JUDGMENT 1. The Chennai Port Trust has come up with the above writ petition, challenging an Award passed by the Central Government Industrial Tribunal-cum-Labour Court, directing the relief of reinstatement and continuity of service till the actual age of retirement of the second respondent herein. 2. I have heard Mr. G. Venkatraman, learned counsel for the petitioner and Mr. K.M. Ramesh, learned counsel for the second respondent. 3. The admitted facts are as follows:- (i) The second respondent was engaged as a Mazdoor by the Clearing and Forwarding Agents of the Chennai Port Trust from the year 1972. The Agents were under the administrative control of the Port Trust. At the time when the second respondent was engaged as the Mazdoor, he did not produce any Certificate showing his date of birth. Therefore, after medical examination, the Clearing and Forwarding Agents had fixed the age of the second respondent as 31 years as on 7.1.1974. (ii) With effect from 1.8.1988, all persons, similarly placed like the second respondent and engaged from a pool of persons employed by the Clearing and Forwarding Agents, were brought into the fold of the Madras Dock Labour Board, when the Central Government framed the Madras Unregistered Clearing and Forwarding Workers (Regulation of Employment) Scheme, in exercise of the power conferred under Section 4 of the Dock Workers (Regulation of Employment) Act, 1948. (iii) Thus the second respondent became an employee of the Madras Dock Labour Board with effect from 1.8.1988. But before his absorption, the Board called upon the second respondent to produce proof of his date of birth and age. Since he did not produce any proof, the Medical Board fixed his age as 45 years as on 10.5.1988. The date of birth so fixed was 1.7.1943 and it was in tune with the date of birth fixed at the time when the second respondent was appointed in a pool of Mazdoors by the Clearing and Forwarding Agents. (iv) After his absorption, the second respondent was informed by a communication dated 13.2.1990, that his date of birth had been fixed as 1.7.1943 and that therefore, he would be retiring on 30.6.2001. The second respondent did not protest. (iv) After his absorption, the second respondent was informed by a communication dated 13.2.1990, that his date of birth had been fixed as 1.7.1943 and that therefore, he would be retiring on 30.6.2001. The second respondent did not protest. (v) But after about 7 years of the aforesaid communication dated 13.2.1990, the second respondent sent a representation dated 24.12.1997, along with a copy of the School Certificate dated 10.12.1997, issued by the Town Panchayat Middle School, claiming that his date of birth was 5.7.1950. (vi) Again by a further representation dated 27.6.2000, the second respondent forwarded a Birth Certificate issued by the Corporation of Madras dated 16.3.1998, showing his date of birth as 5.7.1950. (vii) Since no action was taken on his representations, the second respondent caused a lawyer's notice to be sent on 18.8.2000. In response to the same, the second respondent was asked to appear before the Labour Welfare Officer on 28.11.2000. Subsequently, by communications dated 6.12.2000 and 16.2.2001, his request for alteration of date of birth was rejected. (viii) In May 2001, the Board issued another communication, intimating that the second respondent would retire from service on 30.6.2001. Immediately, the second respondent filed a civil suit in O.S.No.3090 of 2001 on 7.6.2001 on the file of the II Assistant City Civil Court, Chennai. The prayer made by the second respondent in the suit was for a declaration that his date of birth was 5.7.1950 and for a consequential permanent injunction restraining the Madras Dock Labour Board from retiring him prematurely on 30.6.2001. (ix) In the suit, no interim order was granted in favour of the second respondent. Therefore, he was allowed to retire on 30.6.2001 and all his terminal benefits were also settled. (x) Ultimately, by a judgment and decree dated 30.1.2006, the Civil Court dismissed the suit. (xi) After the dismissal, the second respondent raised an industrial dispute. The dispute was referred by the Central Government for adjudication to the Central Government Industrial Tribunal-cum-Labour Court. It was taken up as I.D.No.7 of 2008. By an Award dated 30.11.2009, the Labour Court passed an Award, directing reinstatement and continuity of service up to the date of retirement, calculated on the basis that the actual date of birth of the second respondent was only 5.7.1950. Aggrieved by the said Award, the Management has come up with the above writ petition. 4. By an Award dated 30.11.2009, the Labour Court passed an Award, directing reinstatement and continuity of service up to the date of retirement, calculated on the basis that the actual date of birth of the second respondent was only 5.7.1950. Aggrieved by the said Award, the Management has come up with the above writ petition. 4. Before proceeding to deal with the issues arising for consideration in the writ petition, I must bring on record 3 things viz., (i) the reliefs sought in the civil suit O.S.No.3090 of 2001; (ii) the issues framed and the findings recorded by the Civil Court in the suit; and (iii) the question framed by the Central Government for adjudication by the Labour Court. 