It has to be further stated that a declaration suo-moto made by a person as about his date of birth or change in the date of his birth and publication thereof in the government gazette cannot be held a better evidence than the birth certificate of a person and his school record. If the best evidence in the form of Gram Panchayat Birth Certificate or the School Leaving Certificate is available, the same shall prevail over the other evidence. Further, there is no material on record to show, as to on what basis the date of birth was got changed by Respondent No. 1 and published in the government gazette. It is further not disclosed by Respondent No. 1, as to which documents were submitted by him while getting his birth date changed and whether any adjudication had taken place before effecting the change in his date of birth as notified in the government gazette. In the instant matter, since Respondent No. 1 had relied upon the birth certificate produced on record and in order to prove the said certificate had examined a witness by name Shripad Pandit, it can be presumed that the same birth certificate must have been produced by Respondent No. 1, while getting his date of birth changed and getting it published in the government gazette. However, when it has unambiguously come on record through the evidence of witness Shripad Pandit examined by Respondent No. 1 himself that according to Gram Panchayat record the date of birth of is other than 31st October, 1943, the date of birth, mentioned as 31st October, 1943 in Government Gazette cannot be accepted to be the correct date of birth of Respondent No. 1.
IN THE HIGH COURT OF BOMBAY
Writ Petiton No. 721 of 2002
Decided On: 10.03.2017
Shri Chhatrapati Sahakari Sakhar Karkhana Limited
Vs.
Janu Gajaba Zagade and Ors.
Hon'ble Judges/Coram:
P.R. Bora, J.
Citation: 2017(4) MHLJ 491
1. The present Petition is directed against the Judgment of the Labour Court, Pune in complaint, U.L.P. No. 165 of 2000 decided on 29th August, 2001 and the Judgment delivered by Industrial Court, Pune in Revision (U.L.P.) No. 79 of 2001 on 16th January, 2002 whereby it has confirmed the aforesaid judgment of the Labour Court.
2. The present Respondent No. 1 entered into the services of the Petitioner-Sugar Factory in the year 1962 as a Slip-boy. During the course of his services he got the promotion and when he retired from the services he was working as Mukadam. At the time of entering into the services of the Sugar factory, Respondent No. 1 has noted his date of birth as 1st June, 1940. According to the said date of birth, Respondent No. 1 was to retire from the services of the Petitioner-Sugar factory on 31st May, 2000 after attaining the age of superannuation.
3. As per the standing orders applicable to the Petitioner-Sugar Factory, age of superannuation is 60 years. Accordingly, a notice was issued to Respondent No. 1 by the Petitioner-Sugar factory on 7th April, 2000 informing Respondent No. 1 that he will stand retire after officer hours on 31st May, 2000 since he will be completing the 60 years of his age on 1st June, 2000. After receiving the said letter, Respondent No. 1, on 5th May, 2000 submitted an application to the Petitioner-Sugar factory containing therein that his date of birth was wrongly recorded in the service record as 1st June, 1940, whereas his correct date of birth was 31st October, 1943. The application so made by Respondent No. 1 was rejected by the Petitioner. Respondent No. 1 therefore, filed complaint ULP No. 165 of 2000 before the Labour Court at Pune seeking a declaration that the office order issued by the Petitioner on 7th April, 2000, thereby retiring Respondent No. 1 from the services of the Petitioner w.e.f. 31st May, 2000 (A.O.H.) was illegal. Respondent No. 1 has also sought directions against the Petitioner-Sugar factory to reinstate him and to allow him to work till 31st October, 2003.
4. The contentions raised in the complaint were resisted by the Petitioner by filing its written statement before the Labour court. Labour Court on its assessment of the evidence brought before it allowed the complaint filed by Respondent No. 1 and thereby directed the Petitioner to allow the complainant i.e. Respondent No. 1 to work on the post from which he was retired, till 1st November, 2003 with continuity of service.
