STATE OF M P Vs. BAHADUR KHAN

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is directed against the award dated 15/1/2009 passed by the Labour Court No. 1, Gwalior in case No. 37/A/I.D.Act/2004 (Reference). Labour Court has answered the reference in favour of the respondent (hereinafter shall be referred to as "workman") and held that workman's services were wrongly terminated/superannuated vide order dated 14/8/2002 holding the same as illegal and unjustified. Consequently, the workman was held entitled for all service benefits from the date of termination till the date of actual retirement i.e. 31/7/2009 on which date he had reached the age of 62 years, the age of superannuation, treating his date of birth being 17/7/1947, as recorded in the service book.

(2.) Taking exception to the award passed by the Labour Court, the petitioners/State Government (hereinafter shall be referred to as "employer") contends that workman had undergone medical check up ordered by the employer and as per the medical jurisprudence, his date of birth was assessed as 65 years on 12/8/2002 vide medical report dated 12/8/2002. Consequently, the employer passed an order dated 14/8/2002 declaring the workman retired on 14/8/2002. It is submitted that Labour Court has committed a grave illegality having not considered the medical report and treating the workman to have reached the age of superannuation of 62 years only on 31/7/2009 treating his date of birth as 17/7/1947.

(3.) During the course of hearing, it has transpired that there is no dispute that date of birth in the workman's service book is recorded as 17/7/1947, as such there was no reason or justification to order for assessment of date of birth of workman and only because he was an illiterate class IV work charged employee, same cannot be deemed to be a reason for sending him for medical check -up as contended by learned counsel for the workman. That apart, before ordering for medical assessment, neither any notice was issued to workman nor any opportunity of hearing was afforded to him. That apart, throughout his long service career his date of birth has all along been treated as 17/7/1947 viz. service book and seniority list; wherein, same date of birth is mentioned. Therefore, there appears to be no reason or justification to ignore the actual date of birth recorded and treating the workman retired on the basis of age assessed by the medical board. The whole course of action appears to be contrary to settled principles of law as regards determination of date of birth in service matter. In fact enquiry or assessment through medical examination is required in the event date of birth is not recorded in service record or the date of birth recorded is found to be not in accordance with the documents submitted at the time of entry in department or otherwise date of birth is found to be vulnerable. But in any case the delinquent workman is first required to be issued notice and after having recorded satisfaction that no conclusive document is available as regards date of birth, the employer may refer the workman for medical board to assess the age as per the medical jurisprudence and not otherwise. In the instant case, undisputedly, the date of birth of workman recorded in service book is 17/7/1947, therefore, there was no reason or justification to treat him to have retired on 14/8/2002 on the basis of medical report dated 12/8/2002 assessing him to be 65 years of age on the said date. In fact in all fairness, workman ought to have continued till he reaches the age of superannuation i.e. up to 31/7/2009. That having not been done, Labour Court fully justified having answered the reference in favour of workman holding that superannuation of the workman on the basis of medical report was illegal and therefore, he is entitled for all service benefits up to actual date of his superannuation i.e. 31/7/2009. Accordingly, in the opinion of this Court, no illegality or jurisdictional error is found to have been committed by the Labour Court while passing the impugned award.