Gujarat High Court
Executive Engineer, Pgvcl vs Vibhakar Prafullvadan Desai on 9 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8944 of 2008
With
R/SPECIAL CIVIL APPLICATION NO. 6045 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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EXECUTIVE ENGINEER, PGVCL & ANR.
Versus
VIBHAKAR PRAFULLVADAN DESAI & ANR.
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Appearance:
SPECIAL CIVIL APPLICATION NO.8944 OF 2008:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
MR NIRAD BUCH FOR MR MOUSAM R YAGNIK(3689) for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
SPECIAL CIVIL APPLICATION NO.6045 OF 2011:
MR NIRAD BUCH FOR MR MOUSAM R YAGNIK(3689) for the Petitioner(s)
MR DIPAK R DAVE(1232) for the Respondent(s) No. 3
MR AV NAIR for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 1,2 and 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/07/2025
COMMON ORAL JUDGMENT
1. As common questions of fact and law are involved
in these petitions, at the request of learned advocates for the
parties, these petitions are disposed of by this common
judgment.
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2. Special Civil Application No.8944 of 2008 is filed
for the following prayers:
"10(A) The Hon'ble Court may be pleased to admit this
petition.
(B) The Hon'ble Court may be pleased to allow this petition
by passing writ of mandamus, certiorari or appropriate writ,
order or direction by way of quashing and setting the award
dated 21.1.2008 passed by the Ld.Labour Court No.2,
Bhavnagar in Reference LCB No.117/06.
(C) The Hon'ble Court may be pleased to pass interim order
granting stay against the implementation, execution and
operation of the impugned award passed by the Ld.Labour
Court No.2, Bhavnagar in Reference LCB No.117/06.
(D) xxxxx"
2.1 Special Civil Application No.6045 of 2011 is filed
for the following prayers:
"6(A) Yours Lordships may be pleased to admit and allow
this petition;
(B) Your Lordship may pleased to issue a writ of mandamus
or a writ in the nature of mandamus or any other writ
order or direction, directing the respondents, more
particularly, the respondent no.1 to pay the arrears of
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pension with effect from 30.09.2005 with 10% interest p.a. to
the petitioner in one stroke and in the alternate to pay
arrears of pension with 10% interest with effect from
30.09.2009 and further be pleased to direct the respondent
no.1 to invest the amount of pension for the period between
30.09.2005 to 30.09.2005 (sic) 2009 in a fixed deposit and
that the amount of interest accrued on the said amount be
made available to the petitioner;
(C) xxxx"
3. The brief facts leading to filing of this petition are
such that the respondent was taken as Helper on 17.2.1975
and was promoted as Meter Reader on 8.12.1986 and as
Junior Assistant on 24.1.2003; that at the time of joining the
service, the petitioner produced his self affidavit by putting
his date of birth as 22.9.1949; the respondent was, in
compliance with the order of the Head Office of the company
for verification of dates of birth of employees, asked to
produce the authority for his said birth such as school/SSC
certificate etc., however, the respondent failed to do so;
therefore, the school directly called for such information from
the respondent's school and the school furnished the
information that the respondent's birth date is 22.9.1945;
therefore, as the wrong date of birth based on the self-
serving affidavit with nothing in corroboration was required
to be corrected, the petitioner gave a show cause notice to
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the respondent to which the respondent did not reply; and
again another show cause notice was issued, which was also
not replied and therefore, the petitioner corrected the date of
birth in the records, and the respondent was informed;
thereafter, based on the said date, on completion of 60 years
i.e. on 30.9.2005, he was retired as per service rules and he
received all the retiral benefits and thereafter, after 8
months, the respondent raised a dispute which was referred
to the learned Labour Court No.2, Bhavnagar ending in
Reference LCB No.117 of 2006, in which the impugned award
is passed on 21.1.2008 partly allowing the reference and
quashing and setting aside the order of retirement of the
respondent and directing the petitioner to reinstate him in
service with continuity of service, full salary and all other
service benefits taking his date of birth as 22.9.1949 and not
22.9.1945. Hence, the petition no.8944 of 2008 is filed by the
petitioner-board.
