- (1.) THIS is an application for condonation of delay in filing this appeal, which is time barred by 112 days. Counsel for the appellant explained the delay and submitted that it occurred on account of the fact that the appellant was out of job and could not arrange the fund for filing an appeal. Considering the financial constraint of the appellant and the fact that he was out of service, we take a lenient view of the matter and deem it just and appropriate to condone the delay in filing the appeal. The application is accordingly allowed and disposed of. This appeal has been preferred against the order dated 21.7.2008 passed by the learned Single Judge in W.P.(S) No. 636/2006 whereby the writ petition was partly allowed and the respondent nos.1 to 4 were directed to reinstate the petitioner within three weeks from the date of the order, but in the circumstances, it was held that he would not be entitled to the salary for the intervening period, i.e. from 15.11.2007 till the date of his reinstatement (29.8.2008).
(2.) ADMITTEDLY the respondent -company has not preferred any appeal against the order of reinstatement and thus has accepted the case of the appellant that his date of birth was wrongly recorded by the management company ignoring his Matriculation certificate, wherein his date of birth was recorded as 3.7.1953, which was different from what was recorded in the service book. However, the appellant had also been granted promotion to the post of Clerk in the year 1980, by which time he had already cleared Matriculation examination and therefore, the appellant's date of birth had to be recorded in the service book at least when he was promoted as a Clerk on the basis of the Matriculation certificate, which he had produced. Thereafter, the management passed an order of superannuation of the appellant on the basis of the entry recorded in the service book, which was 15.11.1947, as his age was 24 years on 20.11.1971. This gave rise to a dispute between the appellant -employee and the respondent -management, since the appellant filed a writ petition before the learned Single Judge assailing the order of his superannuation, contending therein that his date of birth could not have been recorded on the basis of the entry made in the service book, when he joined in the service as Mazdoor, but his date of birth ought to have been recorded as per his Matriculation certificate and in view of his age mentioned in the Matriculation certificate, he could not have been made to superannuate on 15.11.2007. The learned Single Judge, after hearing the counsel for the parties, was pleased to reinstate the petitioner -appellant by virtue of the impugned order but was further pleased to deny the back - wages for the period during which he was restrained from discharging duties on the ground of his superannuation as per the date of birth recorded in the Service book. The petitioner -appellant, therefore, has preferred this appeal against the impugned order only to the extent by which back - wages has been denied to him.
(3.) IN support of the appeal, counsel for the appellant submitted that once it was held that the petitioner's date of birth was wrongly recorded in the service book as the Matriculation certificate was ignored which was the conclusive proof of his date of birth, he could not have been made to retire earlier on the basis of his date of birth recorded in the service book, but should have been allowed to continue to work till his retirement as per the date of birth recorded in the Matriculation certificate which is of a later date.;