5. The reliefs sought by the second respondent in the civil suit, were as follows:- (i) For a declaration that the date of birth of the plaintiff was 5.7.1950; (ii) For a declaration that the order issued by the management on 23.5.2001 regarding the age of retirement of the plaintiff was null and void; (iii) For a permanent injunction restraining the management from implementing the order dated 23.5.2001 till June 2008; and (iv) For costs of the suit. 6. The issues framed in the civil suit, were as follows:- (i) Whether the contention of the defendant that the suit is barred by limitation is correct? (ii) Whether the claim of the defendant that the plaintiff had already received the terminal benefits upon reaching the age of superannuation is correct? (iii) Whether the plaintiff is entitled to the reliefs of declaration and permanent injunction? and (iv) Whether the plaintiff is entitled to any other relief? 7. On issue No.1, the Civil Court recorded a finding that the suit was barred by limitation, since the plaintiff (second respondent herein) was already put on notice way back on 13.2.1990 to produce authentic proof of his date of birth and that despite the same, the second respondent did not make any request or produce any proof. 8. On issue No.2, the Civil Court held that the plaintiff had already retired on 30.6.2001 and that he had also received the terminal benefits and that the suit was filed at the last minute. 9. On issue No.3, the Civil Court held that the plaintiff was not entitled to any relief of declaration or permanent injunction. 8. On issue No.2, the Civil Court held that the plaintiff had already retired on 30.6.2001 and that he had also received the terminal benefits and that the suit was filed at the last minute. 9. On issue No.3, the Civil Court held that the plaintiff was not entitled to any relief of declaration or permanent injunction. In view of the findings in all the above 3 issues, the fourth issue was also answered by the Civil Court against the plaintiff. Thus, the civil suit filed by the second respondent got dismissed. 10. The issue referred for adjudication by the Central Government to the Industrial Tribunal, reads as follows:- "Whether the refusal of Madras Dock Labour Board, Chennai for alteration of Date of Birth of Shri P.Varadhan, ex-Mazdoor, Madras Dock Labour Board, Chennai is fair, legal and justified? If not, to what relief Shri P.Varadhan is entitled to?" 11. Before the Labour Court, no witnesses were examined on both sides. Even the second respondent (workman) did not go to the witness box. However, the workman filed two documents viz., Exx.W-1 and W-2. While the first document is the Birth Certificate issued by the Corporation of Chennai, the second document is the mark sheet of the second respondent issued by the Headmaster of the School. The management marked the Medical Board's Certificate dated 10.8.1988 as Ex.M-1, the letter dated 13.2.1990, calling upon the second respondent to produce the proof of age as Ex.M-2, the letter dated 16.2.2001 of the management, informing the second respondent of his impending retirement as Ex.M-3, the decree passed by the Civil Court dated 30.1.2006 as Ex.M-4, the Extract from a Book on Establishment and Administration as Ex.M-5 and a copy of the Minutes of the Meeting of the Trustees of the Port Trust as Ex.M-6. 12. Despite the non-examination of any witness and despite the second respondent himself not getting into the witness box to speak of his actual date of birth, the Labour Court accepted Exx.W-1 and W-2, ignoring the long delay on the part of the second respondent in seeking alteration of date of birth after 25 years of entry into service and passed the Award impugned in the above writ petition, holding that the second respondent is entitled to have his date of birth declared as 5.7.1950. 13. In the above background, basically 3 issues arise for consideration in the above writ petition. 13. In the above background, basically 3 issues arise for consideration in the above writ petition. They are:- (i) Whether the dispute referred by the Central Government to the Industrial Tribunal would fall within Section 2-A of the Industrial Disputes Act, 1947? (ii) Whether the dismissal of the civil suit filed by the second respondent would operate as res judicata to the industrial dispute? and (iii) Whether the Labour Court was entitled to pass the Award on the strength of Exx.M-1 and M-2 alone, ignoring the long delay on the part of the second respondent? ISSUE NO.1: 14. I have already extracted the question framed by the Central Government for adjudication by the Industrial Tribunal. The question, as framed by the Central Government, cannot prima facie, be raised by an individual workman. Any dispute with regard to the date of birth of a single workman, cannot be raised by that individual workman. 