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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

Patil

1

, 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 Corporation

2

, 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 Scotland

4

, 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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