THE COMMISSIONER, MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORSversusMR. SURYAKANT BHAGWAN TAWADE ANDS ORS

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                   AGK
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                  WRIT PETITION NO.11345 OF 2012

                    1. The Commissioner,
                       Municipal Corporation of Greater
                       Mumbai, Mumbai – 400 001
                    2. The Commissioner of Health,
                       K/West Ward,
                       Municipal Corporation of Greater
                       Mumbai, Andheri (West),
                       Mumbai – 400 058                             … Petitioners

                                        Vs.

ATUL
                   Mohammed Salim Bhagwan Khan,
GANESH             Madh Jathy Hindu Cementery Staff
KULKARNI

Digitally signed
                   Quarters, Room No.2, via Versova
by ATUL
GANESH
KULKARNI
                   Mumbai – 400 061                                 … Respondent
Date: 2026.04.30
11:50:26 +0530

                                              WITH
                               INTERIM APPLICATION NO.7333 OF 2025
                                                IN
                                  WRIT PETITION NO.11345 OF 2012

                   Suryakant Bhagwan Tawade Nee
                   Mohammed Salim Bhagwan Khan                … Applicant
                        In the matter between
                   The Commissioner, M.C.G.M. & Anr.          … Petitioners
                              V/s.
                   Suryakant B. Tawde                         … Respondent


                   Mr. Suresh Pakale, Senior Advocate with Mr. Santosh
                   Parad for the petitioners-MCGM.
                   Mr. Shan Clifford Cardoz for the respondent.




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                   CORAM                  : AMIT BORKAR, J.

                   RESERVED ON            : APRIL 17, 2026.

                   PRONOUNCED ON          : APRIL 30, 2026

JUDGMENT:

1.    By the present writ petitions instituted under Articles 226
and 227 of the Constitution of India, the petitioners, namely
Municipal Corporation of Greater Mumbai, have called in question
the legality and correctness of the judgment and order dated 26
April 2012 passed by the Industrial Court at Mumbai in Complaint
(ULP) No.49 of 2008.

2.    The petitioners, who were the original respondents before
the Labour Court, submit that the respondent, being the original
Complainant, instituted a complaint challenging the order dated
20 March 2010 issued by the petitioners, whereby he was
informed that his last working day in service would be 30 June
2010 on the ground of superannuation. In the said complaint, the
respondent prayed for a declaration that the aforesaid order was
unfair, unjust, illegal, and impermissible in law. He further sought
setting aside of the said order dated 20 March 2010 and prayed for
a direction restraining the petitioners from retiring him with effect
from 1 July 2010. The respondent also sought a further direction
that he be continued in service until he attained the age of fifty-
eight years, according to him on 15 April 2013, and that he be
permitted to discharge duties and receive monthly wages till the
said date.




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3.    The petitioners state and submit that they filed a detailed
Written Statement to the complaint before the learned 5th Labour
Court, controverting the allegations made therein and opposing
the reliefs claimed by the respondent.

4.    The petitioners further state and submit that both parties led
oral as well as documentary evidence before the learned Labour
Court in support of their respective cases.

5.    The petitioners submit that upon conclusion of the evidence
adduced by both sides, the learned 5th Labour Court was pleased
to allow the complaint by judgment and order dated 5 April 2011.
By the said order, the learned Labour Court held and directed as
under: (i) It was declared that the respondents therein had
engaged in unfair labour practices under Section 28 of the MRTU
and PULP Act read with Item 1(a), (b), (d) and (f) of Schedule IV
thereto, and they were directed to cease and desist from such
practices; (ii) It was held that the date of birth of the Complainant
was 15 April 1955, and the respondents were directed to carry out
correction of the said date in the service record of the
Complainant; (iii) The Complainant was directed to be reinstated
in service with continuity of service and full back wages with effect
from 1 July 2010.

6.    The petitioners further state that, being aggrieved by the
aforesaid judgment and order, they preferred Revision Application
(ULP) No.106 of 2011 before the Industrial Court at Mumbai. It is
stated that the said Revision Application came to be partly
allowed. However, insofar as Clauses 3 and 4 of the operative part




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of the order of the Labour Court were concerned, the same were
maintained under the impugned revisional order.

7.    Being dissatisfied and aggrieved by the judgment and order
dated 29 August 2012 passed by the learned Industrial Court,
Mumbai in Revision Application (ULP) No.106 of 2011, the
petitioners have instituted the present Writ Petition invoking the
jurisdiction of this Court.

