Delhi District Court
Sweeper vs Don Bosco School on 27 September, 2011
IN THE COURT OF CIVIL JUDGE05 (SOUTH), SAKET
COURTS, NEW DELHI
Presided by: Ms. Manika
CS No. 250/10
Unique Case ID No. 02406C0443412010
Suraj Pal
S/o Sh. Guljari
Sweeper, Don Bosco School,
Alaknanda, New Delhi110019.
...PLAINTIFF
VERSUS
1. Don Bosco School,
Through its Manager,
Alaknanda, New Delhi110019.
Civil Suit No. 250/10 Page 1 of 78
2. The Managing Committee,
Don Bosco School,
Alaknanda, New Delhi110019.
...DEFENDANTS
Date of institution : 01.02.2010
Date of reserving : 15.09.2011
Date of pronouncement : 27.09.2011
JUDGMENT
1. This judgment disposes off the plaintiff's suit for injunction, declaration and other reliefs filed with the following prayer:
"....
a) Pass a decree, declaring that the plaintiff was borne in the year 1960 in the month of January 1960;
b) Grant a mandatory injunction directing the defendants to enter the year of birth of the plaintiff as 1960 and date of birth being of 10th Jan. 1960 and the defendants be directed further to allow the plaintiff to remain in service till he attains the age of superannuation on the basis of his date of birth being 10th January, 1960;
c) Restrain the defendants from retiring the plaintiff in March, 2010 or any date or year prior to the age of superannuation to be counted from 10th Jan. 1960;
d) Award such other and further relief to which the Civil Suit No. 250/10 Page 2 of 78 plaintiff may be entitled in the given facts and circumstances of the case;
e) Award full cost of the suit in favour of the plaintiff and against the defendants."
FACTS
2. Briefly stated, the plaintiff's case is that he is employed as a sweeper in the defendant No.1 school on a regular basis since 01.05.1988. The plaintiff was born on 10.01.1960 and had informed the same to the defendants at the time of joining the service. While no contract had been prepared at the time of joining the service, however, in the year 2004, pursuant to the directions of the Director of Education, the defendants prepared a unilateral service contract on which the plaintiff's signatures were obtained without informing him of the contents thereof. Despite several requests, the plaintiff was never provided with a copy of his service book and had to file a suit along with others to obtain the same. The plaintiff was an active participant in getting certain lawful demands of the class IV employees fulfilled and joined various writ petitions against the defendants. The defendants have threatened to shunt the employees taking leading role in raising demands. On 11.01.2010, the plaintiff was orally informed by the Principal of the defendant No.1 school that Civil Suit No. 250/10 Page 3 of 78 the plaintiff would be made to retire in March 2010. The plaintiff gave a letter dated 22.01.2010 mentioning that he was born in the year 1960 and intimating that he was not aware of the date of his birth recorded in the school records. However, no reply was received from the defendants. The plaintiff has, therefore, filed the present suit.
3. The defendants have contested the suit by filing written statement. They have raised preliminary objections that the suit is not maintainable; that there is no cause of action for filing the present suit, which has been filed to cause undue harassment to the defendants; that the suit is not properly valued for the purpose of court fee and jurisdiction; that the plaintiff has suppressed material and vital facts and has approached the Court with soiled hands; that the suit is bad for nonjoinder of necessary parties; that the plaintiff is estopped by his act and conduct from filing the present suit; that the plaintiff cannot be allowed to take advantage of his fraud in getting unfair advantage in service; that the suit is false, frivolous and vexatious; that the suit is barred by delay and laches; and that the plaintiff cannot be permitted to seek change in his date of birth at the fag end of his career.
4. On merits, the defendants have denied that the plaintiff was Civil Suit No. 250/10 Page 4 of 78 born in the year 1960 or that the said date was told to the defendant No.1 school at the time of joining service. They have contended that, as per the record maintained by the defendant school and prepared on the basis of information supplied by the plaintiff, his date of birth is 01.03.1950, which has been acknowledged by the plaintiff in his provident fund declaration and nomination form as well as service book duly signed by him from time to time. It is contended that the plaintiff shall accordingly attain the age of superannuation i.e. 60 years on 28.02.2010 and would be retired and his terminal benefits would be paid accordingly. It is averred that the service book was shown to the plaintiff, who has been regularly signing the same and has made no objection regarding the entries at any time. They have denied that the plaintiff cannot read or understand English or that he cannot even read Hindi. They have also denied that the service contracts were unilaterally prepared. The defendants have denied receipt of any letter dated 22.01.2010.
5. The plaintiff has filed replication to the written statement of the defendants controverting the contentions raised therein and reiterating the averments in the plaint.
Civil Suit No. 250/10 Page 5 of 78 COURT PROCEEDINGS
6. Vide order dated 26.02.2010 passed by the learned predecessor of this Court disposing off the plaintiff's application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the 'C.P.C.'), the defendants were restrained from retiring the plaintiff till the disposal of the present suit. The appeal preferred by the defendants against the aforesaid order was dismissed vide order dated 04.03.2011 passed by the learned Appellate Court.
7. The suit was received by way of transfer by this Court on 25.10.2010.
ISSUES
8. Vide order dated 11.02.2011, the following issues were framed: "1) Whether the plaint discloses no cause of action and the same is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure? OPD
2) Whether the suit has not been properly valued for the purpose of Court fee? OPD
3) Whether the plaintiff is guilty of suppressing material facts thereby disentitling him from any relief? OPD
4) Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
5) Whether the plaintiff is entitled to a decree of Civil Suit No. 250/10 Page 6 of 78 mandatory injunction as prayed for? OPP
6) Whether the plaintiff is entitled a decree of permanent injunction as prayed for? OPP
7) Relief."