5. The order passed by the Labour Court was questioned by the Petitioner before the Industrial Court at Pune by filing Revision application No. 79 of 2001. The learned Industrial Court however, did not cause interference in the order passed by the Labour Court and dismissed the Revision Application. Aggrieved by, the Petitioner has filed the present Petition. On 12th June, 2002 this Court granted the interim relief in terms of prayer clause (b) and thereby, stayed the implementation of the judgment and order dated 29th August, 2001 passed by the Labour Court, Pune, in ULP No. 165 of 2000 pending hearing and final disposal of the present Petition. While granting the ad-interim relief as above, it was clarified by this Court that it was open for Respondent No. 1 to apply to the Petitioner for payment of his retirement dues, without prejudice to his rights and contentions and the Petitioner was directed to pay the retirement benefits to which Respondent No. 1 was entitled.
6. Shri K.S. Bapat the learned counsel appearing for the Petitioner assailed the orders passed by the Courts below on various grounds. The learned counsel taking me through the evidence on record and more particularly, the documents existing on record submitted that both the courts below have completely ignored the documentary evidence on record and have relied upon a letter dated 4th July, 1981, genuineness of which was seriously doubted by the Petitioner. The learned counsel submitted that the Courts below have failed in appreciating that the application/representation submitted by Respondent No. 1 at the fag end of his service and more particularly, after receiving the intimation regarding his retirement was rightly rejected by the Petitioner. In support of the aforesaid contention, the learned counsel relied upon the judgment of the Hon'ble Apex court in the case of Hindustan Lever Limited v. S.M. Jadhav and another MANU/SC/0216/2001 : 2001 II CLR 182.
7. The learned counsel further submitted that both the Courts below have adopted an absolutely wrong approach in deciding the matter by putting burden on the Petitioner to disprove the contention raised by Respondent No. 1. The learned counsel further submitted that the primary burden was on Respondent No. 1 to substantiate his contention by adducing the cogent and sufficient evidence therefore. The learned counsel submitted that Respondent No. 1 has utterly failed in bringing on record any such evidence and despite that the Labour Court has allowed the complaint filed by him. The learned counsel further submitted that the learned Industrial Court also proceeded on the wrong footing and without considering the settled legal position has mechanically confirmed the order passed by the Labour Court. The learned counsel therefore, prayed for setting aside the orders passed by the Industrial Court and the Labour Court and consequently, prayed for dismissal of the complaint ULP No. 165 of 2000 filed by Respondent No. 1.
8. Shri P.M. Patel, the learned counsel appearing for Respondent No. 1 supported the orders passed by the Industrial Court in Revision Application as well as by the Labour Court in complaint ULP. The learned counsel submitted that Respondent No. 1 has placed on record a convincing evidence showing that his date of birth was wrongly mentioned 1st June, 1940 at the time of his entry in the service as whereas his real date of birth was 31st October, 1943. The learned counsel submitted that an application alongwith the affidavit of his mother was submitted by Respondent No. 1 in the year 1962 itself to the Petitioner-Sugar factory requesting for correcting his date of birth from 1st June, 1940 to 31 October, 1943. The learned counsel submitted that the evidence on record shows that Respondent No. 1 was given an understanding that his date of birth has been accordingly changed. The learned counsel further submitted that the letter dated 4th July, 1981, which is at Ex. 27 in the record of the Labour Court beyond reasonable doubt proves that the Petitioner has accepted the date of birth of Respondent No. 1, as 31st October, 1943 and has accordingly informed the office of the Regional Provident Fund Commissioner. The learned counsel submitted that the aforesaid documents have rightly been relied upon by the Labour Court as well as the Industrial Court. The learned counsel submitted that there was no delay on the part of Respondent No. 1. In submitting an application for correction in his date of birth and as such there is no substance in contentions raised by the Petitioner that Respondent No. 1 applied for correction in the date of birth at the fag end of his service. The learned counsel submitted that the courts below have passed well reasoned orders and no interference is required in the orders so passed. The learned counsel therefore, prayed for dismissal of the Petition.
9. I have carefully considered the submissions advanced by the learned counsel appearing for the Petitioner and Respondent No. 1. I have also perused the judgment of the Industrial Court as well as the judgment of the Labour Court and the other material on record. Perusal of the judgments passed by the courts below apparently reveal that both the courts have failed in proper appreciation of the evidence on record. It need not to be stated that the initial burden was on Respondent No. 1 to prove his allegation that the Petitioner has committed the unfair labour practise, as alleged in the complaint filed by him. The obligation was on the Petitioner to sufficiently prove by bringing on record cogent and sufficient evidence that his correct and real date of birth is 31st October, 1943 and further that after entering into the services of the Petitioner, within the reasonable period he had made an application for correction in his date of birth which was wrongly recorded as 1st June, 1940.
