D. K. Seth, J. - (1.) THE age of respondent No. 2 was sought to be corrected by an application dated 22nd April, 1987 pursuant to Clause 4 of Para LL of the Standing Order applicable to the respondent No. 2. THE said application made before the Labour Commissioner. U. P., Kanpur was allowed by the authority concerned by order dated 22.12.1990 in Case No. LL-3 of 1987 which is Annexure 'B' to the writ petition and is challenged herein.
(2.) IT is submitted by Mr. V. B. Singh, learned counsel for the petitioner, that in the Provident Fund record, the age of respondent No. 2 was recorded as on 15th of January, 1927 since 1966-67 which appears to have been signed by the respondent No. 2. According to Mr. V. B. Singh, the respondent No. 2 had never questioned the date of birth relying on Clause 2 of Para LL of the Standing Order. Mr. V. B. Singh further contends that the age of the workman in the Provident Fund record shall be taken as reliable for the purpose of retirement of workman. His further contention is that the workman having made the representation to the Labour Commissioner pursuant to Clause 4, Para LL from the time mentioned in the said Para, the same could not be maintained. He further contends relying on the decision in the case of State of Tamil Nadu v. T. V. Venugopalan, 1994 (69) FLR 740, that the date of birth ought to have been corrected within 5 years from entering into service as has been laid down in the said decision. He further relies on the case of Union of India v. Harnam Singh, (1993) 2 SCC 162 and repeats the same contention. According to him, the application for correction of age at the fag end of the career cannot be entertained. In that view of the matter, according to him, the impugned order cannot be sustained. Mr. Vishnu Sahai, learned counsel for the respondent No. 2, on the other hand, contends that the Standing Order does not specify the age recorded in the Provident Fund record to be conclusive in view of the provision contained in Clause 3 of Para LL for which procedure for correction has been laid down in Clause 4 of Para LL of the Standing Order. According to him, the application made on 22nd April, 1987 was a representation under Clause 4 of Para LL of the Standing Order and was well within the time allowed in the said Clause 4. He interprets one month's notice as one month's time for making such a representation even if the notice was short of one month. According to him, he was retired by notice dated 17th April, 1987 with effect from 17th April, 1987 and, therefore, the notice should be deemed to be notice of retirement and the respondent No. 2 was well within one month from the said date in making the representation. Therefore, the said representation cannot be held to be beyond time as provided in Clause 4, Para LL of the Standing Order. According to him, in view of Clause 3, School Leaving Certificate which specifies the date of birth as on 15th July, 1931 should be taken as the date of birth and the same could be notified for the purpose of retirement. The respondent No 2 had filed the said School Leaving Certificate before the company, but the company had not taken any steps. Therefore, he had made a representation wherein the Labour Commissioner had relied on the said School Leaving Certificate. According to him, by reason of the condition contained in Clause 4 of Para LL, the decision of the Labour Commissioner is final and cannot be challenged. Therefore, the employer is estopped from challenging the said order. On these grounds, Mr. Sahai seeks the dismissal of the writ petition. In order to appreciate the situation, it is necessary to refer to Para LL which is quoted below : "Standing orders covering the condition of employment of workman in Vacuum Pan Sugar Factories in U. P.: 11. Retirement of workmen on reaching the age of superannuation- 1. A workman may be retired from service on reaching the age of superannuation which shall be 60 years. 2 The Provident Fund record of the factory specifying the workman's age should, to begin with, be taken as the reliable record of the age of a workman for purposes of retirement. 3. This record of age will stand modified as may be warranted by the following- (a) Date of birth as given in the School Leaving Certificate or the High School Certificate. lb) Date of birth as certified by a Municipal Board, a Cantonment Board, a Notified Area Committee or a Town Area Committee, (c) An insurance policy taken before November 1, 1960. (d) Junior High School (VIII Class Certificate to be applicable in the case of future entrants only). 4. The Management shall give at least one month's notice to a workman before retiring him and during this period, the workman shall have the right to represent to the Labour Commissioner, U. P. Kanpur. Such representation shall normally, be disposed of within a period of six weeks of the date of receipt of representation from the workman and the orders passed by the Labour Commissioner, U. P. regarding the question of age of workman shall be final and shall not be questioned by any party before any court. In case, the Labour Commissioner, U. P. allows the representation, the employers shall reinstate the workman immediately on receipt of the said orders and also pay to him full wages for the period of involuntary unemployment."
(3.) IT appears that the date of birth recorded in the Provident fund Record shall be the reliable record of age of the workman for the purpose of retirement. Such age is not conclusive but is subject to Clause 3 of the said paragraph. Inasmuch as the age could be corrected and/or modified if the circumstances warranted on the basis of the School Leaving Certificate or other Certificates mentioned in different sub-clauses under Clause 3. The period for correction and the limitation thereof has been provided in Clause 4 to be one month from the date of notice of retirement and such representation, if made, within the said time, is to be disposed of within 6 weeks from the date of receipt and the order passed by the Commissioner with regard to the finding about the question of age of the workman shall be final and shall not be questioned by any party before any Court. In the present case, the notice of retirement was issued on 18th December, 1986 intimating the workman that he was due to retire on 15th January, 1987. It was also mentioned in the said notice which is Annexure '1' to the writ petition that since there was want of sufficient fund, therefore, he was allowed to continue on the same salary as he was drawing on the date of his retirement until further order. It appears from the said Annexure '1' that the workman was informed that the workman was attaining the age of superannuation of 60 years on 15th January, 1987 according to the declaration made by him in the Provident Fund records. It appears that the workman had actually retired on 17th April, 1987 pursuant to the said notice contained in Annexure '1' by order dated 17th April, 1987 contained in Annexure '2' on which date, the petitioner was paid all his retirement benefits and in the afternoon of the said date, he was retired. From a plain reading of the said order contained in Annexure '2', it appears that the same was an order and not a notice. The order dated 17th April, 1987 is an order as contemplated in the notice contained in Annexure '1' by which the petitioner was informed that he was to retire on 15th January, 1987 but he was allowed to continue till further orders and the order dated 17th April, 1987 is the order which was contemplated therein or in other words, the said two documents read together, it will be interpreted to mean that the petitioner had retired on 15th January, 1987 but he was allowed to continue until further order which was in effect a temporary re-appointment after, retirement. Therefore, the order dated 17th April, 1987 can by no stretch of imagination be treated to be notice of retirement as contemplated in Clause 4 of Para LL of the Standing Order, The notice contemplated in Clause 4 is the notice contained in Annexure '1' which is dated 18th December, 1986. Therefore, the workman ought to have made the representation within one month from 18th December, 1986. In that view of the matter, it cannot be said that the representation made on 22nd April, 1987 could be a representation made within the time specified to Clause 4 of Para LL.;