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2007 DIGILAW 438 (CAL)

Eastern Coalfields Ltd v. Abhinash Mondal

2007-06-19

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2007
Judgment :- (1.) HEARD the learned Advocates appearing for the parties. (2.) ASSAILING the judgment and order dated 8th December, 2003 in W.P. No. 6390 (W) of 2003 passed by the learned trial Judge, this appeal has been preferred by the present appellant. (3.) THE subject-matter of challenge in the writ application was the notice of superannuation on the ground that the same was contrary to the decree passed by the Civil Court declaring the age of the writ petitioner by contested hearing, wherein the employer was the party in the proceeding. It is an admitted position that the Civil Court passed a decree declaring the date of birth of the writ petitioner as 2nd day of November, 1948. But the notice of superannuation was issued by considering the date of birth as 10th day of July, 1942. When the judgment under appeal was delivered, at that time a First Appeal admittedly was pending from the judgment and decree dated 22nd March, 2002 passed by the Civil Court in Title Suit No. 136 of 1999 as filed by the present appellant before us. Now, it is submission of the learned Advocate for the appellant that the said First Appeal has been dismissed on merit, which was registered as Title Appeal No. 67/79 of 2002 in the Fast Track, 2nd Court of the Additional District Judge, Asansol. It has been further submitted that a second appeal with an application under section 5 of the Limitation Act praying for condonation of delay in preferring the appeal belatedly, which has been registered as S.A.T. No. 3148 of 2006 is pending in the High Court at Calcutta against the judgment and decree passed by the learned Trial Court as well as the First Appellate Court in the said civil proceeding. By the judgment under appeal the learned Trial Judge held that as there was a decree of Civil Court, notice of superannuation perse was bad in law as it was contrary to the age declared by the Civil Court. By the judgment under appeal the learned Trial Judge held that as there was a decree of Civil Court, notice of superannuation perse was bad in law as it was contrary to the age declared by the Civil Court. The learned Trial Judge further held that decree of Civil Court is binding in between the parties and the contention as raised that in the civil suit the writ petitioner since did not challenge the age recorded in the office fife of the employer/respondent, the superannuation notice as followed in terms of the said office record as kept in the B-Form cannot be interfered with, was not tenable applying the doctrine of constructive resjudicata. (4.) FOR effective consideration of the issue of applicability of constructive resjudicata as observed by the learned Trial Judge, we have to consider the judgment and decree passed by the Civil Court, which is before us. (5.) TITLE Suit No. 136 of 1999 was filed and, a judgment delivered on 22nd day of March, 2002 by the learned Additional Court of the Civil Judge, Junior division, Additional Court at Asansol within the District of Burdwan in the case Abinas Mondal v. Eastern Coalfields Ltd. and Ors. From the decree as annexed, it appears that there were three defendants in the suit, namely, (1) M/s. Eastern Coalfields Ltd., Sanctoria, P.O. Dishagarh, P.S. Kulti, Dist. Burdwan (W.B); (2) General Manager, Kenda Area, P.O. Bhaula, P.S. Jamuria, dist. Burdwan (W.B.) and (3) Agent, Haripur Colliery, P.O. Haripur, P.S. Jamuria, dist. Burdwan (W.B.). The decree reads such:-"plaintiff do get a decree of declaration that his date of birth is 2nd November, 1948. As because the plaintiff is in service, I do no grant any other relief, to him." (6.) FROM the judgment leading to the said decree passed by the learned civil Court below it appears that the learned Court considered the impact of the document, namely, the B-Form, which as per submission of the learned advocate for the respondent was not considered. From the judgment it appears that defendants filed joint written statement denying each and every allegations and contentions of the plaint. Relevant issue was framed, namely, "is the date of birth of the plaintiff is 2.11.1948?". From the judgment it appears that defendants filed joint written statement denying each and every allegations and contentions of the plaint. Relevant issue was framed, namely, "is the date of birth of the plaintiff is 2.11.1948?". The findings of the judgment as are relevant is quoted herein below for our consideration:-"the learned Advocate appearing on behalf of the plaintiff drew my attention that the defendants have failed to give any evidence and thus an adverse inference should be drawn up against them. He further contended that the school certificate is a public document and thus validity of the document cannot be in question (Ext. 3). In support of his contention he refers AIR 1961 Pat 24, with regard to the question of Limitation, it is urged that right to sue accrues and cause of action starts from the date of refusal of the defendants to do or not to do a particular act. In this respect he refers a decision AIR 1993 Gauhati page 52 and AIR 2000 Kar. 314 (Already referred by the learned Advocate for the defendants). The learned Advocate for the plaintiff submits that the defendants withholding the service record and other documents including the b form and this can safely be said the best evidence is lying with the defendants and not producing the same. The plaintiffs case succeeds. Exbt.-3 is the school certificate and from the same it appears to me that date of birth has been recorded there by 2.11.1948. The P.W.4 is an employee of the defendants and he has deposed "as per summons, the b form of the plaintiff has been called for. That b form is not available in our office. I am also failed to fife and produce the original service Record excerpt of the plaintiff. It is fact, before joining in our company, the b Form is required to be executed by the employee as it is a Mandatory provision". For such withholding of the original documents and for non-production of any evidence from the side of the defendants, I hold and draw an adverse inference against the defendants. The value of the Exbt.-3 cannot be discarded. That is fact the plaintiff for the purpose of this dispute has obtained his certificate in the year 1997 (as per plaint case), but the Exbt. 3 is being the mother register, I am failed to destroy the value of the Exbt. The value of the Exbt.