Delhi District Court
Suraj Pal vs Don Bosco School on 14 March, 2017
SURJ PAL V. DON BOSCO SCHOOL & ANR.
IN THE COURT OF MS. PRIYA MAHENDRA
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
RCA SCJ 5725/16
IN THE MATTER OF:
SURAJ PAL
SON OF SHRI GULJARI LAL
SWEEPER, DON BOSCO SCHOOL,
ALAKNANDA, NEW DELHI-110019.
....APPELLANT
VERSUS
1. DON BOSCO SCHOOL
THROUGHITS MANAGER,
ALAKNANDA, NEW DELHI.
2. THE MANAGING COMMITTEE
DON BOSCO SCHOOL, ALAKNANDA,
NEW DELHI.
....RESPONDENTS
DATE OF INSTITUTION : 22.11.2011
DATE OF RESERVING JUDGMENT : 06.03.2017
DATE OF DECISION : 14.03.2017
JUDGMENT
1. By this order, I shall dispose of the appeal filed by the appellant. By way of the present appeal, the plaintiff/appellant has challenged the impugned judgment dated 27.09.2011 Page 1 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
passed by the Ld. Civil Judge (South), New Delhi dismissing the suit bearing No. 250/10 of the plaintiff.
2. It is worth mentioning that during the pendency of appeal, following additional issue was framed:
"In case the appellant cannot be re-instated in service, whether he is entitled for any compensation, if so, to what amount? OPA"
3. In the civil suit bearing CS No. 250/10, in which the impugned judgment was passed the appellant herein is the plaintiff; respondent No.1 herein is the defendant No.1 school and respondent No.2 herein is the defendant No.2/Managing Committee of the defendant No.1 school.
4. The brief facts as necessary for disposing of the present appeal are culled out hereinafter.
5. The plaintiff/Appellant was serving as a sweeper in Don Bosco School/defendant No.1. The case of the appellant is that he joined the defendant No.1/respondent no. 1 school in the year 1988 and disclosed his date of birth as 10.01.1960 to the respondents. The plaintiff was kept under dark as to his date of birth recorded in his service book. He has never been supplied with the copy of the service book despite several requests. So, being an illiterate person, he has no means to know the date of Page 2 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
his birth recorded in his service book. In view of his active interest in the litigation against the defendant No.1 school in getting fulfilled lawful demands of employees, the defendant No.1 school out of vengeance planned to retire the plaintiff in March, 2010 and this fact came to knowledge of the plaintiff only on 11.01.2010 on being orally informed by the Principal. He sent letter dated 22.01.2010 to the school by which he called upon the school/respondent No.1 to intimate his date of birth recorded in the school record and also clearly mentioned that he is born in the year 1960. He also furnished copy of Parivar register to the defendant No.1 school. The plaintiff has also contended that he cannot read and write English and Hindi language and has only learnt to sign in English. The plaintiff filed the suit for declaring that plaintiff/appellant was born in the year 1960 in the month of January and further mandatory injunction for directing the defendants to enter the said date in the school record and to consider the said age for his superannuation and not to retire him from his services in March 2010.
6. In a nutshell the case of the appellant is that he is not born on 1.03.1950 as recorded in Service Book of appellant maintained by Respondent No.1. Instead, he is born in January 1960 as disclosed by him to the respondents at the time of joining Respondent no. 1 in the year 1988. He has relied on the Parivar Register in support of his claim and contended that it is Page 3 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
the best proof as regards date of birth of Appellant in absence of High School Register not available as appellant is illiterate.
7. The defendants in the Written Statement accused the plaintiff for not coming to the Court with clean hands. It is also contended by the defendants that at the fag end of his career, when the defendant is due to retire upon attaining the age of superannuation, he wants to change his date of birth from 01.03.1950 to 10.01.1960. The same is not permissible under law. The suit is barred by delay and latches and the plaintiff is stopped from changing his date of birth at the belated stage. The defendant has also emphatically denied that the plaintiff cannot read or write English language. It is stated that the plaintiff is communicating with the school in English and filing the pleadings in the Court in English language only. It is also stated that the plaintiff joined the school on 01.05.1988 and was confirmed on 01.05.1990. He informed that his date of birth is 01.03.1950. He has been regularly signing his service book ever since his appointment in school and has not made any objection regarding the entry at any time. It is also stated that his date of birth was recorded in the school record correctly as per the information disclosed by the plaintiff.
