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2012 DIGILAW 1006 (CAL)

Bharat Coking Coal v. Paresh Chandra Gorai

2012-11-30

TARUN KUMAR GUPTA

body2012
Judgment :- Tarun Kumar Gupta, J. This is directed against judgment and decree dated 11th September, 2009 passed by learned Civil Judge (Senior Division) Asansol, District Burdwan in Title Appeal No.22 of 2009 confirming the judgment dated 30th April, 2009 and decree thereof passed by learned Civil Judge (Junior Division), 2nd Court, Asansol in Title Suit No.26 of 2009. The respondent filed said suit alleging that he was an employee of Bharat Coking Coal Limited working under defendant No.3 and that at the time of his appointment on 18th April, 1973 he produced his school leaving certificate to show his date of birth as second of December, 1952 and that it was accordingly recorded in the identity card issued by the defendant company. It is further case that in the year 1989 Chairman Coal India Limited introduced a system of wishing every worker of the company on his birth day and the same was also endorsed in the pay slip of the concerned employee and accordingly the plaintiff was wished on his date of birth i.e., on 2nd of December, 1952. However, the defendant company suddenly issued a letter being No.DC/Sr. PO/Superannuation/1733 dated 1/5.11.2008 to the plaintiff intimating that he would retire on and from 30th of April, 2009 and at that time the plaintiff came to know for the first time that his date of birth was wrongly recorded as 18.04.1949 in place of his correct date of birth i.e., 02.12.1952. Plaintiff’s representation for correction of his date of birth was not entertained by the company. The plaintiff was compelled to file the present suit praying for declaring that the impugned letter dated 1/5.11.08 was void and illegal and that the plaintiff would be entitled to serve the company upto 02.12.2012 in view of his correct date of birth being 2nd of December, 1952 and for permanent injunction and other consequential reliefs. The present appellant company as a defendant filed a written statement denying material allegations of the plaint and contending inter alia that as per statement of the plaintiff his age was recorded as 24 years at the time of joining of his service on 18.04.1973 and the plaintiff put his signature thereupon. It is further case that plaintiff was declared to be matriculate and was asked to produced his school leaving certificate to ascertain his exact date of birth but the plaintiff did not produce the same. It is further case that plaintiff was declared to be matriculate and was asked to produced his school leaving certificate to ascertain his exact date of birth but the plaintiff did not produce the same. It is further case that the entry made in the Form-B register was final as per provisions of the Mines Act and that date of birth of the plaintiff as disclosed in the identity card or service record extract cannot be accepted as valid proof of date of birth. The suit was not maintainable in a Civil Court and is liable to be dismissed. On the basis of the pleadings of the parties learned Trial Court framed the following issues. 1. Whether the suit is maintainable in its present form? 2. Whether the actual date of birth of plaintiff is 02.12.1952? 3. Whether the plaintiff is entitled to give his service to the company up to 02.12.2012? 4. Whether the letter being reference DC/Sr. PO/Superannuation/1733/1/5-11-2008 is void and illegal? 5. Whether the plaintiff is entitled to get any decree or decrees as prayed for? 6. To what other relief or reliefs, the plaintiff is entitled to get under the law and equity? After contested hearing learned Trial Court decreed the suit by observing that the plaintiff’s date of birth was 2nd of December, 1952 and hence the plaintiff was entitled to work under the defendant company till completion of his 60 years as per his service rule and that impugned notification dated 1/5.11.2008 issued by the company proposing to retire the plaintiff treating his date of birth as 18th April, 1949 was not enforceable. Present appellant company preferred an appeal being Title Appeal No.22 of 2009 but without any success. At the time of admission of this second appeal at the prayer of the appellant company the following substantial questions of law were formulated on which learned counsels of the parties restricted their arguments. 1. Whether the courts below committed substantial error of law in overlooking the admission of the plaintiff in his deposition that he was a compounder in a colliery and consequently, he should be treated as a workman within the meaning of Industrial Disputes Act. 2. 