1. The instant appeal is directed against the judgment and decree passed by the learned Civil Judge (Senior Division), Asansol, Burdwan on 26th June, 2006 affirming the judgment and decree of Title Suit No.41 of 2003 passed by the learned Civil Judge (Junior Division), 3rd Court at Asansol.
2. The respondent as plaintiff filed Title Suit No.41 of 2003 before the learned Civil Judge (Junior Division), 3rd Court at Asansol praying for declaration, permanent and mandatory injunction and other consequential relieves. It was pleaded by the plaintiff that he was appointed in Eastern Coal Field Limited on compassionate ground as a land loser after his land was acquired by the said Company for development in coal mining industry. The plaintiff joined duty with effect from 1st November, 1977. Initially he had to undergo training for two (2) years, thereafter, the defendant No.2 issued a fresh letter of appointment to the plaintiff for the post of mechanical/electrical helper in the colliery under the defendant No.3 on 17th/26th November, 1979. In the identity card issued to the plaintiff from the office of the defendant No.3, his date of birth was recorded as on 10th April, 1961. Subsequently, in the year 1987, the plaintiff was supplied with service records excerpt and he found that in his service records, his date of birth was wrongly recorded as in 1946. The plaintiff immediately submitted his objection regarding such wrong record of age in the remarks column of his service record excerpt. The defendant No.1 authority thereafter issued a notice on 8th June, 1988 requiring the plaintiff to submit documents/certificates in support of age by 13th June, 1988. The plaintiff submitted the certificate of passing his Madhyamik examination from Bihar Vidyalaya Pariksha Samity. However, the defendants refused to make necessary correction of date of birth of the plaintiff in his service records on the basis of his Madhyamik certificate. Subsequently, on different occasions, and finally on 7th March, 2003, the plaintiff visited the office of the defendant Nos.2 and 3 and requested them to make necessary correction of his date of birth in the official record, but they expressed their inability. If the plaintiff's date of birth was recorded correctly, he would have continued his job till 9th April, 2021. Under such circumstances, he filed the suit.
3. The defendant Nos.1 to 3/appellants contested the said suit by filing written statement wherein they have categorically denied all the material allegations made out against them in the plaint. It is specifically pleaded that the Civil Court has no jurisdiction to adjudicate the dispute because the respondent is a workman within the definition of Industrial Disputes Act and the issue relates to his condition of service upon change of his date of birth. Therefore, the suit is barred under the Industrial Disputes Act. It is further contended by the defendants that the date of birth of the plaintiff was recorded as in 1946 in his service record, as per his own statement. The plaintiff did not raise objection as to such recording. Subsequently, after joining the service, he obtained a certificate from Bihar Vidyalaya Pariksha Samity. The defendants are not in a position to rely upon such certificates and the suit was liable to be dismissed.
4. The learned Trial Judge framed as many as four issues on the basis of the pleadings of the parties for disposal of the lis. The parties laid evidence. During his evidence, the plaintiff produced his initial appointment letter, certificate of training dated 22nd April, 1978, original identity card, copy of service record excerpts, notice dated 8th June, 1988 issued by the plaintiff in favour of the defendants, the Madhyamik Pariksha certificate dated 29th July, 1980 and copy of PAN card. The said documents were marked as Exbt.1 to Exbt.7 during trial of the suit. The defendants, however, did not produce any document in course of trial though oral evidence was laid.
5. On the basis of the evidence on record, both oral and documentary, the learned Trial Judge decreed the suit on contest against defendant Nos.1, 2 and 3 and ex parte against defendant No.4. It was declared that the plaintiff was entitled to have his age dispute referred to the Apex Medical Board as per National Coal Wage Agreement, if he is otherwise fit to be referred. The defendants were directed to refer the plaintiff's case to the Apex Medical Board for determination of his actual age within 60 days from the date of the decree.
6. M/S. Eastern Coalfields Limited preferred an appeal before the Court of the learned Civil Judge (Senior Division) at Asansol which was registered as Title Appeal No.38 of 2005. The learned Judge in the Lower Appellate Court dismissed the appeal filed by the appellant and affirmed the judgment and decree passed by the Trial Court.
7. The Eastern Coalfields Limited has preferred the instant appeal challenging the judgment of affirmation passed by the First Court of Appeal.
8. It is found from the record that the Division Bench of this Court admitted the appeal vide order dated 12th April, 2007 on the following substantial questions of law:-
(1) Whether the learned Judges in the Courts below were justified in decreeing the suit relying upon Exhibit.6, which has not been proved in accordance with law, inasmuch as Exhibit.6 is not a public document?
9. It is found from the lower court record that during trial, the plaintiff adduced evidence as PW1. Some documents were marked exhibits at the instance of the plaintiff/respondent. The appellants as defendants, however did not lead any evidence in the trial court.