EVIDENCE
9. In support of his case, the plaintiff examined as many as three witnesses. PW1, the plaintiff himself, deposed on the lines of the plaint and relied upon certified extract of Parivar (Kutumb) Register of Village Bhainkuri Ex.PW1/1, certified copy of the plaint of the suit filed by the plaintiff for obtaining true copy of service book Ex.PW1/2, copy of letter dated 22.01.2010 sent by the plaintiff Ex.PW1/3, postal receipt thereof Ex.PW1/4, certificate of service issued by the postal department Ex.PW1/5 and order dated 29.07.2010 passed by the Appellate Authority, Employees' Provident Fund Organization Ex.PW1/8. PW2 Sh. Jai Charan stated that he is serving as a sweeper in the defendant No.1 school and that it was in his presence that the plaintiff, at the time of joining service in 1988, had told the then Principal that his date of birth was 10.01.1960 and had also furnished a document as proof of birth mentioning only the year of his birth i.e. 1960. He testified that the plaintiff's service book was prepared at the time of joining in his presence. He stated that Civil Suit No. 250/10 Page 7 of 78 neither were the Class IV employees of the defendant No.1 school ever supplied with copies of their service books nor are they allowed to read the same or raise objections to the entries therein. He deposed that Class IV employees used to be called by the officers and asked to sign on the places pointed out by the officers. PW3 Sh. Foran Singh, the Gram Panchayat Adhikari, Village Bhainkuri, brought the Parivar Register of Village Bhainkuri, photocopy whereof is Mark PW3/A. No other witness was examined.
10. In support of their case, the defendants examined Sh. Binoy P. Jose, Assistant Accountant of the defendant No.1, as DW1 and Sh. Yogesh Joshi, Senior Social Security Assistant, Employees Provident Fund Organization, as DW2. DW1 deposed on the lines of the written statement and relied on the service book Ex.PW1/D2, Provident Fund declaration and nomination form Ex.DW1/1, application dated 30.05.2008 for taking advance from Provident Fund Ex.DW1/2, application form for allotment of National Social Security Number (NSSN) dated 04.06.2008 Ex.DW1/3, letter dated 17.02.2001 of the plaintiff requesting for a certificate of his date of birth to take LIC insurance policy Ex.PW1/D1, plaintiff's affidavit dated 07.12.2007 filed in support of Writ Petition (Civil) No. 9668/07 titled Civil Suit No. 250/10 Page 8 of 78 "Jai Charan & Ors. v. Don Bosco School' filed before the Hon'ble High Court of Delhi Ex.DW1/4, plaintiff's affidavit dated 02.01.2009 filed in support of the Civil Suit No. 377/10 titled 'Jai Charan & Anr. v. Don Bosco School & Anr.' pending in the Court of Ms. Neha, Civil Judge, Saket, New Delhi, Ex.DW1/5, plaintiff's affidavit dated 21.08.2007 filed in support of case titled 'Jai Charan etc. v. Don Bosco School' filed before the Delhi School Tribunal Ex.DW1/6, leave application dated 26.10.2007 of the plaintiff Ex.PW1/D3 and medical certificate of the plaintiff Ex.PW1/D4. DW2 deposed that the plaintiff is a member of the provident fund vide account No. DL/10918/67. He stated that there is no record regarding the date of birth of the plaintiff. He also stated that the provident fund declaration and nomination form of the plaintiff are not available with the Employees Provident Fund Organization the same being not traceable. He further deposed that he could not say whether the provident fund declaration and nomination form Ex.DW1/1 and the National Social Security Number application form Ex.DW1/3 had been submitted with the Employees Provident Fund Organization. No other witness was examined by the defendants. Civil Suit No. 250/10 Page 9 of 78 RELIANCE
11. Learned counsel for the plaintiff relied upon the following judgments:
(i) Management Committee of Montfort Senior Secondary School v. Vijay Kumar & Ors., AIR 2005 SC 3549;
(ii) Aina Devi v. Bachan Singh, AIR 1980 Allahabad 174;
(iii)Arati Bhargava v. Kavi Kumar Bhargava, AIR 1999 Delhi 280;
(iv) Bhugdomal Gangaram & Ors. v. The State of Gujarat, AIR 1983 SC 906;
(v) M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen & Ors., 1971(2) SCC 617;
(vi) Fitzee Ltd. v. Brilliant Tutorials (P) Ltd., 2011 IV AD (Delhi) 572;
(vii)Rajasthan SRTC & Ors. v. Mohar Singh, AIR 2008 SC 2553:
2008 IX AD (S.C.) 31;
(viii)Veena Kohli v. Family Planning Association of India & Anr., 52 (1993) DLT 581; and
(ix) Sirsi Municipality by its President, Sirsi v. Cecelia Kom Francis Tellis, (1973) 1 SCC 409;
12. Learned counsel for the defendants relied upon the following judgments:
(i) Prakash Rattan Lal v. Mankey Ram, dated 19.01.2010 in CM (Main) No. 976 of 2007 and CM Appl. No. 9855 of 2007, passed by the Hon'ble High Court of Delhi;
(ii) Union of India v. D.R. Dhingra & Anr., 178 (2011) DLT 204 (DB);Civil Suit No. 250/10 Page 10 of 78
(iii)Pearlite Liners (P.) Ltd. v. Manorama Sirsi, [2004] 104 FJR 581 (SC);
(iv) State Bank of India & Ors. v. S.N. Goyal, 2008 LLR 790;
(v) Tata Iron and Steel Co. Ltd. v. Padala Appanna, 1984 (48) FLR 202;
(vi) State of U.P. & Anr. v. Shiv Narain Upadhyaya, 2005 SCC (L&S) 794;
(vii)Hindustan Lever Ltd.v. S.M. Jadhav & Anr., AIR 2001 SC 1666;
(viii)State of Uttaranchal & Ors. v. Pitamber Dutt Semwal, 2006 SCC (L&S) 106; and
(ix) Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg & Anr., AIR 2010 SC 2295;
13. The Court relies upon the following judgments:
(i) Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh, AIR 1975 SC 733: (1975) 1 SCC 212;
(ii)Ram Sarup Gupta by LRs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242: (1987) 2 SCC 555: 1987 SCR (2) 805;
(iii)Prakash Rattan Lal v. Mankey Ram, dated 19.01.2010 in CM (Main) No. 976 of 2007 and CM Appl. No. 9855 of 2007, passed by the Hon'ble High Court of Delhi;
(iv)State of Bihar & Ors. v. Sri Radha Krishna Singh & Ors. AIR 1983 SC 684;
(v) Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796
(vi) Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202
(vii) Fitzee Ltd. v. Brilliant Tutorials (P) Ltd., 2011 IV AD (Delhi) 572;
(viii) State of U.P. & Anr. v. Shiv Narain Upadhyaya 2005 SCC Civil Suit No. 250/10 Page 11 of 78 (L&S) 794;
(ix)Union of India v. Harnam Singh (1993) 2 SCC 162;
(x) State of Haryana v. Satish Kumar Mittal, (2010) 9 SCC 337
(xi) Tata Iron and Steel Co. Ltd. v. Padala Appanna, 1984 (48) FLR 202;
(xii)Hindustan Lever Ltd.v. S.M. Jadhav & Anr., AIR 2001 SC 1666;
(xiii)State of Uttaranchal & Ors. v. Pitamber Dutt Semwal, 2006 SCC (L&S) 106; and
(xiv)Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg & Anr., AIR 2010 SC 2295;
(xv)Executive Committee of Vaish Degree College v. Lakshmi Narain (1976) 2 SCC 58 (xvi)Pearlite Liners (P.) Ltd. v. Manorama Sirsi, [2004] 104 FJR 581 (SC): AIR 2004 SC 1373 (xvii)State Bank of India & Ors. v. S.N. Goyal, 2008 LLR 790 FINDINGS
14. The record has been carefully perused. The respective submissions of Sh. G.D. Chopra, Advocate, learned counsel for the plaintiff and Sh. Jaideep Bedi, Advocate, learned counsel for the defendants have been considered. The written submissions filed on behalf of the parties have also been thoroughly perused.
