JUDGMENT :

1. Rule returnable forthwith. Mr. Harshad Patel, learned advocate appearing for the respondent no. 1 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 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 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.

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- 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 v