8. The defendant has relied on the affidavit sworn by the plaintiff in different court proceedings where he mentioned his date of birth to counter the claim of the plaintiff that he was Page 4 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
born in the year 1960 and not in 1950. It is also stated that the plaintiff has filed false and fabricated Parivaar register/kutumb register for getting his date of birth changed in the service book duly maintained by the defendant No.1 school.
9. Now, I shall deal with the grounds raised in the present appeal.
10. At the outset, it is to be noted that it is a settled law that plaintiff has to be stand on his own legs and cannot rely on the weakness of defence as an excuse for not proving his case on preponderance of probabilities. The grounds/contentions raised in appeal are to be examined on the bedrock of this well settled law.
11. It is stated in the appeal that Ld. Civil Judge fell into error by observing that plaintiff was literate and could have read English language. It is stated by the appellant that the defendant has not made any suggestions to the plaintiff/PW-1 that he can read or understand English language.
11.1 The document (Ex.PW-1/1) filed by the plaintiff falsify the claim of the plaintiff that he is illiterate. In Ex.PW-1/1, extract of Parivaar register, the entry against the plaintiff name is 'सस', which shows that he is literate and not illiterate. Not only that the leave application (Ex.PW-1/D3) admittedly signed by the Page 5 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
plaintiff is filled in English.
11.2 The oral evidence of the plaintiff/PW-1 that he cannot read and understand English or Hindi cannot be taken as true merely because the suggestion was not put to the plaintiff by defendants that his evidence to this effect is incorrect. In fact, the defendant has clearly stated in the Written Statement that plaintiff was communicating with the defendant No.1 school in English and has filed all the pleadings in English and therefore, cannot raise grievance that the service book are maintained in English language. While replying to para 1 of parawise reply of WS in replication, the plaintiff has not specifically denied the claim of the defendants that the plaintiff was communicating with the defendant No.1 school in English language. So, it is deemed to be admitted by plaintiff that the plaintiff was communicating with the defendants in English language as is also manifested with his leave application (Ex.PW-1/D3). DW1 reiterated the said contention raised in WS in his evidence by way of affidavit. So, the defendant No.1 school has led oral evidence of DW-1 to establish that plaintiff is well versed with English language. The plaintiff has not controverted the said oral evidence of DW-1 in the cross-examination of DW-1. It does not appeal to common sense that a completely illiterate person would communicate/correspond with his employer in English language. So, the plea of the plaintiff that he is an illiterate and has no knowledge of English language is bereft of any credence Page 6 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
and is coined as an afterthought to disown the Service Record signed by the appellant in English.
12. It is argued by Ld. counsel for the appellant that respondents failed to establish beyond doubt the truthfulness of alleged service book prepared in the year 1995. The respondents have gone beyond their pleadings in deposing during evidence of Dw 1 that the service book of the plaintiff was prepared first time in the year 1995. The same cannot be looked into as beyond pleadings.
12.1 The WS of the defendants reflect that the defendants stated in the WS that the plaintiff has been signing his service book since his appointment. However, nowhere the defendants made the claim that any service book was prepared at the time when the plaintiff joined the school in the year 1988. It is the common knowledge that any employee is entitled to sign his service book only after his appointment and the plea of the defendants in the WS cannot be construed to mean that the service book of the appellant was first prepared at the time of his joining or appointment.
12.2 Moreover, the defendants produced the service book maintained in the year 1995 in support of its case. The said service book is much prior in time and dates back to 1995. Therefore, it is not conceivable that defendants would Page 7 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
manipulate the record maintained as far back as in the year 1995 and the plea of appellant that the first service book of the plaintiff was made in the year 1988 and the same has been deliberately suppressed by the plaintiff does not hold much water.
