Siddhartha Varma, J. - (1.) The respondent no. 2 was appointed with the petitioner on the post of a Pumpman in the year 1972. On 12.5.1972, the respondent no. 2 had given out that he was 22 years of age. Thereafter, in 1975, the petitioner was made permanent. The retirement age of the respondent no. 2 was 60 years. In the Standing Orders, which were published under Section 3(1) of the U.P. Industrial Disputes Act, 1947, it was provided as to when a workman was to retire and as per its provisions, the petitioner no. 1 issued a notice on 12.8.2010 that under sub section 5 of Clause LL of the Standing Orders the respondent no.2 was to retire on 1.11.2010. Even before the notice was issued on 12.8.2010 by the petitioner that the respondent no. 2 was to retire on 1.11.2010, the respondent no. 2 on 8.2.2010 had filed a case before the Conciliation Board numbered as C.B. Case No. 1 of 2010, praying that his date of birth, as was given out in the records of the petitioner no. 1, be modified and be recorded as 10.8.1956. On 23.3.2010, the petitioner had filed a detailed objection regarding the maintainability of the application filed by the respondent no. 2. and on 8.12.2010, the Conciliation Board directed the respondent no. 2 to approach the competent Authority and observed that under the U.P. Extraordinary Gazette dated 27.9.1988 the Upper/Additional Labour Commissioner ought to have been approached. Even while the Conciliation Board was seized with the matter, the petitioner had issued the notice to the respondent no. 2 on 12.8.2010 that he had to retire on 1.11.2010. Thereafter, the respondent no. 2 on 20.12.2010 filed his application before Additional Commissioner, Gorakhpur Region, Gorakhpur. The petitioner filed its written statement on 20.1.2011 and categorically submitted that as per the Standing Orders issued under Section 3(1) of the U.P. Industrial Disputes Act if any modification of age was desired it could have been got done within one year from the date of enforcement of the Standing Orders which were issued on 27.9.1988, and if the workman was already employed then he could get his age modified as per the Clause 3 of the Standing Orders within one month of the notice of retirement and, therefore, in the written statement it had been stated by the petitioner that when the respondent no. 2 did not approach the Deputy Labour Commissioner within one month of the notice which was given on 12.8.2010 he had lost the opportunity to get his date of birth rectified. Further, submission made in the written statement was that since the respondent no. 2 was no longer a workman and since the respondent no. 2 was still claiming to be a workman, it had to be decided as to whether he was a workman and this matter could be resolved only by a Labour Court after a reference was made to it. When, however, the order was passed by the Deputy Labour Commissioner on 11.6.2013 in favour of the respondent no. 2, the petitioner approach this Court by means of this writ petition and made the following submissions:- I. The Standing Orders which have statutory force (U.P. State Sugar Corporation Limited vs. Ambika Singh and another, 1999 AllLJ 698) provided that the rectification/modification of age could be done within one year from the date of enforcement of the Standing Orders. Learned counsel for the petitioner read out the Clause LL of the Standing Orders. The relevant portion is being reproduced here as under:- LL. Retirement of workman 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 shall stand modified as may be warranted the following:- (a) Date of birth as given in High School certified. If the School leaving certificate is below High School then such certificate must be authenticated by the District Inspector of Schools or by the District Education Officer as the case may be. (b) Date of birth as certified by a Municipal Corporation Municipal Board, a Cantonment Board, a Notified Area or a Committee Town Area Committee. (c) An insurance policy taken before November 1, 1960: provided that: (i) Where the date, month and the year of birth of a workman are recorded in Provident Fund records shall be taken as final: (ii) Where only the month and year of birth are given, the date shall be taken as the Ist of month;and (iii) Where the provident fund record of the workman does not specify the date of month of birth in that case the Ist November of the year shall be deemed to be the date of retirement. (iv) The foregoing provisions regarding modification of age shall lapse on expiry of one year from the date of enforcement of these standing orders. 4. The age of new entrants shall be accepted on the following basis. (i) Date of birth given in the High School certificate/Transfer certificate; (ii) Date of birth as certified by Nagar Mahapalika/Nagar Palika/Cantonment Board/ Notified Area Committee/Town Area Committee/Gram Panchayat: Provided that the new entrants shall furnish proof of his age within three months of the date of his appointment and the management shall accept within six months of the date of appointment. The date of birth so accepted shall be final. 