Chittaranjan Das v. Durgapore Project, Ltd., And Others

The Judgment of the Court was delivered by

Satya Brata Sinha, J.:— This appeal is directed against an order, dated 1 September, 1994, passed by a learned Single Judge of this Court whereby and whereunder the writ application filed by the writ petitioner-appellant was summarily dismissed.

2. The facts of the matter lies in a very narrow compass.

3. According to the petitioner, his date of birth is 10 September, 1959 which was also recorded in the register maintained by Durgapur T.N Singh School, wherein the petitioner allegedly read from Class V.

4. The petitioner contended that he appeared in the year 1975 in the Higher Secondary Examination in the science stream from the said school but failed therein, His date of birth as aforementioned was stated by the headmaster of the said school in the certificates, dated 22 December, 1978 and 20 September, 1991.

5. The petitioner thereafter joined training in the Trade Course of Fitter in the Industrial Training Institute, Durgapur. Upon completion of his training, he was appointed as an apprentice in terms of the provisions of the Apprentice Act, 1961, by respondent 1 in terms of an office order, dated 28 April, 1986, and he continued to work as such till 1988.

6. The petitioner contended that his date of birth was recorded by the respondent-company at the time of his appointment as an apprentice. The petitioner got a regular employment from the respondent-company on 19 July, 1994. He intended to join the post of Shramik, but his joining report was not accepted in absence of proof of his date of birth.

7. The contention of the petitioner in short is that in terms of the Standing Order framed by the respondent under S. 7 of the Industrial Employment (Standing Orders) Act, 1946, his date of birth having been recorded as 10 September, 1959, and the same having been accepted by the respondent in terms of Cl. 4 of the Standing Order, the respondent cannot insist upon filing of the original certificate to be granted by the West Bengal Higher Secondary Board.

8. The contention of the respondent, on the other hand, appears to be that the appellant is not a workman within the meaning of the said provision and thus he was bound to satisfy the management with regard to the proof of his age before he could be allowed to join the post. It has been submitted that the age of the petitioner was not recorded in its registers nor any identity card was issued to him.

9. Sri Pratap Roy appearing on behalf of the appellant contended that in terms of the Standing Orders, an apprentice is also a workman and thus the age of the petitioner recorded in the service report in terms of Cl. 4 thereof must be held to be good for proper recording of his age as a workman in terms of the aforementioned offer of appointment.

10. It was submitted that in terms of the said rule, the other particulars of an apprentice are also required to be recorded which being an act performed by a public officer in exercise of his statutory duty, is admissible in evidence under S. 35 of the Evidence Act. He further submitted that even if any discrepancy exists between the age recorded in School Register vis-a-vis the certificate granted by the School Examination Board, the former shall prevail. Sri Roy urged that the date of birth recorded by the respondent company and sent to the concerned authorities under the provisions of the Industrial Employment (Standing Orders) Act, 1946, the same must be held to have a sanctity and they would be presumed to be correct.

11. The learned counsel submitted that the impugned action, thus must be held to be violative of principles of natural justice as his date to birth could not have been altered of his disadvantage.

12. In support of his aforementioned contention the learned counsel relied upon State of Orissa v. Binapani Devi, [A.I.R 1967 S.C 1269].

13. It was further submitted that a presumption of correctness of the official Act should be drawn in terms of S. 114(e) of the Indian Evidence Act and reliance in this connection may be made to A.I.R 1964 S.C 224 : A.I.R 1963 S.C 666 : A.I.R 1966 S.C 1931 : (1978) 4 SCC 428 : A.I.R 1978 S.C 1506 : (1978) 4 SCC 302 : A.I.R 1978 S.C 1142 and (1970) 2 SCC 277.

14. The learned counsel also referred to the provisions of S. 12 of the Industrial Employment (Standing Orders) Act, 1946. With regard to the contention that the age recorded in the school register must be held to be admissible reliance has been placed by Sri Roy in (1982) 2 SCC 202 : A.I.R 1982 S.C 1057 : 1990 L & I.C 187 : 1989 (1) C.L.T 76 and A.I.R 1964 S.C 1625 as also 93 C.W.N 895.