15. Section 2-A of the Act, enables an individual workman to raise a dispute in relation to (i) his discharge (ii) his dismissal (iii) his retrenchment and (iv) his termination otherwise. Therefore, as rightly contended by Mr.K.M.Ramesh, learned counsel for the second respondent, if the services of a workman are terminated much before the date on which he would normally retire on reaching the age of superannuation, the dispute raised by such a workman would definitely fall within the ambit of Section 2-A. The premature retirement of a workman would certainly fall within the meaning of the expression "otherwise terminates" appearing in Section 2-A. 16. But there is a small distinction. If the date of birth of a person, as entered in his Service Records at the time of entry into service, leads to his retirement on a particular date, the retirement of such workman on that date, on the basis of an entry found in the Service Register, cannot be termed as "premature retirement". A premature retirement of a workman would fall within the meaning of the expression "otherwise terminates", only if he is sought to be retired before the date of retirement actually indicated by the entry in the Service Register relating to his date of birth. A premature retirement of a workman would fall within the meaning of the expression "otherwise terminates", only if he is sought to be retired before the date of retirement actually indicated by the entry in the Service Register relating to his date of birth. The retirement of a workman on a date, as arrived at on the basis of the entry relating to his date of birth in the Service Register, would not fall within the meaning of the expression "otherwise terminates" appearing in Section 2-A. The legislative intent behind Section 2-A is very clear, by the use of at least 4 expressions viz., (i) discharge (ii) dismissal (iii) retrenchment and (iv) termination. The expression "retirement" is not used in Section 2A. Therefore, the retirement of a person, on the date fixed on the basis of the entry relating to his date of birth in the Service Register, cannot be raised by an individual workman by stretching the meaning of the expression "otherwise terminates" appearing in Section 2-A. 17. Though Mr.G.Venkatraman, learned counsel for the petitioner cited decisions to show that a dispute of this nature would fall under Section 2(k) of the Act and not under Section 2-A, I think the proposition is too fundamental to require any support from case law. A dispute with regard to alteration of date of birth is certainly not a dispute with regard to termination. Therefore, the Central Government ought not to have referred this dispute at the instance of the second respondent alone and allowed him to take refuge under Section 2-A of the Act. Hence, issue No.1 is answered in favour of the petitioner. ISSUE NO.2: 18. The second issue is about the decision of the Civil Court operating as res judicata. 19. I have already extracted the reliefs sought by the second respondent in the suit, the issues framed and the findings recorded by the Civil Court. The reliefs sought by the second respondent in the Civil Court included two prayers for declaration and one prayer for permanent injunction. One declaratory relief is with reference to his date of birth and the second declaratory relief is with reference to the proceedings of the management, proposing to retire the second respondent, on 30.6.2001. 20. The first issue framed by the Civil Court was as to whether the claim of the second respondent was barred by limitation. One declaratory relief is with reference to his date of birth and the second declaratory relief is with reference to the proceedings of the management, proposing to retire the second respondent, on 30.6.2001. 20. The first issue framed by the Civil Court was as to whether the claim of the second respondent was barred by limitation. The second issue was as to whether the second respondent got retired and his terminal benefits settled or not. The third issue framed by the Civil Court was as to whether the second respondent was entitled to the reliefs of declaration and injunction. 21. All the issues were answered against the second respondent. It is pertinent to note that the Civil Court did not dismiss the suit merely on the ground of bar of limitation. The Civil Court found that the second respondent had retired on 30.6.2001 and that he did not avail the opportunities given to him in 1988 and 1990 to set right the entry relating to his date of birth in the Service Records. 22. But it is contended by Mr.K.M.Ramesh, learned counsel for the second respondent that the Civil Court did not go into the merits of the dispute and that since the suit was dismissed on technical grounds, the same would not operate as res judicata for the Labour Court to go into the question on merits. It is the contention of the learned counsel for the second respondent that the jurisdiction of the Civil Court was actually ousted in view of the provisions of the Industrial Disputes Act, 1947, in so far as such matters are concerned and that therefore, the dismissal of the suit on the ground of limitation, would not act as a bar for the Labour Court to go into the merits and pronounce whether the non-employment of the second respondent was on the basis of a wrong date of birth. 23. In The Rajasthan State Road Transport Corporation vs. Krishna Kant { 1995 (2) LLJ 728 }, the Supreme Court pointed out that in cases where the disputes do not fall within Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947, the remedy of a workman is only in a Civil Court. 