Gujarat High Court
Zaveri vs Abedaben on 11 July, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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SCA/14839/2010 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14839 of
2010
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ZAVERI
MANGALJI VAMALSHI DISPENSARY - Petitioner(s)
Versus
ABEDABEN
WD/O MAHAMMADBHAI RASULBHAI & 1 - Respondent(s)
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Appearance
:
MR
JV JAPEE
for
Petitioner(s) : 1,
MR PRAVIN P PANCHAL for Respondent(s) :
1,
NOTICE NOT RECD BACK for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 28/02/2011
ORAL
ORDER
1. Heard Mr. Japee, learned advocate for the petitioner and Mr. Panchal, learned advocate for the respondent.
2. Mr. Japee, learned advocate for the petitioner has submitted that the respondent who was working as Ward-boy had, during tenure of his employment, filled-up application form for the purpose of Provident Fund. In the said application form he had declared nomination and also declared his date of birth. According to respondent's own declaration his date of birth was 5th June 1937. Mr. Japee, learned advocate for the petitioner further submitted that according to respondent's declaration regarding his date of birth, the respondent crossed the prescribed age of superannuation (60 years) in 1997-1998. Accordingly, the respondent was served with three months Notice and intimated that he would be superannuated with effect from 31.8.1998. Mr. Japee, learned advocate for the petitioner has submitted that neither prior to the issuance of the said Notice (3 months' Notice) nor even during the period of Notice i.e. during the 3 months' period of Notice, the respondent workman had raised any dispute regarding his date of birth. Upon completion of the notice period when the respondent was relieved, his retiral dues were paid to him. Even at that stage i.e. while accepting the retiral dues the respondent never raised any dispute about his birth date. Accordingly he was relieved. Subsequently, the respondent raised industrial dispute which has been partly allowed by the labour Court by directing the petitioner to reinstate the respondent and to pay 25% backwages.
3. Mr. Panchal, learned advocate for the respondent has vehemently supported the award of the labour Court and contended that the respondent workman had filed affidavit about his date of birth. The said affidavit was filed on the basis of the record maintained by his (i.e. respondent's) uncle who had, according to the respondent, recorded the respondent's date of birth. Mr. Panchal, learned advocate for the respondent submitted that the labour Court has relied upon the said affidavit and the record maintained by his uncle and that therefore there is no infirmity in the award.
4. Having regard to the rival contentions, petition deserves further consideration, particularly in light of the fact that neither during his entire tenure of service with the petitioner nor even during notice period the respondent had ever raised dispute about his date of birth. Hence, Rule. By way of interim relief it is directed that the implementation of the impugned award shall remain stayed until final hearing and decision in the present petition.
5. The direction regarding compliance with Section 17B is not passed because it is not required in the facts of the case inasmuch as even if the respondents allegations and claim that his birth date would be 18.7.1942 were to be accepted for the sake of arguments and for the purpose of considering the compliance under Section 17B then also the respondent will stand superannuated in 2002. Therefore there is no case for granting direction of compliance under Section 17B of the I.D. Act.
(K.M.THAKER,J.) Suresh* Top