15. The learned counsel submitted that in this case no allegation has been made that any misrepresentation relating to date of birth was made at the item of admission of the petitioner and in view of the fact that the age recorded in the Matriculation Certificate is taken from the school register, the same must be held to be correct. Reliance in this connection has been placed upon 1988 Supp SCC 604 : A.I.R 1988 S.C 1796.

16. It was further submitted that the respondent cannot be allowed to make out a third case in its affidavit. Reliance in this connection has been placed upon A.I.R 1970 Pat. 397.

17. It was further submitted that the respondent has suppressed the material document namely the service sheet and thus an adverse presumption may be drawn against it. On the aforementioned proposition, Sri Roy has relied upon A.I.R 1967 Cal. 151. It was further submitted that this Court must also take into consideration the conduct of the respondent as arbitrary as the service of the petitioner has already been terminated.

18. The learned counsel in this connection has relied upon (1974) 4 SCC 3 : A.I.R 1974 S.C 555.

19. The learned counsel also submitted that this Court can also go in to disputed question of fact.

20. Sri Bandopadhyay, learned counsel appearing on behalf of the respondent, raised the following contentions:

(1) An apprentice is not an workman.

(2) Effect must be given to the definition of workman in the Standing Order in the context of the provisions of S. 18 of the Apprenticeship Act.

21. The learned counsel in this connection has drawn our attention to a few paragraphs of affidavit-in-opposition.

22. In support of the aforementioned contention reliance has been placed upon by the learned counsel in 1986 — II L.L.N 976 : 1986 (2) S.L.R 437 and 1975 — II L.L.N 498.

23. According to the learned counsel in any event the question as to whether the petitioner is workman or not being a disputed question, the petitioner is required to prove the same and thus writ Court cannot be the appropriate forum for the purpose. In this connection reliance has been placed on 1976 L. & I.C 202 (Cal).

24. Even assuming that the appellant was a workman, he ceased to be a workman as he has been offered employment afresh and thus he must comply with the requirement of provision of the Certified Standing Order to prove his date of birth. Reliance in this connection has been placed upon (Bilash Chandra v. Balmer Lawrie and Company) [A.I.R 1953 Cal. 613].

25. The learned counsel submitted that the provisions of the schedule apprehended to the said Act requires that returns are to be submitted relating to the service records of the apprentice. According to the learned counsel the prescribed forms in relation to different service returns are required to be filed pointing out progress in training and thus any such returns cannot be said to be conclusive. According to the learned counsel date of birth of the apprenticeship was not required to be recorded under the Apprenticeship Rules. It was submitted that even if the age of the petitioner which was recorded, the same being contrary to the rules, the respondent being an employer was not wound thereby as the nature of the obligation of the employer is required to be determined before the principles of estoppel can be invoked.

26. Reliance in this connection has been placed upon Union Carbide Corporation etc. v. Union of India, [(1991) 4 SCC 584 : A.I.R 1992 S.C 248 and 283]

27. The learned counsel submitted that for the purpose of being a workman a person must do skilled or unskilled work and as an apprenticeship only takes training, he cannot be a workman.

28. The learned counsel submitted that thus any question of acceptance of date of birth by the petitioner respondent on the basis of the entries made earlier while he was a trainee does not arise. Reliance in this connection has been placed upon by the learned counsel in 1994 — I L.L.N 569 : (1994) 2 SCC 768 : 1973 — II L.L.J 266 : 1986 — II L.L.N 976 and 1975 — II L.L.N 498].

29. It was submitted that the petitioner did not have any legal right to be appointed. The learned counsel contends that as allowing the petitioner to join his job is within the discretionary jurisdiction of the employer this Court cannot interfere with the impugned order in exercise of its writ jurisdiction. Reliance in this connection has been placed upon Uttar Pradesh State Road Transport Corporation v. Mohammed Ismail, [1991 — II L.L.N 406]

30. The learned counsel further produced before us a xerox copy of the admit card which shows that the column meant for recording the date of birth is blank. The learned counsel further produced before us a copy of the letter, dated 26 September, 1994 issued to the respondent by the West Bengal Board of Secondary Education. A perusal thereof shows that the date of birth of the petitioner recorded in its records was 1 September, 1957. According to the learned counsel the onus of proof, thus, shifted to the petitioner in view of the aforementioned letter. It was urged that the petitioner is guilty of serious misconduct, it was further submitted that the date of birth recorded in school is not conclusive. Reliance in this connection has been placed upon 1988 Supp SCC 604 : A.I.R 1988 S.C 1796.

