Supreme Court dismisses CGIT award: States issue of date of birth is as important for the employer as it is for the employee.
CASE TITLE – The General Manager, M/S Barsua Iron Ore Mines v. The Vice President , United Mines Mazdoor Union and Ors.
CASE NUMBER – 2024 INSC 264 (Neutral Citation)
DATED ON – 02.03.2024
QUORUM – Justice Ahsanuddin Amanullah
FACTS OF THE CASE
The present appeal arises out of the final judgment dated 04.02.2021, passed by a Division Bench of the High Court of Orissa at Cuttack in Writ Petition (Civil) No.9424 Page 1 of 10 of 2019, whereby the petition filed by the appellant was dismissed and the Award dated 24.01.2018 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar in ID Case No.33 of 2003, was upheld. The respondent no.3 was employed as a Piece Rated Mazdoor at Barsua Iron Ore Mines under Rourkela Steel Plant, a unit of Hindustan Steel Limited, which later merged into Steel Authority of India Limited. The respondent no.3 was offered employment on a casual basis vide letter dated 14.04.1972 as a Piece Rated Mazdoor. On 27.12.1972, he submitted the prescribed form of descriptive roll declaring his age as 24 years but did not provide a specific date or any documentary proof of date of birth. Based on his oral declaration, his date of birth was recorded as 27.12.1948 and this date was accepted and signed on by the respondent no.3 leading to his employment. Vide Offer of Appointment dated 22.06.1981, the respondent no.3, initially employed as a casual labourer, was regularized under the appellant and worked as a Piece Rated Mazdoor in mining operations for SAIL following the merger of HSL into SAIL. It appears that on 14.08.1982, the respondent no.3 submitted the prescribed form of Descriptive Roll, wherein he changed his initially recorded date of birth i.e. 27.12.1948 to 12.03.1955, again without providing any documentary proof. Vide Office Order dated 20.12.1982, such date of birth, as disclosed by the respondent no.3, was entered in the records of the appellant who effected the change without any scrutiny. Page 2 of 10 6. On 24.11.1998, the respondent no.3 was requested to submit documentary proof in support of his date of birth, in response to which he submitted a School Transfer Certificate dated 12.01.1972, which made him 17 years and 1 month old at the time when he was offered employment on casual basis on 14.04.1972. On 29.11.2001, based on his declaration at the time of initial employment the Competent Authority of the appellant determined the date of birth of the respondent no.3 as 27.12.1948, which made him come within the statutory employment age limit and above the minimum age i.e., 18 years, required for such employment. 8. On 09.10.2003, a dispute regarding the respondent no.3’s date of birth was referred by the “appropriate Government” to the CGIT for adjudication. In the meanwhile, on 31.12.2008, the respondent no.3 superannuated from service, having attained the age of 60 years, based on his initially recorded date of birth [27.12.1948]. On 24.01.2018, the CGIT passed its Award and held that the appellant’s determination of the respondent no.3’s date of birth based on the initial Descriptive Roll was unjustified and thus, awarded him 50% back wages from his retirement in 2008 until his supposed date of superannuation in 2015, based on the date of birth disclosed in the STC i.e., 12.03.1955. The appellant filed a Writ Petition before the High Court of Orissa at Cuttack on 19.05.2019 challenging the Award passed by the CGIT on 24.01.2018. The order of the High Court dismissing the same on 04.02.2021, is impugned in the present appeal.
ISSUES
Whether the Award of the CGIT as well as the impugned judgment rendered by the High Court be sustained.
CONTENTION OF APPELLANTS
Learned senior counsel for the appellant submitted that the conduct of the respondent no.3 clearly dis-entitled him to any relief as he could not have been allowed to resile from his initially declared date of birth, that too after 9 years of his initial declaration, on 27.12.1972. It was submitted that the said declaration by the respondent no.3 himself on 27.12.1972, cannot be said to be an inadvertent error or omission for the reason that had the so-called correct date of birth, according to the respondent no.3, i.e., 12.03.1955 been declared, then at the relevant point of time, he would have been only 17 years and 1 month old and could not have been given the employment he had sought, since the minimum age required was 18 years. Thus, it was submitted that it was clear that he had tried to take employment relying on his date of birth as 27.12.1948, from which he cannot be allowed to backtrack. It was canvassed that the same would amount to taking double advantage; one at the initial stage on the basis of the date of birth as 27.12.1948 and later in service on a different date of birth i.e., 12.03.1955. It was contended that the CGIT reaching the conclusion, that the management could not have determined the date of birth of the respondent no.3 based on the initial Descriptive Roll being unjustified, was totally without any basis and arbitrary and thus, awarding him 50% back wages, is totally misplaced and needs interference by this Court. It was urged that the High Court also failed to take notice of basic factual aspects and more importantly, the conduct of the respondent no.3 and the time-gap of 9 years after which he suddenly woke up and made a representation for change of his date of birth.