-3 cannot be discarded. That is fact the plaintiff for the purpose of this dispute has obtained his certificate in the year 1997 (as per plaint case), but the Exbt. 3 is being the mother register, I am failed to destroy the value of the Exbt. 3. As because not a single document has been provided of produced by the defendants, I do not find any wrong in the case of the plaintiff to destroy, the case of the plaintiff. Moreover, oral testimony and documentary evidence of the plaintiff corroborate with the plaint case." (7.) ON a bare reading of the findings and observation of the learned civil Court it appears that the respondent/defendant, Eastern Coalfields limited, despite the issuance of the summons did not produce the B-Form but on the contrary one employee of the defendants deposed that the said b-Form was not available in the office. Having regard to such positive finding to that effect it appears that the writ petitioner being a plaintiff took all steps so that the document, namely, B-Form could be produced but it was not produced from the custody of the appellant, Eastern Coalfields limited, before us. For that reason, an adverse finding was taken by the learned Civil Court. It is a settled legal position that the adjudication made by the Civil Court on hearing the parties is binding upon them. This writ application is not an appeal against the judgment and decree delivered by competent Civil Court declaring the age of the writ petitioner. Once, there is a declaratory decree on age by a Civil Court, naturally, the writ Court would not interfere with such, inasmuch as when the appellant before us had suffered the dismissal of their first appeal assailing the judgment and decree passed by the learned Civil Court aforesaid. Hence, the contention of the appellant that the recording of the age in the B-Form could not be modified and/or varied by application of Civil Court decree, has no legal basis as the teamed civil Court considered this argument as raised on issue of B-Form by holding an adverse finding as the document was not produced. Hence, the contention of the appellant that the recording of the age in the B-Form could not be modified and/or varied by application of Civil Court decree, has no legal basis as the teamed civil Court considered this argument as raised on issue of B-Form by holding an adverse finding as the document was not produced. In view of the very nature of the findings, we are of the view that principle of res judicata also got its applicability in full force as the contention relating to the B-Form has been considered and rejected by taking adverse view by the learned Civil court. Even if the said principle is not applied strictly, constructive res judicata principle very well is applicable as has been considered by the learned Trial judge while disposing of the writ application. (8.) WE are also of the same view that constructive resjudicata principle has full applicability as it not only available to the assertion of a case by way of 9 pleading but also in respect of the Defence of any case. This view has been settled by the Apex Court that even a defence as is available to a party if is not raised, the principle of constructive res judicata has its full applicability. Reliance may be placed to the judgment passed in the case forward Construction Co. and Ors. v. Prabhat Mdndal (Regd.), Andheri and Ors., reported in 1986 (1) SCC 100, wherein the Apex Court considered the issue with referencei to a service matter and held to this effect "adjudication is conclusive and final not only as to the actual matter determined but as to every matter, which partys might and ought to have litigated and have had decided as incidental to and essentially connected with the subject matters of the litigation and every matter coming into the legitimate purview of original action both in respect of the matters of claim and defence". Underlying here the principle of res judicata and the constructive res judicata applied in a writ proceeding. The same view was echoed by the Apex Court in the case g. K. Dalani and Ors. v. S.D. Sharma and Ors. , reported in AIR 1986 SC 1455 . The English Court has also considered the same principle and its applicability in the case The Indian Endurance Republic of India and Ors. v. India Steamship co. The same view was echoed by the Apex Court in the case g. K. Dalani and Ors. v. S.D. Sharma and Ors. , reported in AIR 1986 SC 1455 . The English Court has also considered the same principle and its applicability in the case The Indian Endurance Republic of India and Ors. v. India Steamship co. Ltd., reported in 1993 (1) AII ER 998 by holding "when any matter which might/ought to have been a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law to avoid multiplicity of litigation and to bring about finality of it, is deemed to have been constructively an issue and therefore as taken as decided". The same view also considered by the Apex Court in the case Workmen, Calcutta Port trust v. Board of Trustees, reported in AIR 1978 SC 1283 (9.) HAVING regard to the settled legal position, we are of the same view that the findings as observed by the learned Trial Judge is justified. (10.) BY the impugned judgment under appeal the learned Trial Judge, however, allowed the writ application by protecting the interest of the present appellant, which reads such;- "accordingly, the writ application is being disposed of with directions upon the respondents as under. Without prejudice to the rights and contentions of the respondents in the appeal preferred by them against the judgment and decree dated March 22, 2002, respondent, authorities shall pass afresh orders with respect to the superannuation of the petitioner and communicate the same to him within a period of two months from the date of communication of this order. Petitioner shall be informed by the respondent authorities in the same order as to whether he would be taken back in service and allowed to continue till the attaining of 60 years as per the date fixed and decreed by Court or he would be paid the monitory benefits in lieu thereof. Such option by the respondent authorities, needless to way, being subject to the orders in the appeal against the same decree dated March 22, 2002 shall be communicated as directed above within the time period stipulated above. Thereafter, it shall be open to the petitioner to question the same if so advised by appropriate proceedings in appropriate forum. Such option by the respondent authorities, needless to way, being subject to the orders in the appeal against the same decree dated March 22, 2002 shall be communicated as directed above within the time period stipulated above. Thereafter, it shall be open to the petitioner to question the same if so advised by appropriate proceedings in appropriate forum. " (11.) IT appears accordingly that the right and interest of the present appellant so far as their right on issue of the civil proceeding as now at the stage of Second Appeal, which, however, as yet has not been admitted under order 41 Rule 11 of the Code of Civil Procedure as the application praying condonation of delay to file the appeal, is still pending for consideration by the High Court. (12.) ON considering all the facts, accordingly, we are not inclined to interfere with the impugned judgment under appeal. The appeal, accordingly, stands dismissed. There will be no order as to costs.