31. The learned counsel further submitted that the petitioner respondent has neither acted reasonably nor mala fide in refusing to accept the joining report of the petitioner in absence of proof of his date of birth keeping in view of the suspicious conduct of the petitioner and in this view of the matter it cannot be contended that the principles of natural justice have been violated. Reliance in this connection has been placed upon 1993 Supp (4) SCC 260 : A.I.R 1993 S.C 1082.

32. Sri Roy in reply submitted that the purported Board Certificate cannot be relied upon as it is merely a letter and thus cannot be treated to be sacrosanct.

33. Apprenticeship Act, 1961, was enacted to provide for regulation and control of training. Apprentice has been defined to be a person who is undertaking apprenticeship training in pursuance of a contract of apprenticeship.

34. Section 18 reads as follows:

“Apprentices are trainees and not workers.— Save as otherwise provided in this Act—

(a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and

(b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice.”

35. Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the said Act) was enacted to require employers in industrial establishments formally to define conditions of employment under them.

Section 2(i) of the said Act defines workman in the following term:

“‘Workman’ means any person (including an apprentice employed in any industrial establishment to do any skilled or unskilled manual, supervisory, technical or clerical work for higher reward, whether the terms of employment be express or implied, but docs not include any such person—

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy Act, 1957; or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who being employed in a supervisory capacity, drawn wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”

36. The said definition is in pari materia with the definition of workman as contained in the Industrial Disputes Act, 1947. The question as to whether an apprentice is a workman within the meaning of the provision of the said Act or not would be considered a little later. At this juncture let us consider the provision of the Apprenticeship Act and the rules which have been framed by the Central Government in exercise of its power under S. 37(1) of the 1961 Act. Establishment has been defined in S. 2(g) of the 1961 Act which includes any/place where an industry is carried on. Section 2(i) enumerates the establishments in public sector. Respondent 1 comes within the purview of the said definition. Rule 10 of the Rules provide for records and returns to be maintained and submitted to the authorities prescribed therein. The prescribed form stipulating filing of returns of personal details of the apprentice, inter alia, provides for the date of his birth.

37. The Industrial Employment (Standing Orders) Act, lays down the procedure for certifying the Standing Order framed by the employer. Such Standing Order as is well known, has the force of law.

38. In terms of the aforementioned provision the respondent has also framed a Standing Order which has been certified, in terms of the provisions of the said Act.

39. The workman has been defined in Cl. 2(a) of the said Standing Order. An apprentice has been included as a workman in the said provision and has been brought within the purview of the classification of the workman, the effect whereof has to be considered hereinafter.

40. The word “workman” has been defined in Cl. 2(a) of the said Standing Order in the following terms:

“‘Workman’ means any person (including an apprentice) employed in the establishment to do any skilled or unskilled, manual, supervisory, technical or clerical work, for hire or reward, whether the terms of employment are expressed or implied, but does not include any such person—

(i) who is employed, mainly in a managerial or administrative capacity; or

(ii) who being employed in a supervisory capacity draws salary/wages exceeding Rs. 500 per month or exercises either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature or employees of any contractor.”

41. In this case this Court is concerned with the definition of “workman” under the provision of the Industrial Employment (Standing Orders) Act, and the Certified Standing Order of the respondent-company.

42. In terms of the aforementioned provision as well as in terms of the 1946 Act, an apprentice may also be a workman provided he fulfills the conditions therefor. He would not, however, be a workman in view of the provisions of S. 18 of the Apprenticeship Act.

43. It is true that whenever the Legislature uses the word “includes,” a broader meaning is to be given thereto, but the said definition has to be considered keeping in view the scheme, object and purport of the Apprentice Act and in particular S. 18 thereof.

44. Thus an apprentice may be a workman provided he is not a trade apprentice within the meaning of the provision of 1961 Act.