8.    Mr. Pakale, learned Senior Counsel appearing on behalf of
the petitioners, submitted that the Industrial Court failed to
properly appreciate and correctly weigh the admissions given by
the respondent during cross-examination at Exhibit U-8. It was
pointed out that the respondent categorically admitted that, at the
time of his initial appointment in service, a service record was
prepared by the competent authority in the ordinary course of
official business wherein his date of birth came to be entered as 2
June 1952. He further admitted that he had affixed his thumb
impression on the said record and, after the contents thereof were
read over and explained to him, he had also signed the same. It
was emphasized that the respondent nowhere alleged compulsion,
fraud, coercion or misrepresentation at the relevant time. Learned
Senior Counsel therefore urged that such admissions went to the
root of the matter and strongly supported the petitioners’ stand
that the service record was validly prepared and consciously
accepted by the respondent.

9.    It was further submitted that the respondent also admitted
his signature upon the declaration at Exhibit C-6/3 dated 18 May




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1976. According to the petitioners, once execution of the said
declaration stood admitted, the burden shifted heavily upon the
respondent to establish that the recorded particulars were
incorrect. In absence of such cogent proof, it was contended that
the Industrial Court ought not to have brushed aside documentary
admissions made by the respondent himself.

10.   Learned Senior Counsel next submitted that the respondent
admitted in cross-examination that he had thereafter worked as
Death Registration Clerk with effect from 16 June 2000 and that
he was aware of the circular issued by the Corporation dated 10
March 1986. It was also elicited from him that during the entire
tenure of nearly thirty-three years of service, he had never lodged
any grievance, representation, or complaint seeking correction of
his recorded date of birth. According to the petitioners, these facts
clearly demonstrated acquiescence on the part of the respondent
and showed that the dispute was raised only belatedly when
retirement approached. It was urged that stale claims of this
nature ought not to receive judicial encouragement.

11.   Learned Senior Counsel further contended that the Industrial
Court failed to properly appreciate the evidence of Shri Pravin
Nabodh    Tribhuvan,    examined       at   Exhibit     U-14.     In     cross-
examination, the said witness admitted that he was not the author
of the relevant document relied upon by the respondent, had no
personal knowledge regarding its preparation or execution, was
not the person who made the entry at Serial No.11354 in the
General Register concerning the respondent, and had joined the
school as Principal only in the year 2007. On the strength of these



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admissions, it was submitted that the witness could not depose
from personal knowledge regarding entries made long prior to his
tenure and, therefore, the evidentiary value of such testimony was
necessarily limited. The Industrial Court, according to the
petitioners, erred in placing undue reliance thereon.

12.   It was next urged that the Industrial Court also failed to
properly consider the evidence of Shri Narendra Vidyadhar
Tendulkar, who was examined on behalf of the petitioners. In his
affidavit, the said witness stated that at the time of appointment
the respondent’s service record had been opened in the regular
course and duly filled by the concerned department, wherein the
date of birth was entered as 2 June 1952 after due verification. It
was also deposed that the respondent had signed the service
record after understanding the contents thereof. Learned Senior
Counsel submitted that this evidence clearly established official
regularity in maintenance of service records and ought to have
been accepted in absence of contrary material.

13.   It was further stated in the affidavit that, as per municipal
service records, the respondent attained the age of fifty-eight years
on 1 July 2010 and, in accordance with Rule 205 of the Municipal
Service Regulations, 1989, retired on 30 June 2010 before office
hours. According to the petitioners, the respondent throughout his
long service career never objected to the recorded date of birth
and the challenge raised only at the stage of superannuation was
plainly an afterthought designed to secure continuation in service
beyond the permissible age.




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14.   Reference was also made to paragraph 6 of the said affidavit,
wherein Shri Tendulkar deposed that the Corporation had issued
Circular No. MOM/2001 dated 10 June 1986 prescribing a specific
procedure for correction of date of birth in service records. Under
the said circular, all employees were granted an opportunity to
seek correction on or before 15 September 1986 by producing
conclusive documentary proof, and it was expressly provided that
thereafter no application would be entertained. Since the
respondent made his application only on 6 February 2006, long
after expiry of the prescribed cut-off date, learned Senior Counsel
contended that such request was not maintainable and could not
have been considered. It was further submitted that applications
seeking alteration of date of birth at the fag end of service are
consistently viewed with caution and liable to be rejected at the
threshold.

