ISHWARLAL MOHANLAL THAKKAR Vs PASCHIM GUJARAT VIJ COMPANY LTD.
Bench: GYAN SUDHA MISRA,V. GOPALA GOWDA
Case number: C.A. No.-004558-004558 / 2014
Diary number: 16857 / 2013
Advocates: PAREKH & CO. Vs
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4558 OF 2014 (Arising out of SLP (C) No. 22798 OF 2013)
ISWARLAL MOHANLAL THAKKAR ……APPELLANT Versus
PASCHIM GUJARAT VIJ COMPANY LTD. & ANR. ….RESPONDENTS
J U D G M E N T
V.Gopala Gowda, J.
Leave granted.
2. This appeal is filed by the appellant against the
final judgment and order dated 19.04.2011, passed by
the High Court of Gujarat at Ahmedabad in Special
Civil Application No. 4168 of 2002, whereby the High
Court allowed the petition filed by the respondent
under Articles 226 and 227 of the Constitution of
India, praying for issuance of an appropriate writ or
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direction for quashing and setting aside the judgment
and award dated 31.7.2001 passed by the Labour Court,
Bhavnagar in Reference(LCB) No.225 of 1998.
3. Brief facts of the case are stated hereunder:
The appellant was the employee of the erstwhile
Bhavnagar Electricity Company Ltd. which was taken
over by the respondent-board and the appellant was appointed afresh as per the agreement in 1978. The
appellant gave an application in the year 1987 to
change his birth date from 27.6.1937 to 27.6.1940 but
he was orally informed of the rejection of his
request. The Executive Engineer of the respondent-
board addressed a letter to the appellant directing
him to produce a school leaving certificate or
Municipal Birth certificate as proof and stated that
in the absence of production of the required
documents, the date of birth recorded in the service
book shall be final. The appellant’s elder brother
filed a criminal application no.227 of 1987 wherein
it was prayed that the Registrar of Birth and Date
Records, Bhavnagar be directed to enter the date of
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birth of the appellant as 27.6.1940 on its record and
a birth certificate be issued. The Court of the JMFC
vide order dated 22.05.1987 directed the Bhavnagar
Municipal Corporation(BMC) to issue a birth
certificate to the appellant. Pursuant to this order
a birth certificate was issued by the BMC, the Xerox
copy of which is marked as Ex.52, wherein his date of
birth was shown as 27.6.1940. The appellant forwarded
the birth certificate issued by the BMC to the
respondent on 25.5.1987 and sent a reminder on
11.6.1987 to make corrections in the service record
with regard to his date of birth. He was informed by
the Executive Engineer of the respondent-board that
he has to produce his original school leaving
certificate or SSC pass certificate in order to
effect corrections in the service records. The
Electricity Board vide its circular dated 28.5.1989
informed all the employees that for the purpose of
deciding date of birth and making corrections for
the same, only School Leaving Certificate of SSC or
HSC may be taken into account.
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4. As his date of birth was not corrected, the
appellant filed a civil suit in the year 1997 for
declaration regarding his date of birth and prayed
for interim relief, but the same was rejected. He
then filed a civil misc. appeal No.124 of 1997 before
the District Court, Bhavnagar, against the order of
the civil court, but this also came to be rejected.
The respondent-board, on 27.6.1997, pursuant to the
date of birth in its records, terminated the services
of the appellant and the appellant raised an
industrial dispute before the Conciliation Officer
which was referred by the State Government for
adjudication to Labour Court, Bhavnagar vide
reference(LCB) no.225 of 1998. The Labour Court has
allowed the reference after conducting an enquiry and
passed an Award dated 31.7.2001 holding that the
termination of the services of the appellant
prematurely on the basis of his incorrect date of
birth was wrong and further directed the respondent
to pay full salary, all admissible ancillary benefits
from the date he was wrongfully and prematurely
terminated from service till the date of his actual
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retirement and further, also ordered that a sum of
Rs.1,500/- be paid as costs. The respondent filed a
petition under Articles 226 and 227, being special
civil application no.4168 of 2002 before the High
Court of Gujarat at Ahmedabad. The same was allowed
and the award passed by the Labour Court in
Reference(LCB) No.225 of 1998 was set aside.
Aggrieved by the same, the appellant has filed the
present civil appeal urging various facts and legal
contentions in support of his case.
