No Court or the Tribunal can come to the aid of those who sleep over their rights: Jharkhand High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Lal Bahadur Jamshedpur Engineering & Machine Manufacture Company Ltd. Jamshedpur through its Managing Director. …Respondents W.P.No. 3714 Versus W.P.No. 47312 Versus Lal Bahadur Jamshedpur Engineering & Machine Manufacture Company Ltd. Jamshedpur through its Managing Director. …Respondents THE HON’BLE MR. JUSTICE DR. S.N.PATHAK Through: Video Conferencing) For the Petitioner For the Respondents Mr. Shashank Shekhar Advocate. Mr. Manish Kumar Advocate 11 01.03.2021 Heard the parties. Since both the writ petitions are arising out of same reference case these are heard together and are being disposed of by this common judgment. In W.P.(L). No. 374 of 2014 the petitioner has prayed for quashing the Award dated 06.09.2013 passed by learned Presiding Officer Labour Court Jamshedpur in Ref. Case No. 04 of 2007 whereby the reference has been answered in favour of the Management and against the Workman. In W.P.(L). No. 47312 petitioner has prayed for quashing the order dated 07.07.2012 passed by learned Presiding Officer Labour Court Jamshedpur in Ref. Case No. 04 of 2007 whereby he has rejected the application dated 04.05.2012 and 05.06.2010 for summoning the dealing clerk competent authority Employee’s Provident Fund Organization. The facts of the case lies in a narrow compass. In the year 1983 the petitioner was appointed as Guard under respondent Management and since then he was working with utmost loyalty integrity and upon the satisfaction of his superior without any stigma in his service career. While discharging his duties he received letter dated 07.09.2004 from the respondent management whereby it was informed to the petitioner that on completion of 60 years of age he is going to superannuate from service w.e.f. 30.09.2004 treating his date of birth as 01.10.1944. It is the case of the petitioner that his date of birth is 28.04.1955 which was also accepted by the respondent management and according to this his actual date of superannuation would be 30.04.2015. Soon after he received the letter dated 07.09.2004 the workman submitted representation before the respondent management for correction of his date of birth but no action was taken by the respondent. Hence the petitioner was compelled to raise industrial dispute and the Govt. of Jharkhand vide notification dated 09.10.2006 referred the same to the learned Labour Court Jamshedpur by framing following issue for adjudication: “Whether the premature retirement of Sri Lal Bahadur Helper T. No. 64 50401 by the Management of M s. Jemco Ltd. Jamshedpur is justified If not what relief he is entitled to ” Upon receipt of the said notification the learned Labour Court registered the case as Ref. Case No. 04 and 2007 and issued notices to both the parties for filing their respective written statements rejoinder etc. Both parties appeared before the Court and filed their respective written statements in support of their cases. Both parties also adduced oral as well as documentary evidences. The workman has examined himself as the sole witness whereas the management has also examined one witness. Thereafter after hearing the parties and perusing the evidences and documents brought on record the learned Labour Court vide its Award dated 06.09.2013 answered the reference in favour of the Management and against the Workman. Aggrieved by the said Award the petitioner workman has knocked the door of this Court. Mr. Shashank Shekhar learned counsel appearing for the petitioner vociferously argues that the Award passed by the learned Labour Court Jamshedpur is grossly illegal and arbitrary and suffers from error apparent from the face of the record. The Award is perverse in law as well as in fact since the learned Labour Court travelled beyond the terms of reference. Learned counsel further argues that from the contents of the various documents which were exhibited before the learned Labour Court it is manifested that the concerned workman is entitled for reinstatement in services. Learned Labour Court has overlooked the fact that it is a creation of statute and it cannot be allowed to travel beyond the terms of reference. Learned counsel further argues that the learned Labour Court has failed to consider the fact that without complying the provisions of Section 25 F of the Industrial Disputes Act 1947 the services of the concerned workman cannot be terminated. Learned counsel submits that petitioner was under impression that his date of birth recorded in his service On the other hand learned counsel appearing for the respondent record was 28.04.1955 and as such he would be superannuated in the year 2015 and hence he did not raise any objection for correction of his date of birth till the date when he received letter dated 07.09.2004 whereby it was informed that the petitioner is going to superannuate from the service w.e.f. 30.09.2004 and soon after receipt of the said letter he made representation before the respondent management for correction of his date of birth and thereafter raised industrial disputes for the said purpose. Hence it cannot be said that demand for correction of date of birth has been raised at the fag end of service career. Learned counsel further argues that in LIC Policy which was opened by the respondent management in favour of the petitioner workman his date of birth was mentioned as 28.04.1955 and said date of birth was also mentioned in letter dated 28.07.2005 written by Regional Provident