JUDGMENT : 1. Rule returnable forthwith. Mr. Harshad Patel, learned advocate appearing for the respondent no. 1 waives service of notice of Rule. 2. By way of this petition, under Article 226 of the Constitution of India, the petitioner employer has challenged the judgement and award dated 05.11.2019 passed by the Labour Court, Himmatnagar in Reference (LCH) No. 41 of 2014 by which the Labour Court directed that the respondent workman be treated to have been in service till his date of retirement of 30.04.2014 and be paid 40% backwages. 2. Facts in brief would indicate that the respondent joined the erstwhile Gujarat Electricity Board as Helper on 01.04.1982. At the time of joining service, he produced an affidavit showing his date of birth as 01.04.1954. He also produced a certificate of date of birth showing his date of birth as 01.06.1950. As per his date of birth in the affidavit, the respondent workman was entitled to continue in service till 30.04.2014, however, based on his date of birth recorded in the School Leaving Certificate and the certificate of date of birth produced together with the affidavit as 01.06.1950, he was retired with effect from 30.06.2010 in the year 2012. 2.1 Aggrieved by this action of the employer of retiring him in the year 2012 with effect from 30.06.2010, the respondent raised a dispute before the Labour Court. The Labour Court, based on the evidence that was recorded, came to the conclusion that when the respondent was appointed and resumed his duties on 19.04.1982, he had produced an affidavit dated 26.03.1981 stating that his date of birth recorded in the birth certificate as 01.06.1950 was wrong. 2.2 The employer accepted that and permitted the respondent to resume on 19.04.1982 and almost 30 years thereafter issued a charge-sheet invoking Clause-16 of G.S.O No. 7, asking the employee to show cause as to why he should not be removed from service for having given false information inasmuch as though the birth certificate and the School Leaving Certificate recorded 01.06.1950 as the date of birth. It was the case of the employer that the employee therefore was not eligible for appointment as admittedly he was beyond the age of 28. 2.3 Having found the explanation by the employer unacceptable, the Labour Court passed the award which is under challenge. 3. Ms. It was the case of the employer that the employee therefore was not eligible for appointment as admittedly he was beyond the age of 28. 2.3 Having found the explanation by the employer unacceptable, the Labour Court passed the award which is under challenge. 3. Ms. Lilu Bhaya, learned advocate for the petitioner employer submitted that the Labour Court failed to appreciate that the respondent had secured employment by producing a false affidavit showing his date of birth as 01.04.1954 whereas the correct date of birth was 01.06.1950. He therefore got service by producing a false affidavit which was brought and therefore invoking Clause-16 of G.S.O No. 7, his services were rightly put to an end. 3.1 Ms. Bhaya, learned advocate for the petitioner would submit that there was evidence on record that two different dates of birth were recorded. At Ex. 25, a certificate issued by the Head Master of J.J. Desai School was produced on record to show that the date of birth of the respondent was 01.06.1950. Reading the certificate would indicate that this date of birth was recorded based on the extract of the General Register and the entry thereof. 3.2 Ms. Bhaya would further submit that the Labour Court also failed to appreciate that a certificate dated 16.07.2012 was issued by the Talati-cum-Mantri wherein he had stated that he had never issued a certificate bearing his signature, which birth certificate showed the date of birth as 01.04.1954. She would further submit that the Labour Court failed to appreciate the deposition of Shri Bhaveshkumar Soni (Ex. 23) who had confirmed that the certificate dated 18.06.2012 issued by the school showed the date of birth as 01.06.1950. Invoking Clause- 16 of the G.S.O No. 7, the employer was therefore within its right to terminate the services treating the respondent to have retired in the year 2010. 3.3 Ms. Bhaya would rely on the following decisions: (I) Daya Shankar Yadav vs. Union of India reported in 2010(14) SCC 103 ; (II) Ram Saran vs. I.G. Of Police, CRPF reported in 2006(2) SCC 541 ; (III) R. Vishwanatha Pillai vs. State of Kerala and Others reported in AIR 2004 SC 1469 . 