Manager, Uttar Gujarat Vij ... vs Desai Gemarbhai Jesingbhai
2022 Latest Caselaw 7584 Guj

    C/SCA/10041/2020                               CAV JUDGMENT DATED: 06/09/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10041 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MANAGER, UTTAR GUJARAT VIJ COMPANY LIMITED, SUB DIVISION, IDAR Versus DESAI GEMARBHAI JESINGBHAI ========================================================== Appearance:

MS LILU K BHAYA(1705) for the Petitioner(s) No. 1 MR HARSHAD K PATEL(2844) for the Respondent(s) No. 1

==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 06/09/2022

CAV JUDGMENT

1. Rule returnable forthwith. Mr. Harshad Patel,

learned advocate appearing for the respondent no. 1

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waives service of notice of Rule.

2. By way of this petition, under Article 226 of the

Constitution of India, the petitioner employer has

challenged the judgement and award dated 05.11.2019

passed by the Labour Court, Himmatnagar in Reference

(LCH) No. 41 of 2014 by which the Labour Court directed

that the respondent workman be treated to have been in

service till his date of retirement of 30.04.2014 and be

paid 40% backwages.

2. Facts in brief would indicate that the respondent

joined the erstwhile Gujarat Electricity Board as Helper

on 01.04.1982. At the time of joining service, he

produced an affidavit showing his date of birth as

01.04.1954. He also produced a certificate of date of

birth showing his date of birth as 01.06.1950. As per his

date of birth in the affidavit, the respondent workman

was entitled to continue in service till 30.04.2014,

however, based on his date of birth recorded in the

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School Leaving Certificate and the certificate of date of

birth produced together with the affidavit as 01.06.1950,

he was retired with effect from 30.06.2010 in the year

2012.

2.1 Aggrieved by this action of the employer of retiring

him in the year 2012 with effect from 30.06.2010, the

respondent raised a dispute before the Labour Court. The

Labour Court, based on the evidence that was recorded,

came to the conclusion that when the respondent was

appointed and resumed his duties on 19.04.1982, he had

produced an affidavit dated 26.03.1981 stating that his

date of birth recorded in the birth certificate as

01.06.1950 was wrong.

2.2 The employer accepted that and permitted the

respondent to resume on 19.04.1982 and almost 30 years

thereafter issued a charge-sheet invoking Clause-16 of

G.S.O No. 7, asking the employee to show cause as to

why he should not be removed from service for having

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given false information inasmuch as though the birth

certificate and the School Leaving Certificate recorded

01.06.1950 as the date of birth. It was the case of the

employer that the employee therefore was not eligible for

appointment as admittedly he was beyond the age of 28.

2.3 Having found the explanation by the employer

unacceptable, the Labour Court passed the award which

is under challenge.

3. Ms. Lilu Bhaya, learned advocate for the petitioner

employer submitted that the Labour Court failed to

appreciate that the respondent had secured employment

by producing a false affidavit showing his date of birth as

01.04.1954 whereas the correct date of birth was

01.06.1950. He therefore got service by producing a

false affidavit which was brought and therefore invoking

Clause-16 of G.S.O No. 7, his services were rightly put to

an end.

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3.1 Ms. Bhaya, learned advocate for the petitioner would

submit that there was evidence on record that two

different dates of birth were recorded. At Ex. 25, a

certificate issued by the Head Master of J.J. Desai School

was produced on record to show that the date of birth of

the respondent was 01.06.1950. Reading the certificate

would indicate that this date of birth was recorded based

on the extract of the General Register and the entry

thereof.

3.2 Ms. Bhaya would further submit that the Labour

Court also failed to appreciate that a certificate dated

16.07.2012 was issued by the Talati-cum-Mantri wherein

he had stated that he had never issued a certificate

bearing his signature, which birth certificate showed the

date of birth as 01.04.1954. She would further submit

that the Labour Court failed to appreciate the deposition

of Shri Bhaveshkumar Soni (Ex. 23) who had confirmed

that the certificate dated 18.06.2012 issued by the school

showed the date of birth as 01.06.1950. Invoking Clause-

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16 of the G.S.O No. 7, the employer was therefore within

its right to terminate the services treating the respondent

to have retired in the year 2010.

