S.P. Srivastava, J.Heard the learned counsel for the appellant as well as the learned counsel for the respondents.

2. Perused the record.

3. In this second appeal, notice had been issued to the respondent calling upon him to show cause as to why the appeal be not admitted and also for putting in appearance on 20.4.1993 on which date the case was directed to be listed for admission or final disposal as the case may be.

4. The following substantial question of law is involved in this appeal for consideration :

"Whether in view of the finality of the provisions contained in Dr. Sampurnanand award of the year 1962 to which the plaintiff was to be deemed to be a party, the first appellate court erred in law in reversing the decree passed by the trial court."

5. It may be noticed that this second appeal was connected with Writ Petition No. 9786 of 1993, vide the order dated 11.5.1999.

6. Taking into consideration the nature of the controversy involved, both the second appeal as well as writ petition are being disposed of by a common order.

7. The facts in brief shorn of details and necessary for the disposal of these cases lie un a narrow compass.

8. The plaintiff-respondent had filed a suit being Original Suit No. 1475 of 1983 praying for a declaratory decree declaring that his date of birth was 16.3.1940 and for a further direction requiring the defendants to correct their records accordingly after expunging the incorrect entries maintained in their records relating to the date of birth of the plaintiff.

9. The plaintiff was employed as a workman in Swadeshi Cotton Mills in the year 1957. In his service book maintained by the employer, the entry relating to his date of birth showed that he was born in the year 1936. The plaintiff had applied for the promotion to the post of Supervisor in the year 1974 and in his application, he himself claimed his date of birth to be 15.12.1942. However, it may be noticed that in the year 1958, the plaintiff had submitted Form No. 2 prescribed under the Employees Provident Fund Act wherein he declared that he had been born in the year 1931.

10. The suit of the plaintiff was contested on various grounds. Apart from other pleas, it was specifically asserted that the plaintiff was bound by Dr. Sampurnanand award published in the Government Gazette (C) of Uttar Pradesh (Extraordinary) dated 14.8.1962 which has been produced for the perusal of the Court. It was asserted that the plaintiff was a member of the union which was a party to the proceedings culminating in the award. The relevant portion of the award which was relied upon by the defendant-appellant was to the following effect :

"...............Determination of age of a worker for purposes of superannuation shall be made on the basis of the records of the provident fund under the Employees Provident Fund Act. Where a worker disputes his age recorded under that Act, he shall, within six months from the date of the publication of this award, apply for correction of the age by producing a duly authenticated birth certificate, or High School Certificate, or Insurance Policy running from a date prior to the publication of this award, indicating his age, and his age shall be corrected by the Mill accordingly. If the age finally determined is that according to the records maintained under the Employees Provident Fund Act, and such records do not contain the exact date of birth, the age shall be calculated as if the date of birth was as on 1st July, of the year of his birth according to those records."

11. The trial court dismissed the suit vide its judgment and decree dated 15.1.1991, rejecting the claim of the plaintiff holding that he had failed to establish that he had been born in the year 1940 as claimed and further holding that he was bound by Dr. Sampurnanand award and the declaration in regard to the year of birth as contained in Form No. 2 referred to hereinabove was final and had to be acted upon.

12. The plaintiff-respondent filed an appeal against the judgment and decree of the trial court. The appeal was heard and disposed of by the first appellate court vide the Impugned judgment and decree whereby setting aside the judgment and decree of the trial court, the suit of the plaintiff was decreed, as prayed.

13. Feeling aggrieved, the defendant-employer has come up in appeal seeking redress praying for the reversal of the decree passed by the first appellate court.

14. It may be noticed at this stage that after getting the decree from the appellate court, the plaintiff initiated proceedings before the labour court for recovery of an amount of Rs. 55,035 on the strength of the decree of the first appellate court. The labour court vide its order dated 21.10.1992, holding the plaintiff to be entitled to get the said amount on the strength of the aforesaid decree passed by the first appellate court issued a recovery certificate for the same.

15. Feeling aggrieved by the aforesaid order passed by the labour court, the employer has filed the writ petition referred to hereinabove praying for the quashing of the aforesaid order.

