of age. Admittedly the workman had also received the benefits but he raised a dispute subsequently claiming that the termination was bad and that he was aged only 55 years. The management filed its written statement contending that he had completed 60 years on the date of termination of services and he was not entitled to treat the termination as bad. 3. The statement of claim itself did not contain any CWP No. 9743 of 2005 2 specific date of birth. The statement of claim also did not contain any details as to when he came by knowledge that the age had been wrongly entered in the service records of the respondents and when he came to know the correct date of birth. The specific statement by the Management however, was as per proof available in the office he had completed 60 years and he was accordingly superannuated. Before the Labour Court the workman gave evidence stating that he was an illiterate person and he had received retiral benefits from the Mill as per orders dated 31.12.1998. He had admitted in his evidence that he did not know the date of birth which was given by his employer to the Provident Fund Authority and that as per the records of the Provident Fund Authority it was 31.12.1938. However, he relied on a declaration form sent through the Management to the Provident Fund Authority (WW-1) where his age had been referred to 20 years 5 months. According to the learned counsel for the petitioner, the relevant rules in Sugar Cane Industry provided that in cases of dispute, the date of birth as given in the declaration form to the Provident Fund Authorities would pretend. The management, on the other hand, produced copy of form that under the Management Provident Fund Scheme the Date of Birth was 31.12.1938 but to my mind, it is irrelevant because it was given by the Management only at the time of retirement. A certificate issued by the doctor in the year 1975 records the fact that as per the statement of the workman he was 29 years and by appearance he was 39 years. Evidently, it was an attempt by the Management to secure proof of age to enter into the service records to obtain legitimacy for their future actions at the appropriate time. The Labour Court upheld the contention of the workman and held that the declaration form produced by the Employee's Provident Fund proves the age of the workman to be only 20 years 5 months at the time of declaration and by a reckoning so made it determined the date of birth to be 9.9.1946 and declared that the order of CWP No. 9743 of 2005 3 termination was bad. 4. The issue of change of date of birth in service records has been considered in Labour and Service Jurisprudence. Conflicting claims invariably emerge when the workman, on the eve of retirement, found that the age as given to the employer was not correct and that the time had still not arrived for superannuation. Courts have been reluctant to intervene and if taken at the time of superannuation the issues of limitation or laches have been considered to be matters of predominant concern. The Supreme Court has held in State of Gujrat Vs. Vali Mohd. Dorabhai Sindhi (2006) 6 SCC 537 that a request for date of birth at the verge of retirement cannot be entertained. An employee who joins the service ought to know his date of birth at the appropriate time even when he enters service. In instances where such information is not available invariably, attempts are made by the management to secure some proof of age so that it is possible to plan the service tenure of the employees. Determination of age obtains enormous importance for, it is the certainty of age that makes both for the workman and the employer a clear idea of planning their own respective commitments as to how much amount shall become payable and when fresh persons have to be recruited. 5. In a case where a workman did not have definite evidence about his date of birth even in the claim statement and did not have any positive evidence about the actual date of birth but was looking for, an approximation through a declaration made before the Provident Fund Commissioner nearly 30 years earlier, it cannot certainly avail to the benefit of the workman. The termination effected which was on the basis of a medical certificate which was issued and kept in file by the Management nearly 25 years prior to the date of the termination cannot be displaced by the whimsical demand of the workman after the retirement that the age was not properly recorded by the employer. The claim was stale and the award CWP No. 9743 of 2005 4 passed by the Labour Court is untenable. The finding of the Labour Court is set aside and the writ petition is allowed. No costs. (K. KANNAN) JUDGE July 10, 2009 archana