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2007 DIGILAW 257 (KAR)

HUTTI GOLD MINES CO. LTD. v. SYED RAHAMATHULLA

2007-04-05

D.V.SHYLENDRA KUMAR

body2007
( 1 ) THIS regular second appeal is by the sole defendant in OS 32 of 1985, on the of file the Munsiff, Lingasugur. ( 2 ) THE suit was one for declaration of the age of the plaintiff. e. the date of birth of the plaintiff to be recorded as 15-7-1930 instead of 24 years as on 4-4-1949 as recorded in the service register maintained by the respondent- employer and for all consequential reliefs. ( 3 ) THE defendant contested the suit. The suit came to be decreed in terms of the judgment and decree dated 18-4-1991 and the aggrieved defendant had preferred a regular appeal in RA No. 13 of 2000 to the Court of additional District Judge, Raichur. The plaintiff has also filed a cross-objection in the appeal, which was later numbered as RA No. 12 of 2002. ( 4 ) THE lower appellate Court having dismissed the appeal of the defendant and having allowed the cross-objection of the plaintiff in part, the present second appeal by the defendant. Brief facts leading to this appeal are thus : ( 5 ) THE plaintiff had joined the services of the defendant-organization on 4-4-1949 as clerk but claims that he had not indicated/declared his date of birth as 15-7-1930, as he was appointed without filling up any formal application. The age of superannuation of the employees in the defendant-organization is 55 years in respect of employees who work below the ground and 60 years in respect of those working at the surface level, as the organization is a mining company undertaking mining activities. The case of the plaintiff was that his actual date of birth as indicated in the school leaving certificate which had been issued by the Coles ackerman Memorial High school, Nellore, is 15-7-1930; that he was appointed as a clerk in the defendant-organization on 4-4-1949; that at the time of his appointment, the employer had on its own recorded the age of the plaintiff to be 25 years; that it appears, later the age was corrected to be 24 years, but the plaintiff was not aware of these developments; that there was no record of actual date of birth of the plaintiff with the respondent as declared by the plaintiff or as obtained by the defendant at any point of time. For the first time in the year 1977, the defendant had asked the plaintiff to produce the original certificate in proof of his age and date of birth and at that time the plaintiff had indicated his date of birth by producing the school leaving certificate and other supporting materials, which were later returned to the plaintiff ; that the plaintiff was under the belief that his age and date of birth had been recorded in the books accordingly, that the plaintiff had caused issue of a reminder on 17-12-1984 for ascertaining the entry in the service register, that in response the defendant by letter dated 2-3-1985 had indicated that the plaintiff will be completing 60 years of age on 30-4-1985 and he will be superannuated on this date, that in spite of the plaintiff requesting to enter his correct age and date of birth in the service register to be as 15-7-1930, the defendant not responding it became necessary for the plaintiff to file the suit for the relief as indicated above. ( 6 ) THE defendant contested the suit contending that the age of the employee as entered in the service register at the time of the appointment is final, conclusive and binding between the employee and the employer for the purpose of determination of age of superannuation; that the plaintiff joined the services of the defendant on 4-4-1949 and at the time of joining the defendant-company, the plaintiff had not produced the age proof; that the plaintiff had never produced any transfer certificate to the defendant to support his claim that his date of birth is as indicated therein; that the acceptance of the age of the plaintiff by the insurance company based on the date of birth as claimed by the plaintiff is of no consequence on the service conditions of the plaintiff ; that the plaintiff had voluntarily declared his age to be 25 years at the time of his joining service; that it was revised to the benefit of the plaintiff by taking it as 24 years by an officer who was looking after such records during the year 1971 ; that the request made on the eve of the retirement to correct the date of birth and age cannot be acceded to; that even as per the original entry, while the plaintiff was required to superannuate as on 30-4-1984, the plaintiff for the first time had requested that his age to be reduced by another five years in terms of his letter dated 17-12-1984; that the plaintiff has written such a letter as he was obviously aware that the date of superannuation age had been originally recorded to be as 30-4-1984, stood subsequently altered to 30-4-1985; that the plaintiff knew about such entries in the records ever since joining the service of the defendant; that the plaintiff had consciously signed the relevant register indicating his age and date of birth; that the plaintiff was very much aware of the award of the Central Government Industrial tribunal, Bombay, passed on 9-8-1981, determining the superannuation age of the employees of the defendant-company, which was 60 years in respect of the employees working at the surface level; that the plaintiff was fully aware; of the award and significance of the same vis-a-vis entry in the service record and that he was due for retirement on superannuation in terms of the award as on 30-4-1985, but notwithstanding had not taken any steps; that the request coming at the fag end of the service and on the eve of the superannuation for