Ghosh Vs. Tata Iron & Steel Company  Insc 544 (28 August 2006)
Ar. Lakshmanan & Tarun Chatterjee
out of SLP (C) No. 15256/2005) Dr. AR. Lakshmanan, J.
appellant - Seema Ghosh is the wife of late Nani Gopal Ghosh who joined the
services of M/s Tata Iron & Steel Company Limited, Jamshedpur. According to the appellant, the
workman was born on 11.08.1929 which was duly recorded in the Admission
Register of Naba Kumar High English School, Dacca, where he was a student from 23.01.1935 to 19.06.1942.
time of joining in the service, the workman informed the concerned department
of the Management that his date of birth as 11.8.1929, but inadvertently the
same was recorded as 01.11.1923 which he came to know long after.
and long after the workman joined the service, the concerned department of the
Management obtained the signature of the workman on a printed proforma of
service card. But in the said proforma, no particulars or date of birth was
mentioned. This was on 14.04.1960. The workman could know of such error of
record in the service record only when a new gate pass was issued to workman in
the year 1972, for ingress and egress to and from the work place which for the
first time had the date of birth of the workman concerned which, according to
the appellant, was purportedly made on the basis of some erroneous entry made
by some assistant/clerk of the Management earlier.
25.08.1972, the workman requested the concerned department of the respondent to
correct the record and to thereby enter his actual date of birth as 11.08.1929
in place of 01.11.1923. The said workman was thereafter asked by Chief
Personnel Manager of the Management to produce his School Leaving Certificate
vide its letter bearing No. DPR/9801/72 by the pen of Chief Personnel Manager
of the Management dated 30.10.1972. The workman in compliance of such request
submitted the required certificate on 25.11.1972. After a long interval of 8
years of such submission of the School Leaving Certificate, the Director of
Personnel & Industrial Relation of the Management, by his letter dated
20.11.1980 informed the workman that the School Leaving Certificate submitted
by him was referred to the District Education Officer, Dacca for verification,
who informed the Management that the certificate was not genuine and
accordingly, the Management expressed inability to consider the request of the
workman for age rectification. Upon fresh request made by the workman, the
Headmaster of the very same school had issued certificate of the even date
confirming that the workman - Nani Gopal Ghosh was a student of the Naba Kumar
High English School, Dacca from 1935-1942 and that his date of birth as
recorded in the School Admission Register was 11.08.1929.
workman thereafter submitted a fresh certificate on 25.06.1984 issued by the
Headmaster of Naba Kumar High English School, Dacca confirming the date of birth of workman as recorded in the
admission register of the school as 11.08.1929. The said certificate was duly
attested and endorsed by the then Ministry of Education and Ministry of Foreign
Affairs of the Government of Bangladesh and also the High Commissioner of India
posted in Bangladesh at relevant time.
view of the above circumstances, the workman once again requested the
Management to rectify the error in the entry with regard to his service record
regarding the date of birth and accordingly requested the Management to enter
the correct date of birth of the workman as 11.08.1929. The Management did not
respond to the said request of the workman and did not consider the effect of
the fresh certificate dated 19.02.1984 and September, 1984. It is the case of
the appellant that the entire procedure followed by the Management was clearly
in violation of the norms/stipulations in the works standing orders of the
Management prepared and approved according to relevant legislation involved,
which showed that the Management evidently acted according to its whims and
fancies with no relevance to the industrial law.
workman superannuated on 13.09.1987 on the even date long before the actual
date of superannuation. The workman raised an industrial dispute on this issue
before the Government of Bihar which, in turn, made the reference to the Labour Court, Jamshedpur with the following terms of reference "Whether to
retire Shri N.G. Ghosh, T.No. 71937 workman of M/s Tata Iron & Steel
Company, Ltd. Jamshedpur from 13.09.1987 is justified. If
not, what relief he is entitled?" The Presiding Officer, Labour Court upon appearance of the parties and
after recording the respective statement of the oral evidence etc. considered
the submissions and arguments of the workman and of the Management passed an
award on 13.03.1995 in favour of the workman. The Labour Court observed in the award that the
contentions of the Management were not supported by evidence and no evidence
was adduced by the Management which could legitimately substantiate their case.