Fund Commissioner II Jamshedpur to the Central Provident Fund Commissioner Head Office New Delhi. Learned counsel lastly submits that the petitioner is illiterate and hand to mouth and further the report of the CMO who has assessed the age of the petitioner is missing which shows the callous and capricious approach of the respondent management. vehemently opposes the contention of the learned counsel for the petitioner and submits that as per the prevalent practice and rules the employment record of petitioner was also prepared at the time of his appointment and in the said record the date of birth of the petitioner was recorded as 01.10.1944 and as such the management has superannuated him on 01.10.2004 on attaining the age of superannuation i.e. 60 years. Learned counsel further argues that reliance of the petitioner on documents pertaining to LIC Policy where his date of birth is mentioned as 28.04.1955 is of no help to him as the said policy was not taken by the management and perhaps the date of birth informed by the petitioner was filled up by the concerned clerk of Life Insurance Corp. Ltd. and management has never submitted any proposal form for issuance of the LIC Policy in favour of petitioner. Learned counsel further argues that reliance of the petitioner on EPFO letteris also of no help to him as after receipt of the same the management has sent revised Form No. 3wherein the date of birth of the petitioner has been shown as 01.10.1944. It has been further argued that in the year 2003 workman himself had filled up prescribed form for Pension Scheme and endorsed the same by putting his signature wherein his date of birth was recorded as 01.10.1944. Learned counsel further argues that in his entire service career the petitioner never raised any dispute regarding his date of birth and after superannuation he is claiming that his date of birth is 28.04.1955 and as such his date of superannuation would be 30.04.2015. Learned counsel lastly submits that the Hon’ble Apex Court as well as this Court in catena of decisions has held that no correction can be made in the date of birth at the fag end of service career and as such this writ petition is fit to be dismissed. Be that as it may having heard the parties and upon perusal of the records it appears that Award is fully justified and no interference is warranted in the instant writ application for the following facts and reasons: It was obligatory on the part of the petitioner to bring on record as to on what basis his date of birth was recorded as 28.04.1955 in the so called LIC Policy but the petitioner has failed to bring on record any document on the basis of which the said date of birth was recorded in the LIC Policy. Further the LIC Policy was taken by the petitioner on his own and the Management has no concern with the same. No proposal form whatsoever has been brought on record and it has also not been pleaded that any authorized officer of the respondent company furnished the date of birth of the petitioner as 28.04.1955 for recording the same in the LIC Policy. The entries made in the LIC Policy are based on the information supplied by the proposerand the proposer is solely responsible for any wrong information furnished by him on the basis of which the same used to be entered in the LIC Policy. Further LIC Policy cannot be said to be a valid proof of date of birth of an For improving his case it was incumbent upon the petitioner workman to produce any legal documents such as Medical Book ID Card etc. issued by the respondent Management by which it can be established that his actual date of birth is 28.04.1955 and management has wrongly recorded his date of birth as 01.10.1944 but the petitioner has failed to produce any such documents in support of his case. In the year 2003 the petitioner himself filled up prescribed form for pension scheme and endorsed the same by putting his signature wherein his date of birth is mentioned as 01.10.1944 however after superannuation he came with a lame claim that his date of birth is Petitioner accepted the said date of birth all along his service career of more than 20 years and it was only in the year 2004 i.e. at the fag end of service career he made an application for correction in the date of birth based on the entry made in the service excerpts and when no heed was paid to his said request he raised an industrial dispute. Nothing has been brought on record to show that at the time of appointment of the petitioner what was his date of birth and petitioner has also failed to bring on record the letter of appointment showing the date of birth. The Hon’ble Apex Court as well as this Court in catena of decisions has held that request for change of date of birth in service records at the fag end of service career is not sustainable. In case of Secretary and Commissioner Home Department & Ors. Vs. R. Kirubakaran reported in 1994 Suppl. SCC 155 the Hon’ble Apex Court has held as under: “7. An application for correction of the date of birth 6 SCC 302 the Hon’ble Apex Court was clearly of the opinion that the government servant should not be permitted to correct the date of birth at the fag end of his service career. The Court in very strong terms observed as under: The government servant having declared his date of birth as entered in the service register to be correct would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. The Hon’ble Apex Court in the case of State of Maharashtra & Anr. v. Gorakhnath Sitaram Kamble & Ors. reported in 14 SCC 423 has held that: this Court judgment of “16. The