extending his service period by another five years by altering the date of birth and age has been rightly turned down by the defendant and the suit is not maintainable in law; that the declaration of this nature cannot be granted in view of the provisions of Section 34 of the Specific Relief Act, 1963 (for short, the Act), and the prayer for continued service of the plaintiff for a further period of five years and a mandatory injunction of this nature as sought for in the suit cannot be granted, as it is hit by Sections 14 and 41 of the Act; that no mandatory injunction can be issued as such; that the plaintiff in fact had been retired from service on 1-10-1985, he cannot seekfor any further relief thereafter and the suit has virtually become infructuous and it should be dismissed. ( 7 ) IN the light of such rival pleadings, the trial Court framed the following six issues : 1. Whether the plaintiff proves that his date of birth is wrongly noted in his service register mentioned by the defendant and his correct date of birth is 15-7-1930 ? 2. Whether the plaintiff proves that his date of birth entered in the records of the defendant are not binding on him ? 3. Whether the defendant proves that the suit of the plaintiff is not maintainable and has became infructuous ? 4. Issue No. 4 deleted, as per order on IA- 24 dated 1-4-1991 5. Whether the plaintiff is entitled for the reliefs sought for ? 6. What order or decree ? additional issue : 1. Whether the defendant proves that the court fee paid is not proper and is insufficient being (sic) regard to the reliefs sought for by the plaintiff ? ( 8 ) IN support of his case, the plaintiff himself examined as P. W. 1 and got examined two other witnesses as P. W. 2 (a resident of nellore, the place where the school in which the plaintiff studied was located) and P. W. 3 (the Headmaster of the School ). The plaintiff exhibited documents at Ex. P1 to 17, prominent among them are Exs. P1 - original transfer certificate indicating the date of birth of the plaintiff as 15-7-1930 - Ex. P4 - a copy of the application dated 22-10-1984, given by the plaintiff to the defendant-company requesting to enter his correct date of birth, and other correspondence between the employer and the employee. ( 9 ) ON behalf of the defendant, the general manager of the defendant-company was examined as D. W. 1 and Exs. D1 to 7 were got marked, viz. service cards of the plaintiff (old and new) as Exs. D1 and 2; 'b' Registers as exs. D3 and 4; Ex. D3 (a) and Ex. D4 (a) are the signatures of the plaintiff in Exs. D3 and 4 respectively; standing orders of 1975 and 1987 as Exs. D5 and 6; Ex. D7 is another 'b' register. ( 10 ) THE trial Court on examining the evidence, both oral as well as documentary, answered issues 1 and 2 and the additional issue in favour of the plaintiff. While issue relating to the defendants were answered in the negative and accordingly decreed the suit. D5 and 6; Ex. D7 is another 'b' register. ( 10 ) THE trial Court on examining the evidence, both oral as well as documentary, answered issues 1 and 2 and the additional issue in favour of the plaintiff. While issue relating to the defendants were answered in the negative and accordingly decreed the suit. ( 11 ) THE lower appellate Court while totally dismissed the appeal of the defendant, allowed in part the cross-objection to the extent of decreeing the suit to enter the date of birth of the plaintiff in the register of the defendant as 15-3-1930 and to that effect in all his service records/cards of the defendant- company indicating the age of the plaintiff at the time of the entry into service of the defendant to be 19 years by striking out the entry indicating his age to be 24/25 years at the time of joining the service. ( 12 ) IT is aggrieved by this concurrent finding recorded by the Court below, the present appeal by the defendant in the suit. ( 13 ) THIS appeal had been admitted on hearing M/s. M. R. C. Ravi and k. Ramachandran, learned counsel for the appellant-defendant and Sri P. S. Rajagopal, learned counsel for the respondent-plaintiff, to consider the following substantial question of law in terms of order dated 3-12-2004; 1. Whether the employee can be permitted to alter his date of birth at the fag end of his employment/career ? 2. Whether the jurisdiction of the civil court is exclusively barred in respect of the matter which constitute the industrial dispute ? ( 14 ) THOUGH the above two questions are certainly question of law, the first question would essentially depend on the terms of the appointment and subject to the other relevant laws like the law of limitation, Contract Act etc. the answer to the second question which is more general in nature not only depends on the terms of the employment but as to whether the relief sought for is exclusively one attributable to the contractual terms and if such terms prevail notwithstanding the other statutory provisions governing or overriding the terms of contract. If it is purely contractual relationship and enforcing the terms of the contract, a suit will be maintainable in civil court and the person affected can approach for the relief. If it is purely contractual relationship and enforcing the terms of the contract, a suit will be maintainable in civil court and the person affected can approach for the relief. On the other hand if the relief is one which is attributable to the rights given under the Industrial Disputes Act, then the jurisdiction of the civil Court is ousted and the aggrieved person can get relied only in the manner provided for under the Industrial disputes Act and before a Labour Court or industrial Tribunal. ( 15 ) BUT what is more significant in the present case is such