The Labour Court passed the Award holding that the
workman is entitled to full back wages including admissible allowances and
other benefits for the period from 13.09.1987 his date of illegal
superannuation to 11.08.1990 the actual date of retirement. The payment was
directed to be paid within 2 months failing which the amount could be realized
with interest @ 12%.
respondent Management being aggrieved challenged the Award passed by the Labour Court by moving a writ petition under
Articles 226 and 227 of the Constitution of India before the Ranchi Bench of
the Patna High Court. After reorganization of the State of Bihar, the Chhotanagpur Division of the then State of Bihar became a new State by the name
Jharkhand and accordingly Jharkhand High Court was constituted and established
at Ranchi. Eventually all matters pending
before the earlier Ranchi Bench of Patna High Court automatically stood
transferred to Jharkhand High Court.
learned Single Judge of the High Court has been pleased to allow the writ
petition of the respondent and set aside the Award passed by the Labour Court
vide his judgment dated 31.10.2002.
workman concerned expired after protracted illness on 28.04.2003. On
04.01.2005, Seema Ghosh, the widow of the said workman - Nani Gopal Ghosh
preferred a Letters Patent Appeal before the Division Bench of the High Court
which was dismissed vide judgment and order dated 04.01.2005.
the above civil appeal. We heard Mr. Deba Prasad Mukherjee ably assisted by
Mrs. Nandini Sen, learned counsel for the appellant and Mr. Raju Ramachandran,
learned senior counsel ably assisted by Mr. M.K.Dua, learned counsel for the
been taken through the pleadings, order passed by the Labour Court and of the
Single Judge and the Division Bench and the documents and annexures filed along
with the proceedings.
Mukherjee made elaborate submissions and also took us through the Award passed
by the Labour Court and of the judgments of the High
Court and other documents and certificates produced by him for the appellant.
According to him, it was the case of the Management before the learned Court
that the age of the workman concerned at the time of joining the employment was
recorded as 24 years which was allegedly recorded as per assessment of the
Medical Officer of the Management. Thereafter, the Management, in 1970, issued
an identity card and gate pass was prepared showing the said date of birth of
the workman accordingly. The workman disputed such recording of age and such
gate pass, only in 1972. He proceeded further to submit that a Medical Board
was constituted to assess the age of the workman concerned and thus his age was
assessed as 58 years on 13.09.1984 and that such recommendation of the Age
Rectification Committee was informed to the workman vide letter dated
28.09.1984 and that according to the Management, the workman accepted his age
as 60 years on 13.09.1986 and enjoyed extension of a year upto 13.09.1987.
workman, however, contended that he never accepted the erroneous recording of
date of birth but had been contesting the same ever since 1972 when the error
was brought to his notice for the first time by the Management as aforesaid.
would further submit that the Labour Court passed the Award in favour of the
workman upon consideration of all the facts, circumstances and the evidences -
oral and documentary adduced by both parties to the case and that the Labour
Court categorically observed in the Award that the contentions of the
Management were not supported by evidence. There was no evidence adduced by the
Management which could legitimately substantiate their case. Ultimately, there
were categorical findings regarding the following facts:
Service Card shows that entry of the age in the service Card was not attested
by the workman at the time of employment. It goes to show that before
14.04.1960 Service Card was not shown to the workman and entry was not attested
by him which is against the provision of the works standing order. The workman
has stated that when his signature was obtained in the Service Card on
14.04.1960 entry of his age was not mentioned in the Service Card."
perusal of the documents adducted by management, particularly Ext. M (Service
record) Ext. W (Medical Card of workman) maintained by Labour Bureau of the
Management Company reflects recording of two distinct dates of birth viz.
18.08.1924 and 12.04.1923 in the Medical Card itself and as per the service
record produced in court, strangely reflected his age as 24 years as on
1.11.1947 whereas quite incredibly 58 years as on 13.09.1984." The Labour Court also gave observation and finding
regarding the management; such as; examination of the workman with regard to
his date of birth has been produced. In absence of these evidence the date of
birth of workman recorded by the management in service card cannot be relied
upon and it cannot be accepted to be true."