5. Mr. P.H. Parekh, the learned senior counsel for
the appellant has argued that the appellant came to
know about his wrongly mentioned date of birth in his
service record of the respondent in the year 1987
only. Prior to that, he had no knowledge about the
incorrect recording of his date of birth and so he
immediately made representation to the respondent for
its correction which was not acceded and therefore,
he had raised the industrial dispute and the Labour
Court had recorded its finding in the Award after
adjudication of the dispute and held that there was
no delay on the part of the appellant in approaching
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his employer and the Conciliation Officer to correct
his date of birth as he had approached it within
reasonable time. It is contended by him that the
appellant’s submission with respect to his date of
birth is based on documentary evidence i.e the birth
certificate issued by the BMC, the Xerox copy of
which is Ex.52 herein. Further, the LIC Policy, Ex.42
for which the premium was paid by the respondent on
behalf of the appellant to the Life Insurance
Corporation and the same was deducted from his
monthly salary, mentions his date of birth as
27.6.1940. There was an apparent mistake in his
school records and it is submitted that the appellant
approached the authorities for rectification of the
same on the basis of the birth certificate issued by
BMC and the school authorities rectified it. The
learned senior counsel submitted that the birth
certificate issued by the BMC is a legally binding
document and that the appellant was prematurely,
arbitrarily and illegally superannuated from his
services, without notice, even though the respondent
was aware of the appellant’s real date of birth as
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the same was reflected in records namely : Identity
Card issued by the Bhavnagar Electricity Co., the
Birth Certificate issued by the BMC, the Certificate
of birth date issued by the principal of the
appellant’s school, statement of employees and their
relevant details handed over by the Bhavnagar
Electricity Co. to the respondent at the time of
takeover, confidential reports maintained by the
respondent in its records and lastly the LIC Policy
by which premium was paid. It was further contended
that the High Court erred in not appreciating that
the respondent, by permitting other employees to
correct their date of birth by merely producing an
affidavit has discriminated against the appellant by
refusing to correct the date of birth even on
production of an affidavit and a birth certificate
issued by the BMC pursuant to an order of the JMFC
court and other such documents furnished to it for
correction that also formed part of the respondent’s
own record of its employees which proved the date of
birth of the appellant to be 27.6.1940 and not
27.6.1937.
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6. On the other hand, Ms. Hemantika Wahi, the learned
counsel for the respondent submits that the
respondent-board had taken over the erstwhile
Bhavnagar Electricity Co. in the year 1978 and
whatever service record was available with the
erstwhile company was transferred to the respondent-
board and as per the said record, birth date of the
appellant was 27.6.1937. It is submitted that the
appellant signed all the documents with open eyes and
it was open for him to raise the issue of the alleged
wrong date of birth in the year 1978 but he did not
take any steps towards that till the year 1987. It
was further contended that the confidential reports
was signed by him every year and there also his birth
date was indicated as 27.6.1937 and the service book
of the appellant also reflects the same and all this
evidence has estopped him from contending any birth
date other than 27.6.1937. The learned counsel has
raised the point that the Labour Court merely on the
basis of conjectures and surmises and without
assigning any detailed justification or reasons has
accepted the birth certificate issued by the BMC to
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the appellant with the date of birth as 27.6.1940 and
is thus ex-facie illegal and, therefore, the findings
and reasons recorded by it is rightly set aside by
the High Court in exercise of its power of judicial
review.
7. We have heard the rival legal contentions urged on
behalf of both the parties. The following questions
would arise for our consideration:
i. In the event that there is a dispute in the
date of birth between the birth certificate
issued by the competent authority and the
school leaving certificate, which document
will prevail?
ii. Whether the High Court was correct in
passing an order setting aside the judgment
and Award of the Labour Court?
iii.What Award?
8. We will first examine the award and judgment of
the Labour Court. The Labour court while passing its
award and judgment has given cogent reasons for the
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same. The labour court examined all the evidence on
record and held that as per Ex.36 which is the
certificate of birth given by the school for the
brother of the appellant, Batuklal Mohanlal Thakker
wherein his date of birth is written as 27/1/1937 and
therefore, it is impossible that the appellant’s date
of birth would be 27/6/1937 as the difference would
be only 5 months and so it is clear that when both
the brothers joined the school, the
Director/Principal had inadvertently written date of
birth which revealed from Court’s order and hence,
the date of birth in the school record for the
appellant was corrected to 27/6/1940 as per the
court’s order. The Labour Court further went on to
observe that before the court order, as and when the
applicant got the chance, he gave an application to
the respondent organisation vide letter dated
18.4.1987 requesting them to correct his date of
birth as per documents enclosed – the statement of
the Bhavnagar Electricity Company Ltd, his Identity
card and copy of the LIC policy, all of which showed
his date of birth as 27.6.1940, and to record the
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entry in the service records. The respondent did not
accept the same and the appellant then got a court
order dated 22.05.1987 which directed the entry of
date of birth of the appellant as 27.6.1940 to be
passed in the Birth & Deaths Register but in spite of
this order, the respondent did not accept such
judicial/court evidence or the government documents.
They neither cared to inform the appellant that they
did not accept the documents nor did they give him
any opportunity to defend his application and retired
him arbitrarily by taking an ex-parte decision which
is illegal and against the principles of natural
justice. The Labour Court then went on to observe
that in the case of other employees, the dates of
birth were corrected on the basis of affidavits but
in the case of the appellant, in spite of producing a
court order and other documents, they were not
accepted by the respondent and thus, this action of
the respondent, retiring the applicant from service
was illegal and unconstitutional and against the
principles of natural justice. Thereby the reference
of the appellant was accepted and the respondent was
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ordered to pay the appellant full salary along with
all admissible ancillary benefits from the date he
was retired till the date of his actual retirement as
per his date of birth, and Rs.1,500/- towards costs
of the matter.
