JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Priyanka Thakkar, learned advocate for Mr. J.V. Japee, learned advocate for the petitioner. The Learned advocate for the respondent has not attended the hearing. When the petition is called out and heard for final hearing, no one is present for the respondent. 2. In this petition petitioner-Hospital has challenged award dated 03.03.2007 passed by the learned Labour Court at Palanpur in Reference (LCP) No. 46 of 1999, whereby the learned Labour Court partly allowed the Reference and directed the petitioner-Hospital to pay full wages to the claimant for the period form September 1998 to September 2001. 3. So far as factual background is concerned, it has emerged from the record that the claimant before learned Labour Court raised industrial dispute with the allegations that the opponent hospital illegally and arbitrarily terminated her service. With such allegations, the claimant demanded that she should be reinstated in service with all benefits. Appropriate Government referred the dispute for adjudication. The dispute and reference came to be registered as Reference (LCP) No. 46 of 1999. 3.1 In the statement of claim, the claimant alleged, inter-alia, that she was working as Aaya with opponent hospital since many years and the opponent Trust served Notice dated 25.05.1998 and informed her that she would stand relieved from the service with effect from 31.08.1998 on attaining age of superannuation. She further alleged that after issuing the said notice dated 25.05.1998, the opponent trust relieved her from service on the ground of superannuation. The claimant alleged that though she had not attained age of superannuation, the opponent trust prematurely relieved her. She claimed that date of her birth is 15.09.1943 and accordingly she would attain age of superannuation in September, 2001, however, on incorrect and baseless fact, the opponent trust relieved her form service in August, 1998 and that, therefore, the trust should be directed to reinstate her and permit her to continue in service until she attain age of superannuation. With such submissions, the claimant demanded reinstatement with all benefits. 3.2 The opponent trust opposed the reference and the demand by the claimant. With such submissions, the claimant demanded reinstatement with all benefits. 3.2 The opponent trust opposed the reference and the demand by the claimant. The trust contended that the claimant was put to notice about retirement form service on attaining age of superannuation and during the said period of 3 months, the claimant never raised any dispute with regard to date of her birth and she accepted the notice as well as the intimation without protest or objection. The opponent hospital also claimed that after the claimant came to be relieved on 31.08.1998 on superannuation, the hospital paid retiral benefit namely gratuity, PF etc., to the claimant and she received/accepted the said amount without any protest or objection and only as an afterthought the claimant subsequently raised industrial dispute which does not deserve to be entertained. With such submission, the petitioner opposed the reference and claimed that the reference may be rejected. 3.3 Upon conclusion of pleadings by both the sides, learned Labour Court received and recorded oral and documentary evidence of contesting parties. Upon conclusion of evidence of both the sides, learned Labour Court heard rival submissions. After considering material available on record and rival submissions, learned Labour Court passed impugned award with above mentioned directions. 4. The learned advocate for the petitioner hospital claimed that in view of the applicable rules, the hospital had given advance notice to the claimant that she would be relieved from service on account of superannuation in August, 1998. However, even after service of said advance notice, the claimant did not take any action, she even did not raise any protest or dispute with reference to date of her birth. She accepted the Notice/intimation without any objection and when the hospital paid the retiral benefits after she was relieved on 31.08.1998, she even accepted the payment of retiral benefits including gratuity and she had also withdrawn PF without any protest or objection. According to the petitioner, the claimant subsequently raised dispute which is nothing but after thought and therefore learned Labour Court should have rejected the reference. 5. As mentioned above, the claimant is not present, learned advocate for claimant is also not present. Therefore, the Court has taken into account the case made out by the claimant in her statement of claim, her deposition and from the discussion by the learned Labour Court. 6. The dispute is, actually, in narrow compass. 5. As mentioned above, the claimant is not present, learned advocate for claimant is also not present. Therefore, the Court has taken into account the case made out by the claimant in her statement of claim, her deposition and from the discussion by the learned Labour Court. 6. The dispute is, actually, in narrow compass. The fact that the petitioner hospital had served advance intimation to the claimant that she would be relieved form service in 31.08.1998 on superannuation, is not in dispute. 