M/S. MYSORE CEMENT LTD., (REP. BY ITS EXECUTIVE VICE PRESIDENT) Vs. VEERAIAH D/O T.G. MARIYAPPA, RETIRED JUDGE

JUDGEMENT

(1.) The petitioner is a public limited company registered under the Indian Companies Act. The respondent joined the services of the company with effect from 1.11.1966. While submitting the application in the prescribed form the respondent had indicated that he had studied up to High School at Gubbi, Tumkur District and he gave his date of birth as 1.11.1947 without any supporting document. The said application also contained a declaration to the effect that the information furnished by him were true and correct in all respects to the best of his knowledge and belief and that he hold himself liable for any action that the Management may take in the event of any information furnished by him in the application being found to be not correct or true. Annexure-A is the said application filed by the respondent to the petitioner at the time of entering into service. It is the case of the petitioner that in spite of the several requests the respondent did not produce any documentary proof for his date of birth. It appears that the petitioner slept over the matter on 1.2.1995 the petitioner issued notice calling upon him to produce school certificate in proof of his age as per Annexure-B. The same was not complied with. Again on 21.8.2000 as per Annexure-C they called upon him to produce the certificate showing the date of birth within 15 days from the date of receipt of the said notice failing which it was made clear that in the event it was found that the date of birth given by him at the inception is false all the benefits accrued to him after the date of superannuation would be forfeited. Even then no documents were produced by the respondent to substantiate his date of birth. Thereafter it appears, the respondent made enquiries, wrote letter to the school where he was studying and as per information received from the school his date of birth was 1.11.1941 as per Annexure-D. Therefore it was clear that the date of birth given in the application was false. If 1.11.1941 is taken as the date of birth he attained the age of superannuation of 58 years on 31.10.99 but if the date of birth is taken as 1.11.1947 he would attain the age of superannuation on 31.10.2005. By the time they realised the mistake the respondent had crossed the age of superannuation and he had been in service for 10 months 17 days in excess' of 58 years. During the said period he had been paid wages amounting to Rs. 73,264.00. Thereafter the said fact was brought to the notice of the respondent and his services came to be terminated and all retiremental benefits have been settled. Annexure-E is the statement of account which has been duly acknowledged by the respondent where under/he acknowledges the full and final settlement of his account of his retirement from service on attaining the age of superannuation. Further he makes it clear that he has no more claim whatsoever to raise against the company in this regard. The case of the petitioner is that on receipt of the retiremental benefit the respondent raised industrial dispute under section 10 (4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1987 seeking for reinstatement with continuity of service, full back wages and all other consequential benefits. Petitioner contested the said claim. The Labour Court on the pleadings raised the following issues for consideration:

(2.) The petitioner company examined one witness by name Vasappa, the Deputy Manager as MW-1. On behalf of the respondent, the respondent was examined. Both the parties have marked documents in support of their respective contentions. Labour Court on appreciation of the oral and documentary evidence on record held that it was not open to the management i.e., the petitioner to dispute the correctness of the entries made in the service register after a period of 30 years. Secondly, it was held, after the respondent entered service Standing Orders had come into force and therefore the date of birth entered as on that date could not be altered. Further it held that the documents on which the Management places its reliance to show the date of birth as 1.11.1941 are not proved in accordance with law. In the year 1995 when first notice was issued the Union approached the Management and requested them to give quietus for which the Management agreed and therefore it was not open to the petitioner again to issue one more notice in the year 2000 and wake up a dead matter. The respondent belongs to Yadava caste whereas the certificate issued shows that he belonged to Gollaru caste. Lastly it was held, in the evidence the respondent on oath has stated that his date of birth is 1.11.1947 and what is mentioned in the Service Register is valid and legal. Therefore, the Labour Court came to the conclusion that the termination of the respondent on the ground that he had reached the age of superannuation as on 31.10.99 is illegal and therefore set aside the said order, directed reinstatement with back wages, continuity of service and all other consequential benefits. Aggrieved by the said award of the Labour Court which is dated 22nd March, 2004 the petitioner has preferred this writ petition.

(3.) Learned Counsel appearing for the petitioner assailing the impugned award of the Labour Court contends, to this day the respondent has not r produced a scrap of paper to show that he was born on 1.11.1947 though admittedly he had studied in the school, that too according to him, in a Government school and therefore the entire burden of showing that he was born on 1.11.1947 is squarely on the respondent which he has misarably failed to establish. In that view of the matter the entire finding recorded by the Labour Court is contrary to the said fact, is vitiated and is liable to be set aside. Secondly he contends that the petitioner made independent enquiry, wrote letter to the school where he was studying, got information as per Annexure-D which is marked as Ext. M-13 before the Labour Court which clearly go to show that his date of birth is 1.11.1941 and not 1.11.1947. Lastly it was contended that the respondent has not produced any documents though he says that there is no legal impediment for producing the same in accordance with law, Court has to draw adverse inference that if such a document had been produced it would have gone against him. Therefore, he submits that the Labour Court has misdirected itself, did not approach the problem in a proper prospective and the finding recorded by the Labour Court is perverse, capricious and no reasonable person would have arrived to that conclusion on which the Labour Court has arrived at. Therefore, he submits that a case for interference under Art. 226 is made out.