16. Dr. Sampurnanand award, to which a reference has been made hereinabove, clearly stipulates that where a worker disputes his age recorded under the Employees Provident Fund Act, he shall, within six months from the date of the publication of that award apply for correction of the age by producing a duly authenticated birth certificate or High School Certificate or Insurance Policy running from a date prior to the publication of the award, indicating his age, and his age shall be corrected by the Mill accordingly. It is further provided that if the age finally determined is that according to records maintained under the Employees Provident Fund Act, and such record do not contain the exact date of birth, the age shall be calculated as if the date of birth was as on 1st July, of the year of his birth according to those records.

17. In the present case, what is evident is that the plaintiff had not taken any steps whatsoever to get the entry made in regard to the year of birth under the provisions of the Employees Provident Fund Act as provided under Dr. Sampurnanand award noticed hereinabove. The plaintiff had joined the service in the year 1957 and Dr. Sampurnanand award is of the year 1962. The plaintiff was a member of the union which was a party to the proceeding culminating in the said award.

18. In the aforesaid circumstances, in case there was any doubt about the correctness of the entry relating to his date of birth maintained under the provisions of the Employees Provident Fund Act, it was obligatory upon the plaintiff to move an application for correction of the same within the time stipulated in the award and by proving his case by producing the documentary evidence referred to therein. Neither any step was taken by the plaintiff to get the entry corrected nor any documentary evidence as stipulated in Dr. Sampurnanand award was filed. The obvious effect was that the entry relating to birth of the plaintiff recorded in the proceedings under the Employees Provident Fund Act attained finality.

19. The aforesaid aspect and the implications arising under the provisions contained in Dr. Sampurnanand award were brushed aside by the first appellate court only on the ground that the copy of the said award had not been produced before it. It may be noticed that the trial court had specifically referred to Dr. Sampurnanand award in its judgment. It was the plaintiff who was the appellant and he was bound to demonstrate before the first appellate court that the finding of the trial court in respect of the implications arising under the provisions contained in Dr. Sampurnanand award were vitiated in law. This burden could not be taken to be resting upon the defendant specially when the plaintiff was deemed to be a party to the proceedings culminating in the award and it was he who had attacked the finding returned by the trial court against him. The defendant-employer, in the circumstances, could not be faulted on account of the failure of the plaintiff in this regard.

20. The first appellate court has observed that the plaintiff had been coming up with different versions in regard to his date of birth. From the facts brought on record, it was further apparent that although he had joined service in the year 1957, he had initiated proceedings for the correction of his date of birth in the year 1983, virtually at the end of his service career.

21. Learned counsel for the respondent has strenuously urged that in the present case, the provisions contained in Dr. Sampurnanand award of the year 1962, referred to hereinabove, which had been relied upon by the trial court, cannot be taken to bind the employee so as to deny him the opportunity to challenge the correctness of the entry relating to his date of birth maintained under the provisions of the State Employees Provident Fund Act.

22. It has been urged that such a provision cannot deprive the employee of the opportunity to contest or dispute the correctness of the date of birth recorded in the proceedings under the Employees Provident Fund Act.

23. Learned counsel for the appellant has, however, urged that so far as the present case is concerned, in the award of the Arbitrator, the workman had not been denied such an opportunity as the award specifically provided that in case the workman wanted to challenge such an entry, the challenge ought to have been made within 6 months from the publication of the award. Dr. Sampurnanand award, which is binding on the plaintiff, did afford an opportunity to challenge the entry maintained under the provisions of the State Employees Provident Fund Act but within the prescribed time and the mode by which such an entry could be challenged. The plaintiff-respondent having failed to avail that opportunity cannot be heard to say that he was entitled to another opportunity bypassing the terms and conditions regulating superannuation as provided under Dr. Sampurnanand award.

24. If viewed from the angle indicated hereinbefore and that being the only view possible, I have no hesitation in coming to the conclusion that the substantial question of law framed above deserves to be answered in favour of the appellant and against the plaintiff-respondent.

25. Sufficient ground has, therefore, been made out for interference by this Court.

26. In view of my conclusion indicated hereinabove, this appeal succeeds. The impugned judgment and decree passed by the first appellate court is set aside. Consequently, the writ petition also succeeds and the impugned order passed by the labour court is quashed.

27. However, there shall be no order as to cost.