The Labour Court
was pleased to also observe on the contention of the management that workman
accepted the correctness of record of his age and could not be allowed to
challenge the same later was not tenable, as the workman had been challenging
the same ever since the year 1972 when for the first time he came to know about
his wrongly recorded date of birth in new gate pass.
issued by the school where he had been a student and situated in Dacca, Bangladesh revealed (Ext W/2) that his date of birth was 11.08.1929,
which fact he was consistently stating from the very beginning. The court
observed "Prime facie the certificate appears to be genuine. The
correctness of this certificate cannot be challenged unless it is proved
otherwise." On the aforesaid conclusion in favour of the workman, the Labour Court passed the following Award:
workman is entitled to full back wages including admissible allowances and
other benefits for the period from 13.09.1987 the date of illegal
superannuation to 11.08.1990 the actual date of retirement." The payment
was directed to be paid within two months failing which the amount could be
realized with interest @ 12%." He would further submit the learned Single
Judge of the High Court has virtually reconsidered and reassessed the evidence
of the parties in the case and thereby exercised jurisdiction in the manner
which is highly unwarranted in law and exceeded its limited writ jurisdiction
and cannot, therefore, be sustained. It was submitted that the judgment of the
learned Single Judge was clearly one-sided and perverse.
counsel for the appellant further submitted that the Division Bench also failed
to appreciate that in a writ petition arising from an Award in an industrial
dispute matter, the findings arrived at by the Labour Court on the basis of the
materials and evidence recorded in the case oral and documentary, the Writ
Court cannot set aside the findings of the Labour Court on the basis of alleged
non-consideration or ignoring of certain materials by the Labour Court as a
Court of appeal. In other words, learned counsel submitted that the Division
Bench fell in grave error of jurisdiction in re-assessing and re-valuing the
weight of evidence in the case recorded by the Labour Court, by which it came to a conclusion that the workman was
illegally and prematurely superannuated, in the service under the respondent.
The respondent failed to produce any reliable evidence, much less any of the
relevant contemporaneous documents relating to their contention in defence and
in order to rebut the evidence produced by the workman in support of his case
of illegal superannuation. He would further submit that the High Court has
wrongly relied upon the one-sided testimony of the Management and arrived at a
wrong conclusion regarding the date of birth of the workman by this process,
the High Court gave undue credence to the conclusion of the Management said to
be based on the unconfirmed and unauthenticated report from the authorities of
the school in which the workman happened to be a student;
allegedly indicated that the report submitted by the workman was not genuine.
Even though same was without any other communicated and corroborating material,
as to when the enquiry was made by the employer, how and by which officer the
enquiry was initiated by writing a letter to the said school authorities and
what the terms of enquiry was etc.
further submitted that the workman had further documentary evidence with the
Management in counter to such un-authenticated information and relied upon
fresh certificate in support of his case which were duly authenticated and
certified by the Ministry of Education and Foreign Affairs of Bangladesh as
also endorsed by the office of the High Commissioner of Government of India in
Dacca, Bangladesh categorically mentioning and referring to the date of birth
of the workman as 11.08.1929 as was entered in the admission register of the
school in the usual course of business, where the workman studied from 1935 to
contra Mr. Raju Ramachandran, learned senior counsel submitted that the civil
appeal is misconceived and the impugned order does not deserve to be interfered
with by this Court under Article 136 of the Constitution of India and that the
case in hand is fully covered by an order of this Court Another, 1995 Supp (2)
SCC 598 wherein this Court has held that if the workman did not challenge
opinion of the Medical Board constituted by the Management, for determining the
age of the workman and permitted the workman to work till his attaining the age
of retirement, the workman is estopped from challenging the correctness of the
opinion of the Medical Board after his retirement. He would submit that the learned
Single Judge had relied upon the aforesaid order and observed the Award of the
Tribunal cannot be sustained in law.