15. The issuewise findings are as under: Issue No.1: Whether the plaint discloses no cause of action and the Civil Suit No. 250/10 Page 12 of 78 same is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure?
16. The onus of proof with respect to this issue was on the defendants. However, while addressing final arguments, learned counsel for the defendants did not press this issue. Issue No.2: Whether the suit has not been properly valued for the purpose of Court fee?
17. The onus of proof with respect to this issue too was on the defendants. However, while addressing final arguments, learned counsel for the defendants did not press this issue. Issue No.3: Whether the plaintiff is guilty of suppressing material facts thereby disentitling him from any relief?
18. With respect to this issue, the onus of proof was on the defendants.
19. The written statement purported to have been filed on behalf of the defendants is signed by, and supported by the affidavit of, one Sh. Joseph Kezhakkekara. Further, the vakalatnama purported to have been filed on behalf of the defendants is also executed by the said Civil Suit No. 250/10 Page 13 of 78 Sh. Joseph Kezhakkekara, Manager of the defendant No.1 school. Although the defendants have not filed any document to show that the said Sh. Joseph Kezhakkekara was authorized to execute vakalatnama or file written statement on their behalf, the plaintiff has not raised any objection thereto.
20. While the plaintiff has pleaded and also deposed to the effect that he is an illiterate and cannot read or write, his own document Ex.PW1/1 reveals otherwise. In the column 'साकर या ििरकर' (whether literate or illiterate), in the extract of the parivar register Ex.PW1/1, the entry against the plaintiff's name is 'सा०', which stands for 'literate'. It is settled law that a document relied upon by a party can always be read against him. Further, the plaintiff has signed his full name in English on the plaint, the affidavit accompanying the plaint, his affidavit in evidence as well as his examinationinchief and cross examination recorded in the present suit. Thus, the only conclusion that flows from the above is that the plaintiff is a literate. He has, however, suppressed the said fact. The fact that the plaintiff is a literate is very material inasmuch as the plaintiff would, therefore, be necessarily presumed to have read and known the date of his birth recorded in the service book, which he had admittedly signed at Civil Suit No. 250/10 Page 14 of 78 various points.
21. In his crossexamination, PW1 admitted that the signatures appearing at point A on the leave application dated 26.10.2007 Ex.PW1/D3 are his. He was also shown his medical certificate Ex.PW1/D4, submitted by him along with the leave application Ex.PW1/D3. In the said medical certificate Ex.PW1/D4, which is dated 25.10.2007, the plaintiff's age is mentioned as 54 years. Thus, as per the said document, the plaintiff would have been born in or around the year 1953. Explaining the same, the plaintiff/PW1 stated that his date of birth (age) is wrongly mentioned in the medical certificate Ex.PW1/D4 as the same had not been written after asking him. The same is highly improbable inasmuch as it cannot be believed that the doctor issuing the certificate would have written the age of the plaintiff on the certificate as per his own approximation and without asking the plaintiff. The said explanation also does not warrant reliance inasmuch as the said medical certificate was admittedly furnished by the plaintiff himself in support of his leave application.
22. The plaintiff has, therefore, clearly suppressed material facts and has not approached the Court with clean hands. Civil Suit No. 250/10 Page 15 of 78
23. In view of the aforesaid, this issue is decided in favour of the defendants and against the plaintiff.
Issue No.4: Whether the plaintiff is entitled to a decree of declaration as prayed for?
24. The onus of proof with respect to this issue was on the plaintiff.
25. With respect to this issue, the case of the plaintiff is that he was born on 10th January 1960. It is pleaded that the said year of his birth is recorded in the Parivar (Kutumb) register of Village Bhankuri, Gram Panchayat Bhankuri, District Mahamaya Nagar (Vikas Khand Hasayan), Uttar Pradesh. It is averred that at the time of joining the service in the defendant No.1 school, the plaintiff had told the said date of his birth to the defendants.
26. In prayer clause (a) of the plaint, the plaintiff has sought a declaration that he was born in January 1960. He has not sought any declaration as to the day of his birth.
27. Re: Plaintiff's claim as to the day and month of his birth A. Re: Plaintiff's claim as to the day and month of his birth having been orally told Civil Suit No. 250/10 Page 16 of 78
(i) In paragraph 2 of the plaint, the plaintiff has stated, "That the plaintiff was borne in the year 1960. ... The same year was told to the defendants at the time of joining the service and he was informed that he was borne on 10 Jan. 1960.". Although the plaintiff has stated that "he was informed" that he was born on 10.01.1960, it appears that what was intended to be stated is that the plaintiff had informed the defendants that his date of birth was 10.01.1960. However, in his affidavit Ex.PW1/A, the plaintiff/PW1 has simply stated that the year of his birth was told to the defendants at the time of joining the service to be 1960. In his aforesaid affidavit, he has not deposed that, at the time of joining the service, he had informed the defendants that he was born on the 10th day of the month of January.