15.   Reliance was also placed upon paragraph 7 of the affidavit,
wherein it was stated that the petitioners had not engaged in any
unfair labour practice under Items 1(a), (b), (d) or (f) of Schedule
IV of the MRTU and PULP Act, 1971. It was therefore submitted
that no foundation existed for grant of relief in favour of the
respondent. Learned Senior Counsel lastly contended that in
further examination-in-chief Shri Tendulkar stated that the
documents produced at Exhibits C-3 and C-6 had been admitted by
the respondent insofar as execution was concerned and were
therefore admissible in evidence. On these premises, it was prayed
that the impugned order be set aside.




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16.   Per contra, Mr. Cardoz, learned counsel appearing for the
respondent in Writ Petition No.11345 of 2012, submitted that the
respondent had been in continuous employment of the petitioners
since 1 August 1973. During the course of service, his substantive
designation was consistently shown as Cemetery Attendant.
However, during the period from 16 June 2000 to 2 June 2006,
the respondent was made to hold and discharge duties on the post
of Death Registration Karkoon on a full-time basis at Versova
Cemetery. Though he continuously performed functions attached
to the said higher post, he was denied wages, allowances and
service benefits admissible thereto. It was submitted that the
petitioners derived work of higher responsibility without extending
corresponding benefits.

17.   Learned counsel further submitted that in January 2006 the
petitioners called upon the respondent to produce proof of
educational qualification, whereupon he applied for issuance of a
school-leaving certificate on 3 January 2006. Upon receiving the
said certificate, he came to know for the first time of his correct
date of birth as recorded in school records. Thereafter, by letter
dated 6 February 2006, he requested correction of the service
record by substituting 15 April 1955 in place of 2 June 1952.
However, despite such request, by order dated 20 March 2010 he
was informed that he would retire on 30 June 2010 on the basis of
the date of birth incorrectly entered in service records. It was
urged that the respondent acted promptly after obtaining authentic
material.




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18.   Learned counsel submitted that the date of birth relied upon
by the respondent was reflected in the school-leaving certificate
issued from records maintained in the General Register of the
school, wherein dates of birth of students are duly entered in
regular course. It was urged that the petitioners had never
seriously disputed either the genuineness or authenticity of the
said school-leaving certificate. In such circumstances, according to
the respondent, there was no reason to discard a contemporaneous
educational record.

19.   It was further submitted that while the respondent was
engaged in cemetery duties, the circular dated 10 March 1986 was
never brought to his notice. The petitioners neither issued any
communication individually informing him of the said circular nor
produced material to establish that he was aware of its contents.
According to the respondent, the circular itself imposed obligations
upon the Head of Department and Ward Officers to follow a
prescribed procedure in matters relating to correction of date of
birth. The responsibility therefore lay upon the municipal
authorities to act in accordance with their own circular, and the
respondent could not be prejudiced because officers and staff
failed to discharge official duties expected from them.

20.   Learned counsel also submitted that the circular dated 10
March 1986 issued by Municipal Corporation of Greater Mumbai
was placed on record and specifically recognised several forms of
documentary proof for correction of date of birth at the instance of
an employee, one of them being a school-leaving certificate. On
that basis, it was contended that the respondent’s request stood



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supported by acceptable and recognised evidence. He accordingly
prayed for dismissal of the writ petition with exemplary costs.

REASONS AND ANALYSIS:

21.   I have considered the rival submissions and also perused the
material which was brought before the Industrial Court. The
controversy concerns the recorded date of birth in the service book
of the respondent, the claim for correction thereof at a late stage,
and the consequence which follows upon the date so recorded.

22.   The first submission of the petitioners is founded on the
admissions of the respondent in cross-examination at Exhibit U-8.
The respondent admitted that at the time of his appointment the
service record was prepared and his date of birth was entered as 2
June 1952. He also admitted that he had put his thumb impression
on that record and, after the contents were read over to him, he
signed it. He did not say that the entry was made under pressure
or without explanation. He further admitted his signature on
Exhibit C-6/3 dated 18 May 1976. These admissions are not of
small value. When a service record is prepared in the ordinary
course and the employee signs it after knowing the contents, the
entry carries weight, unless convincing evidence is produced to
displace it.

23.   The petitioners also relied upon the further admission that
the respondent had worked as death registration clerk from 16
June 2000 and that he was aware of the circular dated 10 March
1986. The respondent also admitted that during his service, nearly
thirty-three years, he never made any complaint for correction of



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his date of birth. A person who remains silent for such long years,
and raises the issue only when retirement is near, creates a doubt
on the bona fides of the claim. Courts have to be slow in accepting
a request which comes after inordinate delay, because service
records are meant to attain finality.