CONTENTIONS OF RESPONDENTS
Counsel for the respondent no.3 submitted that at the time of filling up the Descriptive Roll, the same was based on an oral declaration and apparently the authority, which was noting down the date of birth, had committed an error. It was further submitted that the STC dated 12.01.1972 clearly indicates that his date of birth was 12.03.1955, which required corrections in the records of the appellant and thus the CGIT and the High Court have not committed any error warranting interference by this Court. It was submitted that the respondent no.3 was unaware of the date of birth being recorded as 27.12.1948 and only when he came to know of the same, he had taken steps and the CGIT rightly granted relief to him. Learned counsel also submitted that the respondent no.3 cannot be made to suffer for the fault of the appellant itself and more so when later, in its own records it had correctly recorded his date of birth as 12.03.1955, in the year 1982.
COURT ANALYSIS AND JUDGEMENT
Having considered the matter in its entirety and the submissions made, the Hon’ble Supreme Court was of the opinion that the Award of the CGIT as well as the impugned judgment rendered by the High Court cannot be sustained. It is not in dispute that while submitting the Descriptive Roll, the respondent no.3 had himself declared his age as 24 years without any documentary proof and since the date of submission of such Descriptive Roll was 27.12.1972, his date of birth was recorded by the appellant as 27.12.1948. This position continued for almost a decade viz. till 1982, when the respondent no.3 submitted a declaration, on the merger of HSL with SAIL, wherein his date of birth was disclosed as 12.03.1955, though even at such time, again, no documentary proof was furnished by him. Page 6 of 10 The respondent no.3 submitted the so-called proof, which was the STC dated 12.01.1972, only after the issuance of letter dated 24.11.1998, whereby he was required to submit documentary proof of his date of birth. Pausing here, the Court would note that by reckoning his date of birth as 12.03.1955, the respondent no.3 would be much below the age of 18 years at the time of initial employment, which was the minimum requirement in law. Thus, it is clear that had the respondent no.3 declared his so-called correct date of birth, obviously he would not have been given the employment. From this point of view, it is clear that the disclosure of the originally-given date of birth by the respondent no.3 was a well-thought out plan hatched by him, at the relevant time. His conduct cannot be simply brushed aside on a plea that there was an error on the part of the appellant in recording his date of birth. Another doubt cast on the conduct of the respondent no.3 is him not acting on time, which raises a question about the bonafides of his claim of having been born on 12.03.1955. In fact, even after giving a declaration on 14.08.1982, on the merger of HSL with SAIL, the copy of the STC was never provided to the appellant, which was done only in response to the letter dated 24.11.1998, requiring him to submit documentary proof of his date of birth. The court said that a decision on the issue of date of birth is as important for the employer as it is for the employee. Moreover, the principles of estoppel would come into play in the present case. The respondent no.3, having stated on 27.12.1972, that his date of birth was 27.12.1948, cannot be permitted to raise the claim of his date of birth being 12.03.1955, that too on 14.08.1982, i.e., almost after a decade (counting from 27.12.1972 to 14.08.1982). Even the STC was submitted after the appellant requested the respondent no.3 for documentary proof on 24.11.1998. The Court found that the much-delayed disclosure of the date of birth as 12.03.1955 by the respondent no.3, coupled with his initial declaration and the admitted position that based on such initial declaration, he had received employment, as otherwise based on 12.03.1955, he could not have been legally appointed due to being under-age, there is no manner of doubt that the respondent no.3, irrespective of his real date of birth, for the purpose of employment under the appellant, cannot be allowed the Page 9 of 10 purported rectification/correction of date of birth to 12.03.1955. He would have to, necessarily, be content with his service and benefits accounted taking his date of birth as 27.12.1948. For reasons aforesaid, the appeal was allowed. The Award of the CGIT dated 24.01.2018 and the impugned judgment was set aside. The respondent no.3 was held to have been rightly retired in terms of his date of birth reckoned as 27.12.1948. And needless to state that the further direction to award 50% back wages to the respondent no.3 from the date he was retired till the (notional) superannuation on 31.03.2015, was also set aside.
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Judgement Reviewed by – Gnaneswarran Beemarao