(ii) In paragraph 2 of his affidavit Ex.PW2/A, PW2 has stated, "I state that Suraj Pal, plaintiff, had joined service in the year 1988 and at that time he had furnished document regarding birth proof and had told in my presence to the Hon'ble Principal of the School at that Civil Suit No. 250/10 Page 17 of 78 time that his date of birth was 10.01.1960. ...". However, perusal of the plaint reveals that the same neither states that the date of birth of the plaintiff was told to the then Principal nor that it was told in the presence of any person, let alone PW2.
(iii) It is trite that a party cannot be allowed to lead evidence beyond what has been pleaded by it. The sole purpose of pleading is to bind the parties to a stand because if they are allowed to lead evidence beyond pleadings then the very purpose of filing pleadings shall stand defeated. The rationale behind binding a party to its pleadings is that no party can be allowed to take the other by surprise by bringing new facts through evidence unless stated in the pleadings. Reliance is placed on the decisions in Ram Sarup Gupta by LRs. v. Bishun Narain Inter College & Ors. (supra), Harihar Prasad Singh & Ors. v. Balmiki Prasad (supra) and Prakash Rattan Lal v. Mankey Ram (supra).
(iv) Thus, the testimony of PW2 to the extent that the Civil Suit No. 250/10 Page 18 of 78 plaintiff had in his presence told the then Principal that his date of birth was 10.01.1960 cannot be read in evidence being beyond the pleadings of the plaintiff.
(v) Further, even in the document Ex.PW1/3, which is a letter dated 22.01.2010 of the plaintiff addressed to the Manager of the defendant No.1 school, relied upon by the plaintiff, while the plaintiff has stated that he was born in the year 1960 and had told his date of birth upon enquiry, he has failed to mention the day and month of his birth, be it actual or that allegedly told to the defendants.
(vi) Thus, the plaintiff has failed to prove that, at the time of joining the service, he had told the defendants that he was born on the 10th day of the month of January.
B. Re: Proof of day and month of birth of the plaintiff
(i) In paragraph 16 of the plaint it is stated, "... The parents of the plaintiff used to tell him that he was borne in January 1960.". Similarly, in paragraph 11 of the affidavit Ex.PW1/A of the plaintiff/PW1, it is stated, "... Even though I was informed by my parents that I was borne on Civil Suit No. 250/10 Page 19 of 78 10th January 1960.". Even if the plaintiff had affirmed that he was born on the 10th day of the month of January as per his own knowledge, such knowledge could only have been acquired by him from his parents etc. as a person, at the time of his birth, cannot be expected to know the day and month on which he is taking birth. Thus, it is clear that the claim of the plaintiff as to the day and month of his birth is merely hearsay and accordingly the testimony of the plaintiff/PW1 to that extent cannot be relied upon. Neither the parents of the plaintiff nor any other person having special knowledge of the day and month of his birth have been examined.
(ii) Further, the only document relied upon as proof of date of birth is the parivar register, which, as admitted by the plaintiff/PW1 in paragraph 11 of his affidavit Ex.PW1/A, does not contain the exact day and month of his birth.
(iii) Thus, the plaintiff has failed to prove that he was born on the 10th day of the month of January.
Civil Suit No. 250/10 Page 20 of 78 C. Thus, not only has the plaintiff failed to prove that he had informed the defendants at the time of joining the service that he was born on the 10th day of the month of January, he has also failed to prove that he was in fact born on the said day and month.
D. Even otherwise, while on the one hand, the plaintiff has prayed for a decree of declaration inter alia to the effect that he was born in the month of January, his stand in paragraph 10 of the plaint is that he would have no objection if the defendants act on the basis that he was born in any month of the year 1960.
E. In view of the aforesaid, the plaintiff is not entitled to a decree of declaration to the effect that he was born in the month of 'January'.
28. Re: Plaintiff's claim as to the year of his birth A. Re: Plaintiff's claim as to the year of his birth having been orally told
(i) PW1, in paragraph 3 of his affidavit Ex.PW1/A, has merely stated, "... I was borne in the year 1960. ... The Civil Suit No. 250/10 Page 21 of 78 same year was told to the defendants at the time of joining the service. ...". He has, however, failed to state the name(s) or even designation(s) of the particular person(s) to whom he had told his year of birth. He has also not mentioned the date on which or the place at which the said fact was told to the defendants. The same has also not been stated anywhere in the plaint. Further, the said particulars have also not been furnished by PW1 in his crossexamination. Thus, the testimony of the plaintiff/PW1 in the above regard cannot be relied upon being vague and wanting in material particulars.
(ii) In paragraph 2 of his affidavit Ex.PW2/A, PW2 has stated, "I state that Suraj Pal, plaintiff, had joined service in the year 1988 and at that time he had furnished document regarding birth proof and had told in my presence to the Hon'ble Principal of the School at that time that his date of birth was 10.01.1960. However, in the document furnished by Suraj Pal only year of birth i.e. 1960 was mentioned. The Hon'ble Principal had directed to give the document to the then Clerk of the School and Civil Suit No. 250/10 Page 22 of 78 the service book of Suraj Pal was prepared at the time of joining in my presence.". However, perusal of the plaint reveals that the plaintiff has merely stated that he had told his year/date of birth to the defendants at the time of joining the service. The plaint neither states that the same was told to the then Principal nor that it was told in the presence of any person, let alone PW2. Further, the plaintiff has not averred in the plaint that his service book was prepared at the time of joining the service or that the same was prepared in the presence of any person, let alone PW2. As already discussed above, a party cannot be allowed to lead evidence beyond its pleadings. Thus, the testimony of PW2 to the extent that the plaintiff had in his presence told the then Principal that his date of birth was 10.01.1960 and that the service book of the plaintiff was prepared at the time of joining the service in his presence cannot be read in evidence being beyond pleadings.
(iii) In view of the above discussion, the plaintiff has failed to establish that, at the time of joining the service, he had Civil Suit No. 250/10 Page 23 of 78 orally told the defendants that he was born in the year 1960.
