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CASE NO.: Appeal (civil) 1720  of  1999

PETITIONER: HINDUSTAN LEVER LTD.

       Vs.

RESPONDENT: S.M. JADHAV & ANOTHER

DATE OF JUDGMENT:       21/03/2001

BENCH: S. Rajendra Babu & S.N. Variava.

JUDGMENT:

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S.N.VARIAVA,J

   This  Appeal is against the Order dated 24th June, 1998. Briefly stated the facts are as follows:

   On  4th of February, 1952, the 1st Respondent joined the services of M/s.  Brooke Bond Lipton India Limited (which is now  amalgamated with the Appellant) as a Salesman.  In  the application  submitted by him the 1st Respondent showed  his date  of  birth as 12th of June, 1927 and his age to  be  25 years.   The Manager of M/s.  Brooke Bond Lipton India  Ltd. issued  a  certificate dated 19th February, 1952  certifying that  he had examined the Matriculation Certificate and that the  date of birth was 12th of June, 1927.  The Manager also certified  that the age of the 1st Respondent, at that time, was 24 years 8 months.

   The  1st  Respondent has worked with M/s.   Brooke  Bond Lipton India Ltd.  till his retirement.  His service record, at  all  times,  showed the date of birth as 12th  of  June, 1927.   The Provident Fund Booklet showed his date of  birth as 12th of June, 1927.  The Annual Reports, published by the Company  under  Section 217 of the Company Act,  showed  his date of birth as 12th of June, 1927.

   Apart from the above on 16th of November, 1981 there was a  settlement  between the management of M/s.   Brooke  Bond Lipton  India Ltd.  and the All India Brooke Bond  Employees Federation.   By this it was, interalia, agreed that the age of  the employees would be decided on the basis of the birth certificate  and  school or university certificate.  It  was agreed that in future no fresh cases would be brought up for consideration  about the date of birth of an employee.   The 1st  Respondent raised no dispute in respect of his date  of birth at this time.

   As  the 1st Respondent’s date of birth was 12th of June, 1927  he was to retire, as per the Company rules, on 1st  of April,  1987.   M/s.   Brooke Bond Lipton India Ltd  sent  a notice  dated 11th November, 1986 intimating 1st  Respondent

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that  he  was  due to retire on 1st of  April,  1987.   They eqnuired whether he wished to encash his leave.  In reply to this,  the  1st Respondent, by his Advocate’s  letter  dated 14th  November, 1986, for the first time raised a contention that  his  date of birth was 29th August, 1930 and not  12th June,  1927.   The 1st Respondent claimed that the  date  of birth in the SSC Certificate had been corrected and that the corrected  date had been informed to the Company in the year 1953  itself.   At  this  stage  to be  noted  that  in  the Advocate’s  letter  it  is  not   claimed  that  a   written intimation  had  been given to the Company.  M/s Broke  Bond India  Ltd.   point  out  that  the date  of  birth  in  the Provident  Fund Booklet and the Service record is 12th June, 1927.   They  reiterate  that the 1st  Respondent  would  be retiring on 1st April, 1987.

   The 1st Respondent then filed a suit in the Court of the III  Additional  Munsiff, Belgaum praying for a  declaration that  his  date  of  birth be corrected.  In  this  suit  he applied  for  an interim injunction.  The trial Court  by  a detailed  and reasoned order refused interim injunction.  In so refusing the trial Court, interalia, observed as follows:

   "It  is  the say of the plaintiff that in the year  1953 itself  this  was informed to the defendant company for  due correction  in his service records.  No documents have  been produced by the plaintiff do not disclose the fact that such an information was given to the defendant company, if really such  an information was given, the plaintiff ought to  have followed  it up with some enquiry etc., in this  connection. Nothing  is before the court to show that any correspondence was done with the defendant company in this regard."

   On  1st  of April, 1987, the 1st Respondent retired  and accepted  his retiral benefits and dues.  Thereafter on  2nd of  June,  1987,  the 1st Respondent  raised  an  industrial dispute  claiming that his correct date of birth was 29th of August,  1930.   The Industrial Tribunal by its Award  dated 4th  October, 1993 allowed the claim of the 1st  Respondent. The  Industrial Tribunal directed M/s Brooke Bond India Ltd. to  pay full back wages for 3 years along with consequential benefits to the 1st Respondent.

   The Appellant filed a Writ Petition in the High Court of Karnataka.   The Writ Petition was allowed by a Single Judge on  13th  June,  1996.   The Single  Judge  noted  that  the material  on  record  was sufficient to show  that  the  1st Respondent’s  date  of birth in the records was  12th  June, 1927 and that only at the fag end of his career he could not be allowed to raise a dispute regarding his date of birth.

   The  1st  Respondent filed a Writ Appeal which has  been allowed by a Division Bench by the impugned Order dated 24th June, 1998.  The Appellant have thus filed this Appeal.

   We  have  heard the parties.  It is settled law that  at the  fag end of career, a party cannot be allowed to raise a dispute  regarding  his date of birth.  The case of the  1st Respondent  that he had intimated the Company in 1953 itself is not believable.  In the application, which had been filed by the 1st Respondent he himself had given his date of birth as  12th of June, 1927 and also mentioned that his age as 25 years.    On  the  basis  of   this  application   and   the

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Matriculation   Certificate  the  Manager   had   issued   a certificate.   Thereafter his service record, Provident Fund Booklet  and  even  the  Annual Reports  contained  the  1st Respondent’s  date  of  birth  as 12th June,  1927.   It  is impossible  to  believe  that for all these  years  the  1st Respondent was not aware of the date of birth in his service record  or the Provident Fund Booklet.  It is impossible  to believe  that he has not read a single Annual Report in  all these  years.   If, as claimed by him, he had  informed  the Company  in  1953,  he would surely have made  some  enquiry whether  the service record was corrected.  This would  have been  done,  if not earlier, at least at the time  when  the settlement  took  place between the Union and  the  Company. That  was  the time when other employees were getting  their age corrected and therefore it is impossible to believe that the  1st Respondent would not have at that time  ascertained what his date of birth was in the service record.

   No  reliance can be placed on the letter dated 15th May, 1953.   This  is  produced for the first time  in  the  High Court.   There  is  no  reference  to  this  letter  in  the Advocate’s reply.  In the suit, which had been filed by him, there  was no reliance on any such written intimation.   The learned  Judge hearing the interim application noted that no document   was   produced.   Significantly   there   is   no endorsement  of  the Company or proof of service of  such  a letter on the Company.

   In  our view, the impugned Order cannot be sustained  at all.   The 1st Respondent cannot be allowed to raise such  a dispute  at  the  fag end of his career.   Accordingly,  the Appeal is allowed.  The impugned Order dated 24th June, 1998 is  set aside.  The Order of the learned Single Judge  dated 13th  June, 1996 is restored.  There will be no order as  to costs.