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2011 DIGILAW 335 (CAL)

Teni Yadav v. Eastern Coalfields Ltd.

2011-03-08

ANIRUDDHA BOSE

body2011
JUDGMENT Aniruddha Bose, J. 1. THE writ petitioner was an employee of Eastern Coalfields Limited and he was working as a clipman in a colliery known as Shyam Sunderpur Colliery. THE dispute in this writ petition relates to correction of age of the writ petitioner in the records of the Eastern Coalfields Limited (the "Company" in short). THE main grievance of the writ petitioner is that he has been made to superannuate before his actual age of superannuation because of certain error in the records of the company as regards his date of birth. According to the petitioner, his actual date of birth is 24th June, 1951. 2. THE case of the writ petitioner is that at the time of his appointment, he had furnished all the papers required by his employer including his school- leaving certificate in support of his date of birth. On 26th February, 1987, he was served with copies of excerpts from his service records by the company, which showed his age as 38 years as on 18th August, 1982. His claim is that such recordal was erroneous, as in the year 1982 his age would have been 34 years. The petitioner made representation before the company for correction of the service records, which was not done. He instituted a suit in the Court of learned Civil Judge (Junior Division), First Court at Durgapur claiming following reliefs:- "a) for a decree of declaration that the plaintiffs date of birth is 24.6.51 and the defendants are bound to correct and modify the services record of the plaintiff by inserting his correct date of birth as 24.6.51. b) for a decree of permanent injunction restraining the defendants their man and agents and employees from issuing any letter superannuation on the basis of the wrongly recorded date of birth in the service record. c) for a decree of the costs of the suit. d) for further or other relief/reliefs which the plaintiff will be entitled as per law and equity." 3. THERE was an element of inconsistency in the claim of the petitioner in that if his age was 34 years in the year 1982, then his year of birth would have been 1948, and not 1951. The Civil Court, however, examined the matter on the basis of evidence, including opinion of medical experts. THERE was an element of inconsistency in the claim of the petitioner in that if his age was 34 years in the year 1982, then his year of birth would have been 1948, and not 1951. The Civil Court, however, examined the matter on the basis of evidence, including opinion of medical experts. The suit, which was registered as Title Suit No. 106 of 2003 {Teni Yadab vs. ECL Ltd. and Ors.) was decreed in the following terms:- "During argument of this suit, it has been submitted by the ld. Advocate for the plaintiff that this plaintiff had already been superannuated from his service with effect from 31.1.2005 by a notice dated 30.1.2006 issued by the defendants. Therefore the prayer of the plaintiff for a decree of permanent injunction restraining the defendants from issuing any letter of superannuation on the basis of wrongly recorded of the date of birth of the plaintiff in the service record has become infructuous as the plaintiff had already been superannuated from his service. In the light of the foregoing discussion this Court is of the view that the plaintiff has able to prove his year of birth but not his date of birth by adducing oral and documentary evidences. This Court is inclined to deliver judgment as to the year of the birth of the plaintiff after moulding the relief as prayed for by the plaintiff in this suit. These two issues are, thus, decided in favour of the plaintiff. As a result, the suit- succeeds in part. Court-fee paid is correct and sufficient. Hence, it is, Ordered that the suit be and the same is decreed in part against the defendants on contest without cost. The plaintiff do get a decree of declaration that his year of birth is 1951 with a further declaration that the service record of the plaintiff requires correction, accordingly." 4. THE company, being the defendants in the said suit preferred an appeal against the said judgment and decree before the learned District Judge, Burdwan, which was registered as Title Appeal No. 13 of 2007. This appeal was dismissed by an order dated 6th June, 2007, a copy of which has been annexed and "P2" marked to the writ petition. THE company, being the defendants in the said suit preferred an appeal against the said judgment and decree before the learned District Judge, Burdwan, which was registered as Title Appeal No. 13 of 2007. This appeal was dismissed by an order dated 6th June, 2007, a copy of which has been annexed and "P2" marked to the writ petition. THE company carried the matter further up in appeal before this Court but was unsuccessful as their appeal, registered as S.A.T. 2739 of 2007 was dismissed by an Hon'ble Division Bench of this Court on 24th June, 2008. A petition for special leave to appeal against this judgment before the Hon'ble Supreme Court of India was also filed. THE said petition was dismissed by the Hon'ble Supreme Court on 4th May, 2009. THE company filed a petition for review of the order dated 4th May, 2009. It has been stated in the affidavit of the company that this review petition was heard and dismissed by the Hon'ble Supreme Court on 29th October, 2009. The petitioner made several representations before the company for permitting him to join duty after correction of the service records upon being successful in the proceedings referred to in the earlier part of this order. The company however declined to restore duty to the writ petitioner. The petitioner in the meantime was made to superannuate with effect from 31st January, 2005, treating his age to be 38 years in the year 1987. 