learned counsel for the appellant has placed reliance on in U.P. Madhyamik Shiksha Parishad Vs. Raj Kumar Agnihotri 11 SCC 465 : 2006 SCC 96]. In this case this Court has considered a number of judgments of this Court and observed that the grievances as to the date of birth in the service record should not be permitted at the fag end of the service career. In another judgment in State of Uttaranchal Vs. Pitamber Dutt Semwal11 SCC 477 : 2006 SCC L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court this Court observed that the High Court ought not to have interfered with the decision after almost three decades.” Further the Hon’ble Apex Court reiterating the same view in case of State of M.P. v. Premlal Shrivas reported in 9 SCC 664 has held as under: “8. It needs to be emphasised that in matters involving correction of date of birth of a government servant particularly on the eve of his superannuation or at the fag end of his career the court or the tribunal has to be circumspect cautious and careful while issuing direction for correction of date of birth recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned as the case may be and a real injustice has been caused to the person concerned the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service particularly beyond the time fixed by his employer he cannot claim as a matter of right the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights. 12. Be that as it may in our opinion the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent notwithstanding the fact that there was no specific rule or order framed or made prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service by no standards can be held to be reasonable more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time limit within which an application is to be filed the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book.” In case of Union of India Vs. Harnam Singh2 SCC 162] the Hon’ble Apex Court has held that “No Court or the Tribunal can come to the aid of those who sleep over their rights”. Similar view has been expressed by the Hon’ble Apex Court in case of Bharat Coking Coal Ltd. & Ors. Vs. Shyam Kishore Singh reported in 2020) 2 Supreme Today 189 wherein the Hon’ble Apex Court has held that “request for change of the date of birth in the service records at the fag end of service is not sustainable.” 8 Time and again it has been held that if government servants sleep over their right and are not vigilant the Court cannot come to their rescue aid and grant relief only because they were ignorant of the Rules. These decisions lead to a different dimension of the case that correction of date of birth at the fag end would be at the cost of large number of employees therefore any correction at the fag end must be discouraged by the Court As a sequitur to the aforesaid observations rules guidelines and judicial pronouncements no case is made out for interference in the impugned Award and hence both writ petitions being devoid of any merit are hereby dismissed. Dr. S.N. Pathak J.) 

Summary: It has been repeatedly held that if government employees sleep on their rights and are not alert, the Court cannot come to their aid/rescue and offer relief only because they were unaware of the Rules. These rulings add a new layer to the situation, namely that correcting the date of birth at the tail end will be at the expense of a significant number of employees; hence, any change at the tail end must be discouraged by the Court. The High of Court Jharkhand in the case of Lal Bahadur vs. Jamshedpur Engineering &amp; Machine Manufacture Company Ltd. [W.P. (L) No. 374 of 2014] by Single Bench consisting of Hon’ble Shri Justice Dr S.N. Pathak. The facts of the case are petitioner was appointed as Guard under respondent-Management. While discharging his duties, he received a letter from the respondent management whereby it was informed to the petitioner that on completion of 60 years of age, he is going to superannuate from service treating his date of birth as 01.10.1944. It is the case of the petitioner that his date of birth is 28.04.1955. Hence, the petitioner was compelled to raise an industrial dispute. learned counsel appearing for the petitioner vociferously argues that the Award passed by the learned Labour Court, Jamshedpur is grossly illegal and arbitrary and suffers from error apparent from the face of the record. The Award is perverse in law as well as in fact since the learned Labour Court travelled beyond the terms of reference. Learned counsel further argues that from the contents of the various documents which were exhibited before the learned Labour Court it is manifested that the concerned workman is entitled to reinstatement in services. Learned Labour Court has overlooked the fact “that it is a creation of statute and it cannot be allowed to travel beyond the terms of reference.” learned counsel appearing for the respondent vehemently opposes the contention of the learned counsel for the petitioner and submits that as per the prevalent practice and rules, the employment record of the petitioner was also prepared at the time of his appointment and in the said record, the date of birth of the petitioner was recorded as 01.10.1944 and as such, the management has superannuated him on 01.10.2004, on attaining the age of superannuation i.e., 60 years. While relying on the apex court judgment State of M.P. v. Premlal Shrivas, it was held that “Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after the lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. “