questions really do not arise in the facts of the present appeal, as the parties did not plead the necessary facts which could have given rise to the issues to formulate such questions. Neither the trial Court nor the lower appellate Court had occasion to bestow their attention in respect of such questions. If so, there is no need or possibility of answering the above two questions as one relevant for the purpose of deciding this appeal. ( 16 ) ON the other hand a more important question would be as to whether the suit is maintainable before a civil Court for the relief sought for in the context of the duration of appointment and the relationship between the parties. The relief sought for particularly for correcting the age or date of birth of the plaintiff in the register of the defendant is a relief which is virtually to prolong the terms of employment for a further period of five years beyond the date of superannuation as indicated by the defendant under its letter dated 2-3-1985 (Ex. P7 ). In fact it amounts to enforcing a service contract and compelling the defendant to avail the services of the plaintiff for a further period of five years. ( 17 ) WHEN viewed in this context, the point to be considered is whether the Courts below were right in decreeing the suit, notwithstanding the provisions of Section 14 read with Section 41 (e) and (h) of the Act, particularly when the term between the parties was bound by the contract and the plaintiff has not sought for any declaration in respect of the contractual terms under the contract of appointment? ( 18 ) INSOFAR as the facts are concerned, there is not much dispute. ( 18 ) INSOFAR as the facts are concerned, there is not much dispute. Even assuming for argument's sake, the actual date of birth of the plaintiff is 15-7-1930 as claimed, the question is could the plaintiff seek for grant of a relief of declaration that had been sought for particularly in the matter of service conditions between the plaintiff and the defendants? It is not in dispute that the service conditions of the plaintiff is determined in accordance with the contract entered into between the parties at the time of entering into service. The age as indicated in the appointment order and the standing orders of the defendant-company should become part of the contract, significance of which is only on the aspect of the date of superannuation of the plaintiff in so far as it relates to the relationship between the plaintiff and the defendant. ( 19 ) IF the relief in the form of a declaratory relief granted by the Courts below to the plaintiff is one which has the effect of rewriting the terms of contract, then the relief sought should be necessarily in the context of the terms of the contract and cannot be independent of it. ( 20 ) THE plaintiff except pleading for in a vague manner, that to his knowledge the defendant had not entered the date of birth of the plaintiff in the register and on its own estimation assumed the age of the plaintiff as to be 25 years as on the date of joining services of the defendant. e. on 4-4-1949, has not pleaded any other particulars of the terms of the employment. If the relief is one for correction of the date of birth of the plaintiff in the register of the defendant to be on 15-7-1930 and by striking off the earlier entry of 24/25 years, it is obvious that the correction is sought for by filing a suit in the year 1985 in respect of the entry that remained in the register of the defendant ever since the year 1949. On the plaintiffs own plea, the plaintiff had obtained the school leaving certificate even during the year 1949 and had made use of the same for declaring his age before the life Insurance Corporation of India and others. On the plaintiffs own plea, the plaintiff had obtained the school leaving certificate even during the year 1949 and had made use of the same for declaring his age before the life Insurance Corporation of India and others. This clearly demonstrates that the plaintiff was aware of his date of birth but had not furnished the same to the defendant employer nor had he made any serious efforts to have the same incorporated in the register of the defendant. A woefully belated attempt to get the entry in the register of the employer so corrected on the eve of his retirement and on the defendant declining to act on the same, bringing the present suit for such reliefs is a cause which is not only barred by the law of limitation but also in respect of a relief which cannot be granted for the reason that the plaintiff never sought for a declaration with regard to the terms of appointment and for modification of the terms of the appointment. It is, therefore, while a suit for a mere declaration of the age perhaps could have been maintained if it was only for such purpose and not to bind it on the defendant-employer for the benefit of gaining longevity in employment, a suit in the present form is clearly not tenable. ( 21 ) THE relief sought for is virtually in the nature of mandatory injunction to command the defendant to act in a particular manner. A relief of this nature is also one that cannot be granted in the light of the provisions sub-sections (e) and (f) of section 41 of the Act, which read as under : 41. Injunction when refused - An injunction cannot be granted - (e) to prevent the breach of a contract the performance of which would not be specifically enforced. (f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Injunction when refused - An injunction cannot be granted - (e) to prevent the breach of a contract the performance of which would not be specifically enforced. (f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Moreover, when two persons entered into an