IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 33377 of 2008(W) -------------------------- PETITIONER(S): --------------- T.P.JOY @ T.P.THOMAS S/O.PAULOSE, THACHIL HOUSE NORTH KIDANGOOR, NEAR SREE BHADRA LP SCHOOL, ANGAMALY. BY ADV. SRI.PAULSON C.VARGHESE SRI.E.A.BIJUMON RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT LABOUR & REHABILITATION (A) DEPT,TRIVANDRUM. 2. DISTRICT LABOUR OFFICER LABOUR OFFICE, CIVIL STATION, KAKKANAD, KOCHI-30 3. MANAGING DIRECTOR KERALA STATE BAMBOO CORPORATION, ANGAMALY. ADV. SRI.K.ANAND (A.201) FOR R3 SMT.LATHA KRISHNAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 19/06/2009 DELIVERED THE FOLLOWING: WP(C)No.33377 of 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE BIRTH CERTIFICATE ISSUED BY THE REGISTRAR OF BIRTH AND DEATH. EXHIBIT P2: TRUE COPY OF THE IDENTITY CARD BEARING NO.54-603493 ISSUED BY ESI CORPORATION. EXHIBIT P3: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT CORPORATION EXHIBIT P4: TRUE COPY OF THE COMPLAINT DATED 2.12.2006 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT LABOUR OFFICER. EXHIBIT P5: TRUE COPY OF THE ORDER DATED 17.3.2008 PASSED BY THE SECOND RESPONDENT LABOUR OFFICER. EXHIBIT P5(a): TRUE COPY OF THE LETTER DATED 19.4.2008 ISSUED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT LABOUR OFFICER. 3RD RESPONDENT'S EXHIBITS: EXHIBIT R3(a): TRUE COPY OF DETAILS SHOWING DATE OF BIRTH SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. /TRUE COPY/ P.A.TO JUDGE vgd S.SIRI JAGAN ----------------------------- WP(C) No.33377 of 2008 ----------------------------- Dated this the 19th day of June, 2009 JUDGMENT The petitioner is a workman under the 3rd respondent. The 3rd respondent superannuated him from service, on attaining 58 years of age as per the date of birth entered in the service records of the petitioner with the 3rd respondent. The petitioner contested the same on the ground that the date of birth shown in the service records is not correct and it requires to be properly corrected permitting him to continue in service till he attains 58 years of age as per the corrected date of birth. Since the management did not accept both requests, the Petitioner filed Ext.P4 complaint before the 2nd respondent raising an industrial dispute. The 2nd respondent on the basis of a letter issued by the 3rd respondent, by Ext.P5 order, refused to take further proceedings on the petitioner's complaint on the ground that the Petitioner did not apply for correction of date of birth before his superannuation and that he raised such a contention only after superannuation. Ext.P5 is under challenge before me. The primary contention raised by the Petitioner is that the District Labour Officer has no powers under the Industrial Disputes Act to decide the dispute itself on W.P.C.No.33377 of 2008 2 merits, which jurisdiction exclusively rests with the Industrial Tribunal or Labour Court, to which the dispute may be referred by the Government, on the basis of a failure report in the conciliation proceedings that has to be submitted by the 2nd respondent. All what the 2nd respondent can do is to try to persuade the parties to come to a settlement by convening conciliation conferences. If no settlement is reached, the only course of action available to the 2nd respondent is to forward a failure report to the Government. The Petitioner therefore seeks the following reliefs: (i) to call for records of the case and issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to Exhibit P5 and quash the same. (ii) a writ of mandamus or other appropriate writ or order directing the first respondent to refer the dispute to the appropriate Tribunal or Labour Court for adjudication on merits and (iii) be further pleased to issue such other writ order or direction as are deemed just and proper on the facts circumstances of the case. 2. A counter affidavit has been filed by the 3rd respondent, which primarily deals with the merits of the dispute. According to the 3rd respondent they have rightly W.P.C.No.33377 of 2008 3 superannuated the petitioner as per the date of birth supplied by the petitioner himself at the time of joining the management which only has been recorded in the service records of the petitioner. Therefore, according to the 3rd respondent it is too late in the day to raise the contention that the date of birth recorded in the service records of the petitioner that the 3rd respondent is wrong. The counsel for the respondent refers to the case law to the effect that requests for correction of date of birth at the fag end of service cannot be entertained. 3. No counter affidavit has been filed by the 2nd respondent. But the Learned Government Pleader would argue in support of Ext.P5 order on the same contentions as that of the 3rd Respondent. 4. I have considered the rival contentions in detail. I am of the opinion that this Court cannot in exercise of jurisdiction under Article 226 of the Constitution of India decide merits of a dispute between the Petitioner and the 3rd respondent especially when the petitioner has not sought such a relief, that W.P.C.No.33377 of 2008 4 too at a stage when a dispute has only been raised before the 2nd respondent. As per the Industrial Disputes Act the 2nd respondent has no power to decide the disputes on its merits. All what he can do is to persuade the petitioner and the 3rd Respondent to come to a mutual settlement. If the petitioner and the 3rd respondent are not amenable for an amicable settlement, the 2nd respondent has no other option, but to forward a failure report to the Government with his views on the dispute. Thereafter it is for the Government to take a decision as to whether the dispute should be referred for adjudication to the Labour Court/Industrial Tribunal or not and only the Labour Court and Industrial Tribunal, in such a reference can decide the matter on merits. 5. Here by Ext.P5, the 2nd respondent has, accepting the contentions raised by the 3rd respondent in his letter dated 19.04.2008, decided the dispute on merits holding that since the Petitioner has not sought correction of his date of birth prior to his superannuation, he cannot raise the dispute after his superannuation. That is not what the 2nd respondent is expected to do in exercise of his powers under W.P.C.No.33377 of 2008 5 Sec. 12 of the Industrial Disputes Act. That being so Ext. P5 is clearly vitiated and accordingly the same is quashed. The 2nd respondent is directed to convene conciliation conferences between the Petitioner and the 3rd respondent and if he is unable to persuade the parties to come to a settlement, to forward a failure report to the Government, with his views on this dispute. The above exercise shall be taken up and completed as expeditiously as possible, at any rate within four months from the date of receipt of copy of this judgment. S.SIRI JAGAN JUDGE vgd