12.3 Apart from that the appellant had failed to prove that entries in the service book of year 1995 (Ex.PW1/2) are wrong and incorrect. Importantly, the appellant admitted his thumb impression and his signatures Ex.PW1/D2 on the first page which bears the date of birth of the appellant. Thus, the appellant himself acknowledged his date of birth by signing service book of the year 1995 Ex.PW1/2 and, thus, he is bound by the same. The explanation of the appellant that the said page of the service book was blank when he signed the same is not very credit worthy as he admitted in his cross-examination that he made no complaint to management or higher authority that his signature was obtained on the blank paper of the service book. Apart from that, appellant has admittedly filed a suit in the year 2007 for supply of his service book by the respondents. The plaint of the said suit is Ex.PW1/2. In the plaint of the said suit, the plaintiff has only averred that appellant along with other employees are forced to sign on service book and other documents without supply of copies. The plaintiff also averred that they have noticed various alterations/tempering in the record of the service book. In the entire plaint, the appellant has Page 8 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
not made any avernment of signing any blank service book. This critical omission in the plaint Ex.PW-1/2 clearly manifest that the appellant has made up a false explanation as an after thought for disowning service book of the year 1995 duly signed by him as per his own admission showing his date of birth as 1.3.1950.
12.4 It is worthwhile pointing out that there are number of documents Ex.PW-1/D4 the medical certificate, Ex.DW-1/4 affidavit of plaintiff before the Hon'ble High Court of Delhi filed on 07.12.2007, Ex.DW-1/5 affidavit of the plaintiff before the Hon'ble Senior Civil Judge, Delhi sworn on 02.01.2009, Ex.DW1/6 affidavit of the plaintiff sworn before the Delhi School Tribunal on 24.08.2007 where the age of the plaintiff is mentioned. The said documents which are none other than the sworn affidavits of the plaintiff himself before different authorities clearly falsify the claim of the plaintiff that he was born in the year 1960 and not in the year 1950. The plaintiff has not furnished any plausible explanation for not giving his date of birth in the said documents inconsonance with the claim raised in the present suit. This shows that the plaintiff has not approached the Court with clean hand while seeking equitable relief of injunction.
13. Even otherwise the entire case of the appellant rests on the claim that he disclosed his date of birth as January 1960 to the defendants at the time of joining respondent no. 1 school.
Page 9 of 15SURJ PAL V. DON BOSCO SCHOOL & ANR.
However, the appellant has made a vague pleading in his suit that he disclosed his date of birth as 10.01.1960 to the defendants in as much as he has not even stated to whom the said date of birth was disclosed. He has also not stated that the said date of birth was disclosed to the defendants in presence of any person. The plaintiff has also not pleaded in the plaint that he filed any document with the defendants at the time of his joining to show that he was born on 10.01.1960. Thereafter, he improved his case and produced PW-2 as an eye witness and contended that he disclosed his date of birth to the defendant in the presence of PW-2 and also furnished a Certificate of date of birth issued by Village Authority showing the year of birth as 1960 to defendants at the time of his joining. The said evidence has been rightly rejected as completely beyond the pleadings. The appellant, thus, miserably failed to prove that he disclosed his date of birth as January 1960 to the defendants at the time of joining respondent no.1 school and the furnished the Certified Extract of Parivar register of village Bhainkhuri issued by Gram Panchayat, U.P. to the defendants at the time of joining as a proof of his age. The appellant miserably failed to prove his claim before the Ld. Civil Judge.
13.1 Ld. counsel for the appellant has also argued that the plaintiff was not eligible for appointment in the year 1988 at the age of 38 years if the date of birth of the plaintiff as 01.03.1950 as claimed by the defendant is considered. Further, the plaintiff Page 10 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
was not conferred benefit of pension and his entitlement of pension at the age of 58 years in the year 2008. So, this belies the claim of the respondents that the appellant was born in the year 1950.
13.2 Appellant has claimed the benefit of pension relying on CCS (Pension) Rules. The respondents in the WS as well as in deposition of the defendant No.1 has clearly stated that the school being an autonomous body, CCS (Pension) Rules are not applicable to the defendant No.1 school. The said evidence has not been controverted by the appellant. Moreover, no evidence has been placed on record by the plaintiff to establish that CCS (Pension) Rules are applicable to the defendant No.1/respondent No.1 school. As to the entitlement of the appellant to pension at the age of 58 years under CCS Rules, DW-2 clearly stated that respondent No.1 school applies for release of pension to its member only, if the member had requested for the same. Thus, it was for the appellant to request the respondent No.1 for release of his pension and no evidence has been produced on record by the appellant to show that he ever requested for release of his pension. The appellant has also not produced any Rule/law on record which debars the defendant No.1 school from engaging any employee at the age of 38 years. So, the contentions raised by the counsel for the appellant are of no consequences.
