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2008 DIGILAW 1056 (JHR)

Central Coalfields v. Shaligram Saw

2008-09-02

R.K.MERATHIA

body2008
JUDGMENT R.K. Merathia, J. 1. Appellants are aggrieved by the judgment of reversal. 2. The case of the plaintiff-respondent, in short, was as follows. That at the time of joining the service on 10.1.1960, he was aged about 24 years and therefore his date of birth was 29.7.1936, but a notice of superannuation dated 2.5.1985 was served on him informing him that on completion of 60 years of age, he was going to retire on 26.11.1985, though he was to retire in July, 1996. He objected to such notice. As nothing was done, he filed this suit on 20.11.1985. He relied on Ext-2, a report of medical examination to show that his age was assessed as 45 years on 29.7.1981. He prayed for the following reliefs: (a) That it be declared that the letter dated 2.5.1985 is illegal and be struck down. (b) That it be declared that the date of birth of the plaintiff is 29.7.1936 and not any other date shown by the defendants. (c) That the defendants be restrained from retiring the plaintiff from 26.11.1985. (d) That any other relief or reliefs to which the plaintiff is entitled to, be kindly passed. (e) Cost of the suit be awarded to the plaintiff. 3. The case of the defendants inter alia was as follows. The suit was barred under the provisions of Specific Relief Act. The suit was bad for nonjoinder of the Central Coalfields Ltd. (CCL). The suit was barred by limitation, and also under the Industrial Disputes Act. For about 25 years, plaintiff did not raise any dispute with regard to his age/date of birth recorded in the service records and only after service of notice of superannuation, he filed this suit at the fag end of service. In the service record, the endorsement with regard to date of birth was accepted by the plaintiff by putting his thumb impression specifically against the cutting in column-2 regarding the age/date of birth, apart from putting his ten fingers on the service records-Ext-A. Ext.-2 is a fabricated document as the same has been issued by the medical officer of A.K. Colliery, whereas plaintiff was working in Sounda Colliery. Moreover, such forms (Ext-2) are issued about the medical fitness of the employees and they are not the medical assessment of age. The notice of superannuation was rightly issued on the basis of service records of the plaintiff. Moreover, such forms (Ext-2) are issued about the medical fitness of the employees and they are not the medical assessment of age. The notice of superannuation was rightly issued on the basis of service records of the plaintiff. The suit was liable to be dismissed with costs. 4. The trial court inter alia held that the plaintiff could not prove his case-that his date of birth was 29.7.1936, either by documentary evidence or by oral evidence. It further found that even if it is accepted that in Ext-'A' initially "34 years of age" was mentioned at the time of his appointment in the year 1960, his date of superannuation would have been sometimes in the year 1986 and not 1996, as claimed by the plaintiff. Finally, it held that the notice of superannuation was rightly issued. 5. The lower appellate court reversed the said judgment of the trial court. It inter alia held that the trial court incorrectly interpreted Ext-A, as there was cutting in column-2 regarding the date of birth to deprive the plaintiff and the original entry seemed to be correct. That Doctor Alam has not been examined in this case. It further drew adverse inference against the defendants on the ground that the original records from the NCDC were not produced. It ultimately held that the date of birth of plaintiff was 29.7.1936 and therefore the notice of superannuation asking him to retire with effect from 26.11.1985 was illegal. 6. The following questions of law were formulated in this appeal on 8.10.1991. (i) Whether in view of the relief (c) claimed in the plaint, the suit was barred under Section 14(b) of the Specific Relief Act, 1963. (ii) Whether the suit was maintainable in absence of M/s Central Coalfields Limited as a party to the suit. As prayed, appellant was permitted to argue on the following substantial question of law also: (iii) Whether the respondents could raise dispute about age/date of birth, at the fag end of service? 7. Learned Counsel for the appellants submitted that it has come in evidence that in case of dispute with regard to age/date of birth, the employee is referred to the Medical Committee for assessment of the age. It could not be proved that Ext-2 is based on such assessment. On the basis of Ext-2, the plaintiff's suit could not be decreed. Learned Counsel for the appellants submitted that it has come in evidence that in case of dispute with regard to age/date of birth, the employee is referred to the Medical Committee for assessment of the age. It could not be proved that Ext-2 is based on such assessment. On the basis of Ext-2, the plaintiff's suit could not be decreed. It was not a report of the Age Assessment Committee. Such forms are issued to the employees only with regard to their medical fitness in which the age disclosed by the employees is simply mentioned in the form. Moreover, Ext-2 was a manufactured document. It was issued by the Medical Officer of A.K. Colliery, though the plaintiff was working in Sounda Colliery. He further submitted that in absence of any direction, to produce the original records of NCDC, the lower appellate court was not justified in drawing adverse inference. He further submitted that it has been held by the Supreme Court repeatedly that an employee can not raise such dispute regarding his age/date of birth, at the fag end of his service and in the present case the plaintiff filed this suit only when he was served with superannuation notice. His age/date of birth mentioned in the service records remained undisputed for more than 25 years. 8. The question No. (i) is to be answered in affirmative and it has to be held that the suit was barred in view of relief (c) quoted above. In the case of P.D. Agrawal v. State Bank of India (2006) 8 SCC 776 , it has been inter alia held that- "Under the common law, as also the provisions contained in Section 14(1)(b) of the Specific Relief Act, a master was entitled to terminate the services of an erring employee at his sweet will. The dismissed employee could have sued his master only for damages and not for his reinstatement in service. It is only for the purpose of grant of damages, a declaration was required to be made that the termination of the service was illegal". So far as the question No. (ii) is concerned, as the Central Coal Fields Limited was made party in the appeal before the lower appellate court, to which no objection was raised by the appellant, in my opinion, this question does not arise in this appeal. 9. So far as the question No. (ii) is concerned, as the Central Coal Fields Limited was made party in the appeal before the lower appellate court, to which no objection was raised by the appellant, in my opinion, this question does not arise in this appeal. 9. In answer to question No. (iii), it has to be held that the respondent could not raise dispute regarding his age/date of birth at the fag end of his service. The respondent specifically put his thumb impression on the cutting in the Column-2 in Ext-A. The age/date of birth is a vital entry for an employee. But the respondent did not raise any dispute for more than 25 years regarding the said entry of his age/date of birth mentioned/corrected in his service records. Only when the notice of superannuation was served, he filed this suit. On this aspect, learned Counsel for the appellants is justified in relying on the judgments reported in AIR 2003 SC 4209 State of U.P. v. Smt. Gulaichi and 2000 (4) PLJR 214 Gholam Rasool v. State of Bihar. Moreover, on the basis of Ext.-2, the findings of the trial court, were wrongly reversed by the lower appellate court. Apparently, Ext-2 was not the medical report of age assessment committee, and was got issued by a colliery, where respondent was not working. 10. In the result, the judgment and decree of the Lower Appellate Court is set aside; the judgment and decree of Trial Court is affirmed and this second appeal is allowed by dismissing the suit. However, no costs. Appeal allowed.