1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2813 OF 2002 Sharad Shrikrishna Upasani, (deceased) through L.Rs.: 1 Sushma w/o Sharad Upasani, age: 60 years, Occ: Nil; 2 Shrikant s/o Sharad Upasani, age: 32 years, Occ: Advocacy; Both R/o Lane No.5/6, House No.1615, Parola Road, Dhule, Dist.Dhule. 3 Pankaj s/o Sharad Upasani, age: 26 years, Occ: Service, R/o Ganesh Pooja “A”, Co-operative Housing Society, Indira Nagar, Near Namko Bank, Nashik. Petitioners Versus 1 Superintending Engineer (Estt), Maharashtra State Electricity Board, Mandal Karyalaya, Nashik Road, Chandra Niwas, Tilak Road, Nashik, District Nashik. 2 Executive Engineer (Estt), Maharashtra State Electricity Board, Divisional Office, Opp: Jai Hind Junior College, Deopur, Dhule. Respondents Mr.S.U.Choudhari, advocate for petitioners. Mr.H.T.Joshi, advocate for Respondents WITH WRIT PETITION NO.4310 OF 2002 2 1 Superintending Engineer (Estt), Maharashtra State Electricity Board, Mandal Karyalaya, Nashik Road, Chandra Niwas, Tilak Road, Nashik, District Nashik. 2 Executive Engineer (Estt), Maharashtra State Electricity Board, Divisional Office, Opp: Jai Hind Junior College, Deopur, Dhule Petitioners Versus Sharad s/o Shrikrishna Upasani, age: 64 years, Occ: Nil, R/o Line No.5/6, House No.1615, Parola Road, Dhule, District Dhule. Respondent CORAM: R.M.BORDE, J. DATE : 16 th December, 2009. JUDGMENT: 1 Both these petitions are presented by the parties to the litigation raising exception to the order passed by Member, Industrial Court, Jalgaon, on 26.09.2000 in Complaint (ULP) No.1423/1999 (Old No.337/1997). The employee has presented Writ Petition bearing No.2813/2002 being aggrieved by refusal by the Industrial Court in granting service benefits to the employee treating his date of retirement as 17.12.1997, whereas, employer i.e. Superintending Engineer, Maharashtra State Electricity Board, Nasik and another have presented Writ Petition No.4310 of 2002 challenging the decision rendered by Industrial Court allowing the Complaint partly and thereby holding the employee entitled to receive service benefits till actual date of superannuation i.e. 28.02.1997. 3 2 Petitioner in Writ Petition No.2813/2002 (herein after referred to as `Complainant’) presented Complaint bearing ULP No.1423/1997 before Industrial Court complaining about commission of unfair labour practice under items 9 and 10 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (herein after referred to as `MRTU & PULP Act’). It is contended by the complainant that he has been directed to retire on attaining age of superannuation by issuing an order dated 28.02.1997 by the respondents with retrospective effect from 31.05.1996. Complainant initially joined services of Maharashtra State Electricity Board as a Lower Division Clerk on 15.07.1964. At the time of his entry in service, his date of birth was recorded as 17.12.1939. The date of birth earlier recorded was unchanged for about 32 years. However, suddenly, Respondents effected change in the recorded date of birth and altered it to 17.05.1938. An order was passed directing his superannuation with retrospective effect from 31.05.1996. The order, in that regard, came to be issued by the employer on 28.02.1997. According to complainant, he had no notice of the change effected in the service record. It is also contended that complainant had actually rendered services till 28.02.1997 and as such, an order, directing his retirement with retrospective effect, cannot be issued and same is illegal. According to complainant the order, directing his retirement, amounts to retrenchment, as defined under the provisions of Industrial Disputes Act, 1947. Complainant further contends that while directing his retirement, he was neither issued one month’s notice, nor paid one months pay or retrenchment compensation, although he was a permanent employee. The order is, therefore, in violation of provisions of Section 25-F of the Industrial Disputes Act. The order directing superannuation with retrospective effect is also impermissible as he is entitled to get wages for the work done by him and the employer has no right to recover wages already paid during the period from 31.05.1996 to 28.02.1997. The complainant, therefore, prays for setting aside order directing superannuation 4 passed on 28.02.1997 and for directing Respondent-employer to reinstate him in service with continuity and to hold him eligible to receive back wages and other service benefits. He also prayed to hold and declare that he is entitled to be retained in service till December 1997. 