JUDGMENT
A.P. Deshpande, J.
1. Heard. Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing.
2. The petitioner Aurangabad District Central Co-operative Bank, has challenged an order passed by the Industrial Court, allowing the application moved by the respondent under Section 32 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act and directing continuance of the respondent in service.
3. The respondent joined the service of the petitioner bank in the year 1967 as a clerk. At the time of seeking appointment, the respondent showed his age as 19 years and also submitted H.S.C. Examination Certificate issued by the State Board. The H.S.C. certificate revealed the date of birth of the respondent to be August 3, 1948. The said date of birth is carried in service record of the respondent and according to the date of birth recorded in the service record, the respondent was to retire on attaining age of superannuation on the last day of the month of August, 2006. The petitioner moved an application in the year 2000, seeking to correct the recorded date of birth viz. August 3, 1948 to April 3, 1950. It is stated in the application that the date of birth of the respondent is not August 3, 1948 but the same is April 3, 1950. It is then stated in the application, that to substantiate the date of birth being April 3, 1950, the respondent would submit birth certificate. Fact remains, that until July, 2006, the respondent did not submit any document to substantiate his claim to the date of birth being April 3, 1950 instead the one recorded in the service record being August 3, 1948. It appears that the respondent moved an application to the Tahsil office and demanded birth certificate. As the register was not available, the respondent filed an affidavit and on the basis of the said affidavit, a certificate came to be issued indicating the date of birth of the respondent to be April 3, 1950., The petitioner, thus, moved the bank in July, 2006 along with birth certificate which was issued on the strength of the affidavit filed by the respondent for change of date of birth. The same was not granted by the bank. According to the petitioner-bank, the request for change of date of birth was rejected on August 12, 2006 by the bank. In the above fact situation, the respondent filed a complaint ULP before the Industrial Court and alongwith the said complaint also moved an application seeking interim relief, with a view to continue him in service, on the basis of the date of birth claimed by the respondent to be the correct one. The Industrial Cdurt granted the said relief and aggrieved thereby, the present petition has been filed by the petitioner bank.
4. It is a settled position in law that persons holding offices in public employment cannot be permitted to seek change in the date of birth at the fag end of the service career. The date of birth which is recorded with the bank is based on H.S.C. Certificate issued by the Board way back in the year 1967 and the said date of birth is sought to be countered on the basis of a birth certificate issued on the basis of an affidavit filed by the respondent, in view of the fact that the original register was not available. If the two conflicting documents pitted against each other are weighed, it can be prima facie said that the H.S.C. certificate would carry more probative value as compared to the birth certificate issued, solely on the basis of an affidavit filed by the respondent. In this view of the matter, the respondent had not made out a prima facie case for his continuance in the service after having reached the age of superannuation, but the Industrial Court, by passing the impugned order, has directed the petitioner to continue the respondent in service. In my opinion, the impugned order suffers from patent illegality and cannot be permitted to hold the field. In the facts of the present case, even if the respondent is made to retire on the last day of August, 2006, and if the respondent ultimately succeeds in the complaint, he can very well be compensated by payment of salary for the period for which the respondent is deprived of service. There is no question of any irreparable loss being caused to the respondent. The earned Counsel for the respondent apprehends that under the pretext that the complaint is pending with the Industrial Court, the petitioner may not release the terminal/retiral benefits which are due and receivable by the respondent. The earned Counsel for the petitioner fairly states that treating the respondent as having retired from service from August 31, 2006, the petitioner shall release all the terminal/retrial benefits to the respondent expeditiously.
5. In the result, writ petition is allowed. The impugned order passed by the Industrial Court, dated August 29, 2006 is quashed and set aside. The respondent shall be deemed to have retired from service on attaining the age of superannuation on August 31, 2006, subject to the decision of the Complaint. The Industrial Court is directed to expeditiously decide the complaint.
6. Rule made absolute in above terms. There shall be no orders as to costs.