4. Mr. 3.3 Ms. Bhaya would rely on the following decisions: (I) Daya Shankar Yadav vs. Union of India reported in 2010(14) SCC 103 ; (II) Ram Saran vs. I.G. Of Police, CRPF reported in 2006(2) SCC 541 ; (III) R. Vishwanatha Pillai vs. State of Kerala and Others reported in AIR 2004 SC 1469 . 4. Mr. Harshad Patel, learned counsel appearing for the respondent employee would submit that the award of the Labour Court is just and proper which has held that the respondent was directed to be treated to be in service from the date of his termination till 30.04.2014 and also directed to give all terminal benefits. He would submit that it is true that the school leaving certificate and the birth date document mentioned 01.06.1950 as the date of birth, however at the time of he securing an appointment, he had filed an affidavit showing the date of birth as 01.04.1954. That affidavit was accepted by the employer and in his service-book the date of birth was recorded as 01.04.1954. Even the Sarpanch had given the document at Ex. 12 which indicated that the date of birth was 01.04.1954. The charge-sheet was given in the year 2012, 30 years after he was appointed, showing that as to why his services should not be terminated for seeking appointment by fraud. He would submit that the findings of the Labour Court cannot be interfered with and the award of the Labour court must be sustained. 5. Perusal of the award would indicate the following: (i) The respondent was appointed as a Helper with the employer - erstwhile Gujarat Electricity Board by an appointment order dated 01.04.1982. At the time of his appointment, the respondent employee had produced an affidavit, copy of the horoscope and a certificate of birth. It was stated in his affidavit that though the certificate of birth records 01.06.1950 as the date of birth, his actual date of birth is 01.04.1954 based on the horoscope. (ii) Based on this affidavit, the employer entered 01.04.1954 as the date of birth in his service-book. It was stated in his affidavit that though the certificate of birth records 01.06.1950 as the date of birth, his actual date of birth is 01.04.1954 based on the horoscope. (ii) Based on this affidavit, the employer entered 01.04.1954 as the date of birth in his service-book. In May 2012, a show-cause notice was issued to the respondent employee to show cause as to why based on the certificate of date of birth which showed 01.06.1950 as his date of birth action be not taken under G.S.O No. 7 Clause-16 inasmuch as according to the employer the respondent had obtained employment by fraud and therefore his services be not put to an end with effect from 30.06.2010. (iii) An inquiry was held and in the year 2012, the services of the respondent were put to an end. In the inquiry, the employer had produced at Exs. 25 and 26 a certificate of the J.J. Desai High School dated 18.06.2012 and statement dated 16.07.2012 of the Talati-cum-Mantri of the Gram Panchayat respectively. Both these indicate that, firstly, the date of birth in the School Leaving Certificate of 01.06.1950 recorded was based on the General Register. Secondly, the Talati-cum-Mantri stated that the certificate relied upon by the respondent employee showing the date of birth as 01.06.1954 did not bear his signature and therefore the case of the respondent that his date of birth is 01.06.1954 be not believed. (iv) The employer examined one Shri Piyushkumar Manilal Roy at Ex. 28. Perusal of the award of the Labour Court would indicate with the reasonings thereunder that on 28.05.2012, a show-cause notice was issued to the respondent employee asking him to show-cause as to why his date of birth should not be taken as 01.06.1950 and not 01.04.1954 and accordingly his appointment be said to be one obtained by fraud and be set aside. The respondent employee filed a response on 12.06.2012 based on which the inquiry officer came to a finding and a show cause notice was issued to the respondent on 22.08.2012 and after response was given by the respondent on 28.08.2012, by an order dated 31.08.2012, the services of the respondent were put to an end with effect from 30.06.2010. (v) The Labour Court found that at Ex. 23 - one Bhaveshkumar Rasiklal Soni was examined. Shri Piyushkumar Manilal Roy - the employer was also examined at Ex. 28. (v) The Labour Court found that at Ex. 23 - one Bhaveshkumar Rasiklal Soni was examined. Shri Piyushkumar Manilal Roy - the employer was also examined at Ex. 