Raju Ramachandran also invited our attention to the events which led to the
constitution of the Medical Board for determining the age of the workman. He
submitted that the Labour
Court fell in grave
error in discarding the opinion and findings of the Medical Board merely on the
ground that no medical officer of the Company, who assessed the age of the
workman, was examined nor any report of the Medical Board had been filed. He
further submitted that the High Court in its jurisdiction can interfere with
the findings of the Labour
Court if the findings
Management also filed I.A. No.3 of 2006 for filing additional documents on
behalf of the Management because according to them all the documents which were
filed before the Labour Court were not available with the respondent because
the same were not traceable being the old ones and were filed before the Labour
Court in 1991. Therefore, they filed additional documents along with I.A.No.3
of 2006 and our attention was also drawn to those annexures and we have perused
the same. We have carefully perused the entire records.
case of the Management is that the workman was employed in 1947 and his date of
birth was recorded as 24 years based on the assessment of his age by the
Company's Medical Officer and that the workman confirmed his age by putting his
signature on the service record and that the workman did not produce any
documentary evidence in support of his age and he, for the first time, disputed
his age in 1972 by producing a transfer certificate issued from the Headmaster
of Nava Kumar High English School, Dacca which certificate was referred to the
District Education Officer, Dacca for verification and it was found that the
certificate was not genuine. The further case of the Management is that the Age
Rectification Committee in its Meeting held on 23.07.1984 decided to refer the
case of the respondent No.2 to Special Medical Board and accordingly the
workman was sent to the Medical Board for assessment of age and the Medical
Board assessed the age of the workman as 58 years on 13.09.1984.
date of birth of the workman was accordingly rectified and the same was accepted
by the workman. On the basis of the date of birth assessed by the medical board
the workman was to superannuate on 30.09.1987. After superannuation the workman
illegally raised dispute with regard to his age and the same was referred to
the Labour Court for adjudication. The Labour Court after considering the facts of the
case and the evidence adduced before him erroneously came to the conclusion
that the management has failed to prove that the date of birth of the workman
is 13.09.1926 as recorded in the service card on the basis of which he was
superannuated. The Labour
erroneously held that the correct date of birth of the workman is 11.08.1929
and he was entitled to continue in service till 11.08.1990. Consequently the Labour Court by the impugned award directed the
management to pay full back wages together with interest to the workman from
13.09.1987 to 11.08.1990.
also seen that in spite of that, the workman was medically examined as per
decision of the age rectification committee and the date of birth assessed by
the Medical Board was again entered in the service record which was accepted by
the workman which was not accepted or appreciated by the Labour Court when the
workman attained the age of superannuation he was given one year's extension
and the same was accepted by the workman without raising any objection and it
is only after the retirement, the wife of the workman raised an industrial
dispute with regard to his age.
admitted facts that emerge from the above are:
the workman was
taken in service in 1947;
the workman was
examined by the Medical Board and his age was assessed;
In 1960 a
service card was issued to the appellant by the Management wherein the age of
the workman was recorded as 24 years and the same was duly accepted by the
workman by putting his signature;
Only in 1972,
for the first time, the workman produced a transfer certificate issued from the
school and disputed his age;
transfer certificate was sent to the District Education officer who informed
the Management that the transfer certificate was not genuine;
It is also not
disputed that after the age rectification committee took a decision the workman
was examined by a specially constituted Medical Board in 1984 and his age was
assessed as 13.09.1926.
record was again corrected and it was made in 1926.
this way, the service of the workman was increased by 2 years.
accepted the age assessed by the Medical Board in 1984 and according to the age
so assessed by the Medical Board workman was increased by 2 years.
according to the assessment of the age made by the Medical Board, the workman
was to superannuate in 1986 instead of 1984.
1986, the workman was given one year's extension in service and accepted the
said extension without raising any objection and retired on 13.09.1987. The Labour Court, in our opinion, has failed to
appreciate the fact that in 1984 the workman was again medically examined and
having been found fit one year extension of service was given. The Labour Court ignoring all the above vital facts
decided the issue on conjectures and surmises and erroneously determined the
age of the workman.
also very useful to notice the events which led to the constitution of the Medical
Board for determining the age of the workman which are as under:
Nani Gopal Ghosh
(hereinafter referred to as "workman") joined the Company on
25.11.1947. As no documentary evidence in support of his date of birth was
produced by the workman, it was recorded as 1.11.1923 based on the assessment
of age of the workman as 24 years by the Company's Medical Officer.