24.   The evidence of Shri Pravin Nabodh Tribhuvan, examined at
Exhibit U-14, he admitted that he was not the author of the
document, had no personal knowledge of its execution, was not
the maker of the entry at Serial No.11354 in the general register,
and had joined as Principal only in 2007. Therefore, his evidence
had limited value on the core issue. A witness who is not the
maker of the record and who came much later cannot speak with
authority about the original entry, unless he produces the relevant
register and proves the record in the ordinary manner. The
Industrial Court appears to have given more importance to this
evidence than it deserved.

25.   The affidavit of Shri Narendra Vidyadhar Tendulkar also
supports the petitioners. He stated that the service record was
opened at the time of appointment and was filled by the concerned
department after verification, and that the respondent signed it
after understanding its contents. He also stated that as per the
municipal service record the respondent attained the age of fifty-
eight years on 1 July 2010 and retired on 30 June 2010 in terms of
Rule 205 of the Municipal Service Regulations, 1989. The service
book was prepared at the inception of service and remained
unchallenged for many years. That circumstance has significance.




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26.   Paragraph 6 of the affidavit of Shri Tendulkar has another
material aspect. The Corporation had issued Circular No.
MOM/2001 dated 10 June 1986 prescribing a procedure for
correction of date of birth. The circular granted opportunity to
employees to apply on or before 15 September 1986 by producing
conclusive documentary proof. It further provided that thereafter
no application would be entertained. This circular was not shown
to be invalid, nor was it shown that the respondent had made any
application within the time fixed therein. His application of 6
February 2006 was thus clearly beyond the prescribed period. The
Industrial Court did not give due effect to this binding
administrative instruction. When the employer has issued a
procedure for correction and the employee sleeps over the matter
for nearly twenty years after the cut-off date, the claim becomes
doubtful and cannot be entertained.

27.   The respondent, on the other hand, placed reliance upon the
school-leaving certificate and contended that it showed the correct
date of birth as 15 April 1955. He also said that he came to know
of the correct date only when the certificate was obtained in
January 2006, and therefore he moved promptly on 6 February
2006. This submission was made with some force, because a
school leaving certificate is indeed a relevant document and, if
genuine, it is a document of some probative value. It was also said
that the petitioners had not seriously disputed its genuineness.
Even so, the existence of such a certificate by itself is not enough
in the present facts. The matter does not end with one school
record. The court must also see why the respondent remained



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silent for thirty-three years, why he signed the service record
without objection, and why he did not avail the opportunity under
the circular within the stipulated time. These circumstances
weaken the claim.

28.   It was further submitted for the respondent that the circular
was never brought to his notice and that the responsibility lay on
the departmental officers to act in accordance with it. This
submission also cannot help him fully. The circular was of general
application, and the respondent was in service for long years. More
important, he signed the service record and the declaration in the
year 1976. If the date of birth was wrong in the record, it was
open to him to seek correction in accordance with the circular
when the opportunity was available. The law does not permit a
party to remain inactive for decades and then seek correction only
at the threshold of retirement. Failure of officers to remind him
cannot by itself erase the effect of his own long silence and his
signature on the record.

29.   On the whole, the Industrial Court appears to have placed
excessive emphasis on the school-leaving certificate and on the
assertion that the respondent learnt about the error only in 2006.
The court did not assign proper weight to the respondent’s
admissions in cross examination, the long lapse of time, the signed
service record, the 1986 circular, and the fact that the request was
made after the cut off date fixed by the Corporation. The evidence
of the petitioners shows that the service record was accepted for a
long period and that the challenge was raised only when
retirement was imminent. Such a claim, in the facts here, could



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not have been treated as a correction request. It was a belated
attempt to unsettle a settled service entry.

30.   The finding, therefore, is that the respondent did not
establish a legal foundation to displace the recorded date of birth
in the service book. The school-leaving certificate, though relevant,
does not override the effect of the admitted service record, the
delay of many years, and the failure to act within the time
prescribed by the circular. The petitioners were justified in acting
on the date already recorded in the official service record. The
Industrial Court committed an error in granting relief on the
strength of incomplete appreciation of evidence. The complaint
ought to have been dismissed.

31.   In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:

      (i)    The writ petition is allowed;

      (ii)   The judgment and order dated 29 August 2012 passed
      by the Industrial Court, Mumbai in Complaint (ULP) No.106
      of 2011 is quashed and set aside;

      (iii) Complaint (ULP) No.106 of 2011 stands dismissed;

      (iv) Rule is made absolute in the above terms;

      (v)    In the facts and circumstances of the case, there shall
      be no order as to costs;

      (vi) Pending interim applications, if any, stand disposed of.


                                                  (AMIT BORKAR, J.)



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