SCA/7143/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7143 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner(s) Versus PANDURAO BACHURAO BHATULA - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 26/08/2008 ORAL JUDGMENT 1. In this petition, despite service of Notice of Rule and almost five adjournments, no one has entered appearance for the respondent. SCA/7143/2008 2/12 JUDGMENT 2. By present petition, Gujarat State Road Transport Corporation has, challenged an award dated 30.8.2007 passed by the Industrial Tribunal in Reference (IT) No.417 of 2000, whereby the learned Tribunal has directed the petitioner Corporation to consider 1st July, 1943 as the birth-date of the respondent and to consider the respondent as having retired on 31.7.2001 (instead of 31.3.2000) upon completion of the age of superannuation by considering 1st July, 1943 as his birth date. The Tribunal has set aside that the action of the petitioner Corporation of superannuating the respondent w.e.f. 31.3.2000 by considering 26.3.1942 as his birth-date. The petitioner Corporation is aggrieved by the said direction and has preferred present petition. 3. The facts involved in present petition are that the respondent herein was employed by the petitioner Corporation pursuant to his application dated 16.12.1960 for the post of Fitter-cum-Mechanic. On the basis of the details mentioned by the respondent in his said application dated 16.12.1960, the respondent herein came to be employed by the SCA/7143/2008 3/12 JUDGMENT petitioner Corporation and his service book also was prepared on the basis of details mentioned by the respondent in his said application dated 16.12.1960. 2.1 It is pertinent that in the said application dated 16.12.1960, the respondent herein had mentioned 26.3.1942 as his date of birth and on that basis, he had claimed that on the date of his application, his age was 18 years. Thus, the service book of the respondent was prepared on the basis of details , including his birth date, given by him. 2.2 It appears that after having been appointed, the respondent did not submit any documentary evidence in support of the date of birth mentioned by him in his application, therefore, the petitioner Corporation asked him to submit relevant documents in support of the declaration made by him in his application regarding birth-date. 2.3 Since respondent failed to submit any material, the petitioner Corporation requested the respondent to get himself medically examined for the purpose of determining his age. It appears that after the SCA/7143/2008 4/12 JUDGMENT medical examination, the Doctor who examined the respondent, opined that the birth-date of the respondent was 1.7.1943. 2.4 Since the respondent's birth-date certified by the Doctor was at variance with what was declared by the respondent in his application, the petitioner - Corporation asked the respondent to submit any relevant documentary evidence, regarding his birth- date. 2.5 The respondent expressed inability and helplessness and in February, 1993 informed that he had studied in J.L. English High school, Dhalgarwad, Ahmedabad however, since the said school is closed, he was not in a position to obtain school leaving certificate. 2.6 At this stage, it is relevant to note that in the application dated 16.12.10960, the respondent had declared that he had studied in St. Xavier's (night) High school and that he had studied in the said school upto 7th Std. The said anomaly and discrepancy SCA/7143/2008 5/12 JUDGMENT shows that the details which he declared and mentioned in his communication dated 10.12.1993 are different and contrary to as well as in conflict with the details declared and mentioned by him in the application dated 16.12.1960 regarding the school, in which he had studied. 2.7 In view of such conflicting details, the petitioner Corporation considered it appropriate to continue with the details maintained on the basis of disclosure made by the respondent, in the service book of the respondent since 1960 i.e. date of his entry in the petitioner Corporation because it had remained on record for more than almost 30 years and that too on the basis of declaration made by the respondent. 2.7 The age of superannuation in the petitioner Corporation is 58 years and that therefore, the respondent was superannuated w.e.f.31.3.2000 by considering 26.3.1942 as his birth-date, which has remained on the record of the petitioner Corporation since 1960 for almost 40 years. SCA/7143/2008 6/12 JUDGMENT 2.8 Aggrieved by the said action of the petitioner Corporation, the respondent raised an industrial dispute, for which order of Reference dated 24.10.2000 came to be passed and it culminated into Reference (IT) No.417 of 2000. 2.9 After considering the material on record and upon taking into account the submissions of both the sides, the Industrial Tribunal accepted the claim of the respondent that his birth date is 1.7.1943 (as certified by the Doctor) and not 26.3.1942 (as originally declared by him in his application dated 16.12.1960). 2.10 After having accepted the said version of the respondent, the Industrial Tribunal declared that the action of the petitioner Corporation of superannuating the respondent w.e.f. 31.3.2000 is illegal and the learned Tribunal set aside the said action. The Industrial Tribunal further directed the petitioner Corporation to treat the respondent as superannuated on 31.7.2001 (by considering 1.7.1943 SCA/7143/2008 7/12 JUDGMENT as his birth date). It is against the said direction that the petitioner Corporation is before this Court. 4. Heard Mr. Munshaw, learned advocate for the petitioner Corporation. As mentioned above, nobody has entered appearance despite the fact that notice of rule and ad interim relief are, as per the cause list, served on the respondent. Since nobody has entered appearance on behalf of the respondent, there is no alternative, but to decide the petition in absence of the respondent. 