Medical Card was prepared on 29.11.1947 and in token thereof, the workman put
his signatures on it.
aforementioned date of birth was also entered into Service Card prepared on
14.06.1960 and in that Card too, the age of the workman was recorded as 24yrs
as on 01.11.1947 and in token thereof, the workman again put his signatures on
In 1970, fresh
identity cards including that of the workman were prepared in respect of each
workman and the said identity card also contained the age and date of birth
which was also signed by the workman.
The workman, for
the first time on 25.08.1972, disputed his age by producing a transfer
certificate, purported to have been issued by the Headmaster of Nabakumar High
English School, Dacca. The said certificate was referred
to the District Education Officer, Dacca for verification of the entry made therein. It appears that the
District Education Officer made inquiry from the Headmaster of Nabakumar
Institution and the Headmaster of the said Institution vide letter dated
29.10.1980 informed the District Education Officer that the entries made in the
transfer certificate of Nani Gopal Ghosh are not at all genuine. The company
received the said letter after being endorsed by District Education Officer. A
copy of the letter dated 29.10.1980 is annexed as R-1. Accordingly, the workman
was informed vide letter dated 20.11.1980 that the certificate produced by him
was not genuine.
again produced another certificate dated 19.02.1984 purpotedly issued by the
Headmaster of the School, inter alia, mentioning the date of birth as
11.08.1929. The then Chief Personnel Manager again sought confirmation about the
genuineness of the certificate from the District Education Officer, Dacca but no reply was received by the
would have retired on 31.10.1983 by counting his superannuation from the date
of birth i.e. 01.11,1923, as noted at the time of the employment.
Company, as a special case in the aforesaid circumstances, referred the matter
to its Age Rectification Committee. The said Committee met on 23.07.1984 and
decided to refer the case of the workman to a special Medical Board for
assessment of the age of the workman as a special case. Accordingly, workman
was sent to the Medical Board for assessment of his age and the Medical Board
assessed the age of the workman as 58yrs on 13.09.1984 meaning thereby date of
birth as 13.09.1926. The said assessment of the Rectification committee was
also informed to the workman vide letter dated 28.09.1984.
That the workman
accepted the said rectification of his date of birth as 13.09.1926 for all
purposes and no objection was ever raised.
That, as per the
accepted position, the workman was to attain the age of superannuation i.e.
60yrs on 13.09.1986.
superannuation, the workman was sent for medical examination in which he was
found medically fit for extension of his service for one year as per SO 56 of
the certified standing orders and thus his service was extended for one year
acceptance for extension of one year after expiry of 60yrs, itself indicates
that the workman accepted his date of birth as 13.09.1926, as recommended by
the Age Rectification Committee.
accepted the said date of birth and acknowledged the same by signing a
declaration on his Personal-cum-Family Verification & Service Card dated
13.03.1987. The said declaration reads as under:- " I certify that my date
of birth as recorded in the Medical Card and the service Card on the basis of
Matriculation Certificate/School Leave Certificate/ Medical Examination held on
xxxxxxx is (in figure) 13.09.1926 (in words) Thirteen September Nineteen
Hundred Twenty Six as per report DPL 5689/84 and the same is correct. I am
bound by this and that the same will not be disputed in the future by me.
Signature/ L.T.I. of the Party Date: 13.03.1987" A copy of
Personal-cum-Family Verification & Service Card dated 13.03.1987 of the
petitioner is annexed as Annx.R-2.
accordingly, the workman retired from service w.e.f. 13.09.1987 even after
enjoying one year's extension."