6.1 Likewise, it is also not in dispute that after service of such advance intimation (advance notice of 3 months) the claimant did not raise any protest or dispute or objection with reference to the intimation and/or about birth date or against the case of the hospital that she would attain age of superannuation in August, 1998. 6.2 From the record it also appears that after relieving the claimant from service on the ground that she attain the age of superannuation i.e. 58 years of age on 31.08.1998, the petitioner hospital also paid retiral benefits to the claimant and at that time also the claimant does not appear to have raised any objection and she received the amount without protest. 7. In this background, the petitioner has come out with a case when the claimant was informed in advance about proposed termination on the ground of superannuation with effect from 31.08.1998, the claimant, despite such intimation, did not raise any dispute or objection, then the subsequent protest and dispute by the claimant should not have been entertained by the learned Labour Court. The Petitioner would also contend that the learned Labour Court ought to have also examined the case in light of the fact that the claimant even accepted retiral benefits without protest. 8. In present case, it is pertinent to note that during the proceeding before learned Labour Court, the claimant had submitted birth certificate which supported her claim that her date of birth is 15.09.1943. 8.1 Actually, the claimant also contended before the learned Labour Court during her deposition, that she had submitted copy of the birth certificate to the hospital and the hospital was aware about the correct date of birth and despite of such knowledge, the petitioner illegally and prematurely terminated her service. 9. 8.1 Actually, the claimant also contended before the learned Labour Court during her deposition, that she had submitted copy of the birth certificate to the hospital and the hospital was aware about the correct date of birth and despite of such knowledge, the petitioner illegally and prematurely terminated her service. 9. Thus, relevant factual aspect i.e. actual date of birth of the claimant, was established by the claimant with help of cogent evidence i.e. birth certificate issued by competent authority. 9.1 On the other hand the hospital failed to show any cogent evidence or even any other material to satisfy the Court that its decision about the date of claimant's birth and its action was based on cogent material. The hospital did not give/state or reveal the source or material on strength of which it determined that claimant would attain age of superannuation in August, 1998 and the hospital did not place on record such material. 10. Another relevant factual aspect which deserve consideration is that the learned Labour Court has specifically recorded that despite several opportunity to the opponent hospital, the hospital did not place any material on record to support its claim with reference to date of claimant's birth and/or the basis on which the hospital reached to the conclusion that she would attain age of superannuation i.e. 58 years in month of August, 1998. 11. It is pertinent to note that in the advance notice/intimation dated 25.05.1998, which the hospital served to the claimant, it did not mention the date of claimant's birth. 11.1 The hospital conveniently avoided to mention the source on strength of which it determined claimant's birth date and it maintained convenient silence on that count. 11.2 Moreover, the petitioner hospital did not place any material on record to satisfy the learned Labour Court that from the date when the claimant joined her service, the date of her birth was registered in the record of the hospital and on that basis advance notice was served. Any other material was also not placed on record of the learned Labour Court by the petitioner to demonstrate that the claimant's birth date was in August, 1940 (and not September, 1943 as claimed by her). Any other material was also not placed on record of the learned Labour Court by the petitioner to demonstrate that the claimant's birth date was in August, 1940 (and not September, 1943 as claimed by her). 11.3 If the birth date was recorded in the hospital's register then the said register and the material on strength of which the entry was recorded should have been placed on record of the Court or atleast it should have been disclosed. 11.4 Even before this Court and even during final hearing these facts and material are not placed nor any explanation is offered. 11.5 Even before this Court, convenient silence is maintained. 12. So far as burden of proof is concerned, the claimant discharged her obligation by placing on record the birth certificate to support her claim that the date of her birth is 15.09.1943. 12.1 Whereas, the petitioner failed to place any material on record to demonstrate that it acted on the basis of details and facts informed by the claimant and available on record of the establishment since the date when the date when the claimant joined the service or on the basis of medical opinion which was provided to the claimant. 13. At no stage and at no place the petitioner hospital established the date of claimant's birth on the basis of any cogent material or even its own record. It did not even mention the date which allegedly obtained on its record. 