3.1 Special Civil Application No.6045 of 2011 is filed
by the respondent of Special Civil Application No.8944 of
2008 stating that on 22.9.2003, the petitioner submitted a
form for being admitted in the pension scheme; vide order
dated 29.11.2004, the order was passed to accord sanction for
the payment of 90% of Contributory Pension Fund (CPF) in
pursuance of the application dated 29.10.2004; the petitioner
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was granted sum of Rs.1,98,952/- towards payment of gratuity
vide order dated 14.11.2005 considering the date of retirement
of the petitioner to be 30.09.2005; on 21.9.2007, the petitioner
was informed that the full pension would be applied only
after 21.9.2007 in view of the fact that the date of birth
recorded in the register of service book is 22.9.1949; the
petition being Special Civil Application No.8944 of 2008 is
admitted by this Court and therefore he preferred an
application in which, vide order dated 19.12.2008, the
application of the petitioner for grant of benefit of Section
17B wages to the petitioner was allowed; vide order dated
29.9.2009 passed in the application for modification of the
order, it was observed by coordinate Bench of this Court that
even as per the date of birth claimed by the petitioner, the
petitioner would reach the age of superannuation on
30.9.2009 and therefore the petitioner would not be entitled
for Section 17B wages and the same were not paid from
29.9.2009; that though the petitioner stands retired from
30.9.2009l he is not paid the pension from 30.9.2009 and
though it was clearly requested vide letter dated 16.1.2010 to
the respondent no.1 to grant pension to the petitioner, no
heed is paid to the petitioner and therefore this petition is
filed by the petitioner.
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4. Heard learned advocates for the parties.
4.1 Learned advocate Mr.Dave for the petitioner in
Special Civil Application No.8944 of 2008 has submitted that
the respondent's date of birth recorded in his school is
22.9.1945, but when he joined service on 17.12.1975 as a
helper, the date was recorded as 22.9.1949 on the basis of
his self- serving affidavit dated 16.9.1974. From the record
also, it transpires that the date of birth of the respondent in
th
the marksheet of the 10 standard examination also
mentioned as 22.9.1945 and not 22.9.1949. Therefore, the
respondent has not declared this vital fact during the course
of service and on the contrary, has wrongly taken the benefit
by filing affidavit on the basis of horoscope which is
otherwise not permissible under the law. The respondent was
retired on 30.9.2005 on completion of 60 years of the age as
per the birth date dated 22.9.1945. Thereafter, the respondent
has accepted the retirement order and retiral benefits without
any objection and after 8 months of cheerful retirement, the
respondent raised the dispute which is considered by the
learned Labour Court as Reference No.117 of 2006, whereby
the correction of the birth date made by the petitioner was
set aside and issued direction to the petitioner to reinstate
him in service with all benefits taking his birth date as
22.9.1949.
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4.2 In this background, he raised three contentions;
firstly, by drawing attention of this Court towards the terms
of reference, whereby the only aspect which is considered is
that since the respondent was relieved on 30.9.2005 was
required to be reinstated at his original place or not. There
is no other terms of reference even then, the learned Labour
Court has committed error in considering the aspect about
the right of the respondent and that the petitioner has not
acted promptly and has corrected the birth date at later
stage and therefore the impugned order of the petitioner was
quashed. He contended that without challenge to that order,
by which the birth date is corrected, such consideration by
the learned Labour Court is not permissible under the
provisions of Industrial Disputes Act and therefore the
impugned judgment is passed without jurisdiction and
therefore required to be quashed and set aside.
4.3 Secondly, the learned Labour Court has grievously
erred in relying on the respondent's affidavit as evidence for
the birth date without giving preference to the respondent's
school certificate. It is now well established that date of birth
in matriculation certificate carries more probative value than
the affidavit.
4.4 Thirdly, relying on the judgments in the cases of
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Pottery Mazdoor Panchayat V/s Perfect Pottery Co.Ltd.
Reported in 1979(3) SCC 762; F T and R Co of India (P)
Ltd V/s ITS Workmen Employees Union, reported in 1981(3)
SCC 451, Gujarat Electricity Board V/s ND Dawda decided
on 9.2.2005 in Letters Patent Appeal No.358 of 2003 and
submitted that it is not correct to say that the board has no
authority to look into the validity of the certificate issued by
First Class Magistrate or refuse to accept it, which is a good
evidence. In the present case, no order is passed by the First
Class Magistrate but it is on the basis of affidavit of
respondent claiming his birth date of year 1949 instead of
1945. Therefore, he has submitted that from any angle the
judgment passed by the learned Labour Court, more
particularly, considering the reason that after delay, board
cannot consider the birth certificate which issue is now
covered by the Division Bench in Letters Patent Appeal
No.358 of 2003 and in absence of any specific pleading by
the respondent before the Labour Court, learned Labour
Court has erred in granting the prayer of gainful
employment. The learned Tribunal has erred in granting full
back wages and therefore he has submitted that the present
petition be allowed.
