MYSORE SUGAR COMPANY LIMITED MANDYA Vs. MOHANRAJ

JUDGEMENT

(1.) THE petitioner/management has challenged in this writ petition the order of the labour court, mysore, in i. d. No. 50 of 1993 holding that the respondent/claimant is entitled to retire from service with effect from 24-1-1995 and award of consequential benefits on the basis of the said date of retirement.

(2.) BRIEF facts of the case are as hereunder: the petitioner is a company manufacturing sugar. The respondent was appointed as mason in the year 1951. While joining the company he did not furnish his date of birth. Subsequently, he was working in the company as a driver. As no documentary proof of date of birth was given by him to indicate his age, the petitioner constituted medical board for examining the respondent and similarly placed employees who have not given the date of birth or age at the time of entering into service. The respondent was called upon to appear before the medical board. The respondent appeared before the medical board. He was examined and the medical board gave its report stating that the age of the respondent was 30 years as on 18-2-1962. On the basis of the said report the age of the respondent was entered as 30 years in the service register. The said fact was brought to the notice of the respondent and he has given his consent for fixing his date of birth as 18-2-1932 and he also signed the service register giving his consent for all the particulars indicated in the service record. In the year 1983 the petitioner published a gradation list giving details regarding date of birth, entering into service, designation etc. In the said gradation list the date of birth of the respondent was shown as 18-2-1932. At that point of time the respondent submitted a representation dated 26-9-1983 objecting to the entry of his date of birth in the service register as 24-1-1935 and requested to enter his date of birth as 24-1-1935 and in support of his contention he enclosed a copy of the school transfer certificate issued by the government middle school. However, he did not pursue the matter thereafter. In the petitioner/company the age of superannuation was 60 years. Accordingly, the respondent attained the age of superannuation on 18-2-1992. However, by oversight the petitioner did not retire the respondent from service of the company on 18-2-1992. It is only on 2-3-1993 a memo of retirement was served on the respondent wherein it was clearly indicated that though the respondent had attained the age of superannuation on 18-2-1992 itself the management did not retire him from service by oversight. Therefore, it was intimated to him that his retirement comes into effect from 2-3-1993. Thereafter the respondent filed a civil suit o. s. No. 277 of 1993 on 3-3-1993 before the munsiffs court, mandya, seeking a decree restraining the management from giving effect to the memo dated 2-3-1993. Further the respondent also sought an interim order of temporary injunction. However, on 10-3-1993 the respondent has withdrawn the suit stating that he would not press the same and accordingly the suit came to be dismissed. It is thereafter the respondent gave a representation dated 8-3-1993 stating that he has served the company for 40 years and since he has been retired from the company on 2-3-1993 he requested the management to settle the gratuity payable to him at the earliest which claim has been paid. It is after settlement of the accounts the respondent filed an application under Section 10 (4-a) of the industrial disputes (karnataka amendment) Act, 1987, before the labour court at Mysore with a prayer to pass an award holding that the retirement of the respondent on 2-3-1993 is premature and therefore he sought for reinstatement as driver retrospectively from 2-3-1993 with continuity of service, full back wages and other consequential benefits.

(3.) THE petitioner opposed the said application by filing a detailed statement of objections. Thereafter an enquiry was held. The respondent examined himself as ww-1 and one witness was examined on behalf of the petitioner as mw-1 and documents were produced on either side in support of the respective claims. The labour court on the oral and documentary evidence on record held that the medical certificate issued by the medical board regarding the age of the respondent cannot be relied upon and in that connection he relied on a judgment in the case of anima saha v steel authority of India limited and others. Acting on the transfer certificate relied on by the respondent, the labour court held that the date of birth of the respondent is 24-1-1935 and therefore his termination before the age of superannuation on 2-3-1993 is illegal. Therefore, the labour court held that the petitioner/management was not justified in retiring the claimant with effect from 2-3-1993. As the respondent had already attained the age of superannuation on the date of the impugned award the labour court declined to grant the relief of reinstatement but held the respondent is entitled for back wages for the period from 2-3-1993 to 24-1-1995. It is against the said award of the labour court the management has preferred this writ petition.