B. Re: Plaintiff's claim as to submission of documentary proof
(i) In paragraph 3 of his affidavit Ex.PW1/A, PW1 has stated, "... A certificate of date of birth showing the year of birth as 1960 issued by Village Authority was given at the time of joining service in the year 1988 in the presence of Sh. Jai Charan etc.". Further, in paragraph 2 of his affidavit Ex.PW2/A, PW2 has stated, "I state that Suraj Pal, plaintiff, had joined service in the year 1988 and at that time he had furnished document regarding birth proof and had told in my presence to the Hon'ble Principal of the School at that time that his date of birth was 10.01.1960. However, in the document furnished by Suraj Pal only year of birth i.e. 1960 was mentioned. The Hon'ble Principal had directed to give the document to the then Clerk of the School ...". There is no averment to the aforesaid effect in the plaint wherein it has simply been stated that the year of birth, i.e. 1960, was told to the Civil Suit No. 250/10 Page 24 of 78 defendants at the time of joining the service. The plaint neither states that any document, let alone a certificate of date of birth issued by any Village Authority, was given by the plaintiff at the time of joining the service, nor that it was given to the then Principal of the defendant No.1 school, nor that it was so given in the presence of any person, let alone PW2. It is settled law, as already discussed above, that a party cannot be allowed to lead evidence beyond what has been pleaded by it. Thus, the oral testimony of PW1 to the effect that, at the time of joining the service in the year 1988, the plaintiff had submitted a certificate of date of birth issued by Village Authority showing his year of birth as 1960 cannot be looked into being beyond the pleadings of the plaintiff. Further, the testimony of PW2 to the extent that, at the time of joining the service, the plaintiff had furnished a document regarding his year of birth which was directed by the then Principal to be given to the then clerk of the school is also beyond the pleadings of the plaintiff and, therefore, cannot be read in evidence.
Civil Suit No. 250/10 Page 25 of 78
(ii) Further, the plaintiff has failed to submit any documentary proof in support of his claim of submission of the aforesaid certificate with the defendants. In fact, in his crossexamination, PW1 stated that he had not taken any receipt of submission of the aforesaid document(s) from the school.
(iii) Moreover, the plaintiff has failed even to file a copy of the said certificate on record. Rather, the stand of PW1 in his crossexamination is that he had not kept any copy of the said document. The explanation tendered by the plaintiff/PW1 in this regard in his crossexamination, to the effect, "I do not have any copy of the said document as there used to be no copies in those times.", is not worthy of reliance, the ground being factually incorrect.
(iv) The plaintiff/PW1 has relied upon a letter dated 22.01.2010 Ex.PW1/3 addressed to the Manager of the defendant No.1 school. It is stated therein, "... I had earlier given also documents showing my date of birth of year 1960 (Copy of Family Register and school Certificate.". However, in his crossexamination, PW1 Civil Suit No. 250/10 Page 26 of 78 denied having submitted any school certificate with the defendant No.1 school. He stated that the statement in the document Ex.PW1/3 to the effect that he had earlier submitted a school certificate was wrong.
(v) It is not the plaintiff's case that, at the time of joining, he had submitted any document other than the certificate of date of birth issued by the village authority or a school certificate.
(vi) In view of the aforesaid, the plaintiff has failed to prove that at the time of joining the service, he had submitted any document to the defendants to show that he was born in the year 1960.
C. Re: Proof of year of birth of the plaintiff: Documentary evidence
(i) To substantiate his claim that he was born in the year 1960, the plaintiff/PW1 has relied upon Ex.PW1/1, which is a certified copy of an extract of the parivar register. In the said document, the name of the plaintiff is recorded as the head of the family residing in house Civil Suit No. 250/10 Page 27 of 78 No. 155B. Under the column 'समभािित जनम ितिि' (probable/approximate date of birth), the entry against the plaintiff's name is '1960'. The said document Ex.PW1/1 does not bear the date of its preparation.
(ii) To prove the aforesaid extract of parivar register Ex.PW1/1, the plaintiff got summons issued to clerk/officer from the office of Block Development Officer (BDO), Block Hasayan, Tehsil Sikandara Rau, District Mahamaya Nagar, Uttar Pradesh along with the relevant record. In pursuance to summons issued by the Court, PW3 Sh. Foran Singh, Gram Panchayat Adhikari, Village Bhainkuri produced the parivar register of Village Bhainkuri, photocopy whereof is Mark PW3/A. The register Mark PW3/A, at page numbers 217 and 218 thereof, contains entries pertaining to house No. 155 B, Village Bhainkuri, Tehsil Sikandara Rau, District Mahamaya Nagar, Uttar Pradesh. Therein, the plaintiff is shown as the head of the family and in the column 'जनम ितिि यिि जात हो अििा समभावय जनम ितिि' (Date of birth, if known, or probable/approximate date of birth), the entry Civil Suit No. 250/10 Page 28 of 78 against the plaintiff's name is '1960'.
(iii) Learned counsel for the plaintiff submitted that the document Ex.PW1/1 constitutes proof of the plaintiff's year of birth. He relied upon the decision in Aina Devi v. Bachan Singh & Anr. (supra) in paragraph 9 whereof the Hon'ble Allahabad High Court observed as under:
"Having perused the entire evidence on the record, I am unable to agree with the findings of the trial court. Purna Devi was shown to be the married wife of Bachan Singh in the extract from the electoral roll and the family register of the village. The extract of the family register of the villages also showed that the father of her three children was Bachan Singh. The trial court was in error in thinking that the entries in the family register had to be proved by evidence aliunde. The family register was a public document. The entries made therein were proved by the certified copy of the extract, vide, Ext. II. The document proved its content's. The entries were presumptive evidence of what they recorded, until disproved by satisfactory evidence to the contrary. The burden was on the respondents to prove that the entries were incorrect. The same applies to the certified copy of the Civil Suit No. 250/10 Page 29 of 78 extract from the electoral roll, Ext. I."
(iv) In the instant case, the provisions of Section 35 of the Indian Evidence Act, 1872 are relevant. Section 35 reads as under:
"Relevancy of entry in public record or an electronic record made in performance of duty.- An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact."
(v) Ex. PW1/1 is an extract of a parivar register and Mark PW3/A is copy of the parivar register. A parivar register is a public register/record maintained by a public officer. In the extract Ex.PW1/1 and the register Mark PW3/A, there is an entry as to the year of birth of the plaintiff. The year of birth of the plaintiff is a fact in issue in the instant case. Thus, as per Section 35 of the Evidence Act, the entry as to the plaintiff's year of birth in the extract Civil Suit No. 250/10 Page 30 of 78 Ex.PW1/1 and register Mark PW3/A is itself a relevant fact.