10. In the complaint filed by Respondent No. 1 before the Labour court it is specifically averred by him that his correct date of birth is 31st October, 1943 and the same has been recorded in the birth Register in form No. 14 maintained by the Katfal Gram Panchayat. It was his further contention that in the government gazette dated 18th January, 1968 the change in his name as well as in his date of birth has been duly notified. It was his further contention that on 21st April, 1962 he had submitted an application to the Petitioner for carrying correction in his date of birth alongwith affidavit of his mother. Now it has to be seen whether the averments so made by Respondent No. 1 in his complaint whether were substantiated by him.
11. The material on record reveals that in order to prove that his correct date of birth is 31st October, 1943 and it is recorded in the Gram Panchayat record. Respondent No. 1 examined one Shripad Dattatraya Pandit as his witness who was at the relevant time working as Niwasi Nayab Tahasildar at Baramati. Perusal of the evidence of the said witness completely destroys the case put forth by Respondent No. 1 that his correct date of birth was 31st October, 1943 and the same was recorded in the Birth Register of the Katfal Gram Panchayat. The witness Shripad Pandit examined in that regard by Respondent No. 1, has deposed in the examination-in-chief itself that in the concerned document in the date of birth column though the date of birth is mentioned as 31st October, 1943 there is overwriting from the year 1938 to 1943. In the cross-examination the said witness has candidly stated that as per the Gram Panchayat record the date of birth of complainant i.e. present Respondent No. 1 is 31st October, 1938. It is significant to note that no further questions were asked to the said witness by Respondent No. 1 in his re-examination. Thus, the fact deposed on oath by the said witness that as per Gram Panchayat record Respondent No. 1's date of birth is 31st October, 1938 has remained undisputed. From the evidence of the said witness it is quite clear that Respondent No. 1 failed in proving the contentions raised by him in the complaint that his correct date of birth is 31st October, 1943 and that the same is recorded in the Gram Panchayat register of Katfal Gram Panchayat.
12. Perusal of the judgment of the Labour Court as well as of the Industrial Court reveals that both the courts have completely ignored the evidence of the aforesaid witness which according to me was the only material evidence in support of the claim made by Respondent No. 1 that his correct date of birth is 31st October, 1943.
13. The courts below have further failed in appreciating that in the declaration given by Respondent No. 1 to the Provident Fund Authorities, he has mentioned his date of birth as 1st June, 1940. In his cross-examination Respondent No. 1 has admitted that all the details mentioned in the Provident Fund declaration were furnished by him. He has further admitted that in the said declaration given on 10th November, 1967, he had mentioned his date of birth as 1st June, 1940. The Respondent No. 1 has further admitted that the said declaration bears his signature. Immediately thereafter the Respondent No. 1 has given a further vital admission that in a school leaving certificate also his date of birth is mentioned as 1st June, 1940. The witness has further admitted that he has never made any attempt to correct his date of birth in the school record. The clear admissions as aforesaid given by Respondent No. 1 in his cross-examination have also been lost sight of by the learned Labour Court as well as learned Industrial Court and both the courts have excluded from their consideration the said admissions. The learned counsel for the Petitioner brought to my notice the document at Ex. B, page No. 26 of the paper book, which is the letter written by Respondent No. 1 to the Managing Director of the Petitioner-Sugar factory, wherein it is clearly averred by Respondent No. 1 that his date of birth is 1st June, 1940 and that for confirmation of his age, he was filing the birth certificate on record. The endorsement over the said document shows that in the original certificate submitted by Respondent No. 1, his date of birth was mentioned as 1st June, 1940 and the said Certificate was verified by the officers of the Sugar factory and the original was then returned to Respondent No. 1.