45. In Employees' State Insurance Corporation v. Tata Engineering and Locomotive Company, Ltd., [1975 — II L.L.N 498], the Apex Court while considering the definition of workman under the Employees' State Insurance Act held that an apprentice is not a workman.

46. In Hanuman Prasad Choudhury v. Rajasthan State Electricity Board Jaipur, [1986 — II L.L.N 976], S.C Agarwal, J. (as His Lordship then was, held, in Paras. 13 and 14, at pages 982 and 983:

“This would show that an apprentice who is a workman under the said regulations would include a person who may not be an apprentice under the Apprentices Act. In that view of the matter, it can be said that for the purpose of S. 2(s) of the Industrial Disputes Act a person who is designated as apprentice but is not governed by the Apprentices Act would be a workman governed by the provisions of Industrial Disputes Act. But an apprentice who is governed by the provisions of the Apprentices Act, would not be a workman under S. 2(s) of the Industrial Disputes Act and would not be governed by the provisions of the Industrial Disputes Act.

14. Apart from the aforesaid principle of harmonious construction, the conflict between the provisions of S. 2(s) of the Industrial Disputes Act and S. 18 of the Apprentices Act can also be resolved by applying the principle of statutory interpretation that the operation of a prior general law may be curtailed by a subsequent particular law. Industrial Disputes Act is a general law applicable to all categories of workmen whereas the Apprentices Act is thus particular law enacted with special reference to apprentices. The definition of workman in S. 2(s) of the Industrial Disputes Act was enacted in 1956 whereas the Apprentices Act was enacted in 1961. Section 2(s) of the Industrial Disputes Act is the prior general law and S. 18 of the Apprentices Act is a subsequent particular law. The provisions of S. 18 of the Apprentices Act will, therefore, prevail over the provisions contained in S. 2(s) of the Industrial Disputes Act relating to apprentices and an apprentice governed by the Apprentices Act cannot be regarded as a workman under S. 2(s) of the Industrial Disputes Act.”

47. In my opinion, it is not difficult to resolve the apparent conflict. Both in the Industrial Employment (Standing Orders) Act, 1946, as also the Certified Standing Order of the company the word “including an apprentice” occur after the words “person.” In that view of the matter in place of the word “person” the word “apprentice” can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the Standing Order framed thereunder, he is required to fulfill the other conditions laid down therein meaning thereby he is required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied.

48. Reference in this connection may be made to Tungabhadra Sugar Works (Private), Ltd. v. Labour Court, Mangalore, [1983 — II L.L.N 422], wherein it has held as follows, in Para. 5, at page 425:

“It is clear from the definition of the word ‘workman’ that any person including apprentice can be regarded as a workman if he is employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. In other words, the existence of relationship of an employer and an employee is of the essence of the matter. The employment has necessarily to be in respect of an industry. Any person, whether he is an apprentice or not, can be regarded as a workman only if he is employed in an industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment are express or implied.”

49. In Satvinder Singh v. State of Punjab reported in 1986 (2) S.L.R 437, M.M Punchhi, J. (as his Lordship then was) upon considering the provision of Apprenticeship Act observed:

“Rather S. 18 of the Act specially says that every apprentice undergoing apprenticeship training in the designated trade in the establishment shall be a trainee and not a worker. The note is specific in that regard that one must have rendered one year's service as an employee of the Punjab State Electricity Board and not having received one year's training in the Board. Both status cannot be equated in any event. Thus, I am of the considered view that the petitioners did not hold the qualifications to claim the posts and were rightly declined interview by the Board despite being called.”

50. Same view has recently been taken in Tannery and Footwear Corporation of India, Ltd. v. Labour Court II, Kanpur, [1994 — II L.L.N 481].

51. However, it appears that respondent 1 itself has classified workman which includes an apprentice occurring in Cl. 4 of the said classification. But in my opinion, only by reason thereof, an apprentice would not be a workman unless he comes within the purview of the definition of workman. Even assuming that there exists a conflict between the provisions of the Certified Standing Order and 1946 Act, the later shall prevail.