(vi) As per Section 5 of the Evidence Act, evidence may be given in any suit of the existence or nonexistence of every fact in issue and relevant fact. It is clear therefrom that a fact declared to be relevant under the provisions of the Indian Evidence Act, including Section 35 thereof, is a matter of which evidence may be given. Thus, the aforesaid provision merely makes evidence of a relevant fact admissible. It does not mean that an entry in a public record which meets the requirement of Section 35 shall be conclusive proof of the fact in issue to which it relates.
(vii) The question does arise as to what is the authenticity of the entry in the parivar register or extract thereof for the reason that authenticity of a document is one thing and probity of it is another. In taking this view, this Court is supported by the decision of the Hon'ble Supreme Court of India in State of Bihar & Ors. v. Sri Radha Krishna Singh & Ors. (supra), in paragraph 40 whereof it was held as under:
Civil Suit No. 250/10 Page 31 of 78
"The admissibility of Ex J., or its genuineness is only one side of the picture and in our opinion, it does not throw much light on the controversial issues involved in the appeal. We may not be understood, while holding that Ex. j. is admissible, to mean that all its recitals are correct or that it has very great probative value merely because it happens to be an ancient document.
Admissibility of a document is one thing and its probative value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil. Before going to the contents of Ex. J., which have been fully discussed by the High Court, we would first like to comment on the probative value of this document." (emphasis supplied)
(viii) The Hon'ble Supreme Court in paragraph 15 of the judgment in Birad Mal Singhvi v. Anand Purohit, (supra), has also held as under:
"... To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact;Civil Suit No. 250/10 Page 32 of 78
and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. ..." (emphasis supplied)
(ix) Undoubtedly, the parivar register Mark PW3/A and the extract thereof Ex.PW1/1 are admissible under Section 35 of the Evidence Act being public documents prepared by a Government official in discharge of his official duties as they contain an entry as to the plaintiff's year of birth, which is a fact in issue. However, in view of the aforesaid observation of the Hon'ble Apex Court, even if an entry was made in an official record by the concerned official in the discharge of his official duty, though it may have weight, it would still require corroboration by a person on whose information the entry has been made and its evidentiary value would depend on whether the Civil Suit No. 250/10 Page 33 of 78 said entry so made has been properly proved.
(x) The extract of the parivar register Ex.PW1/1 and the register Mark PW3/A are, therefore, not conclusive proof of the entries therein, particularly the year of birth of the plaintiff. It is for the plaintiff to prove the same. The onus shall not shift upon the defendants unless the said documents are proved by the plaintiff.
(xi) The learned appellate Court in its order dated 04.03.2011, disposing off the defendants' appeal against the order dated 26.02.2010 passed by the learned predecessor of this Court allowing the plaintiff's application under Order XXXIX Rules 1 and 2 of the C.P.C., too had observed as under:
"... the trial court in the impugned order has considered (in paragraph 8 onwards) that Pariwar Register proves the date of birth and it is appellant (herein) to prove that the entries are incorrect. The issue is intricate, requires evidence by both sides and at the stage of injunction application, it is to be seen that there exist a serious question requiring investigation. Rival documents of the parties are mutually exclusive in nature.Civil Suit No. 250/10 Page 34 of 78
Section 35 of Indian Evidence Act is with regard to relevancy of entry in public record made in the performance of duties and on the one hand there is Employee Provident Fund nomination form and on the other side there is family register. The family register, extract, relied by the respondent appears to have been issued by Gram Panchayat, Hasrat of U.P. and family register are governed by U.P. Panchayati Raj (Maintenance of Family Register) Rules 1970, which were made by State of U.P. through Notification dated 05.06.1970 pursuant to the section 30 of the Registration of Births and Deaths Act, 1969 passed by the Parliament. The said notification was published in the gazette on 13.06.1970. Thereafter in 2002 U.P. Registration of Birth and Death and the Rule 2002 were framed in exercise of power under section 30 Registration of Births and Deaths Act,1969. However, the register or its extract are not conclusive proof of the recorded things/entries, particularly date or place of death or birth. Meaning thereby the observation recorded in impugned order, particularly paragraph 9 onward, infers as if it is conclusive proof whereas in the light of statutory provisions of law it is not the conclusive proof. It is a disputed question Civil Suit No. 250/10 Page 35 of 78 and it is to be proved by evidence.
...
Hence, trial court's impugned order dated 26.02.2010 is confirmed and appeal is dismissed. But it is clarified that para 9 onwards of the impugned order would not to construe a conclusive proof on the point on date of birth mentioned in parivar register, it is an onus on the respondent/plaintiff to proof the same. With these observations appeal is dismissed."
(xii) In view of the aforesaid, it is clear that the parivar register or extract thereof are not conclusive proof of the entries therein particularly that pertaining to the year of birth of the plaintiff and are merely admissible in evidence. Therefore, this Court respectfully differs from the above observation of the Hon'ble Allahabad High Court in Aina Devi v. Bachan Singh & Anr. (supra).
(xiii) Thus, while a document may be admissible in evidence, whether or not an entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case.
(xiv) PW3, in his examinationinchief, stated that Ex.PW1/1 Civil Suit No. 250/10 Page 36 of 78 is a true copy of the entries in the register Mark PW3/A relating to house No. 155B containing inter alia the name of the plaintiff. However, referring to the register Mark PW3/A, he stated, "The details in this register were taken from the previous register and this was copied on 02.01.2009". Although the certified copy of the extract Ex.PW1/1 does not bear any date of its preparation, PW1, in his crossexamination, volunteered that the same had been prepared in the month of January 2010 and admitted that he had obtained the document Ex.PW1/1 after he was informed by the Principal on 01.01.2010 that he was due to retire with effect from 01.03.2010. Thus, the extract Ex.PW1/1 would necessarily be an extract of the parivar register Mark PW3/A having been prepared more than an year after the copying of the register Mark PW3/A. In order to prove Ex.PW1/1, it is, therefore, necessary that the register Mark PW3/A is proved.