5. Learned advocate Mr.Buch for the respondent has
contended that the learned Tribunal has not committed any
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error as, if the employee cannot be permitted to change his
record of service by amending the birth date, then on the
same basis, the employer is also not permitted to change the
service record, that too unilaterally. He has submitted that it
is tried to establish that by issuing show cause notice, the
liberty is given to the petitioner for hearing, however, as
such no effective hearing is given and therefore the action of
the present petitioner to correct the date without giving
proper opportunity of hearing to the respondent employee is
against the principle of natural justice and the learned
Labour Court has rightly interfered with the order passed by
the authority by correcting the date of birth from 1945 to
1949.
5.1 In support of his contention, he has submitted
that this Court has considered a similar issue in the case of
Shankar Lal V/s Hindustan Copper Ltd., reported in 2022(0)
AIJEL- SC 244388 in case of Manager, Uttar Gujarat Vij
Company Limited, Sub Division, Idar V/s Desai Gemarbhai
Jesingbhai and has submitted that in identical facts, the
Court has given the specific finding in paragraph 6 and
submitted that the change of date of birth at the fag end is
not permissible.
5.2 He also relied on the judgment in the case of
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Shankar Lal V/s Hindustan Copper Ltd., reported in 2022(6)
SCC 211, more particularly, paragraphs nos.16,17 and 22 and
submitted that even the Hon'ble Apex Court has held that
such correction is not permissible at belated stage and that
the contention raised by the petitioner by drawing attention
towards the issue framed by the learned Tribunal that in
absence of specific issue, the learned Labour Court has erred
in giving the relief is not proper, as the issues which are
framed also covers the issue regarding the date of birth and
therefore it cannot be said that the learned Tribunal has
exceeded its jurisdiction beyond the scope of reference and
therefore on that count also, the petition is required to be
dismissed.
5.3 Lastly, he submitted that regarding the aspect of
gainful employment, the petitioner has during his cross
examination and at the time of argument, has specifically
pleaded that he is not gainfully employed anywhere and
therefore such contentions regarding the gainful employment
and awarding backwages are misconceived and required to be
dismissed. That now, as per the order of the learned
Tribunal, the pension is fixed by considering the date of
retirement from 2009 and therefore also interference is not
called for.
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5.4 He has submitted that the issue regarding the
delay is also considered by this Court in Special Civil
Application No.20020 of 2006 dated 13.4.2017 in paragraphs
6,7,8,9. He submitted that therefore this petition is required
to be dismissed as the petitioner has not satisfactorily
explained the delay and learned Labour Court has rightly
exercised the power vested in the Labour Court by allowing
reference by holding that the birth date of the respondent
should be considered of 1949 and not of 1945.
6. Learned advocate Mr.Nair appearing for respondent
no.5 in Special Civil Application No.6045 of 2011 has
submitted that pursuant to the order passed by the learned
Labour Court, the pension is fixed and the birth date is
considered as 22.9.1949. If the petition of the board is
dismissed, then the further order is required to be passed to
recover the amount of difference or adjust the amount of
pension accordingly by concerned authority by considering the
date of birth on the basis of 1945 and if the petition of the
respondent is dismissed then there is no question to give
direction as the order of the Labour Court is already
implemented.
7. Learned advocate Mr.Dave, in response to the
above submissions made by learned advocate Mr.Buch, has
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submitted that necessary procedure is followed by the board
for calling upon the petitioner to provide documents and after
receiving reply that he is not having the documents, the
petitioner has obtained the documents from the concerned
school and therefore it cannot be said that there is any
violation of principles of natural justice.