9. We find the judgment and award of the labour court
well-reasoned and based on facts and evidence on
record. The High Court has erred in its exercise of
power under Article 227 of the Constitution of India
to annul the findings of the labour court in its
Award as it is well settled law that the High Court
cannot exercise its power under Article 227 of the
Constitution as an appellate court or re-appreciate
evidence and record its findings on the contentious
points. Only if there is a serious error of law or
the findings recorded suffer from error apparent on
record, can the High Court quash the order of a lower
court. The Labour Court in the present case has
satisfactorily exercised its original jurisdiction
and properly appreciated the facts and legal evidence
on record and given a well reasoned order and
answered the points of dispute in favour of the
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appellant. The High Court had no reason to interfere
with the same as the Award of the labour court was
based on sound and cogent reasoning, which has served
the ends of justice.
It is relevant to mention that in the case of
Shalini Shyam Shetty & Anr. v. Rajendra Shankar
Patil1, with regard to the limitations of the High
Court to exercise its jurisdiction under Article 227,
it was held in para 49 that-
“The power of interference under Art.227 is to be kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.”
It was also held that-
“High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders
1 (2010) 8 SCC 329
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of the court or tribunal subordinate to it.”
Thus it is clear, that the High Court has to exercise
its power under Article 227 of the Constitution
judiciously and to further the ends of justice.
In the case of Harjinder Singh v. Punjab State
Warehousing Corporation2, this Court held that,
“20……In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation.”
10. The power of judicial review of the High Court
has to be alluded to here to decide whether or not
the High Court has erred in setting aside the
judgment and order of the labour court. In the case
of Heinz India Pvt. Ltd. & Anr. v. State of UP &
2 (2010) 3 SCC 192
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Ors.3, this Court referred to the position held on
the power of judicial review in the case of Reid v.
Secretary of State for Scotland4, wherein it is
stated that :-
“Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker
3 (2012) 5 SCC 443 4 (1999) 1 All ER 481
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is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence.”
Therefore, in view of the above judgments we have to
hold that the High Court has committed a grave error
by setting aside the findings recorded on the points
of dispute in the Award of the labour court. A grave
miscarriage of justice has been committed against the
appellant as the respondent should have accepted the
birth certificate as a conclusive proof of age, the
same being an entry in the public record as per
Section 35 of the Indian Evidence Act, 1872 and the
birth certificate mentioned the appellant’s date of
birth as 27.6.1940, which is the documentary
evidence. Therefore, there was no reason to deny him
the benefit of the same, instead the respondent-board
prematurely terminated the services of the appellant
by taking his date of birth as 27.6.1937 which is
contrary to the facts and evidence on record. This
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date of birth is highly improbable as well as
impossible as the appellant’s elder brother was born
on 27.1.1937 as per the School Leaving Certificate,
and there cannot be a mere 5 months difference
between the birth of his elder brother and himself.
Therefore, it is apparent that the School Leaving
Certificate cannot be relied upon by the respondent-
board and instead, the birth certificate issued by
the BMC which is the documentary evidence should have
been relied upon by the respondent. Further, the
date of birth is mentioned as 27.6.1940 in the LIC
insurance policy on the basis of which the premium
was paid by the respondent to the Life Insurance
Corporation on behalf of the appellant. Therefore, it
is only just and proper that the respondent should
have relied on the birth certificate issued by the
BMC on the face of all these discrepancies as the
same was issued on the order of the JMFC. The High
Court has wrongly held that the appellant was
estopped from raising the issue of his date of birth
as he had signed the records in 1978 but he raised
this issue only in 1987. The reason for this is clear
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that the respondent came out with a circular in 1987
that those employees who wished to change their date
of birth in the records may do so by furnishing the
necessary birth certificate and further, they can do
it before they become 50 years of age. The appellant
had not attained 50 years of age at the time he
raised the contention regarding mistake in his date
of birth. The High Court has not applied its mind in
setting aside the judgment and award of the labour
court in exercise of its power of judicial review and
superintendence as it is patently clear that the
labour court has not committed any error of
jurisdiction or passed a judgment without sufficient
evidence. The impugned judgement and order of the
High Court deserves to be set aside and the award and
judgment of the labour court be restored.
11. In view of the aforesaid reasons, we allow the
appeal, set aside the impugned judgment and order of
the High Court and restore the award of the Labour
Court, since the services of the appellant were
prematurely superannuated taking his date of birth as
27.06.1937 instead of 27.06.1940, and therefore, he
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is entitled to full back wages and other
consequential monetary benefits from the date of
termination till the date of his correct
superannuation considering his date of birth as
27.06.1940. The back wages shall be calculated on the
basis of revised pay scale and the same must be paid
by way of demand draft to the appellant within six
weeks from the date of receipt of the copy of this
order, failing which the respondent shall pay
interest @ 12% per annum on the amount due, towards
back wages and other consequential monetary benefits,
from the date of the Award of the Labour Court till
the date of payment.
………………………………………………………………………J. [GYAN SUDHA MISHRA] ………………………………………………………………………J. [V. GOPALA GOWDA]
New Delhi, April 16, 2014
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