The Labour Court, in our opinion, fell in grave
error in discarding the opinion and findings of the Medical Board merely on the
ground that no medical officer of the Company who assessed the age of workman
was examined nor any report of the Medical Board had been filed. Once the
workman himself has accepted the opinion in the finding of the Medical Board
and continued to work till 13.09.1986 and one year of extension thereafter
there was no necessity for the Company to examine the Medical officer and/or to
produce the report of the Medical Board. Moreover, the Medical Board examined
the workman in 1984 and the Medical Officer who examined the workman may or may
not have been in the service of the company.
Single Judge of the High Court allowed the writ petition by the Management
keeping in view of the law laid down by this Court in Bharat Coking Coal Ltd.
High Court, in our view, was fully justified in setting aside the Award of the Labour Court as the said Award was perverse and
illegal inasmuch as the judgment of this Court in Bharat Coking Coal Ltd.
(supra) was ignored by the Labour Court.
also to be noticed that the Company has not relied upon the report of the
District Education Officer, Dacca, wherein it was written that the entry is in
the transfer certificate submitted by the petitioner are not at all genuine. It
is only because of the uncertainty about the date of birth of the workman, the
Company constituted a special Medical Board in 1984 to determine the age and
hence the date of birth of the workman.
Mukherjee relied on Jiwan Kishore vs. Delhi Transport Corporation and Another,
1980 (Supp) SCC 678 which is a short judgment rendered by this Court. The sole
question raised in that appeal is as to the age of the employee- appellant.
There was a discrepancy, which was rather wide since the year of birth,
according to one record was 1917 and according to another record 1927. In view
of this considerable discrepancy, the employer, the Delhi Transport
Corporation, appointed its Medical Board to fix the age of the appellant and
according to the assessment of the age by the Medical Board, it is seen that he
was 51 on June 13, 1975. This Court has observed that there
was no reason to ignore the scientific fixation of age when the Court have
records which are flagrantly conflicting. Therefore, the Court fixed the age of
the appellant in partial allowance of his appeal at 51 on June 13, 1975 which means he will retire at the
age of 58 on June 12,
1982. A reading of the
judgment would also go to show that the Bench was not going into the vires in
this case as both sides agree that if the court fixes the age as per the
Medical Board's determination, they will accept and abide by it. On this
footing, the Bench disposed of the appeal in partial allowance and set aside
the order of retirement and further directed that the appellant be continued in
service with all the consequential benefits as a regular employee until June 12, 1982.
above judgment is not distinguishable on facts as well as on law. We have
elaborately dealt with the events which led to the constitution of the Medical
Board for determining the age of the workman. The workman did not challenge the
opinion of the Medical Board constituted by the Management for determining the
age of the workman and permitted the workman to work till his attaining the age
of retirement. Therefore, the workman in the present case is estopped from
challenging the correctness of the opinion of the Medical Board after his
retirement. This apart, school leaving certificate which was produced by the
workman was forwarded to the DEO, Dacca for verification who informed the Management that the certificate is
not genuine. The workman was to superannuate in the year 1986 but on the basis
of the assessment of age made by the Apex Medical Board, he was allowed to continue
till 13.09.1987. At that stage, the workman did not challenge the decision of
the Medical Board.
only after enjoying the benefits given to the workman and after availing the
benefits, the workman raised a dispute after his retirement in pursuance of
which the Labour Court has passed the Award. The High
Court has not given any undue credence to the evidence of the Management or
wrongly relied upon the one-sided testimony of the Management as alleged by the
appellant. We have already noticed that the findings arrived at by the Labour
Court is nothing but perverse against the facts and passed the award in favour
of the workman on totally mis-placed sympathy. In our opinion, both the learned
Single Judge and of the Division Bench are right and within their jurisdiction
in re-assessing and re-valuing the weight of the evidence in the case recorded
by the Labour Court by which the High Court came to the conclusion that the
workman was not entitled to any relief. When the judgment of the Labour Court is perverse and against the facts
and records, the High Court is entitled to exercise its jurisdiction under
Article 226 and to interfere with the perverse finding and set aside the same.
the foregoing reasons, the appeal filed by the wife of the workman has no force
and merit or substance and, therefore, is liable to be dismissed and
accordingly we do so by affirming the well-considered judgment of the learned
Single Judge of the High Court and as affirmed by the Division Bench. No costs.