8. I have considered the rival submissions made at
the bar and also considered the material on record. It is a
matter of fact that the present petitioner has joined the
services and at that time, affidavit was filed by him by
mentioning that his correct date of birth is of 1949 which is
on the basis of horoscope available on the record. Except
this, during the course of trial before the Labour Court, the
respondent has submitted only one document i.e. LIC policy
where his birth date is mentioned as 1949. It transpires that
from the school record which is available after communication
made by the petitioner to the concerned school, it clearly
indicates that the date of birth of the petitioner is 1945 and
not 1949. Moreover, the documents which are produced by
respondent no.5 in another petition which is marksheet of
SSC examination also indicates that the date of birth is of
1945 and not 1949.
9. Keeping this factual situation in the back of mind,
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it is required to be noted that at the time of appointment of
the respondent as a helper in the Gujarat Electricity Board,
he had already passed the examination of SSC and he was
having copy of the said marksheet with him and even then
he has denied that he is not holding any document, and he
has filed the affidavit by stating that his birth date is of
1949 and not 1945 which is discovered from the record of
the school as well as marksheet from the board examination.
That this exercise is carried out later on by the petitioner
authority and after the petitioner asked to provide the
certificate more particularly the SSC and matriculation
certificate, the present respondent failed to provide the
certificate to the petitioner board. Therefore, the petitioner-
board tried to obtain the same from the particular school
and as per certificate received by the board from the school,
which is part of the record, it clearly indicates that the
birth date is of 1945 of the respondent and therefore, it is
clearly established that the respondent has suppressed this
fact at the time of joining by relying merely on horoscope
and therefore, it can be said that the document of SSC,
though was available with the respondent, was not produced
on the record with some purpose.
10. In this background, for considering the contentions
raised by the petitioner regarding the terms of reference, it
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is relevant to refer to the following judgments:
10.1 In the case of Pottery Mazdoor Panchayat (supra),
it is held that the contention raised that Tribunals had no
jurisdiction to consider the question as regards propriety or
justification of the management's decision to close down the
business, references being limited to narrow question as to
whether the closure was proper and justified, Tribunals by
very terms of reference, had no jurisdiction to go behind the
fact of closure and inquire into question whether business
was in fact closed down by the management.
10.2 In the case of FT and R Co of India (P) Ltd.
(supra), it is held as under:
"Tribunal cannot act outside the terms of reference - Where
the points of dispute were specified in the schedule to the
order of reference, and the Tribunal was, therefore, required
to confine its adjudication to those points and matters that
were incidental to them. From a reading of demands 1(A)
and 1(B) as a whole it is clear that the demand for
reinstatement in respect of both groups of workmen as made
arises on the alleged invalidity of the action taken by the
management in dismissing these workmen. The issue of
unfair labour practice or discrimination by reason of
subsequent reinstatement on a permanent basis of some and
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not all the 25 workmen was not a matter referred to the
Tribunal for adjudication, nor it can be said to be in any
way connected with or incidental to the right of
reinstatement claimed by the 101 workmen is a matter quite
irrelevant for judging the validity of the earlier dismissal of
these workmen along with others; it is an entirely separately
and independent question. The Tribunal also did not frame
an issue on the alleged discrimination. That being so, the
Tribunal travelled outside its jurisdiction in recording a
finding of unfair labour practice and discrimination."
10.3 In view of this, considering the terms of reference
in this matter, it can be said that the learned Labour Court
has considered the issue which is outside the scope of the
terms of reference.
10.4 Further, as regards the judgment which is cited by
learned advocate Mr.Buch in support of his submission in the
case of Manager, Uttar Gujarat Vij Company Limited, Sub
Division Idar (supra), it is observed by the Hon'ble Apex
Court in paragraph 2.1 and 6 as under:
"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
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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.
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 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 the 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
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."
10.5 There cannot be any dispute about the proposition
of law but the facts are different. In that case, on the basis
of the said exercise carried out by the board, services of the
respondent were terminated and that order was challenged by
way of reference, however, in the present case, the petitioner
has already passed the order by fixing the birth date of the
petitioner as 1945 and that order was never challenged by
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the respondent during his service tenure and later on, after
period of 8 months, after retirement, he challenged the same
and the Labour Court has erred in considering this aspect
while considering the reference which is specifically required
to be decided within the terms of reference not beyond that.
Therefore, the judgment is not helpful to the facts of the
present case of the respondent.
