K.M. Thaker, J.

Heard Mr. Raval, learned advocate for petitioner and learned advocate for respondent.

2. The award dated 10.7.2015 passed by learned Industrial Tribunal at Rajkot in Reference No.197 of 2006 is challenged in present petition.

2.1 By impugned award the learned Tribunal directed present petitioner to treat the period from 31.5.2004 (when the petitioner relieved present respondent from service on the ground that he attained age of superannuation) to 30.09.2007 as notional so far as payment of actual benefits (salary etc.) is concerned, however, to take into account the said period (i.e. from 31.5.2004 to 30.09.2007)as period "in service" rendered by the respondent and to calculate retiral benefits by taking into account revision in salary etc., and to pay retiral benefits accordingly without payment of arrears of salary and other benefits during the said period.

3. So far as factual backdrop is concerned, it has emerged from the record and from rival submissions by learned advocate for the contesting parties that the petitioner appointed present respondent as driver, in 1968. At the time when the respondent came to be appointed the employer (present petitioner) entered certain details, including the date of birth of the respondent, in its record.

The petitioner claimed that the said detail was recorded on the basis of school leaving certificate.

3.1 It appears that at the time of respondent's entry in the service with present petitioner, 12.5.1946 was entered into Register as the date of birth of the respondent.

3.2 It appears that so far as official record is concerned, the said date continued to exist on corporation's record, without any alteration or modification.

3.3 The petitioner claims that in the service book, the same date i.e. 12.5.1946 was entered as the date of birth of the respondent. Even the said record continued to exist, unaltered, until the respondent, according to petitioner's record, attained the age of superannuation (58 years, in May, 2004).

3.4 The petitioner also claims that from 1968 until May, 2004, when the respondent came to be relieved from service on the ground that he attained age of superannuation, the respondent never raised any objection with regard to the details mentioned in the record.

3.5 On the strength of said details, the respondent came to be relieved from service on 31.5.2004.

It is also claimed that before actually relieving the respondent from service on 31.5.2004, the Corporation had issued intimation cum order dated 13.5.2004 that shall be relieved from service, on attaining age of superannuation (58 years) on and from 31.5.2004. The petitioner claims that even at that stage, the respondent did not raise any objection.

3.6 Above mentioned facts are not in dispute. The corporation claims that the respondent did not raise any dispute during the said period i.e. from 1968 to May, 2004 and even after service of intimation cum order on 13.5.2004 and he did not raise any dispute for almost two years after he came to be actually relieved on 31.5.2004. According to the Corporation the respondent, for the first time, raised dispute in 2006 i.e. almost 2 years after he came to be relieved from service on the ground of superannuation. Thereafter in 2006, the respondent raised industrial dispute on the ground that though he would have attained age of superannuation in September, 2007, the corporation wrongly relieved him from service on the ground of superannuation in May, 2004. With said allegation, claimant raised the dispute in 2006 which came to be referred by appropriate Government to learned Tribunal.

3.7 The claimant, in his statement of claim before learned Tribunal, alleged that his birth date is 29.5.1949 but corporation wrongly recorded his birth date as 12.5.1946 and that in light of the correct date of his birth he should have been continued in service until September, 2007 however the corporation wrongly relieved him from service on May, 2004. With the said allegation th