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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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