5. THE respondent company has contested the matter by filing affidavit. Their defence to this writ petition rests on two planks. First, it has been argued that the writ petitioner had claimed in substance reinstatement before the learned Civil Judge, Junior Division in Durgapur which plea was rejected. On this count it has been submitted that the issue has become res judicata and it is no more open to the petitioner to pray for the same relief before this Court. It is the defence of the company that they have already complied with the judgment and decree of the learned Civil Judge by correcting their own records. Since the learned Civil Judge did not direct reinstatement of the petitioner, they were under no obligation to reinstate him. It is the defence of the company that they have already complied with the judgment and decree of the learned Civil Judge by correcting their own records. Since the learned Civil Judge did not direct reinstatement of the petitioner, they were under no obligation to reinstate him. Secondly, it has been urged that if the writ petitioner was founding his case on the judgment and decree of the learned Civil Judge in Title Suit No. 106 of 2003, then the petitioner ought to have applied for execution of the decree instead of approaching the Writ Court. It has been emphasised on behalf of the respondents that the Writ Court ought not to be transformed into an Executing Court. THE writ petition was also contested on the ground that the jurisdiction of this Court under Article 226 of the Constitution of India could not be invoked in this case as the dispute in question was an industrial dispute and the petitioner ought to have had availed the dispute resolution mechanism provided under the Industrial Disputes Act, 1947. 6. I shall first examine the question as to whether the issue raised in the present petition has become res judicata or not. From the copy of the plaint in T. S. No. 106 of 2003, which was made available before this Court by the learned Counsel for the petitioner, I find that relief for permanent injunction was claimed for restraining the defendants in the suit from issuing any letter of superannuation on the basis of wrongly recorded date of birth in the service record of the plaintiff, who is the petitioner before me. The learned Trial Judge had opined in the judgment that since the writ petitioner had already superannuated from his service with effect from 31st January, 2005, the prayer of the plaintiff for decree of permanent injunction had become infructuous. The suit was instituted in the year 2003, when the writ petitioner was in service and at the time of institution of the suit, claim for such relief by the petitioner was capable of being considered by the Civil Court. On the date of judgment, however, he stood superannuated and it is for this reason the relief for decree of permanent injunction as claimed in the suit was not considered. But what could the writ petitioner have had claimed in the said suit subsequent to the date of superannuation? On the date of judgment, however, he stood superannuated and it is for this reason the relief for decree of permanent injunction as claimed in the suit was not considered. But what could the writ petitioner have had claimed in the said suit subsequent to the date of superannuation? A prayer for directing his reinstatement in service would possibly have been barred under the Specific Relief Act as the issue would have involved enforcement of a contract of personal service. Thus in the peculiar circumstances of this case, though at the point of time when the petitioner had instituted the suit, the petitioner could have prevented his superannuation, because of time gap between the date of institution of the suit and the date on which the suit was decreed, his claim for such relief could not be examined. In view of this position, in my opinion, since the petitioner would not have been entitled to claim the relief for reinstatement in the said suit, the petitioner cannot be barred from making similar prayer in this writ petition. The principle of res judicata would not apply in this case because in the suit, claim for such a relief would have been barred. I have already discussed the legal impediment on the part of a litigant claiming unfair superannuation in obtaining a decree for reinstatement. In the event the petitioner claimed in the suit a declaration about his date and year of birth, and upon obtaining such decree had approached this Court with prayer for reinstatement, such a course might not have had given rise to a plea of res judicata as a defence. So far as correction of his date or year of birth is concerned, the Civil Court was the proper forum as adjudication of such purely factual issue requires trial on evidence. But in the suit instituted by the petitioner, the question of reinstatement was not in issue and such relief could not be claimed under the provisions of the Specific Relief Act, 1963.I accordingly decline to sustain the objection on maintainability of this writ petition under the principle of res judicata. 