52. Moreover, for the purpose of consideration as to whether a trade apprentice would be workman or not, the entire scheme of the Act has to be considered. Reference in this connection may be made to Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, [A.I.R 1958 S.C 353], wherein it has been held:

“A little careful consideration will show, however, that the expression any person, occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject-matter of dispute must relate to—

(i) employment or non-employment; or

(ii) terms of employment or conditions of labour of any person;

these necessarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject-matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject-matter and scheme of the Aci and consistently with the objects and other provisions of the Act. It is well settled that:

‘the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymology propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained.’ (Maxwell, Interpretation of Statutes, 9th Edn., page 55.)”

53. Recently the Supreme Court in a decision reported in (1994) 5 SCC 73 held that sales-representatives are not workmen under the Industrial Disputes Act, 1947.

54. Admittedly the writ-petitioner even at the time when he was appointed as an apprentice did not furnish his Matriculation or School Final or School Leaving Certificate granted by the University or Board of Secondary Education or similar educational authority nor filed any certified copy of the date of his birth as recorded in the Register of Municipality or local authority or filed any other document as provided for in rule 4 of the Certified Standing Order of the respondent-company.

55. It is true that the petitioner filed a certificate obtained from the headmaster of the school. Such certificate given by the headmaster may be admissible in evidence in a suit. Assuming that the school leaving certificate which has been produced by the petitioner for the first time in this Court may be taken to be admissible in evidence in terms of S. 35 of the Evidence Act as Sri Pratap Roy contends but the same also is not conclusive. The petitioner evidently although passed the Matriculation Examination did not produce his Matriculation Certificate. He has not denied that he had appeared in the said examination.

56. The petitioner's admit card did not contain his date of birth. The contention of Sri Roy that as the petitioner appeared as an external candidate no date of birth was recorded therein cannot be accepted. An external candidate presumably is required to fill up the form stating his date of birth. However, it appears that according to the petitioner himself he read in the aforementioned school beginning from Class V and has also appeared in the Matriculation Examination but did not succeed.

57. It, therefore, cannot be his case that no record of his date of birth was available in the office of the West Bengal Board of Secondary Education.

58. In fact, from the letter produced before us by Sri Banerjee, it appears that his date of birth was recorded as 10 September, 1957. We must, therefore, presume that the petitioner has deliberately tried to withhold the same.

59. The date of birth of the petitioner recorded by the respondent when he was appointed as an apperentice cannot be considered to be sancrosanct. The petitioner obtained a fresh offer of appointment only in the year 1994 after he ceased to be an apperentice in the year 1988.

60. Clause 4 of the Standing Order postulates that a workman shall furnish his exact date of birth to the management at the time of entering into service of the company. The said condition is binding upon the writ-petitioner. He, therefore, was required to furnish his exact date of birth in the manner laid down in Sub-cl. (b) of Cl. 4. Sub-clause (b) postulates a Matriculation Certificate, School Final or School Leaving Certificate granted by the University or Board of Secondary Education or similar educational authority. The words “similar educational authority” must be read ejusdem generis to university or Board of Secondary Education School cannot be an Educational Authority similar to the University or Board of Secondary Education.

61. The question of filing an affidavit also arises only when the workman fails to produce either the certificate granted by the university or the Board of Secondary Education or similar educational authority or the certified copy of the date of his birth as recorded in the register of municipality or a local authority. He was required to produce the certificate relating to his date of birth in terms of Cl. 4. It therefore, does not lie in the mouth of the petitioner to contend that as his date of birth was recorded in the service book while he was apprentice, the same must be held to be conclusive evidence relating to his age.

62. Assuming that what the petitioner contends is correct, still then in view of the aforementioned letter of the Board, the petitioner prima facie has tried to play fraud with the respondent-company.

63. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.

64. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent-company would be bound thereby.

65. In S.P Chengalvaraya Naidu v. Jagannath, reported in (1994) 1 SCC 1 : A.I.R 1994 S.C 243, it was held that a decree obtained by fraud is a nullity and non est in the eye of law.

66. In Mahish Kumar v. State of Bihar reported in 1994 (1) B.L.J.R 546 a Division Bench of the Patna High Court has held that admission obtained in M.B.B.S course by practicing fraud being a nullity; the principles of natural justice are not required to be complied with in the event such admissions are cancelled.