Page 11 of 15SURJ PAL V. DON BOSCO SCHOOL & ANR.
13.3 Ld. counsel for the appellant has also vehemently argued that the Ld. Civil Judge has erroneously not relied on Certified Copy of Extracts of Parivar Register Ex.PW1/1 and Mark-3A Copy of Parivar Register as proof of year of birth of the Appellant and brushed aside incorrectly the judgment of Aina Devi v. Bachan Singh, AIR 1980 Allahabad 174.
14. The entry in public record of fact in issue or a relevant fact made by the public servant in discharge of his official duty is no doubt admissible in law. However, the entries made in such public records are not conclusive proof of the fact in issue to which it relates. Admission of document is one thing and its probative value quite another. So, the year of birth of appellant in Parivar Register is not conclusive proof of age of appellant without producing the material on basis of which the age was recorded. Thus, the date of birth mentioned in the Parivar register has no probative value unless a person who made the entry or who gave the date of birth is examined.
14.1 The plaintiff examined PW-3 to prove Extract of Parivar Register Ex PW1/1. Pw3 brought True Copy of entire Register Mark-PW-3A. He has stated that copy of parivar register Mark- PW-3/A had been copied from a previous register. So, Ex.PW1/1 which is extract of Parivar register Mark-PW-3/A cannot be said to be duly proved without filing the previous register. PW-3 also disclosed that the said previous register is available District Page 12 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
Panchayat Raj Officer at District Headquarter Maha Maya Nagar. However, despite the same, the plaintiff took no steps for summoning the original/previous register from District Panchayat Raj Officer. The appellant has also not examined the person who gave the date of birth of the appellant for recording in the Parivar Register. Moreover, the testimony of PW-3 also raised doubt that the entries in the parivar register (Mark- PW3/A) have been properly made. Thus, parivar register Mark- PW-3/A and Ex.PW-1/1 has not been duly proved by the plaintiff and rightly not relied by Ld. Civil Judge. Most importantly, the plaintiff has without any plausible explanation not examined any of his relatives or neighbours to depose that the plaintiff was born in the year 1960.He has not produced any Certificate of date of birth issued by any Municipal Authority or even his Ration Card or other documents to corroborate his claim. The said evidence could have gone a long way in establishing the case of the plaintiff.
15. The judgment of Aina Devi (supra) is not applicable to present case being distinguishable on facts. In the said case, the entry in the extract from the parivar register were also corroborated by extracts from electoral roll and the witness of petitioner which is not so in the present case. So, the same is not applicable to the facts and circumstances of the present case.
16. It is a settled law that law comes to rescue of only diligent Page 13 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
and not indolent. It is also held in number of cases that public servants should not be allowed to raise a dispute about their service records at the fag end of their service and such cases can be entertained only if the public servant approaches the Court within the reasonable time of proceedings the clinching material which can be held to be in exclusive nature. Reliance is placed on State of U.P. & Anr. v. Shiv Narayan Upadhyay, 2005 SCC (L&S) 794; State of Uttaranchal & Ors. v. Pitamber Dutt Semwal, 2006 SCC (L&S) 106; and Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg & Anr., AIR 2010 SC 2295. The abovesaid law applies with equal force to employees employed in private entities.
17. Further, Ld. Civil Judge rightly held that the appellant admitted in his cross-examination that he has seen the service book in the year 2007 and also signed the same at various places. However, he took no steps for correction of his date of birth till 2010. The plaintiff has not cogently explained his inaction for the full three years. Moreover, during his entire career of 21 years, the plaintiff never raised any dispute regarding his date of birth and raised the same only at the fag end of his career.
18. Thus, the appellant clearly failed to make out any case for change of date of his birth in his service record to January 1960 and the additional issue framed vide order dated 04.07.2013 is Page 14 of 15 SURJ PAL V. DON BOSCO SCHOOL & ANR.
decided against the appellant and he is not entitled to any compensation or salary.
19. Accordingly, the appeal stands dismissed. No order as to cost. Decree sheet be prepared.
20. TCR be sent back along with copy of this order.
21. File be consigned to Record Room.
(Announced in the open (Priya Mahendra) Court on 14.03.2017) SCJ-Cum-RC (South), Saket Courts, New Delhi Page 15 of 15