10.6 In the case of Shankarlal (supra), it is held in
paragraphs 12, 16 and 17 as under:
"12. The stand of the employer, thus, is that in his service
book there was error in recording the age of the appellant
as 26 years in 1975 and we ought not to give any credence
to such recordal. The respondents had only corrected an
error and such recordal in service book cannot be treated to
be acceptance of the appellant's date of birth as 21st
September 1949. We, however, find that the authorities
proceeded in this matter in a rather mechanical manner and
embarked on a unilateral exercise of correcting the age entry
in the service book on their perception that an error was
being corrected. This exercise was conducted without giving
any opportunity of hearing to the appellant and at the fag
end of his service tenure. Otherwise, various documents
including the L.I.C. policy consistently reflect 21st September
1949 to be the appellant's birthdate.
16. This is not a case where a workman is seeking to
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change his date of birth to his benefit at the end of his
career. This is a case where the employer is altering the
records at the end of the career of the workman to his
detriment on taking unilateral decision that the date of birth
specified in the appellant's service book was erroneous,
relying on a date disclosed in a statutory form. Turning to
Clause 5 of the Standing Order, we have already expressed
our view on the evidentiary value of the entries in Form "B"
as regards date of birth of a workman. In the committee
report, the DPE's guidelines dated 9th February, 2001 has
been referred to, which deals with alteration of the date of
birth of an employee. The report records: -
"1. As per the DPE's guidelines dated 9.2.2001, an alteration
of date of birth of an employee may be considered with the
sanction of the Board of Directors, if (a) request in this
regard is made within 5 years of his entry into the service
of the Public Sector Undertaking
(b) It is clear established that a genuine bonafide mistake
had occurred.
(c) and date of birth so altered should not make him
ineligible to appear in any school/University in which he had
appeared or for entry in Public Sector Service on the date
on which he first appeared at such examination or on the
date on which he entered the Public Sector Services."
(quoted verbatim from the
paperbook)
17. Though in the Form "B", the appellant's age in 1971
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was given as 26 years (the date of birth shown as 21st
September 1945), in the subsequent documents the date
appearing in service book had been reflected and it was the
date reflected in the service book which formed the basis of
the pay-slips as also the estimate statement of the
appellant's voluntary retirement benefits. In such
circumstances, the appellant's failure to seek correction in
the Form "B" register could be condoned."
10.7 There cannot be any dispute about the proposition
of law. It is also relevant to note that in paragraph 12, it is
specifically observed that because the order is passed without
giving any opportunity of hearing to the appellant and
therefore at the fag end of service tenure, such exercise is
not approved by the Hon'ble Apex Court. In the present case,
in fact, the petitioner has issued the notice in response to
which the respondent has replied that he is not having any
documents and on therefore, the petitioner has obtained the
certificate from the concerned school. Therefore, it cannot be
said that the said exercise is without affording opportunity of
hearing and therefore the said judgment is not applicable to
the facts of the present case.
10.8 In paragraph 15 of the Letters Patent Appeal
no.358 of 2003, it is held by Division Bench of this Court as
under:
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"The learned Tribunal has erred in holding that the
petitioner board has collected the evidence behind the back
of the respondent and on the basis of certificate obtained by
the petitioner, the birth date in the service register is
corrected at the relevant point of time of course at a belated
stage. Then also, from the above observation, it can be said
that in the present case also, no explanation has come forth
from the respondent employee how the incorrect entry was
made in the school record nor the school record was ever
corrected. It is also not correct to say that the petitioner
board has no authority to look into the validity of the
affidavit filed at the relevant point of time after lapse of
such period."
10.9 In view of the above, the judgment of the learned
Tribunal is erroneous and is required to be quashed and set
aside as it is not maintainable in the eye of law. Hence, the
petition being Special Civil Application No.8944 of 2008 is
allowed in terms of paragraph 10(B). Rule is made absolute.
11. As the petition filed by the petitioner-board is
allowed as mentioned hereinabove, the petition being Special
Civil Application No.6045 of 2011 filed by the respondent is
dismissed with no order as to costs with a further
clarification that since the order of the learned Tribunal is
already implemented by the respondent no.5 authority,
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necessary action may be taken by the authority accordingly.
Further order may be passed for payment of pensionary
benefits which shall be considered as expeditiously as
possible, preferably within one month from the date of receipt
of this order. Rule is discharged.
(SANDEEP N. BHATT,J)
SRILATHA