(xv) Since the entries in the register Mark PW3/A had been copied from a previous register, the same could not have Civil Suit No. 250/10 Page 37 of 78 been proved in the absence of proof of the said previous register. Moreover, there may be certain corrections and interlineations in the original (previous) register which may throw some light with regard to the authenticity of the entry as to the plaintiff's year of birth in the parivar register. Production of the extract of the entry, in the form of Ex.PW1/1, or a copy of the parivar register prepared manually, in the form of Mark PW3/A, cannot dispel the doubt as to the entries in the parivar register. (xvi) In his crossexamination, PW3, however, admitted that he had not brought the original (previous) register on the basis of which entries had been made in the register brought by him copy whereof is Mark PW3/A. Further, he stated, "The entries made in the register brought by me can be verified with the original (previous) register. I cannot bring the previous register on the basis of which entries were made in the register brought by me today. The original (previous) register is in the custody of the District Panchayat Raj Officer at District Headquarter, Maha Maya Nagar. The said register can be summoned Civil Suit No. 250/10 Page 38 of 78 from the District Panchayat Raj Officer." However, despite the statement of PW3 to the aforesaid effect, no steps were taken by the plaintiff to summon the original/previous register from the District Panchayat Raj Officer.
(xvii) Thus, the parivar register Mark PW3/A has not been duly proved. Accordingly, the certified copy of the extract of the parivar register Ex.PW1/1 has also not been proved by the plaintiff.
(xviii)Even otherwise, it is a settled proposition of law that mere proving a document does not prove its contents and a document by itself is not an evidence of the facts stated therein. In paragraph 11 the judgment in Fitzee Ltd. v. Brilliant Tutorials Pvt. Ltd. (supra), cited on behalf of the plaintiff himself, it has been held, "... The fact in issue before the Court cannot be proved merely by proving the signature and handwriting on a document since the document, by itself, does not constitute truthfulness of its contents. The truthfulness or otherwise of the contents of a document can be proved only by legally admissible Civil Suit No. 250/10 Page 39 of 78 evidence, i.e. the evidence of a person who is in a position to vouchsafe for the truthfulness of those contents." (emphasis supplied). The truth or otherwise of the entry as to the date of birth of the plaintiff in the parivar register could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the said entry. The date of birth mentioned in the parivar register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. Reliance is placed on paragraph 14 of Birad Mal Singhvi v. Anand Purohit (supra), wherein it was held as under:
"... The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by Civil Suit No. 250/10 Page 40 of 78 parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. ..."
(xix) PW3 stated that the entries in the register Mark PW3/A had been made in the hand of Sh. Ram Prakash, who was the Gram Panchayat Adhikari prior to him. Clearly, not only has the plaintiff failed to examine the author of the original (previous) parivar register from which the register Mark PW3/A was copied, but he has also failed to examine the aforesaid Sh. Ram Prakash, who had prepared the register Mark PW3/A. The only witness examined in this regard was PW3, who, in his crossexamination, stated, "I have no personal knowledge regarding the correctness of the entries in the register brought by me today since I have not made the said entries.". Thus, PW3, in specific terms, stated that he could not vouch for the correctness of the entries made in the register Mark PW3/A as the same had not been made by him. The plaintiff has also not examined the person who gave the date of birth of the plaintiff for recording in Civil Suit No. 250/10 Page 41 of 78 the parivar register. Thus, in view of the aforesaid decision, the plaintiff has failed to prove the truthfulness/correctness of the entries in the register Mark PW3/A, and consequently of those in the extract Ex.PW1/1.
(xx) Further, a perusal of the register Mark PW3/A shows that it does not disclose the source from which the data/information recorded therein, or in the previous register, was collected or gathered. There is also nothing to show that the author of the register Mark PW3/A or the original (previous) register consulted any records/documents in order to satisfy himself regarding the correctness of the information gathered. In view of the aforesaid, this Court is of the considered opinion that the entries in the parivar register Mark PW3/A are not worthy of reliance.
(xxi) Moreover, in his crossexamination by the learned counsel for the defendants as also in response to Court questions, PW3 admitted that there were numerous inconsistencies in the register Mark PW3/A including: Civil Suit No. 250/10 Page 42 of 78
(a) while in some cases the entries pertaining to houses bearing the same numbers, distinguished by alphabets such as 'A', 'B', 'C' etc. suffixed thereto, for instance 25B, 25C and 25D, had been made on a single page, in others they had been made on separate pages; (b) at several places, there were multiple pages containing completely different entries pertaining to the same house number, not even distinguished by alphabets; and (c) certain pages did not contain any house number in column No.2 thereof. Also, as admitted by PW3 in his crossexamination, there was overwriting at serial No.7 and 8 on page No.1 of the register Mark PW3/A and white fluid (correction fluid) had been used. Similarly, PW3 admitted that there was overwriting at various other places in the said register. Thus, the manner in which the said register has been maintained does not inspire the confidence of this Court.
(xxii) Further, PW3 admitted in his crossexamination, "... It is correct that the entries at Sl. No. 9 of H. No. 155B in the register brought by me bears the name of Sh. Satender Civil Suit No. 250/10 Page 43 of 78 Kumar in Hindi and in Ex.PW1/1 entry at Sl. No.9 bears the name of Sh. Santosh Kumar in Hindi. ...". Thus, it is clear that the entries in the certified copy of the extract Ex.PW1/1 are not correct as they do not tally with those in the register Mark PW3/A. The extract Ex.PW1/1 is accordingly not found to be worthy of any reliance.
(xxiii)In these circumstances, although the aforesaid documents, i.e. Ex.PW1/1 and Mark PW3/A, are admissible in evidence, it is difficult for this Court to place any reliance on them and the date of birth as mentioned therein can, therefore, not be accepted.
(xxiv) The plaintiff has not furnished any other document as proof of his year of birth. Thus, the plaintiff has failed to prove any document in support of his claim that he was born in the year 1960.
D. Re: Proof of year of birth of the plaintiff: Oral evidence
(i) The Hon'ble Supreme Court in Umesh Chandra v. State of Rajasthan, (supra), observed as under:
Civil Suit No. 250/10 Page 44 of 78
"6. Thus, the main point for consideration in this case is as to what is the exact date of birth of the appellant, Umesh Chandra. ...
7. ... ordinarily the oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. ..."
(ii) In the instant case, since, as discussed above, the plaintiff has been unable to bring forth reliable documentary evidence as proof of his year of birth, the oral evidence led by the plaintiff is examined hereunder.