10. During the pendency of the instant appeal the appellants have filed an application being CAN 5876 of 2016 praying for allowing them to produce the original and photostat copies of the 'B' form as additional evidence for proper appreciation of the dispute between the parties and effective adjudication of the instant appeal. I am not unmindful to note that in Jaipur Development Authority vs. Kailashwati, (1997) AIR SC 3243, the Hon'ble Supreme Court held that permission to adduce additional evidence in appeal cannot be refused on the ground that the petitioner did not adduce any evidence in the trial court. Again in Asha vs. Prakash, (1997) 11 SCC 667 the Hon'ble Supreme Court held that when appellant did not lead any evidence in trial court, she cannot be permitted to adduce additional evidence in second appeal.
11. In view of conflicting decisions with regard to production of additional evidence before the court of appeal by a person who did not lead any evidence in support of his case during trial of the suit, it would be prudent for this court to decide the issue on the basis of the statutory provision:-
"Rule 27 Production of additional in Appellate Court:
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or],
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever, additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
12. On plain reading of the above provision suggest that unless the requirement so envisaged in Clauses 1(a), 1(aa) and 1(b) of Rule 27 has been met by the party seeking to produce additional evidence, the document cannot be taken on record.
13. In the instant case Clause 1(a) of Rule 27 is not applicable. In Paragraph 12 of the application, the appellant/petitioner have stated that in spite of due diligence, the petitioner could not produce form 'B' and service excerpts of the plaintiff and as such they could not file the same in course of hearing of the suit before the learned Court below.
14. Save and except, the above stated ground, no other ground was pleaded by the appellants for reception of "Form B" of the plaintiff as additional evidence during second appeal. There is no explanation as to why an authorised officer of the appellant did not care to give evidence during trial of the suit. "Form B" of a workman in an industry is nothing but the service record of the employee concerned and such document is supposed to be readily available in the official record of the appellant. There is absolutely no statement as to why the said documents was misplaced, when it was recovered and the nature of exercise of due diligence by the appellant to find out and submit the same during trial or in course of the first appeal.
15. For the reasons stated above this Court has no other alternative but to hold that the appellant failed to establish and meet requirements as envisaged under Order XLI Rule 27 of the Code of Civil Procedure.
16. In view of above discussion, the application under Order XLI Rule 27 of the Code of Civil Procedure is liable to be rejected and accordingly rejected on contest.
17. Now I proceed to adjudicate the instant appeal on the basis of substantial question of law formulated by the Division Bench of this Court vide order dated 12th April, 2007 on the basis of the submission made by the learned Advocates for the appellant and respondents.
18. Learned Advocate for the appellant submits that the instant appeal is not maintainable in view of the fact that the suit is barred by the principle of res judicata. In order to substantiate his contention, it is urged by Mr. Banerjee, learned Advocate for the appellant that the respondents instituted WP No.6806(W) of 2015 praying for a writ or in the nature of mandamus commending the respondent and/or their agents and/or their subordinates to make necessary correction of their record according to declaration of date of birth on 10th April, 1961 in the service book of the petitioner and re-institute him immediately in service and to pay arrear wages/salary and other service benefits of the petitioner forthwith and other incidental reliefs. The said writ petition under Article 226 of the Constitution of India was dismissed for default on 31st March, 2015. The respondents thereafter filed an application for restoration of the said writ petition being CAN 4429 of 2015. The said application for restoration was also dismissed for default. On the self same cause of action he instituted Title Suit No.41 of 2003 and on dismissal of the writ petition, the instant appeal is also barred by res judicata.
19. In Gulabchand Chhotalal Parikh vs. State of Bombay, (1965) AIR SC 1153 the question as to whether a decision of the High Court on merits on a certain matter after contest in a writ petition under Article 226 of the Constitution of India operates as res judicata in a regular suit, came up for consideration. The Hon'ble Supreme Court was pleased to hold that the decision of the High Court on a writ petition on merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to same matter. In the instant case, however, the writ petition filed by the respondent was not decided on merit. It was dismissed for default. Therefore, the order of dismissal of the writ petition for default cannot operate as res judicata in a suit instituted earlier because the writ petition was not decided on merit.
20. The respondent as plaintiff filed the instant suit for decree declaring that the date of birth of the plaintiff was on 10th April, 1961 with further declaration that the defendants are bound to accept the date of birth of the plaintiff as on 10th April, 1961 for all purposes including the purpose of effecting superannuation of the plaintiff.
21. The appellants in their written statement refused to change the date of birth of the respondent in their official record on the basis of the certificate issued by Bihar Vidyalaya Pariksha Samity on the ground that the petitioner appeared in Madhyamik examination after attaining his service as a private candidate and his date of birth was recorded by 'Bihar Vidyalaya Pariksha Samity' on the basis of his declaration. Such record cannot be accepted by the appellant.
22. During the trial of the suit the respondent produced the appointment letter issued to him on 1st November, 1977 (Exhibit-1), certificate of training issued by the appellant authority on 22nd April, 1978 (Exhibit-2), Identity Card issued by North Searsole Colliery (Exhibit-3), service record excerpts issued by the appellant to the respondent on 24th April, 1987 notice issued by the appellant to the respondent on 8th June, 1988 directing the plaintiff to produce evidence in support of his proof of age (Exhibit-5), the certificate of Madhyamik Examination of the respondent (Exhibit-6) and PAN Card of the respondent (Exhibit-7).