3.3 Ms. Bhaya would rely on the following decisions:

(I) Daya Shankar Yadav vs. Union of India reported

in 2010(14) SCC 103;

(II) Ram Saran vs. I.G. Of Police, CRPF reported in

2006(2) SCC 541;

(III) R. Vishwanatha Pillai vs. State of Kerala and

Others reported in AIR 2004 SC 1469.

4. Mr. Harshad Patel, learned counsel appearing for

the respondent employee would submit that the award of

the Labour Court is just and proper which has held that

the respondent was directed to be treated to be in service

from the date of his termination till 30.04.2014 and also

directed to give all terminal benefits. He would submit

that it is true that the school leaving certificate and the

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birth date document mentioned 01.06.1950 as the date of

birth, however at the time of he securing an appointment,

he had filed an affidavit showing the date of birth as

01.04.1954. That affidavit was accepted by the employer

and in his service-book the date of birth was recorded as

01.04.1954. Even the Sarpanch had given the document

at Ex. 12 which indicated that the date of birth was

01.04.1954. The charge-sheet was given in the year

2012, 30 years after he was appointed, showing that as to

why his services should not be terminated for seeking

appointment by fraud. He would submit that the findings

of the Labour Court cannot be interfered with and the

award of the Labour court must be sustained.

5. Perusal of the award would indicate the following:

(i) The respondent was appointed as a Helper with the

employer - erstwhile Gujarat Electricity Board by an

appointment order dated 01.04.1982. At the time of his

appointment, the respondent employee had produced an

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affidavit, copy of the horoscope and a certificate of birth.

It was stated in his affidavit that though the certificate of

birth records 01.06.1950 as the date of birth, his actual

date of birth is 01.04.1954 based on the horoscope.

(ii) Based on this affidavit, the employer entered

01.04.1954 as the date of birth in his service-book. In

May 2012, a show-cause notice was issued to the

respondent employee to show cause as to why based on

the certificate of date of birth which showed 01.06.1950

as his date of birth action be not taken under G.S.O No. 7

Clause-16 inasmuch as according to the employer the

respondent had obtained employment by fraud and

therefore his services be not put to an end with effect

from 30.06.2010.

(iii) An inquiry was held and in the year 2012, the

services of the respondent were put to an end. In the

inquiry, the employer had produced at Exs. 25 and 26 a

certificate of the J.J. Desai High School dated 18.06.2012

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and statement dated 16.07.2012 of the Talati-cum-Mantri

of the Gram Panchayat respectively. Both these indicate

that, firstly, the date of birth in the School Leaving

Certificate of 01.06.1950 recorded was based on the

General Register. Secondly, the Talati-cum-Mantri stated

that the certificate relied upon by the respondent

employee showing the date of birth as 01.06.1954 did not

bear his signature and therefore the case of the

respondent that his date of birth is 01.06.1954 be not

believed.

(iv) The employer examined one Shri Piyushkumar

Manilal Roy at Ex. 28. Perusal of the award of the Labour

Court would indicate with the reasonings thereunder that

on 28.05.2012, a show-cause notice was issued to the

respondent employee asking him to show-cause as to why

his date of birth should not be taken as 01.06.1950 and

not 01.04.1954 and accordingly his appointment be said

to be one obtained by fraud and be set aside. The

respondent employee filed a response on 12.06.2012

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based on which the inquiry officer came to a finding and a

show cause notice was issued to the respondent on

22.08.2012 and after response was given by the

respondent on 28.08.2012, by an order dated 31.08.2012,

the services of the respondent were put to an end with

effect from 30.06.2010.

