MR. C.S. AMARNANI, BARRACK NO. 205-A, ROOM NO. 3, ULHASNAGAR-421001., DIST. THANE Vs. LARSON & TOUBRO LIMITED, POWAI WORKS, SAKI VIHAR ROAD, P. 0, BOX NO. 8901, MUMBAI-400072 AND SHRI A.M. DCSHMUKH, DY. GENERAL MANAGER (PERSONNEL) LARSEN & TOUBRO LTD., POWAI WORKS, MUMBAI 400072

JUDGEMENT

(1.) THIS is a complaint filed by one Mr. C.S. Amarnani (hereinafter referred to as the Complainant), under Sec. 28 read with items 9 and 10 of Sch. IV of the M.R.T.U. and P.U.L.P. Act, 1971 (hereinafter referred to as the said Act) for unfair labour practices against Larson & Toubro Limited and its Dy. General Manager (Personnel) Shri A.M. Deshmukh (hereinafter referred to as the Respondents). The brief facts of this complaint, are as under: - It is submitted by the Complainant that he joined the Respondent Company on 2nd July 1969 as a Turner, and at the time of seeking employment, he had mentioned his age as 29 years approximately and educational qualification as matriculate. Immediately after his appointment i.e. sometime in the year, 1970, the Complainant submitted S.S.C., Certificate indicating his correct date of birth, which is 6th February 1946. However, the Respondents did not correct the said date of birth, again in the year 1975. The Complainant wrote a letter to the Respondent company on 16th August 1991; and the again on 14th October 1991 and further by another letters, dated 17th December 1991 and 22nd June 1992 but the Respondent No. 2 vide his reply letters, dated 26th June 1992 and 15th March 1993 informed the Complainant that the date of birth given by him at the time of his appointment remains unchanged. Further, it is submitted by the Complainant that on the basis of the said SSC Certificate, the Respondents made necessary entries in his records about the qualification, but did not correct the date of birth mentioned in the said SSC Certificate. At the time when the Complainant sought employment with the Respondents, his father had taken seriously ill and, therefore, the Complainant was very much disturbed and was required to look after his ailing father, - who was hospitalised. The Complainant further submits that he lost his father on 3rd April 1970 and that he started searching all the records when he could trace out the SSC Certificate and therefore, he immediately submitted the same to the Respondents with a request to correct the date of birth and educational qualifications. As per the Agreement dated 30th December 1993 entered between the Union and the Respondents, the Age of Retirement is 58 years. The Respondents propose to discharge the Complainant from services with effect from 30th December 1997. He further submitted that just because the School in which he was studying about 40 years back is not in existence at present and is closed for which the Complainant cannot be blamed or denied his legitimate claim. It is, therefore, prayed by the Complainant to hold and declare that the Respondents have committed unfair labour practices under items 9 and 10 of Sch. IV of the said Act, and to cease and desist from committing such unfair labour practices, and to give directions to the Respondents to make correction in the service records of the Complainant showing his date of birth as 2nd June 1946 instead of 31st December 1939, and to award costs and compensation.

(2.) RESPONDENT Nos. 1 and 2 have filed their Joint Written Statement at Exh. C -3 in reply to the complaint of the present Complainant. It is contended therein that the cause of action is shown on 16th November 1993 and the present complaint is filed after a lapse of one year. Therefore, no cause of action for the reliefs prayed for can be granted. The Respondents submit that as the Complainant did not fill in the date of his birth in his application dated 18th May 1969, as per the practice prevailing in the Respondent Company, his date of birth was calculated by minusing 29 years from 30th June 1969 which would come to 1940 and hence his date of birth was recorded in the Company's records as 31st December 1939. The Complainant made an Affidavit dated 31st May 1971 before the Presidency Magistrate, Greater Bombay for change of his surname from Nagdev to Amarnani and in the said Affidavit he has shown his age as 33 years, and on minusing 33 years from 31st May 1971, the date of birth of the Complainant works out to 1938. The Complainant had produced a xerox copy of the School Leaving Certificate dated 28th June 1956 from the Rashtriya High School showing his date of birth as 6th February 1946 on the basis of which he has sought the change in the date of birth in the Company's records from 31st December 1939 to 6th February 1946. The Respondents further submits that the representative of the Respondents Company made enquiries about the said school from the Ulhasnagar Municipal Corporation, as well as the Hoard Education Officer, Thana Zilla Parish ad and both of them informed that there was no such said Kashtriya High School and the same did not exist. The Complainant has produced the SSC Certificate dated 1st August 1967. It is contended by the Respondents that they did not agree to the date of birth of the Complainant on the basis of the said SSC Certificate as the SSC Certificate bears a Note "Date of Birth is the same as that entered in the candidate's application for admission to the examination." Denying all other allegations made against them by the Complainant, it is prayed by the Respondents that the present complaint be dismissed with costs.

(3.) IN reply to this delay condonation application of the Complainant, the Respondents filed its reply at Exh. C -4 and submitted that this delay condonation application may please be heard alongwith the main complaint. It is contended that presumption or assumption of the Complainant is no ground for condoning the delay. There was no monetary constrain on the Complainant and the financial difficulty cannot be a matter of consideration to condone the delay. Hence, it is prayed by the Respondents to reject the application for condonation of delay as the present complaint is time barred as per the provisions of the said Act, with costs.