JUDGEMENT
VINEET KOTHARI,J. -
(1.)This writ petition has been filed by the employer-M/s. Hindalco Industries Limited, Belgaum, through its Senior Vice-President, against the workman-Sri K.V. Shetty, S/o. Vasu Shetty, aggrieved by the award of the Additional Labour Court, Hubballi, in KID No. 99 of 2010, dated 21st Feb., 2012, deciding the issue of date of birth of the workman-Sri K.V. Shetty in favour of the workman and against the employer and directed reinstatement of the workman with the benefit of full back wages and continuity of service, setting aside the alleged premature retirement of the workman with effect from 1st Sept., 2010. The Management was further directed to pay the costs of Rs. 10,000.00 to the workman.
(2.)The controversy giving rise to the present writ petition is as under: The workman Sri K.V. Shetty was initially appointed on 18th Sept., 1980 temporarily and was discharged on 6th December, 1980. He was again employed temporarily from 15th Nov., 1981 till 31st March, 1982. On 1st April, 1982, he was appointed as Canteen Boy on probation for a period of six months. At the time of such appointment, on 1st April, 1982, his date of birth given in the concerned application form was 9th Oct., 1955. According to the petitioner-Management, since no proof of date of birth in the form of School Leaving Certificate or Secondary School Pass Certificate was produced by the workman, the Medical Officer of the Company, as per the Standing Orders of the Company applicable, assessed the age of the workman as 28 years taking the date of birth as 27th Aug., 1952 and therefore, in the record, the date of birth was changed from 9th Oct., 1955 to 27th Aug., 1952, which was duly countersigned by the respondent-workman vide Ex. M. 4 (page 154 of the Paper Book). A declaration in Ex. M. 4 by the workman-K.V. Shetty on 3rd April, 1982 that he has produced his school leaving certificate as age proof for his date of birth as 9th Oct., 1955 was struck off by the concerned officer of the Company who endorsed that no age proof certificate has been produced by the workman. The case of the Management is that it is only after he completed his service tenure and was nearing his retirement as per the date of birth recorded, on the basis of the Medical Certificate, as 27th Aug., 1952, on achieving the age of superannuation of 58 years on 27th Aug., 2010, he was given a notice as at Ex. M. 6 on 30th June, 2010 that he will retire from service of the Company with effect from 1st Sept., 2010. In response to the said retirement notice only, the workman gave a reply, Ex. M. 7, with a request for correction of the date of birth saying that his date of birth was 9th Oct., 1955 and he had produced school leaving certificate before the Company at the time of his appointment itself and the date of birth as 27th Aug., 1952 has been wrongly mentioned and it had come to his knowledge only recently and therefore, it was required to be corrected.
(3.)The Management, however, contends that for the withdrawal of provident fund amount, which is permitted within one year preceding the year of retirement, the respondent-workman himself gave the prescribed form filling up his date of birth as 27th Aug., 1952, the date of joining as 1st April, 1982 and date of retirement as 1st Sept., 2010, in F.x. M. 5-document (page 155 of the Paper Book) and the said form was furnished on 06th Nov., 2009 prior to the said retirement notice dated 30th June, 2010 and he had himself withdrawn the said provident fund amount from the Provident Fund Account and therefore, he has made a deliberately incorrect statement in his reply given to the retirement notice for correction of the date of birth, vide Ex. M. 7, dated 17th July, 2010. A detailed reply to the same was given by the Management vide Ex.-M. 8 on 6th August, 2010 that his date of birth was never supported by any evidence on record to be 9th Oct., 1955 and the correct date of birth as assessed by the Medical Officer was 27th Aug., 1952 and no school leaving certificate was ever produced before the Company. The petitioner-Management has also contended that no such school leaving certificate is even now available with the workman, nor the same has been produced either before the learned Labour Court or before this Court.