13.1 Even for sake of raising contention and for supporting its case, the petitioner hospital did not plead that according to its record particular date was recorded as date of birth of the claimant. 14. In light of such conspicuous absence of any evidence or any material from the side of the petitioner hospital to support and justify its communication dated 25.05.1998 and/or its action of relieving the claimant with effect from 31.08.1998, learned Labour Court relied on the birth certificate issued by competent authority (which was placed on record by the claimant). The said procedure by the Court, in light of facts of present case cannot be faulted. The said procedure by the Court, in light of facts of present case cannot be faulted. True it is that ordinarily at the fag end of service, dispute by an employee with reference to the date of his birth should not be entertained and any interference with the employer's action of relieving an employee on ground of superannuation on the basis of details recorded in the Register, should be, ordinarily, not interfered with more particularly in the case where the employee failed to raise any objection with regard to the details recorded in the Register or failed to take any action during entire tenure of his service and then he wakes from his slumber at the time when he is about to attain age of superannuation or after he is actually relieved from the service. However, at the same time if the employer acts arbitrarily or without any basis and discontinues service of an employee on the ground that the employee has attained age of superannuation, then in such circumstances this court may not bind the employee with aforesaid restriction and/or procedural impediments. In appropriate case genuine grievance of an employee should not be defeated or frustrated by ignoring his complaint against abrupt and arbitrary action of employer, more so when the employer is not able to support impugned decision/action with help of or in light of the details recorded in the register and if the employer is not able to establish that the personal details of the employee-including his birth date-obtained on company's record for long time during his entire tenure and employee was award about the details recorded in the Company's register and despite such knowledge the employee did not take any action for correction of the entry recorded in the Register. In present case, it is pertinent that it is not the case even of the Petitioner that the Certificate submitted by the Respondent is not genuine. Besides this, the employer in present case failed to demonstrate before learned Labour Court that the date of Respondent's birth was recorded in the Register and the Respondent was aware about the said details. Actually, the Petitioner failed to even plead particular date as date of present Respondent's birth date and that the Register reflects the said date. Therefore, in view of peculiar facts of the present case, the decision of the learned Court cannot be faulted. 15. Actually, the Petitioner failed to even plead particular date as date of present Respondent's birth date and that the Register reflects the said date. Therefore, in view of peculiar facts of the present case, the decision of the learned Court cannot be faulted. 15. At this stage, it is relevant to note that the petitioner hospital, interestingly, did not acknowledge the document/evidence which was placed by the claimant on the record of the Court during the proceeding of reference case. Atleast when the claimant placed on record before the learned Labour Court the birth certificate, the petitioner should have considered said document (more so when it failed to show any cogent evidence to support its action) and at that stage it could have reviewed its decision and if found proper revised its action by asking the claimant to resume duty without prejudice to its case/defence before the learned Labour Court and subject to result of the case. 15.1 However, the petitioner hospital did not avail that opportunity to mitigate its loss. 15.2 At the stage i.e. when the claimant placed on record the said document, the petitioner hospital, could have without prejudice to its contention and defence, asked the claimant to resume duty and to continue until the date when she should attain 58 years of age on the basis of the birth date recorded in the birth certificate. 16. In this background, more particularly in light of the fact that the petitioner hospital failed to place any material on record before the learned Labour Court to support its case that the claimant attained age of superannuation in August, 1998 and that from the date of her entry i.e. when the claimant joined service with the hospital or some time thereafter particular date was registered in its record as the claimant's birth date and that the claimant was aware about said fact and in light of the fact that the employer failed to establish that particular date was recorded in its register as claimant's birth date and that its action was based on the said details recorded in its register, the employer cannot escape the consequences of its baseless action and it cannot take benefit of or advantage of its arbitrary and unjustified action by throwing entire blame on employee's shoulders on the ground that at relevant time, claimant did not raise objection. In such circumstances there would be opportunity of the blame and consequences. 