5. Mr. Munshaw, learned advocate submitted that despite reminders and opportunity the respondent did not produce any material to substantiate his birth- date. Mr. Munshaw, learned advocate submitted that it was the respondent, who had in his application dated 16.12.1960 declared that his birth-date was 26.3.1942 and the petitioner Corporation had accepted the said declaration of the respondent and on that basis employment was offered to him. 6. Mr. Munshaw, learned advocate also submitted that along with the application, the respondent had SCA/7143/2008 8/12 JUDGMENT also given details about his educational qualification and in that regard, he had declared that he had studied upto 7th Std. and had prosecuted his study in St. Xavier's (Night) High school, Mirzapur. Mr. Munshaw, learned advocate further submitted that the Industrial Tribunal also failed to appreciate that the respondent had not produced any material to substantiate and justify that his birth date was 1.7.1943 except the certificate of Doctor. He on premise of such submission, contended that the conclusion of the Industrial Tribunal that the respondent's birth date has to be taken as 1.7.1943 and the respondent should be, accordingly treated as superannuated w.e.f. 31.7.2001 is baseless and unjustified and deserves to be set aside. 7. It is pertinent that the Industrial Tribunal, while passing the impugned order, failed to appreciate that in 1960, the respondent had secured employment and at that time, he had declared 26th March, 1942 as his birth-date, and only if 26.3.1942 is taken as his birth-date then alone it can be said that on the date of appointment (which is SCA/7143/2008 9/12 JUDGMENT 16.12.1960), the respondent had completed 18 years of age and he was eligible for appointment, but if 1.7.1942 is to be taken as respondent's birth-date then on the date of appointment i.e. 16.12.1960, the respondent would be below the qualifying age and that would mean that he secured the employment with the Corporation by misrepresentation and he was below the qualifying the age at the time of appointment. If this aspect had been taken into account by the Industrial Tribunal then it would not have accepted the respondent's version that his birth date was 1.7.1943. Upon medical examination, the Doctor cannot certify the exact birth-date and only approximation can be made. 8. A copy of the application dated 16.12.1960 made by the respondent for seeking appointment as Fitter- Cum-Mechanic is on record of this petition. On perusal of the said application, it is noticed that the application form contains certain conditions - stipulations in form of "important note" informing the candidate that in the application form, the details must be filled up by the candidate in his own SCA/7143/2008 10/12 JUDGMENT hand-writing and it is also noticed that the said form also contained a column where a declaration was required to be made by the candidate that the details mentioned in the application form are correct. If the details mentioned in the application by the respondent are examined in light of the said declaration and stipulation in application form, then it comes out that in the column pertaining to “birth- date”, the respondent had declared his birth-date as 26th March, 1942 and that his age was 18 years. In connection with the details regarding educational qualifications, the respondent appears to have declared, in the said application form, that he had studied in St. Xavier's (Night) High school, Mirzapur upto 7th Std. In the said form the petitioner had also declared the marks obtained by him in different subjects in 7th Std., while he prosecuted his studies in St. Xavier's (Night) School. As against this, when in 1993 the petitioner - Corporation demanded relevant documents like school leaving certificate, so as to verify the respondent's birth-date, the respondent in his communication dated 10.2.1993 came out with a claim that he had studied in J.L. High SCA/7143/2008 11/12 JUDGMENT school Ahmedabad and said school is closed and that therefore, he was unable to get school leaving certificate. The discrepancy and anomaly between the details given in the declaration at the time of securing employment and in the communication dated 10.2.1993 are striking inasmuch as the respondent had declared in the declaration in the application dated 16.12.1960 that he had studied in St. Xavier's High School upto 7th Std. and he had also declared the marks obtained by him in different subjects, whereas in 1993 (i.e. after 33 years), he claimed that he had studied in J.L. High School. The said conflicting claims by the respondent ought not to have been overlooked by the Tribunal. It is also pertinent that right from 1960, until 1993, the respondent's service book contained details regarding his birth-date on the basis of declaration made by him and the respondent was aware about the details recorded in the service book and he had not taken any action to dispute and challenge the same and to get it corrected. It is also pertinent that despite the fact that the service book contained 26.3.1942 as his birth date, the respondent raised objection in that SCA/7143/2008 12/12 JUDGMENT regard only after he was superannuated. Even in 1999, the Corporation had informed the respondent that he should submit documentary evidence as regards his birth date otherwise the Corporation would consider the date declared by him in application as final. Despite such intimation, the respondent did not produce any material before the petitioner Corporation so as to persuade the petitioner Corporation to believe that the year of birth was not 1942 but was 1943. 9. While passing the impugned order, the Industrial Tribunal has lost sight of the aforesaid aspects and that therefore, the impugned award is contrary to the material obtaining on record and also suffers from serious error of non-application of mind. Under these circumstances, the award is vitiated and is not sustainable. Hence, the same is set aside. Rule is made absolute. (K.M.THAKER, J.) ynvyas