67. In Shrisht Dhawan (Smt) v. M/S Shaw Brothers., reported in (1992) 1 SCC 534 : A.I.R 1992 S.C 1555, it has been held:

“Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence.”

68. Reference in this connection may be made to 1993 B.B.C.J 612 : 68 F.L.R 1040 and 1994 (5) S.L.R 206.

69. In Mohammed Nagin Ahmed v. State reported in 1994 (1) C.H.C.N 493 a Division Bench of this Court held that rectification of date of birth should not be permitted when, at the time of entry into service, a person has deliberately suppressed the relevant documents.

70. In view of my findings aforementioned, it is not necessary to deal with the other contentions raised at the Bar and in particular the contention of Sri Roy that the certificates granted by the headmaster of the school are admissible under S. 35 of the Evidence Act.

71. However, it may be noticed that in Birad Mal Singh v. Anand Purchit, reported in, 1988 Supp SCC 604 : A.I.R 1988 S.C 1796, it has been held that an entry relating to the date of birth made in the school is relevant and admissible under S. 35 of the Evidence Act but the entry regarding the age of a person in a school is not much evidenciary value to prove the age of a person in the absence of material on which the age was recorded.

72. Thus, in absence of the primary material on the basis whereof the age was recorded, and particularly in view of the conflicting evidence available, it is not possible to accept the contention of Sri Roy that the date of birth of the petitioner as recorded in the said certificate would prevail over the letter of the Board.

73. The petitioner's legal right to join his job pursuant to his appointment is subject to the conditions laid down under the Standing Order. The respondent as an employer is entitled to ask the petitioner to submit proof of his age in term of the said Standing Order which as indicated hereinbefore has the force of law.

74. This Court in exercise of its jurisdiction under Art. 226 of the Constitution of India cannot direct the respondent not to act in accordance with the said certified Standing Order.

75. In this case, the petitioner is not even entitled to invoke the principles of natural justice in view of the fact that by taking recourse thereto, statutory provision cannot be stultified.

(See W.N Chadda case reported in 1993 Supp (4) SCC 260 : A.I.R 1993 S.C 1082].)

76. Principles of natural justice, in this case, thus, cannot be invoked. It is the duty of the petitioner to furnish documents showing his date of birth. He could not have refused to do so only on the ground that his date of birth was recorded earlier in the records of the respondents while he was an apprentice. Principles of natural justice supplements the law and not supplants it, nor can it be brought in service with a view to stultify the law.

(See Dr. Rash Lal Yadav v. State of Bihar reported in [(1994) 5 SCC 267].)

77. Moreover in this case admittedly a dispute has arisen relating to the exact date of birth of the petitioner. Such a dispute cannot be resolved in a proceeding under Art. 226 of the Constitution of India.

78. For the views I have taken, it is not necessary to consider the effect of the provisions of S. 35 of the Evidence Act nor is it necessary to consider the decisions relating to drawing of presumption in terms of S. 114 thereof.

79. A presumption under S. 114 may not be drawn by a Court.

80. In a case of this nature where a certificate of date of has been granted by a headmaster of a private institution, drawing of presumption under S. 114 of the Indian Evidence Act does not arise. In any event, such presumption even if drawn stands rebutted in view of the aforementioned letter issued by the W.B.B.S.E Moreover the question with regard to the determination of a date of birth being a disputed one cannot be gone into by this Court in exercise of its jurisdiction under Art. 226 of the Constitution of India.

81. In this view of the matter no relief can be granted to the petitioner. In this case, however, before parting with this case we must mention that Sri Bandopadhyay stated that the petitioner's prayer for allowing him to join in the service would not arise as he has already crossed 35 years ago. Sri Bandopadhyay however has not been able to show that 35 years is the maximum age prescribed by the company for offering employment to any person. In this view of the matter we make it clear that we are not expressing any opinion in relation thereto.

82. However, we have no doubt in our mind that the respondent-company being a State within the meaning of Art. 12 of the Constitution of India would act as a model employer and pass necessary orders with regard to joining of the petitioner in accordance with law, if there does not exist any statutory bar in this regard.

83. This appeal is, therefore, dismissed but in the facts and circumstances of this case there will be no order as to costs.