(v) The Labour Court found that at Ex. 23 - one

Bhaveshkumar Rasiklal Soni was examined. Shri

Piyushkumar Manilal Roy - the employer was also

examined at Ex. 28. The case of the employer was that he

had produced a forged record showing his date of birth as

01.04.1954 while securing employment on the basis of he

declaring his date of birth as such. The Labour Court

found that this was a misconceived charge. The

employee had specifically produced an affidavit showing

that though his date of birth recorded in the birth

certificate was 01.06.1950, he had made an application

for change of date of birth to 01.04.1954 and that

affidavit was accepted by the employer in the year 1982

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and the date of birth was so recorded in his service-book.

Both the affidavit and the certificate which showed the

date of birth as 01.06.1950 were in possession of the

employer when the appointment was made and the

employer accepted 01.04.1954 as the date of birth.

Evidence of the employer Shri P.M. Roy was appreciated

which indicated that it was based on the date of birth

certificate produced by the employee at the relevant time,

when was compared with the affidavit, it came to the

notice that there were two different dates of birth and

therefore the show-cause notice was issued. The Labour

Court found that it was not a case where the employee

had misguided the employer by producing a wrong date

of birth. In fact the employee had produced two

documents, the very date of birth certificate showing

01.06.1950 as the date and the affidavit was filed showing

that this date of brith was wrong and infact the date of

birth was 01.04.1954. When the appointment was made

in the year 1982, the employer accepted 01.04.1954 as

the date of birth based on the affidavit and entered the

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same in the service-book. The Labour Court opined that

30 years thereafter in the year 2012 based on the

documents which were already produced at the time of

the appointment of the respondent, it was not open for

the employer then to contend that they would accept as

01.06.1950 as the date of birth and not 01.04.19954 when

in fact the employer had accepted the affidavit as correct.

(vi) On the basis of the statement of the then Talati-cum-

Mantri produced at Ex. 26, perusal of the award of the

Labour Court would indicate that the stand of the Talati-

cum-Mantri was that he had not signed the date of birth

certificate showing 01.04.1954. When compared to the

deposition of Shri Bhaveshkumar Rasiklal Soni together

with the certificate of J.J. High School which also showed

that the date of birth was 01.06.1950 and not 01.04.1954,

the Labour Court found that considering the deposition of

the employer, Shri Piyushkumar Roy, the Talati-cum-

Mantri Jayantibhai Patel had said that he had not given

the certificate recording the date of birth as 01.04.1954

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and that statement was produced before the authority.

The Labour Court found that the stand of the Talati-cum-

Mantri denying his signature on the date of birth

certificate showing 01.04.1954 as the date of birth, Shri

Jayantibhai Patel was never produced as a witness before

the Labour Court or the Inquiry Officer to substantiate

this stand.

6. A crucial finding that needs to be appreciated of the

Labour Court is that upto 31.08.2012, all these

documents namely the affidavit which recorded

01.04.1954 as the date of birth, the certificate recording

the date of birth as 01.06.1950 and the School Leaving

Certificate which also recorded the date of birth as

01.06.1950 were in the possession of employer. These

documents were the set of documents produced by the

employee when he secured appointment on 01.04.1982.

Based on the affidavit the employer recorded 01.04.1954

as the date of birth and did not think it fit to change it to

1950 for over a period of 30 years and only in the fag end

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of 2012 did the employer to the adversity of the

respondent seek to change the date of birth based on

these documents of which the employer already had

knowledge when the respondent was appointed.

7. Based on these evidences, therefore, the Labour

Court, in the opinion of this court, rightly came to the

conclusion that the stand and action of the employer

deserved to be set aside. Accordingly, the Labour Court

directed that the respondent be continued in employment

till his actual age of superannuation i.e. 30.04.2014 and

paid 40% of backwages.

8. For the aforesaid reasons, the finding of the Labour

Court cannot be faulted and the award therefore is just

and proper. Accordingly, the petition is dismissed. Rule

is discharged.

(BIREN VAISHNAV, J) DIVYA