Writ Petition No. 1726 of 2003. Case: Sonabai Harchand Gurav Vs Zilla Parishad, Nandurbar and Ors.. Bombay High Court

Case Number:Writ Petition No. 1726 of 2003
Party Name:Sonabai Harchand Gurav Vs Zilla Parishad, Nandurbar and Ors.
Counsel:For Appellant: N.B. Suryawanshi, Advocate and For Respondents: K.C. Sant and S.J. Bhamare, Advocates
Judges:R. V. Ghuge, J.
Issue:Maharashtra Recognition of Trade Union & Prevention of Unfair Labour Practices Act, 1971 - Section 44
Citation:2016 (I) LLJ 605 Bom, 2016 (1) LLN 322 (Bom)
Judgement Date:January 21, 2016
Court:Bombay High Court
 
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Judgment:

R. V. Ghuge, J.

  1. This petition was admitted on 24.06.2003. Considering the fact that the issue was with regard to the retirement of an employee and correction of date of birth, there was no question of interim relief involved at the time of admission of the petition since the Petitioner had already retired.

  2. Shri Suryawanshi, learned Advocate for the Petitioner, has strenuously criticized the judgment of the Industrial Court dated 13.02.2003 by which Revision (ULP) No. 264/2001 filed by the Respondent/Zilla Parishad was allowed and the impugned judgment of the Labour Court dated 26.09.2001 thereby, allowing Complaint (ULP) No. 63/1999, was quashed and set aside.

  3. Shri Suryawanshi has canvassed the Petitioner's case at length. His submissions can be summarized as follows:--

    "(a) The School Leaving Certificate of the Petitioner indicates her date of birth as 15.10.1941.

    (b) On 22.11.1976, the maternal uncle of the Petitioner swore an affidavit whereby, it is stated that though the School Leaving Certificate of the Petitioner indicates the date of birth as 15.10.1941, her actual date of birth is 15.06.1944.

    (c) The affidavit of the maternal uncle also indicates that the same was sworn by him since the Petitioner wanted the said affidavit for acquiring employment.

    (d) On 14.01.1977, the Petitioner joined services as a Gramsevika with the Respondent/Zilla Parishad, Nandurbar. Her date of birth was recorded as 15.06.1944.

    (e) On 04.10.1985, the seniority list was published indicating her date of birth as 15.06.1944.

    (f) The Petitioner was promoted as a Superintendent on 24.03.1986.

    (g) On 10.03.1992, the second seniority list was published showing the date of birth of the Petitioner as 15.06.1944.

    (h) On 29.08.1996, the Petitioner got her date of birth 15.06.1944 published in a Government Gazette.

    (i) On 13.11.1997, the Respondent/Establishment got the date of birth of the Petitioner corrected in the service records.

    (j) A notice of retirement was issued by the Respondent on 30.06.1999 indicating that the Petitioner would stand retired from 31.10.1999.

    (k) Complaint (ULP) No. 63/1999 was filed by the Petitioner on 26.10.1999 which is just about four days prior to her retirement.

    (l) It was averred in the complaint that her retirement on 31.10.1999 amounts to forceful termination. Since she is a permanent employee, the same would amount to an illegal retrenchment.

    (m) The Labour Court by it's judgment and order dated 26.09.2001 allowed the complaint by making a declaration of unfair labour practice under Item 1 (a), (b), (d) and (f) of Schedule-IV of the MRTU & PULP Act, 1971 thereby, setting aside her retirement w.e.f. 31.10.1999 as being illegal and declared that the Petitioner was entitled to retire on 30.06.2002.

    (n) The Labour Court granted reinstatement with continuity and full back wages with the direction that the Petitioner would be allowed to work up to 15.06.2002, which is a period of about three years considering her date of birth to be 15.06.1944.

    (o) The Respondent/Zilla Parishad preferred Revision (ULP) No. 264/2001 before the Industrial Court at Jalgaon.

    (p) By the impugned judgment and order dated 13.02.2003, the revision petition was allowed. The judgment of the Labour Court was quashed and set aside and the complaint filed by the Petitioner was dismissed.

    (q) The conclusions of the Industrial Court are perverse and erroneous.

    (r) No correction in the date of birth of the Petitioner could have been carried by the Respondent/Employer beyond five years from the date of her entering services with the Respondent.

    (s) The Petitioner's date of birth was entered in the service record in 1977 while joining duties in the light of the affidavit sworn by her maternal uncle.

    (t) Beyond five years from the date of joining services, no correction could be made by the Employer much less without any notice to the Petitioner.

    (u) The Industrial Court has erred in concluding that the School Leaving Certificate is sufficient evidence to indicate the actual date of birth of the Petitioner.

    (v) The School Leaving Certificate mentions an erroneous date of birth.

    (w) The School Leaving Certificate dated 17.09.1968 cannot be relied upon.

    (x) The Industrial Court has wrongly concluded that the Petitioner was given an opportunity by notice dated 22.09.1989 by which her date of birth was verified.

    (y) The Industrial Court has erroneously concluded that the service record was corrected in 1992 and once again there was verification carried out in 1996-1997 recording the date of birth of the Petitioner as 15.10.1941.

    (z) If the verification was carried out in 1992, there was no occasion for the Respondent/Employer to once again carry out verification of the date of birth in 1996-1997.

    (aa) In a catena of judgments, the law has been crystallized by the Apex Court and various High Courts that no party can seek correction in the date of birth beyond five years from the date of joining services, much less at the fag end of the service.

    (ab) Correction carried out by the Respondent is in opposition to Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 (herein after referred to as "the 1981 Rules") and the instruction there below.

    (ac) The conclusions of the Labour Court have been erroneously interfered with, in the limited revisional jurisdiction of the Industrial Court under Section 44...

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