14. Another contention of Respondent No. 1 was that way back on 21st April, 1962 he had submitted an application to the Petitioner for correction in his date of birth and alongwith the said application has annexed the affidavit sworn by his mother before the Taluka Magistrate at Baramati. I have carefully perused the entire evidence on record. It is no where noticed that the Petitioner has filed on record the copy application submitted by him on 21st April, 1962 for correction in his date of birth. The Labour Court in its judgment has observed that the witness examined by the Petitioner-Sugar factory has stated in his cross-examination that he was unable to state whether the affidavit of the mother of Respondent No. 1 was given on 21st April, 1962. Learned Labour Court has further referred to the another statement of the said witness in his cross-examination that the said witness has admitted that he does not know if the document was given by the complainant i.e. Respondent No. 1 on 21st April, 1962. Relying on such admissions given by the witness examined by the Petitioner-Sugar factory, the Labour Court has arrived at the conclusion that there is no denial in the evidence of the management witness that the application and the affidavit was given by the complainant and the presumption is therefore, drawn that the complainant i.e. Respondent No. 1 had given an affidavit to the Karkhana and the same was in possession of the karkhana. I have carefully perused the cross-examination of the witness examined by the Petitioner - Sugar factory. In his cross-examination the said witness has clearly denied the suggestion given to him that on 21st April, 1962 complainant had given the affidavit of his mother. His cross-examination further reveals that he was shown the said affidavit whereupon he had deposed that he cannot say whether the said affidavit was furnished on 21st April, 1962. After having carefully perused the entire material on record it is noticed that no such evidence has been placed on record by Respondent No. 1 from which it can held that Respondent No. 1 had applied for correction in his date of birth by filing an application on 21st April, 1962. The evidence of the witness examined by the Petitioner-Sugar factory has been misconstrued by the Labour Court and the Industrial Court had also failed in appreciating the said aspect.
15. Even if it is assumed that Respondent No. 1 had submitted an application on 21st April, 1962 requesting for correcting his date of birth, the question arises why he did not raise any grievance till the year 2000, when his original date of birth i.e. 1st June, 1940 continued to be in his service record and in his Provident fund returns. It is impossible to believe that Respondent No. 1 might not have perused the documents pertaining to his Provident Fund record or his service record.
16. Material on record further reveal that much emphasis of Respondent No. 1 was on the letter dated 4th July, 1981 allegedly written by the Managing Director of the Petitioner-Sugar factory to the sub-Regional Provident Fund Commissioner, Pune, wherein the Gazette notification pertaining to the change in the name of Respondent No. 1 is reproduced. The learned counsel for Respondent No. 1 invited my attention to the document at Ex. 27 which is the copy of the letter dated 4th July, 1981 on the letter-head of the Petitioner-Sugar factory, whereas the learned counsel for the Petitioner invited my attention to the document at page No. 53 of the paper-book, which according to the learned counsel for the Petitioner was the office copy of the said letter dated 4th July, 1981, wherein there is no mention of the birth date of Respondent No. 1. On the basis of the said document it was the contention of Respondent No. 1 that even as per the record maintained in the Petitioner -Sugar factory the date of birth of Respondent No. 1 was 31st October, 1943.
17. The contention so raised seems to have been accepted by the Labour Court as well as by the Industrial Court. The discussion made by the Labour Court in the impugned judgment as about the letter dated 4th July, 1981 reveals that on the basis of the said document an inference has been drawn that 31st October, 1943 was accepted by the Petitioner-Sugar factory to be the correct date of birth of Respondent No. 1 and the same was accordingly communicated to the Provident Fund Authorities. I am really surprised by the conclusion so recorded by the learned Labour Court and more surprised to notice that the Industrial Court has also not caused interference in the said finding. Though the letter dated 20th June, 1981 in reply to which the letter dated 4th July, 1981 was given by the Petitioner-Sugar factory is not on record, it can be reasonably inferred that it was pertaining to the change in the name of Respondent No. 1. Admittedly, name of Respondent No. 1 was Janaba Dhondiba Raut, when he joined the service with the Petitioner-Sugar factory and the same was mentioned in the Provident Fund record. It is further not in dispute that subsequently Respondent No. 1 changed his name from Janaba Dhondiba Raut to Janu Gajaba Zagade. In the letter dated 4th July, 1981 the Petitioner-Sugar factory has reproduced the contents of the government gazette dated 18th January, 1968. Vide the said gazette notification it is evident that the name of Respondent No. 1 was changed from Janaba Dhondiba Raut to Janu Gajaba Zagade. It further appears that below the said contents 31st October, 1943 is mentioned as date of birth.
