SERMAN JAGOO Vs. GENERAL MANAGER, WESTERN RLY

JUDGEMENT

(1.) By this petition under Art. 227 of the Constitution of India, the petitioner seeks to challenge the order dated February 26, 1973 passed by the Presiding Officer, Central Government Labour Court, Bombay, rejecting his application under Section 33-C (2) of the Industrial Disputes Act, 1947 as not maintainable.

(2.) The petitioner was serving as a peon under the Chief Cashier of Western Railway. By order dated Dec. 5, 1968, the Chief Cashier passed an order compulsorily retiring the petitioner from service with effect from Dec. 5, 1968. The petitioner challenged this order of compulsory retirement before the Labour Court in an application filed by him under Section 33-C (2) of the Industrial Disputes Act contending inter alia that his birth date was Jan. 7, 1918 and he was entitled to be in service of the Western Railway till he completed the age of 58 years and on that basis he claimed the computation of benefit of reinstatement with back wages under the said provisions. It was the case of the respondent-Railway that the date of birth of the petitioner was Dec. 1, 1910 and not Jan. 7, 1918 as claimed by the petitioner. In support of its contention the Railway relied on one School Leaving Certificate which showed that the petitioner was born on Dec. 1, 1910. The petitioner, however, contested the genuineness of this certificate and further relied on the certificate issued by the Railway Doctor that on Jan. 9, 1948, he must have completed the age of 31 years. The petitioner, therefore, claimed that if his claim that he was born on Jan. 7, 1918 is not accepted, the medical opinion which placed his date of birth on Jan. 9, 1917 at least should be accepted and in either case he was entitled to the computation of the benefit of reinstatement with back wages as the order of compulsory retirement based on the assumption that he has completed the age of 58 years was illegal.

(3.) The Labour Court was of the view that the petitioner's application under Section 33C (2) of the Industrial Disputes Act, 1947 was not maintainable and in order to enable him to get benefit claimed by him, he must first get a declaration that the order passed against him was illegal or void and not binding on him. So long as such a declaration was not obtained, the petitioner cannot claim any existing right to the continuity of service after the date of compulsory retirement and in this view of the matter, the Labour Court held that the petitioner's application under Section 33-C (2) of the Industrial Disputes Act was misconceived and not maintainable. This order of the Labour Court is being challenged by the petitioner in this petition filed by him under Art.27 of the Constitution of India.