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Synopsis

The Supreme Court has emphasised that an application by an employee to change date of birth in service record can be rejected on the ground of delay and laches also when it is made at the fag-end of service and when the employee is about to retire on attaining the age of superannuation.

A bench of Justices Hima Kohli and Ahsanuddin Amanullah also pointed out even if there is a cogent evidence, such a plea cannot be made as a matter of right.

Relying upon 'Karnataka Rural Infrastructure Development Limited Vs T P Nataraja', (2021) and other cases, the bench said, the court had then summarised the law on change of date of birth stating (i) application for change of date of birth can only be as per the relevant provisions/regulations applicable; (ii) even if there is cogent evidence, the same cannot be claimed as a matter of right; (iii) application can be rejected on the ground of delay and laches also more particularly when it is made at the fag-end of service and/or when the employee is about to retire on attaining the age of superannuation.

After explaining the legal position, the court allowed an appeal by the General Manager, M/s Barsua Iron Ore Mines against a division bench order by the Orissa High Court of February 4, 2021 by which the petition by the appellant was dismissed and an award passed by the Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar was upheld.

In the instant case, the court said the much-delayed disclosure of the date of birth by the employee, coupled with his initial declaration and the admitted position that based on such initial declaration, he had received employment, as otherwise based on another of date of birth, he could not have been legally appointed due to being under-age, there is no manner of doubt that the employee, irrespective of his real date of birth, for the purpose of employment, cannot be allowed the purported rectification/correction of date of birth.

"Undoubtedly, a decision on the issue of date of birth is as important for the employer as it is for the employee," the bench said. 

The matter related to a labourer, who was offered employment on a casual basis on April 14, 1972. In 2018, the tribunal held as unjustified the date of birth as determined by the authorities and awarded him 50% back wages till 2015 based on his school transfer certificate which disclosed his date of birth as March 12, 1955.

The HC dismissed the appeal against the tribunal's decision. After hearing both the sides, the bench, however, held the HC as well as the tribunal's orders cannot be sustained.

"By reckoning his date of birth as 12.03.1955, the respondent no.3 would be much below the age of 18 years at the time of initial employment, which was the minimum requirement in law. Thus, it is clear that had he declared his so-called correct date of birth, obviously he would not have been given the employment," the bench said.

The bench also pointed out it is clear from disclosure of the originally-given date of birth by him was a well-thought out plan hatched by him, at the relevant time. "His conduct cannot be simply brushed aside on a plea that there was an error on the part of the appellant in recording his date of birth. Another doubt cast on the conduct is him not acting on time, which raises a question about the bona fides of his claim of having been born on 12.03.1955," it said.

Accordingly, the court set aside the HC as well as the tribunal's decisions, saying the employee would have to, necessarily, be content with his service and benefits accounted taking his date of birth as December 27, 1948.