18. As noted earlier the aforesaid document has been seriously disputed by the petitioner-Sugar factory. It was pointed out by the learned counsel for the Petitioner that in the office copy of the letter dated 4th July, 1981, which has been filed on record at page No. 53 of the paper-book, the portion birth date 31st October, 1943 is missing. It was contended by the learned counsel for the Petitioner that a interpolated document was produced by Respondent No. 1. There is no need to enter into the controversy which document whether at Ex. 27(page 50 of the paper-book) or at page 53 of the paper book is genuine. The moot question is whether a person can change his date of birth in the service record by drawing a government gazette to that effect. It is a matter of common knowledge that a person can effect the change in his name by submitting his own affidavit and get the said change notified in a government gazette. However a person cannot mention a date of birth in such a notification issued for declaring a change in his name and even if one mentions it that does not carry any relevance. On mere submission of the copy of such a gazette notification, date of birth cannot be changed in the service record of the person. Even if it is assumed that in the government gazette reproduced in the letter dated 4th July, 1981 the date of birth of Respondent No. 1 is shown as 31st October, 1943 no such inference can at all be drawn that the said date of birth was accepted as a correct date of birth of Respondent No. 1 by the Petitioner. Had it been so in the subsequent service record and the Provident Fund record the change in the date of birth would have been certainly recorded. However, in the service record as well as in the Provident Fund record the date of birth of Respondent No. 1 continued to be 1st June, 1940. The learned Labour Court as well as the Industrial Court both have failed in appreciating this aspect and have drawn the unconscionable conclusions.
19. The Labour Court as well as the Industrial Court both have utterly failed in appreciating that the birth certificate of a person is held to be the most preferred and dependable evidence to prove the date of birth of the said person. In catena of judgments the Hon'ble Apex Court as well as this Court have ruled that the original birth record or birth certificate of a person is the most reliable evidence as regards to the date of birth of the said person. Thereafter, the school record is accepted as the equally dependable evidence to prove the date of birth of person.
20. In the instant matter, Respondent No. 1 had examined Nayab Tahasildar Shripad Pandit as his witness who unambiguously deposed before the Court that as per the Gram Panchayat record Respondent No. 1's date of birth is 31st October, 1938. I have herein before noted that the said witness was not controverted by Respondent No. 1 on the fact so stated by him. Thus, as per the Gram Panchayat record the date of birth of Respondent No. 1 is 31st October, 1938. I reiterate that the said fact has come in the evidence of the witness, who was examined by Respondent No. 1 to prove that in the Gram Panchayat record his date of birth is recorded as 31st October, 1943.
21. Secondly, in the school record the date of birth of Respondent No. 1 is recorded as 1st June, 1940. In his cross-examination before the Court, Respondent No. 1 has admitted that in the school leaving certificate his date of birth is mentioned as 1st June, 1940. The document filed on record by the Petitioner-Sugar Factory at Ex. B (Paper-book page No. 26) demonstrates that after joining the duty with the Petitioner-Sugar Factory, Respondent No. 1 had submitted the birth certificate, so as to confirm his date of birth in the service record. In the certificate so produced by the Petitioner on 10th November, 1967, his date of birth is noted as 1st June, 1940. Accordingly, an endorsement was made by the Managing Director of the Petitioner-Sugar factory to the effect that the original birth certificate was verified with the copy submitted of the same and that as per the certificate so produced, the date of birth of the Petitioner is 1st June, 1940. The document bears the further endorsement that after the copy of the birth certificate produced on record by Respondent No. 1 was compared and verified with the original birth certificate, the original was returned to Respondent No. 1. The birth record which was produced by Respondent No. 1 was the certificate of his passing Primary School Certificate examination. In the said certificate the date of birth of Respondent No. 1 is mentioned as 1st June, 1940. In his cross-examination, Respondent No. 1 has admitted that he did never make any attempt to get corrected his date of birth in the school record.
22. It is thus evident that according to the evidence, which is understood to be the best evidence so far as date of birth is concerned i.e. the original birth certificate and the school record do not support the plea taken by Respondent No. 1 that his correct date of birth is 31st October, 1943.