1. Whether the courts below committed substantial error of law in overlooking the admission of the plaintiff in his deposition that he was a compounder in a colliery and consequently, he should be treated as a workman within the meaning of Industrial Disputes Act. 2. Whether the learned courts below committed substantial error of law in overlooking the facts that in view of the decision of the Supreme Court in the case of Chandrakant Tukaram Nikam vs. Municipal Corporation of Ahmedabad & Anr. reported in 2002 Volume 2 SCC page 542, the jurisdiction of the civil suit is impliedly barred. The Civil Suit of this nature is impliedly barred and as such the court had inherent lack of jurisdiction. There is no dispute and rather it is admitted that plaintiff was working as a compounder in a colliery under defendant appellant company and hence he was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Mr. Saktinath Mukherjee, learned senior counsel appearing for the defendant appellant company, submits that the plaintiff filed a suit praying for declaring the impugned letter dated 1/5.11.2008 issued by the defendant company intimating the superannuation of the plaintiff on attaining the age of 60 as per relevant standing order treating his age as disclosed in register Form-B as genuine, as void and illegal. According to him, the dispute arising between the employer (appellant defendant company) and the workman (plaintiff respondent) was for the enforcement of Industrial Employment Standing Order namely retirement of the workman on attaining the superannuation age of 60 years, and that it was a pure industrial dispute. According to him, the Civil Court had no jurisdiction to entertain the same and the same can only be agitated in the forums created by the Industrial Dispute Act alone. In support of his contention he has referred the case law reported in (2002) Volume 2 SCC 542 ((Chandrakant Tukaram Nikam vs. Municipal Corporation of Ahmedabad & Anr.). Mr. Debasish Sur, learned counsel appearing for the plaintiff respondent, on the other hand, submits that under Section 9 of the Code of Civil Procedure the Civil Courts have the jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. Mr. Debasish Sur, learned counsel appearing for the plaintiff respondent, on the other hand, submits that under Section 9 of the Code of Civil Procedure the Civil Courts have the jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. He further submits that in view of language of Section 9 there should be presumption in favour of the jurisdiction of a Civil Court and exclusion of the same should not be readily inferred unless such exclusion be either explicitly expressed or clearly implied. He further submits that as the dispute was regarding ascertaining the date of birth of the plaintiff respondent the Civil Court had the jurisdiction to entertain the suit. In support of his contention he referred case laws reported in (1995) 5 SCC page 75 (Rajasthan State Road Transport Corporation and another vs. Krishna Kant and others) and (2008) 5 SCC 542 (Rajasthan State Road Transport Corporation and others vs. Mohar Singh). Mr. Saktinath Mukherjee, learned senior counsel, submits in reply that the judgment of Mohar Singh’s case (supra) is a judgment per incuriam as it did not consider earlier three bench judgment of Hon’ble Apex Court passed in Chandrakant Tukaram Nikam’s case (ibid). Mr. Mukherjee further submits that Krishna Kant’s judgment (ibid) was extensively discussed in the subsequent three bench judgment of Chandrakant’s case wherein forum of dispute between employer and employee was set at rest. According to Mr. Mukherjee as the plaintiff respondent filed the suit praying for declaring the letter of intimation of the retirement of the respondent plaintiff on attaining his superannuation as void and not binding, it was clearly a dispute between the employer and the employee over a matter (superannuation) covered by standing order and hence the Civil Court had no jurisdiction to entertain the same. I have considered the submissions made by learned counsels of the parties visà-vis the case laws referred by them. I have considered the submissions made by learned counsels of the parties visà-vis the case laws referred by them. The three Judge Bench in Krisha Kant’s case (ibid) summarized the principles regarding the forum of the dispute between employer and workman by observing as follows:- “35.(1) Where the dispute arises from general law of contract i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an ‘industrial dispute’ within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. (3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like the Industrial Employment (Standing Orders), Act, 1946 – which can be called ‘sister enactments’ to the Industrial Disputes Act – and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of the Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open. (4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication. (5) Consistent with the policy of law aforesaid, we recommend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court / Industrial Tribunal directly – i.e., without the requirement of a reference by the Government – in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to ‘statutory provisions.’ Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein. (7) The policy of law emerging from the Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers fo the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.” Aforesaid proposition of law as laid down in Krishna Kant’s case was accepted and approved by Hon’ble Apex Court subsequently in another three Bench decision in the case of Chandrakant (ibid). As such the law on this point is no longer res integra. The main issue in the suit brought by plaintiff worker against the defendant employer was what is the correct date of birth of the plaintiff worker. As such the law on this point is no longer res integra. The main issue in the suit brought by plaintiff worker against the defendant employer was what is the correct date of birth of the plaintiff worker. In other words this was a suit for declaring that the actual date of birth of the plaintiff was 02.12.1952 together with some consequential reliefs. It is true that in the prayer portion of the plaint no specific prayer for declaring the plaintiff’s date of birth as 2nd of December, 1952 was made. But a specific issue to that effect being issue No.2 was framed. Both parties led evidence in support of their respective stands relating to said issue. On the basis of their evidence on record, both oral and documentary, learned Trial Court came to a finding of fact that the actual date of birth of the plaintiff respondent was 2nd of December, 1952 as claimed by the plaintiff and not 18.04.1949 as claimed by the defendant company. It was held in AIR 1984 NOC page 303 (Cal) (Mrs. R. G. Vokil and another vs. Ramendranath Banerjee) that if the plea has not been specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the Court, will not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. In this connection the three Judge Bench decision of Hon’ble Apex Court as reported in AIR 1966 Supreme Court page 735 (Bagabati Prosad vs. Chandra Maul) may be referred. In that case also the Hon’ble Apex Court held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. In the case in hand, the main grievance of the plaintiff was that the plaintiff’s correct date of birth being 2nd of December, 1952 was admitted by the defendant company by incorporating the same in his identity card as well as in his service record excerpt and in other documents but in spite of that it illegally issued a notice of retirement treating his date of birth as 18th April, 1949. The appellant company also led evidence to establish its case that the date of birth of the plaintiff was 18.04.1949 in view of his alleged declaration of his age as 24 years at the time of filing Form-B on the date of his joining his service on 18th April, 1973. As both the parties adduced evidence on their respective stands regarding the date of birth of the plaintiff and an issue was also specifically framed on that score so it was essentially a case for declaring the correct date of birth of the plaintiff, though there was no specific prayer to that effect in the plaint. But I have already stated that as both parties led evidence on that score in support of their respective stands no prejudice was caused to the appellant defendant for not having any specific prayer on that score in the plaint. Admittedly, a tribunal or a court constituted under Industrial Disputes Act has no authority to give a declaration as to what is the correct date of birth of the plaintiff workman. Said declaration was within the exclusive domain of a civil court. Accordingly, I find and hold that the suit as it was framed was maintainable in the civil court. Admittedly, what is the correct date of birth of a person is a matter of fact. Both the courts below came to concurrent findings of fact that the actual date of birth of the respondent plaintiff was 02.12.1952. Said concurrent findings of fact were based on evidence led by both the parties on that issue. It is nobody’s case that said concurrent findings of fact were based on no evidence or were based on extraneous matters. As a result, no substantial question of law arose regarding said concurrent findings of fact. Under these circumstances there is no scope of interference of said concurrent findings of fact. As a result, the appeal is hereby dismissed on contest. As a result, no substantial question of law arose regarding said concurrent findings of fact. Under these circumstances there is no scope of interference of said concurrent findings of fact. As a result, the appeal is hereby dismissed on contest. However, I pass no order as to costs.