28. The case of the employer was that he had produced a forged record showing his date of birth as 01.04.1954 while securing employment on the basis of he declaring his date of birth as such. The Labour Court found that this was a misconceived charge. The employee had specifically produced an affidavit showing that though his date of birth recorded in the birth certificate was 01.06.1950, he had made an application for change of date of birth to 01.04.1954 and that affidavit was accepted by the employer in the year 1982 and the date of birth was so recorded in his service-book. Both the affidavit and the certificate which showed the date of birth as 01.06.1950 were in possession of the employer when the appointment was made and the employer accepted 01.04.1954 as the date of birth. Evidence of the employer Shri P.M. Roy was appreciated which indicated that it was based on the date of birth certificate produced by the employee at the relevant time, when was compared with the affidavit, it came to the notice that there were two different dates of birth and therefore the show-cause notice was issued. The Labour Court found that it was not a case where the employee had misguided the employer by producing a wrong date of birth. In fact the employee had produced two documents, the very date of birth certificate showing 01.06.1950 as the date and the affidavit was filed showing that this date of birth was wrong and infact the date of birth was 01.04.1954. When the appointment was made in the year 1982, the employer accepted 01.04.1954 as the date of birth based on the affidavit and entered the same in the service-book. The Labour Court opined that 30 years thereafter in the year 2012 based on the documents which were already produced at the time of the appointment of the respondent, it was not open for the employer then to contend that they would accept as 01.06.1950 as the date of birth and not 01.04.19954 when in fact the employer had accepted the affidavit as correct. (vi) On the basis of the statement of the then Talati-cum-Mantri produced at Ex. (vi) On the basis of the statement of the then Talati-cum-Mantri produced at Ex. 26, perusal of the award of the Labour Court would indicate that the stand of the Talaticum-Mantri was that he had not signed the date of birth certificate showing 01.04.1954. When compared to the deposition of Shri Bhaveshkumar Rasiklal Soni together with the certificate of J.J. High School which also showed that the date of birth was 01.06.1950 and not 01.04.1954, the Labour Court found that considering the deposition of the employer, Shri Piyushkumar Roy, the Talati-cum-Mantri Jayantibhai Patel had said that he had not given the certificate recording the date of birth as 01.04.1954 and that statement was produced before the authority. The Labour Court found that the stand of the Talati-cum-Mantri denying his signature on the date of birth certificate showing 01.04.1954 as the date of birth, Shri Jayantibhai Patel was never produced as a witness before the Labour Court or the Inquiry Officer to substantiate this stand. 6. A crucial finding that needs to be appreciated of the Labour Court is that upto 31.08.2012, all these documents namely the affidavit which recorded 01.04.1954 as the date of birth, the certificate recording the date of birth as 01.06.1950 and the School Leaving Certificate which also recorded the date of birth as 01.06.1950 were in the possession of employer. These documents were the set of documents produced by the employee when he secured appointment on 01.04.1982. Based on the affidavit the employer recorded 01.04.1954 as the date of birth and did not think it fit to change it to 1950 for over a period of 30 years and only in the fag end of 2012 did the employer to the adversity of the respondent seek to change the date of birth based on these documents of which the employer already had knowledge when the respondent was appointed. 7. Based on these evidences, therefore, the Labour Court, in the opinion of this court, rightly came to the conclusion that the stand and action of the employer deserved to be set aside. Accordingly, the Labour Court directed that the respondent be continued in employment till his actual age of superannuation i.e. 30.04.2014 and paid 40% of backwages. 8. For the aforesaid reasons, the finding of the Labour Court cannot be faulted and the award therefore is just and proper. Accordingly, the petition is dismissed. Rule is discharged.