23. It has to be further stated that a declaration suo-moto made by a person as about his date of birth or change in the date of his birth and publication thereof in the government gazette cannot be held a better evidence than the birth certificate of a person and his school record. If the best evidence in the form of Gram Panchayat Birth Certificate or the School Leaving Certificate is available, the same shall prevail over the other evidence. Further, there is no material on record to show, as to on what basis the date of birth was got changed by Respondent No. 1 and published in the government gazette. It is further not disclosed by Respondent No. 1, as to which documents were submitted by him while getting his birth date changed and whether any adjudication had taken place before effecting the change in his date of birth as notified in the government gazette. In the instant matter, since Respondent No. 1 had relied upon the birth certificate produced on record and in order to prove the said certificate had examined a witness by name Shripad Pandit, it can be presumed that the same birth certificate must have been produced by Respondent No. 1, while getting his date of birth changed and getting it published in the government gazette. However, when it has unambiguously come on record through the evidence of witness Shripad Pandit examined by Respondent No. 1 himself that according to Gram Panchayat record the date of birth of is other than 31st October, 1943, the date of birth, mentioned as 31st October, 1943 in Government Gazette cannot be accepted to be the correct date of birth of Respondent No. 1.
24. It further appears to me that when the best possible evidence was existing on record, there was no reason for the Courts below to discard the said evidence and to rely upon the government gazette, for determining the correct date of birth of Respondent No. 1. The view taken by the Courts below and the reasoning given by them in holding 31st October, 1943, as the correct date of birth of Respondent No. 1 is wholly unconscionable and cannot be sustained. The further inference drawn by the courts below that vide letter dated 4th July, 1981 the Petitioner-Sugar factory has accepted the change in the date of birth of Respondent No. 1 is equally unconscionable. I have elaborately discussed herein above that in the letter dated 4th July, 1981 the Petitioner-Sugar factory has simply reproduced the contents of the so called government gazette. No such inference can be drawn from the said letter that the date of birth of Respondent No. 1, as mentioned in the said document was accepted by the Petitioner-Sugar factory to be his correct date of birth.
25. After having considered the entire material on record, I have no hesitation in holding that Respondent No. 1 has utterly failed in proving that his correct date of birth is 31st October, 1943. The Respondent No. 1 has also failed in proving that he had made an application to the Petitioner-Sugar factory in the year 1962 for correcting his date of birth from 1st June, 1940 to 31st October, 1943. From the material on record, it is quite clear that only after the retirement notice was served upon Respondent No. 1 that he made an application taking a contention therein that he had already submitted the application in the year 1962 for correction in his date of birth. I reiterate that if it was the contention of Respondent No. 1 that he had submitted an application in the year 1962 for correction in his date of birth, he was under an obligation to see that the change as prayed by him is effected and if the same was not effected to make a grievance about the same within the reasonable period. Admittedly, no such material is brought on record by Respondent No. 1 to show that he had pursued the said application. If as claimed by Respondent No. 1 he had submitted an application in 1962, he would surely had made some inquiry whether the service record and Provident Fund record was accordingly corrected. From the available evidence, the only inference which emerges is that Respondent No. 1 for the first time seek change in his date of birth at the fag end of his service and to be more precise after he was served with the retirement notice. As held by the Hon'ble Supreme Court in the case of Hindustan Lever Ltd. v. S.M. Jadhav and anr., MANU/SC/0216/2001 : 2001 II CLR 182, at the fag end of carrier, a party cannot be allowed to raise a dispute regarding his date of birth.
26. For the foregoing reasons, the order dated 29th August, 2001, passed by Labour Court, Pune in complaint ULP No. 165 of 2000 and the order passed by the Industrial Court, Pune in Revision ULP No. 79 of 2001 on 16th January, 2002, thereby confirming the order passed by the Labour Court deserve to be set aside and quashed and are accordingly set aside and quashed. Consequently, complaint ULP No. 165 of 2000 filed by Respondent No. 1 in Labour Court, Pune stands dismissed. The Rule is made absolute in the above terms. The Writ Petition is allowed and disposed of accordingly. No costs.
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