7. NEXT comes the question as to whether the writ petitioner is seeking execution of the decree of Civil Court through the present proceeding or not. 7. NEXT comes the question as to whether the writ petitioner is seeking execution of the decree of Civil Court through the present proceeding or not. I accept the submission made on behalf of the respondents that the Writ Court ought not to be converted into a Court for execution of a decree passed by a Civil Judge. But in this case it is not the question of mere execution of the decree. The relief claimed by the petitioner in this proceeding is not for execution of the decree which was confined to correction of recordal of date of birth of the petitioner in his service records maintained by the respondents. The prayer of the petitioner is for direction upon the respondents to take steps which they ought to have taken in consequence of the decree. I do not think the Constitutional Court, while dealing with the right of the petitioner to remain in employment until he reaches his age of superannuation, which right has crystallised through a judicial decree, ought to take a microscopic view of its jurisdiction. I do not appreciate the stand taken by the company in raising this kind of hyper- technical points in resisting the legitimate claim of an employee. This stand of the company, if sustained, would give rise to an anomalous situation. The petitioner's date or year of superannuation would stand established by the decree of Civil Court treating his year of birth as 1951. But in reality for the purpose of superannuation, an earlier year of birth would be accepted. This would be a case of right without a remedy, not acceptable to the Writ Court on equitable ground, being both irrational and unreasonable, violative of the principles embodied in Article 14 of the Constitution of India. It is well within the jurisdiction of the Writ Court to compel the Eastern Coalfields Limited, which fits the description of "State" within the meaning of Article 12 of the Constitution of India, to discharge their legal obligations towards their employees arising out of service related issues. 8. A point was also urged on behalf of the respondents that the petitioner ought to have raised a dispute before the forum constituted under the Industrial Disputes Act, 1947 as the petitioner is a workman. This argument is based on the principle of availability of alternative remedy. 8. A point was also urged on behalf of the respondents that the petitioner ought to have raised a dispute before the forum constituted under the Industrial Disputes Act, 1947 as the petitioner is a workman. This argument is based on the principle of availability of alternative remedy. In this proceeding the Writ Court has already entertained the petition. Affidavit has been filed by the respondents. Practically no factual dispute is involved in this proceeding which would require trial on evidence. That part of the dispute stands already resolved by the Civil Court. The writ petitioner is struggling to establish his right for a long period of time. In these circumstances, solely on the ground that there is an alternative remedy, I would not like to reject the writ petition at this stage. The writ petition is accordingly allowed. The respondents are directed to reinstate the writ petitioner in his service treating his year of birth as 1951. I am, however, not directing payment of backwages as the petitioner has not come forward with a specific plea that he was not gainfully employed elsewhere during this period. He has also not served the company during this period to become entitled to such wages automatically. However, I direct the respondents to pay a sum of rupees seventy-five thousand as costs to the petitioner because I am of the opinion that they have caused substantial injustice to the writ petitioner and the petitioner has had to invest substantial time, effort and money in prosecuting his legitimate claim in this writ petition. The petitioner shall be entitled to all other benefits and shall be deemed to be in continuous service from the date on which he was compelled to superannuate till the date of his superannuation treating the year 1951 as his year of birth and his present service benefits as well as his post- retiral benefits shall be computed on that basis. 9. URGENT photostat certified copy of this judgment, if applied for, be given to the learned Advocates for the parties with necessary formalities as expeditiously as possible.