3 Respondents, though appeared, did not file written statement. There is only affidavit presented on record by Respondent No.2 at Exhibit C2. It is contended in the affidavit that order of superannuation issued is in accordance with Rules and Regulations applicable to the complainant. It is contended that complainant is superannuated on completion of 58 years of age. The matriculation/SSC certificate issued in favour of complainant records his date of birth as 17.05.1938 and accordingly his date of superannuation falls on 31.05.1996. While in employment, complainant was directed to submit his matriculation/SSC certificate, but he did not present it, which shows his mala fide intentions. It was, therefore, requested to dismiss the complaint. 4 Learned Member of Industrial Court, after recording evidence of complainant and after hearing parties, allowed the complaint partly. It was declared that Respondents were engaged in unfair labour practice within the meaning of item 9 of Schedule IV of MRTU and PULP Act, 1971 and employer is directed to desist from engaging in such unfair labour practice. The order of superannuation issued on 28.02.1997 is set aside and it was directed to employer to treat the complainant in service till 28.02.1997 and to pay him salary as well as service benefits till such date. The order passed by Industrial Court is challenged by both, the complainant and Respondents by presenting separate Writ Petitions. 5 I have heard arguments advanced by learned Counsel for respective parties and perused the impugned judgment. It cannot be controverted that date of birth of the complainant, as depicted from copy of 5 matriculation/SSC certificate placed on record is 17.05.1938. At the time of entry in service of the complainant, his date of birth is recorded as 17.12.1939. It also transpires that in spite of issuance of directions to tender matriculation/SSC certificate in original, the employee i.e. complainant failed to tender certificate with the employer. Ultimately, when the employer secured requisite document, it was disclosed that employee i.e. complainant has submitted incorrect record in respect of his date of birth. The entry recorded in the service record, on the basis of incorrect record and false information given by complainant, was got corrected. It also cannot be controverted that such a correction was effected after lapse of about 32 years from entry in service of the complainant. However, it cannot be denied that correction effected is based on authentic record. Learned Member of Industrial Court was justified in holding that change effected in service record relating to date of birth is not arbitrary and employer has not indulged in the act of force or violation in effecting such change. It was, therefore, recorded that employer cannot be held responsible for commission of any unfair labour practice within meaning of item 10 of Schedule IV of the MRTU & PULP Act. However, Industrial Court has recorded a finding that the act of retiring complainant with retrospective effect from 31.05.1996 amounts to unfair labour practice within meaning of item 9 of Schedule IV of the Act. It also cannot be controverted that complainant has rendered his services until 28.02.1997. It was, therefore, not open for the employer to direct superannuation of the employee with retrospective effect. As the complainant/employee has actually rendered services till 28.02.1997, he is entitled to receive wages till that date. The Member of the Industrial Court was, therefore, justified in directing payment of service benefits and salary to the employee till the date he actually rendered services i.e. till 28.02.1997. 6 I do not find any infirmity in the order passed by Member, Industrial Court. The contention raised by the employee that change effected in the date 6 of birth is illegal and he is entitled to be continued in service until December 1997 is unacceptable. The record in respect of date of birth of the employee clearly shows that his date of birth, as recorded in matriculation/SSC certificate is 17.05.1938. The date of retirement, on the basis of actual date of birth, shall be, therefore, 31.05.1996. However, as the complainant had rendered his services till 28.02.1997, he is held eligible to receive salary and other service benefits till that date. Both the petitions, tendered by complainant as well as Respondents- employer, are without any substance and do not call for any interference in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. Both the petitions are devoid of substance. 7 Both the Writ petitions, therefore, stand dismissed. Rule discharged. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp281302