agreement in respect of mutual rights and obligations and the agreement amounts to a contract, the Court of law cannot grant a relief to one of the parties to the agreement contrary to the terms of the agreement unless the persons seeking relief before the Court prays for a declaration that a particular clause or covenant in the agreement is not binding either for any act of deceit or fraud committed by the other party or that the clause is one which is in violation of any statutory provisions or the enforcement of the same is opposed to the public policy etc. In the absence of any such averment and a relief consequential to the declaration about the invalid clause or covenant, Courts will not grant such relief, but allow parties to work-out their rights in terms of the agreement. A suit does not lie to hold a person who has entered into an agreement for seeking a relief to free him from the agreement voluntarily entered into between the parties. If the terms between the plaintiff and the defendant in the present case was such that the plaintiff was to retire by superannuation as on 30-4-1985 on attaining the age of superannuation, which in terms of the Standing Orders of the defendant-company was 60 years of age, this contract binds the parties and a relief contrary to this can only be consequential on a declaration to the invalidity of any clause or term but not otherwise. The plaintiff having not laid such a foundation and grounds for seeking relief, the suit should not have been decreed and the trial Court as well as the lower appellate Court have committed an error in law in decreeing the suit. The plaintiff having not laid such a foundation and grounds for seeking relief, the suit should not have been decreed and the trial Court as well as the lower appellate Court have committed an error in law in decreeing the suit. ( 22 ) ASSUMING that the correct date of birth of the plaintiff is 15-7-1930, if the parties have agreed that it was a. different date and had acted upon that for as many as 35 years, it is not open to the plaintiff - one of the parties to such a contract - to file a suit for a declaratory relief, at such a point of time for the purpose of altering the terms of the contract. ( 23 ) I am of the view that a prayer for mere declaration to declare that the date of birth to be 15-7-1930 and to claim all consequential relief against the defendant-employer for the purpose of extending the duration of the service for a further period of five years based on such declaration in a suit of this nature is clearly not maintainable in the absence of a declaration about the contract itself or in the absence of a declaration for modification of the terms of the contract. It is only on the contract of service being modified, such a consequential relief can follow and not otherwise. The suit having not been laid on such premise but simply based on mere fact that the actual date of birth (of the plaintiff) was 15-7-1930, the consequence of decreeing such relief is not visited upon the defendant-employer for extending the benefit of modified duration of the services of the plaintiff. The suit of the present nature was quite clearly not maintainable. The Courts-below were in error in law in decreeing the suit of this nature. ( 24 ) EVEN on the question of limitation, I find the suit should have been dismissed as one barred by limitation. Even as per the version of the plaintiff, the plaintiff was making efforts to get his date of birth altered even from the year 1977 onwards. ( 24 ) EVEN on the question of limitation, I find the suit should have been dismissed as one barred by limitation. Even as per the version of the plaintiff, the plaintiff was making efforts to get his date of birth altered even from the year 1977 onwards. Even as per the deposition of the plaintiff, the plaintiff was aware of his actual date of birth even during the year 1957 and 1963 and if he had not taken steps in this regard to correct his date of birth in the service register or as against the defendant in the context of service conditions, the purported attempt in filing the suit in the year 1985 is clearly an attempt beyond the permitted period of limitation. Even on the admission of the plaintiff, the plaintiff himself had made applications for rectification of the age/correcting the date of birth by making application in the year 1980 (Ex. P5 ). ( 25 ) IT is not as though the plaintiff was not aware of the state of affairs as in the register of the defendant-employer and what had been entered therein. The cause of action arose long prior to 1984 when the defendant-employer had merely apprised the plaintiff that he superannuated with effect from 30-4-1985 etc. The plaintiff having not brought the suit within three years from the date of cause of action which arose in the year 1977, the suit is clearly barred by limitation and it should have been necessarily dismissed as such, particularly as against the defendant. In that view of the legal position, the suit could not have been decreed, as has been done by the trial Court and affirmed by the lower appellate Court. ( 26 ) IN the result, this second appeal is allowed and the judgments and decrees passed by the Courts-below are hereby set aside. Consequently, the suit of the plaintiff is dismissed. No order as to costs. ( 27 ) HOWEVER, it is made clear that this judgment will not enable the defendant-employer to recover any amount if had been paid already to the plaintiff either by way of satisfaction of the decree or by way of any other settlement for satisfying the decree during the pendency of this appeal and the amount if any paid by the defendant-company can be retained by the plaintiff-employee. Appeal allowed.