5. The management shall give two months notice to a workman before retiring him. 6. The workman who are in employment at the time of enforcement of these standing orders shall have the right to get their age record modified as per Clause 3 above within one year of enforcement of these standing orders. He shall have the right to represent to the Regional Additional/Deputy Labour Commissioner of the area concerned within one month of notice of retirement, such representations shall normally be disposed off within a period of one month of the date of receipt of representation from the workman, and the order passed by the Additional/Deputy Labour Commissioner regarding the age of the concerned workman shall be final and shall not be questioned by any party before any court. In case the Regional Additional/Deputy Labour Commissioner allows the representation, the employer shall modifiy the record of age of the workman immediately on receipt of the said orders. Further, basing his submission on Clause 6 of Clause LL of the Standing Orders the petitioner submitted that one more opportunity was provided to the respondent no. 2 to get his date of birth modified and that could have been availed within one month of the notice of retirement. Learned counsel basing his submission therefore on the Standing Orders submitted that when the notice was issued for retirement on 12.8.2010 then the application which the respondent had filed before the Deputy Labour Commissioner on 20.12.2010 was definitely beyond the time allowed by the Standing Order. II. The respondent no. 2, almost after putting in 38 years of service, at the fag end of his career, was trying to get his date of birth, which was registered in the official records, altered. This, learned counsel for the petitioner submits was not permissible under the prevailing law. Learned counsel submitted that at the fag end of one's service the date of birth could not be altered and relied upon a judgment of the Supreme Court reported in (Chief Medical Officer v. Khadeer Khadri, 1995 2 SCC 82). III. Learned counsel for the petitioner submitted that when in 1972 the respondent no. 2 was taken into service, he had filed in his details with regard to the Provident Fund. He had again, thereafter, filled up his provident fund form on 20.11.1996 and then also he had given out his age as 22 years on 12.5.1972. IV. Further, the document which was filed by the respondent no. 2 i.e. the certificate of Rajkiya Inter Collage Basti was issued on 18.7.1966 even though it was giving an information that the respondent had passed his 9th standard in 1969. Learned counsel, therefore, submitted that it was a forged document. V. Learned counsel for the petitioner submitted that since after the notice dated 12.8.2010 the respondent no. 2 had retired on 1.11.2010 and, there was no relationship between the petitioner and the respondent no. 2 as that of an employer and a workman and since there was a decision which had to be taken whether the respondent no. 2 was a workman, the Deputy Labour Commissioner had no jurisdiction to decide the same as had been held in (Triveni Engg. & Ind. Ltd vs. Jaswant Singh and another, 2010 9 SCC 151) Learned counsel read out paragraph 20 of the above decision which is being reproduced here as under:- "20. Without going into the issue as to whether such a power and jurisdiction could be vested on the Labour Commissioner, we may decide the issued raised herein from another angle. The issue of whether or not a person is a 'workman' within the meaning of U.P. Industrial Disputes Act, 1947 is a matter to be decided by a competent court, after allowing the parties to lead evidence. Thereafter, on proper appreciation of the materials on record including the oral evidence, a decision could be rendered and the issue could be determined. The enquiry before the Labour Commissioner is of a summary nature and while exercising such a power of summary nature, the Labour Commissioner cannot decide and examine factual matters relating to an issue as to whether or not the person concerned is a workman or not. "
(2.) Learned counsel for the respondent no. 2, however, submitted that since the employers had not been able to come up with any evidence and since all records were rebuttable, specially the entries in the Provident Fund Account as per (Deoria Sugar Mills Ltd. v. Deputy Labour Commissioner, Allahabad Division, Allahabad, 1977 LabIC 102) and when the evidence which was in possession of the respondent definitely could lead to only one conclusion that his date of birth was 10.8.1956, there was no error in the order impugned and the writ petition ought to be dismissed.
(3.) Learned Counsel further submitted that since the petitioner had to retire much after 10.12.2010, as per claim of the workman it could safely be said that he was still a workman with the petitioner and the Deputy Labour Commissioner, had the jurisdiction to decide the matter.;