TARUN AGARWALA,J. - (1.) IN September, 1957, the respondent workman was employed in the Sugar Factory, and his age in the Provident Fund Register was recorded as 33 years as on 5th of September, 1957. In this way, the service record indicated that the petitioner was born in the year 1924, and upon reaching the age of superannuation, a notice was served upon the workman intimating him that he would retire on 1 st of November, 1983. The workman, being aggrieved by the decision taken by the employers, represented the matter immediately before the Deputy Labour Commissioner under Clause (LL) of the Standing Orders covering the conditions relating to the employment of the workmen in Vacuum-pan Sugar Factories in Uttar Pradesh. The Deputy Labour Commissioner, after considering the material evidence brought on the record, held that the date of birth of the workman was 28th of October, 1929, and that, he would reach the age of superannuation in 1989, and that, he had wrongly been retired on 1.11.1983. The Deputy Labour Commissioner, consequently, set aside the notice of retirement and further held that the workman was entitled for all the reliefs. The petitioner, being aggrieved by the said order, has filed the present writ petition.
(2.) HEARD Shri Yogendra Srivastava, the learned counsel for the petitioner and Shri Shyam Narain, assisted by Shri Sudhanshu Narain, the learned counsel for the respondent workman. The learned counsel for the petitioner submitted that under Clause (LL) of the Standing Orders, the Provident Fund Register is taken as the reliable record for the age of the workman, for the purpose of retirement, unless a School Leaving Certificate or a High School Certificate or a date of birth as certified by the Municipality, Cantonment Board, Notified Area or Town Area Committee or an Insurance Policy taken before 1st of November, 1960 or a Junior High School Certificate was filed. The learned counsel submitted that in the absence of these documents, the Labour Commissioner committed an error in correcting the date of birth on the basis of an entry being kept in the Register maintained in the Collectorate, and that the said entry was neither reliable nor could be read in evidence in view of Section 35 of the Indian Evidence Act, 1872. The learned counsel further submitted that, even otherwise, there was no evidence filed by the workman to prove that his date of birth was 28th October, 1929.
(3.) FOR appreciation of the submission made by the learned counsel, it is necessary to consider the provisions of Clause (LL) of the Standing Orders, which reads as under: "(1) A workman may be retired from service on reaching the age of superannuation which shall be 58 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. (b) date of birth as certified by a Municipal Board, Cantonment Board, a Notified Area 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): Provided that (i) where the date, month and the year of birth of a workman are recorded in Provident Fund Records, the date of birth as given in the Provident Fund records shall be taken as final; (ii) Where only the month and year of birth are given, the date will be taken as the 1st of that month; and (iii) Where the Provident Fund record of the workman does not specify the date or month of birth, in that case, the 1st November of the year shall be deemed to be the date of retirement; (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 the 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. (5) In the event of a workman retiring during the off-season he shall be paid retaining allowance up to the date of retirement." ;