23. Mr. Chakraborty also refers to the judgment passed by the learned trial judge wherein the appellant was directed to refer the plaintiff to have his age dispute determined by the Apex Medical Board as per the National Coal Wage agreement, if he is otherwise fit to be referred. According to Mr. Chakraborty if the respondent is produced before the Apex Medical Board for determination of his age, none of the parties will suffer. The Apex Medical Board was constituted as per National Coal Wage agreement for determination of the dispute relating to age of any workman employed under Coal India Limited or its subsidiary agency. The First Appellate Court affirmed the judgment passed by the learned trial court. Neither the trial court nor the First Appellate Court determined the age of the appellant on the basis of Exhibit-6, i.e, the Madhyamik Examination Certificate of the respondent. On due consideration of rival submissions made by the learned Counsels for the parties, this Court is of the opinion that the respondent had otherwise a very good case to succeed.
24. At this stage a question that naturally falls for adjudication is as to whether the instant suit is barred under the proviso to Section 9 of the Code of Civil Procedure being barred under the Industrial Disputes Act. Section 2(k) defines "Industrial Dispute" as hereunder:-
"Industrial Dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person."
25. Thus Industrial Dispute means dispute or difference between (i) employers and employers or (ii) employers and workmen, or (iii) workmen and workmen in connection with (a) Employment or non-employment or (b) the terms of employment or (c) the conditions of labour.
26. In High Court of Judicature of Allahabad vs. Wariullah Siddiqui, (1992) LabIC 2600, the Division Bench of the Allahabad High Court held that the question of determination of date of birth is essentially a question relating to condition of service. It is held by the Hon'ble Supreme Court in Secretary and Commission, Home Deptt. vs R. Kirubakaran, (1993) AIR SC 2647 that correction of date of birth can have a chain reaction, inasmuch as others waiting for years below the person concerned for their respective promotions might be affected in the process and before issuing a direction on the authorities for rectification, the court must be satisfied that there has been real injustice to the person concerned.
27. In the instant case the respondent got employment in the year 1977 according to his Madhyamik Examination Certificate issued on 29th July, 1980, his date of birth was recorded on 10th April, 1961. The appellant served a copy of service report excerpts in 1987, i.e, almost ten years after his service. The respondent for the first time raised objection in 1988. As per his recorded date of birth he was scheduled to retire on superannuation in 2006. He instituted the suit in 2005, at the fag end of his service career for rectification of date of birth. In State of UP vs. Gulaichi, (2003) 6 SCC 483, the Hon'ble Supreme Court held that correction of the date of birth as recorded in the service book should not normally be done on the verge of retirement since any such correction might adversely affected the chances of promotion of those junior to him. In Coal India Ltd. vs. Ardhendu Bikas Bhattacharjee, (2005) 12 SCC 201, at the time of joining of service of Coal India Limited the employee, himself submitted his matriculation certificate in proof of his date of birth as 31st December, 1938 and on that basis in normal course, he would have retired from service in December, 1996. But in 1995, he produced a duplicate matriculation certificate from Bangladesh showing his date of birth as 26th January, 1943 and on that basis he applied for change of his date of birth recorded in Coal India's record. The Supreme Court held that since on what basis, the Secondary Education Board in Bangladesh corrected the matriculation certificate is essentially a question of fact, and as such the High Court ought not to have exercised its writ jurisdiction to determine the real date of birth.
28. In the instant case, the respondent wanted to correct his date of birth recorded in the service record on the basis of Madhyamik examination conducted by 'Bihar Vidyalaya Pariksha Samity' in February, 1980. The respondent claim that he appea
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red in the said examination as a private candidate. He obtained the certificate in the year 1980. There is no record that immediately after receiving the said certificate the respondent made representation before the appellant to make necessary correction of date of birth. On the contrary, he filed objection first in the year 1988 when he was issued a notice by the appellant directing him to produce evidence in support of his proof of age. Then only, the respondent, produced certificate of his madhyamik examination (Exhibit-6). It is needless to say that any change or rectification of date of birth of a workman working under the appellant has directed bearing on his condition of service and in view of the definition of industrial dispute in Section 2(k) of the Industrial Disputes Act, such dispute must be referred to the Industrial Dispute Tribunal and the Civil Court has no jurisdiction to pass any order with regard to determination of the date of birth of the respondent. 29. Last but not the least, the respondent did not make any prayer in his suit offering himself to be produced in Apex Medical Board under the National Coal Wage Agreement. In the absence of such specific prayer, the trial court cannot pass any such direction. 30. In view of the above discussion, this Court has no other alternative but to hold that the suit itself was not maintainable and the respondent was not entitled to get any relief in the suit filed by him. 31. As a result, the instant appeal is allowed on contest, however without cost. 32. The judgment and decree passed by the lower appellate court in Title Appeal No.38 of 2005 affirming the judgment and decree passed in Title Suit No.41 of 2003 be set aside. 33. Let a copy of this judgment be sent down to the court below along with the lower court record. 34. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.