23. In The Rajasthan State Road Transport Corporation vs. Krishna Kant { 1995 (2) LLJ 728 }, the Supreme Court pointed out that in cases where the disputes do not fall within Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947, the remedy of a workman is only in a Civil Court. The Court also pointed out that where a right or obligation is created by the Industrial Disputes Act, the disputes relating to such right or obligation can only be adjudicated by the Forums created by the Act. Elaborating further, the Court held in paragraph 26 that a dispute involving the enforcement of the rights and liabilities created by the certified Standing Orders has necessarily to be adjudicated only by the Forums created by the Industrial Disputes Act. Eventually in paragraph 32, the Court formulated the principles flowing from its discussion. 24. But, as pointed out by K.Chandru, J., in an unreported judgment in N.Krishnamoorthy vs. City Union Bank {W.P.No.25852 of 2008 dated 2.4.2012}, the Supreme Court rejected the theory of implied ouster, in a later decision in Rajasthan State Road Transport Corporation vs. Bal Mukund Bairwa { 2009 (4) SCC 299 }. Therefore, the defence taken by Mr.K.M.Ramesh, learned counsel for the second respondent that the workman went before a wrong Forum, cannot be accepted. The suit filed by the second respondent herein was maintainable before the Civil Court and the Civil Court dismissed the suit. It had jurisdiction to do so. 25. Once it is found that the Civil Court had jurisdiction to entertain the suit and that it recorded a finding on all issues against the second respondent, however, wrong those findings might be, they would certainly operate as res judicata. It is true that the Labour Court did not adjudicate upon the merits of the claim of the second respondent as to whether his correct date of birth was 1.7.1943 or 5.7.1950. However, the Civil Court held that the second respondent is not entitled to a declaration regarding his date of birth, in view of the fact that he sought alteration towards the fag end of his career. Once the Court rejected the relief of declaration, even on a technical ground, it was not open to the Labour Court to grant the relief. Hence the second issue also answered in favour of the petitioner. ISSUE NO.3: 26. Once the Court rejected the relief of declaration, even on a technical ground, it was not open to the Labour Court to grant the relief. Hence the second issue also answered in favour of the petitioner. ISSUE NO.3: 26. As I have already indicated above, there was no oral evidence on both sides. The workman filed the birth certificate issued by the Corporation as Ex.W-1 and the mark sheet issued by the school as Ex.W-2. It is on the basis of these two documents that the Labour Court came to the conclusion that the correct date of birth of the petitioner was 5.7.1950. 27. But the Labour Court overlooked the fact that the workman failed to produce these two Certificates when he was first appointed as the Mazdoor. He did not produce them even in 1988 when his services were regularised. Therefore, under Ex.M-1 dated 10.8.1988, the Dock Labour Board had to subject him to medical examination for recording his probable age. Even in response to the notice dated 13.2.1990, filed as Ex.M-2 by the management, the workman did not produce these two Certificates. It was towards the tail end of his career that the workman suddenly came up with these two Certificates. 28. Therefore, the Certificates produced by the workman, especially when they were produced towards the end of one's career, could not have been accepted. Moreover, the workman did not even go to the witness box, to speak to the contents of these Certificates. Therefore, under Section 35 of the Evidence Act, 1872, the contents of these two Certificates had no probative value. Hence, even on the third issue, the petitioner is entitled to succeed. 29. Mr.K.M.Ramesh, learned counsel for the petitioner relied upon a decision of the Bombay High Court in Sukhdeo Chokha Waghmare vs. Trustees of Bombay Port Trust { 1991 (2) LLJ 557 }, in support of his contention that the date of birth, as entered in the School Certificate, can be relied upon. But, in the said case, an opportunity was given to the workman by the employer to produce proof of his correct date of birth, if he wanted to contest the entry already made in the records. The workman availed this opportunity and produced the School Leaving Certificate. But there was a small delay, on account of which the employer rejected the same. 30. The workman availed this opportunity and produced the School Leaving Certificate. But there was a small delay, on account of which the employer rejected the same. 30. However, in the case on hand, the second respondent-workman had 3 opportunities, first at the time of entry into service in 1972, next at the time of absorption in the Madras Dock Labour Board in 1988 and latter under Ex.M-2 dated 13.2.1990. The second respondent missed all the above opportunities. Therefore, the decision of the Bombay High Court, cannot go to the rescue of the second respondent. 31. The learned counsel for the second respondent next relied upon the decision in Cholan Roadways Corporation Ltd vs. P.N.Karuppaiyan {2002 Madras L.W. (3) 109}. It is the judgment of a Division Bench of this Court where the Division Bench relied upon the decision in Rajasthan State Road Transport Corporation vs. Krishna Kant. But the said decision, as I have pointed out earlier, was already explained in the second Rajasthan case. 32. Therefore, on all 3 issues, the petitioner is entitled to succeed. Hence the writ petition is allowed and the impugned Award is set aside. There will be no order as to costs.