Patna High Court
Tata Iron & Steel Co. Ltd. vs Abdul Wahab on 17 April, 1965
Equivalent citations: AIR1966PAT458, AIR 1966 PATNA 458
JUDGMENT K. Sahai, J.
1. These two appeals have been taken up together because they arise out of one common judgment of the trial Court, there having been two appeals, however, before the Subordinate Judge, who heard the appeals. Mr. Ali Ahmad appeared on behalf of the respondent in Second Appeal No. 671 of 1961 at one stage; but he had come and informed me that he has no further instruction from the respondent. No one appeared on behalf of the respondent in the other appeal at any stage. This judgment will govern both the appeals.
2. Both the appeals have been filed by the defendant, Tata Iron & Steel Co. Ltd., which will hereafter be referred to as the Tata Company. The suit, out of which they arise, was instituted by the plaintiff-respondent for a declaration that his service as an employee of the Tata Company was wrongfully terminated by the company at an age earlier than sixty years, which, according to the rules of the company, is the age of superannuation, and for damages amounting to Rs 200 for one month.
3. The Munsif, who tried the suit, granted the declaration prayed for by the plaintiff; but he gave a decree for damages to the extent of only Rs. 87 The plaintiff filed an appeal against the reduction in the amount of damages claimed for by him, and the defendant filed another appeal against the grant of declaration as prayed for by the plaintiff. Both the appeals were placed for disposal before the Subordinate Judge of Jamshedpur. He allowed the plaintiff's appeal, and dismissed the defendant's appeal. The result was that he decreed the plaintiff's suit in full. The defendant has filed the present appeals against the decrees prepared in the two appeals before the Subordinate Judge.
4. Shortly stated, the plaintiff's case is that he was an employee of the defendant company that he was born on the 5th December. 1900, so that he would have attained the age of superannuation at sixty years on the 5tb December 1960, and that he was wrongfully made to retire on the 30th April, 1958
5. There is difference between the parties on certain facts; but the admitted position is that the plaintiff was an employee of the defendant, and that he was made to retire on the 30th April, 1958 According to the defendant, however, the plaintiff was born in 1895 and not on the 5th December, 1900, as alleged by him.
6. It is also an admitted position that the defendant gave an extension of service for one year to the plaintiff with effect from the 1st October 1956 The plaintiff then contested his age as mentioned in the records of the defendant, and filed a school leaving certificate in support of his plea that he was born on the 5th December, 1900 The defendant sent the certificate for verification to the Inspector of Schools at Pratapgarh but it was lost. The plaintiff then obtained a duplicate (exhibit 1) of the certificate; but, before he could make it over to the authorities concerned of the defendant company, he was made to retire from the 30th April, 1958. It is also not disputed that, according to the rules of the Tata Company employees superannuate at the age of sixty years.
7. The plaintiff has put in evidence in the suit the school leaving certificate (exhibit 1). He has also examined the Headmaster of the school (P. W. 1), who has stated that he issued the certificate on the basis of the entry (exhibit 2) in the Admission Register The entry purports to have been made in 1906. P. W. 1 has stated that he has been working in the school in question from 1950, and he admits that he cannot give the basis on which the entry was made. He further admits that the Admission Register does not bear any seal, nor does is bear the signature of the Headmaster of the school. He adds, however, that it was not prevalent in the days in which the register containing the entry (exhibit 2) was being maintained to put seals in the registers. The learned Subordinate Judge has held that the entry (exhibit 2) and the school leaving certificate (exhibit 1) are genuine documents He has also held that the staff card (exhibit A) maintained by the defendant company, which shows that the plaintiff was born in the year 1895, is a genuine document. The learned Judge says that the plaintiff himself made contradictory statements relating to the year of his birth and his admission in the school; hut he has explained it away by saying that illiterate persons like the plaintiff do make mistake about their age.
I find, however, that the plaintiff has been examined as P. W. 2, and he has signed his name in Urdu. He is, therefore, not illiterate. The learned Subordinate Judge appears also to have been of the opinion that the staff card (exhibit A) was drawn up on the basis of the plaintiff's own statement, but adds that the plaintiff might have made wrong statements about his age. He further states that, the entry of the plaintiff's age at the time of his admission in the school having been made soon after his birth, the date and year of his birth must have been fresh in the mind of the person who gave information to the school authorities in connection with those facts. In these circumstances, he has held that the date of birth of the plaintiff as given in exhibits ) and 2 is correct, that he was born on the 5th December. 1900, and that he, therefore, reached the age of superannuation on the 5th December 1960, and not on the 30th April 1958.
8. It seems to me that the learned Subordinate Judge has obviously committed an error of law. There are two documents, and he has held them both to be genuine. They are the entry (exhibit 2) in the school Admission Register and the entry in the staff card (exhibit A). Mr. Chatterji has raised some doubt about the admissibility of the entry (exhibit 2) under Section 35 of the Indian Evidence Act, but it is not necessary for me to decide the question at this stage. Assuming that this is admissible, all that can be deduced from it is that, on the basis of someone's statement, it was recorded in the register that the plaintiff was born on the 5th December, 1900. No one has been examined to prove that he was actually born on that date, nor has anyone been examined to prove that he made the statement before the school authorities at the time of the plaintiff's admission, and that the statement made by him was correct. It is, therefore, impossible to say that there is evidence in this case to prove the fact in issue i.e.. the fact alleged by the plaintiff that he was born on the 5th December, 1900 All that has been proved is that there is; entry to that effect in the school Admission. Register. That cannot be taken to be conclusive to prove the allegation that he was born on that particular date Besides, there seems to be no reason at all for the Subordinate Judge to have preferred the entry (exhibit 2) to the staff card (exhibit A) and to say that the entry about the date of birth in one exhibit is correct, whereas the entry about the date of birth in the other may not be correct. As I have mentioned, the plaintiff himself also has not been believed and his evidence as a plaintiff's witness to prove the fact that he was born on the 5th December, 1900 has been found to be of no avail.
9. 1 will only refer to the case of Janaki Nath Roy v. Jyotish Chandra Acharya, AIR 1941 Cal 41 in which Nasim Ali J . while sitting with B R Mukherjea, J., observed that the school register has not been much evidentiary value. He did not elaborate this principle; but I have no doubt that the basis for this principle is what I have said above.
10. For the reasons which I have given above. I think that the finding of the teamed Subordinate Judge that the plaintiff was born on the 5th December, 1900, is vitiated Indeed, it is clear that the plaintiff has not been able to prove that he was born on that date. The declaration prayed for by him should not therefore, have been granted. The decree for damages also should not have been passed in his favour As he has failed to prove his case of having been made to retire before the age of superannuation, his suit should have been dismissed I, therefore, allow both the appeals, and dismiss the suit As the plaintiff respondent has not appeared at the hearing there will be no order for costs throughout.