1. Ms. Sangeeta Pahwa, learned advocate appearing for the respondent stated that the respondent has taken away the papers from her and therefore she no more represents the respondent. She stated that, therefore, notice may be issued to the respondent in the matter. This court is of the opinion that when the respondent has voluntarily taken away the papers from learned advocate representing her, the respondent ought to have made alternate arrangement in the matter or ought to have appeared as party-in-person. No formal notice is required to be issued by this Court in this matter for the lapse on the part of the respondent. Considering the fact that the matter is of the year 2004, the same is taken up for hearing today.
2. The petitioner herein has challenged the award dated 11.02.2004 passed by the Labour Court, Junagadh in Reference (LCA) No. 272 of 1997 whereby the labour court held that the petitioner wrongly retired the respondent from service and the petitioner was directed to pay full salary to the respondent for the period from 30.06.1995 to 12.08.2003.
3. It is the case of the petitioner that initially the respondent was working on daily wage with the erstwhile Junagadh Municipality and thereafter vide order dated 15.05.1980 was appointed on regular establishment of the municipality. It is the case of the petitioner that the municipality passed office order on 28.04.1995 informing the respondent about her date of superannuation as 30.06.1995. The respondent thereafter approached the municipality on 01.05.1995 by filing an affidavit that her correct birth date is 12.08.1943 and not 05.03.1939. The petitioner did not accept the same. The respondent therefore raised an industrial dispute by filing statement of claim regarding change of date of birth in service record and to continue her in the service accordingly. The labour court after hearing the parties passed the aforesaid award.
4. Mr. Premal Joshi, learned advocate appearing for the petitioner submitted that at the time of employment the respondent had declared her date of birth as 05.03.1939 by way of an affidavit and in addition to the same, her father in law had also filed affidavit stating therein that her birth date is 05.03.1939. He submitted that the date of birth of the respondent was recorded in the service book as per her own say and therefore at the fag end of career the correction of date of birth cannot be said to be legal or correct.
5. This court is of the view that the contention of the petitioner is required to be accepted. The birth date of the respondent was recorded in her service book as per her own say. Affidavits of herself and her father in law support that the respondent’s date of birth is 05.03.1939. Now at the fag end of service more particularly at the time of superannuation, the birth date cannot be changed as per the ratio laid down by the Apex Court. The respondent for the first time during retirement requested to change her birth date which the labour court ought not to have entertained.
5.1 At the verge of retirement, the respondent came up with a case that she is being retired earlier. No representation was filed before the authorities before 28.04.1995. Moreover, the respondent approached the labour court after a period of two years and almost three months from the date of her retirement. In such an event, this Court is of the opinion that the award qua grant of salary for the period from 30.06.1995 to 12.08.2003 is required to be quashed and set aside as the same is erroneous.
6. In the result, petition is allowed. The award granting full salary from 30.06.1995 to 12.08.2003 is quashed and set aside. The petitioner shall be deemed to be retired with effect from 30.06.1995. Rule is made absolute accordingly.
(K.S.JHAVERI, J.) divya