17. True it is that the claimant did not raise any objection when the petitioner served advance notice dated 25.05.1998. It is also true that there is not material on record to doubt the case of the petitioner that any time after service of the notice until the date on which the claimant actually came to be relieved and even at the time when the petitioner paid gratuity and other due amounts to the claimant, she had not raised any objection or protest with reference to the action of relieving her and/or with regard to date of birth. It is also true that despite the fact that advance intimation was given to the claimant in May, 1998 but she did not take any action during the said period of 3 months (during period of advance intimation). 18. The said factual aspect or drawback in the action or conduct of the claimant would not completely absolve the petitioner and it would not affect the case of the claimant that the hospital prematurely terminated her service and relieved her form service on incorrect and unjustified ground. Of course, the said factual aspect i.e. drawback in the action of the claimant cannot be ignored or discounted and it should affect her claim for wages for the period during which she was incorrectly and unjustifiable deprived of employment. 19. It was established before learned Labour Court that the date of claimant's birth is 15.09.1943. Consequently, it was also established that the petitioner hospital prematurely relieved the claimant. The said aspects also justify the claimant's demand for wages for the period during which she was illegally and unjustifiably and arbitrarily deprived of employment and was prematurely relieved form her service. However, the claimant also cannot escape consequence of her inaction and delay and failure to raise protest or objection at relevant time. 20. Therefore, in present case, there is need for apportioning the blame as well as claim. 21. The fact that the claimant did not raise any dispute or protest when the advance notice/ intimation dated 25.05.1998 was served and/or at the time when the petitioner hospital paid gratuity, last salary and other dues at the time when she was relieved from service. 21. The fact that the claimant did not raise any dispute or protest when the advance notice/ intimation dated 25.05.1998 was served and/or at the time when the petitioner hospital paid gratuity, last salary and other dues at the time when she was relieved from service. Of course, at that time she could have raised dispute and supported her case with the birth certificate that she placed on record before the learned Labour Court. She does not appear to have raised such protest at that stage. 22. At the same time, it also cannot be ignored that the hospital acted without any material on its record. The petitioner hospital did not place any material on record to demonstrate that it acted on strength of and on the basis of the said material and that the claimant was aware abut the said material. 23. Actually it has emerged that there was no material or no detail available on record or Register of the hospital to support its assumption that the claimant attain 58 years of age in August, 1998. 24. In short, the petitioner acted without any basis or justification or material to support its presumptive action. 25. The said factual aspects i.e. error in conduct of the claimant and the mistake on the part of petitioner hospital cannot be ignored and both aspects must be considered simultaneously and equitable balance must be struck. 26. Learned Labour Court, however, unfortunately overlooked the said aspect and awarded full back-wages for the period from the date when the claimant came to be prematurely retired to the date on which she actually attain 58 years of age i.e. age of superannuation according to the birth certificate i.e. full back-wages for the period from September, 1998 to September, 2001. 27. To the extent by which the learned Labour Court awarded 100% back-wages for the said period without apportioning the fault and consequences, is not justified and that part deserves to be modified. 28. In view of this Court, if the petitioner is directed to pay 50% back-wages for the period from September, 1998 to September, 2001 then equity would be balanced and ends of justice would be met. Consequently, following order is passed: (a) The Award impugned in present petition is partly set aside and modified. 28. In view of this Court, if the petitioner is directed to pay 50% back-wages for the period from September, 1998 to September, 2001 then equity would be balanced and ends of justice would be met. Consequently, following order is passed: (a) The Award impugned in present petition is partly set aside and modified. (b) The direction to pay 100% back-wages for the period from September, 1998 to September, 2001 is partly set aside and modified and the petitioner is, instead, directed to pay 50% back-wages for the said period. Award, to that extent, stands modified. (c) Petitioner will take necessary steps to pay the amount payable according to the aforesaid direction, to the claimant, as expeditiously as possible, and preferably within 6 weeks from the date of receipt of this order. 29. With the aforesaid direction and clarification, the petition is partly allowed and Rule is made absolute to the aforesaid extent. Petition Partly Allowed.