JUDGMENT :

1. This petition under Article 227 of the Constitution of India is filed against the award dated 31.02.2005 by the Industrial Tribunal, Vadodara in Reference (IT) No.145 of 1994. The award is challenged by the petitioner, who is employer and the award was passed in favour of the respondent which is the union, representing the interest of the workman and against the employee of the petitioner namely Shri Latifkhan Shakookhan Pathan, who was working as a watchman in the City Sub-Division at Anand. By the impugned award and order, the Industrial Tribunal had declared that the respondent workman was wrongly retired on 01.07.1993, considering his date of birth on 01.07.1933, whereas his date of birth is required to be considered as 05.11.1936 and accordingly, ought to have treated as retired on 05.11.1996. The Tribunal therefore, proceeded to hold that the respondent workman is entitled to the benefit of full back-wages and other benefits with continuity of service till 05.11.1996.

2. Learned advocate Ms. Maya Desai appearing for the petitioner has immediately drawn attention of this Court to the service book which is at Annexure-IV and has also produced original of the service book which has recorded the date of birth as 01.07.1933 and that too at the time when the petitioner had entered into service. It is submitted that the petitioner is trying to seek the advantage of some interpolation made and such nterpolation is made in the service book later in point of time and there is no basis for making such interpolation. In the interpolation, the date of birth of the respondent is shown as 05.11.1936.

2.1 Learned advocate for the petitioner submitted that the Industrial Tribunal has not at all taken into consideration the correct factual background as it has provided with only on the basis of xerox copy of the relevant page of the service book placed on record by the respondent workman to contend that the interpolation was not his responsibility and therefore, the date of birth which is scratched out in the interpolation should be treated as the correct date of birth. It is submitted that when the record itself is clear and indicating about the entry made in the service book, there was no scope of any change in the date of birth and if at all any change in the date of birth is to be made, the same is required to be made after following the due procedure. It is submitted that from the service book no such occasion had arisen for changing the date of birth of the respondent workman. Learned advocate for the petitioner has thereafter, also drawn attention of this Court to the fact that in absence of any documentary evidence regarding the date of birth, at the relevant time, the respondent workman was examined by the Medical Officer to ascertain his date of birth and the same was confirmed the date of birth as 01.07.1933, which was already entered in the service book. It is submitted that even thereafter, when the seniority list of all the employees similar to the respondent workman was declared, at that stage also, the date of birth of the respondent in the seniority list was recorded as 01.07.1933. At that stage, the respondent workman had never raised any issue with regards to his incorrect recording of date of birth. It was only when the respondent workman had retired that he has raised the issue of the date of birth.

2.2 Learned advocate for the petitioner has relied upon the decision in the case of Bharat Coking Coal Limited and others v/s. Shyam Kishor Singh, reported in (2020) 3 SCC 411 to submit that the practice of change in the date of birth at the fag end of the career is deprecated.

2.3 Learned advocate appearing for the petitioner further submitted that the error is committed by the Industrial Tribunal in referring and relying upon the document vide mark 12/1 which is a document attested by Mamlatdar, which is a xerox copy, a school leaving certificate.

3. Learned advocate appearing for the respondent workman has oppos