(iii) In support of his claim that he was born in the year 1960, the plaintiff has merely produced his own ocular evidence. At the time of his birth, no person can be expected to know the day, month or year in which he takes birth. Knowledge thereof can only be acquired by him from his parents etc. Oral evidence of a person regarding the date of his own birth would, therefore, essentially have to be termed as hearsay evidence. Thus, the oral testimony of the plaintiff/PW1 to the effect that Civil Suit No. 250/10 Page 45 of 78 he was born in the year 1960 cannot be relied upon.
(iv) Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. However, besides himself, the plaintiff has not examined any witness, such as his parent(s), other relative(s) or then neighbour(s), who would have witnessed his birth and could, therefore, have deposed as to the year of his birth.
(v) The plaintiff has, therefore, failed to bring forth reliable oral evidence to prove that he was born in the year 1960. E. Re: Proof of year of birth of the plaintiff: Other evidence
(i) The plaintiff has also failed to produce any other evidence, including medical evidence, in support of his year of birth. While the claim of the plaintiff is that his birth is of the year 1960, the defendants' stand is that as per record maintained by them, on the basis of information supplied by the plaintiff, the plaintiff was born in the year 1950. Medical science is advanced enough to be able to state at least the approximate, if not Civil Suit No. 250/10 Page 46 of 78 exact, age of a human being with a margin of a year or two. The gap in the plaintiff's age as per the competing stands of the plaintiff and the defendants being of about ten years is substantial. One of the two stands could very well have been ruled out with the help of medical tests such as a bone ossification test. However, the plaintiff has failed to lead any such evidence in support of his claim. F. Re: Proof of year of birth of the plaintiff: Contrary evidence
(i) In his crossexamination, PW1 admitted that the signatures appearing at point A on the leave application dated 26.10.2007 Ex.PW1/D3 are his. He was also shown his medical certificate Ex.PW1/D4, submitted by him along with the leave application Ex.PW1/D3. In the said medical certificate Ex.PW1/D4, which is dated 25.10.2007, the plaintiff's age is mentioned as 54 years. Thus, as per the said document, the plaintiff would have been born in or around the year 1953. Explaining the same, the plaintiff/PW1 stated that his date of birth (age) is wrongly mentioned in the medical certificate Civil Suit No. 250/10 Page 47 of 78 Ex.PW1/D4 as the same had not been written after asking him. The same is highly improbable inasmuch as it cannot be believed that the doctor issuing the certificate would have mentioned the age of the plaintiff as per his own approximation and without asking the plaintiff. The said explanation also does not warrant reliance inasmuch as the said medical certificate was admittedly furnished by the plaintiff himself in support of his leave application. Thus, even as per the plaintiff's own medical certificate Ex.PW1/D4 filed along with the application for leave, his year of birth is not 1960 as claimed by him in the present suit.
G. Thus, not only has the plaintiff failed to prove that he had orally told the defendants, or had submitted any documentary proof, at the time of joining, that he was born in the year 1960, he has also failed to prove that he was in fact born in the year 1960.
29. Re: Change/correction of date of birth: Clinching evidence required A. In State of U.P. & Anr. v. Shiv Narain Upadhyaya Civil Suit No. 250/10 Page 48 of 78 (supra), the Hon'ble Supreme Court observed:
"6. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. ... But, of late a trend can be noticed, that many public servants, on the eve of their retirement waking up from their supine slumber raise a dispute about their service records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution or by filing applications before Administrative Tribunals concerned, or even filing suits for adjudication as to whether the date of birth recorded is correct or not.
...
9. An application for correction of the date of birth should not be dealt with by the courts, Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, Civil Suit No. 250/10 Page 49 of 78 within which time many officers who are below him in seniority waiting for their promotion may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before, any such direction is issued or declaration made, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within such application has to be filed, then such Civil Suit No. 250/10 Page 50 of 78 application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. ..." (emphasis supplied) B. In Union of India v. Harnam Singh (supra), in paragraph 7, the Hon'ble Apex Court held as under:
"A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in Civil Suit No. 250/10 Page 51 of 78 possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied to by the Courts and tribunals. It is nonetheless competent for the Government to fix a time limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on Civil Suit No. 250/10 Page 52 of 78 the basis of his actual age..." (emphasis supplied) B. In State of Haryana v. Satish Kumar Mittal, (supra), while setting aside the decree granted in favour of an employee of the Haryana Government directing the authorities to correct the date of birth of the employee, though the request had been made nine years after joining the service, the Hon'ble Apex Court cautioned that an application for correction of date of birth should not be dealt with keeping in view only the public servant concerned. It observed that any direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years below him for their respective promotions are affected in this process and some are also likely to suffer irreparable injury. In paragraph 16, it held, "... Whether the suit was timebarred or not, the claim was in any case belated. It has to be filed within the time provided or within a reasonable time and it is not to be entertained merely on the basis of plausible material. ...". The Court in the aforesaid case placed reliance on paragraph 9 of the Civil Suit No. 250/10 Page 53 of 78 decision in State of U.P. & Anr. v. Shiv Narain Upadhyaya (supra) noted above.
C. Though the aforesaid decisions had been passed in the context of government servants, the principles laid down therein apply with equal force in cases such as the present inasmuch as the reasoning thereof holds good in case of private employments as well.
D. The plaintiff has not produced copy of the parivar register or extract thereof claimed to have been submitted with the defendant No.1 at the time of joining the service on the ground that there used to be no copies in those times. He has not produced any acknowledgment issued on behalf of the defendants to prove that he had in fact submitted the said or any other document regarding his date of birth. He has not produced any certificate of date of birth issued by any municipal authority, or a school certificate, or even a ration card, or other document. He has not examined his parent(s), relative(s) or neighbour(s) etc. to prove his date of birth. He has also failed to furnish any medical evidence in support of his age. All that the Civil Suit No. 250/10 Page 54 of 78 plaintiff has relied on is the extract of the parivar register Ex.PW1/1 and the copy of the parivar register Mark PW3/A, which, in the considered opinion of this Court, as already observed above, do not constitute proof, let alone clinching and irrefutable evidence, of the date (year) of birth of the plaintiff.
30. Even otherwise, the plaintiff's claim is barred by delay and laches inasmuch as the dispute as to his date of birth has been raised at a highly belated stage.
A. Re: Knowledge as to date of birth recorded in service record
(i) In his crossexamination, while PW1 denied his signatures and thumb/finger impressions at points 1 to 12 in the service book Ex.PW1/D2, he admitted those at points A to X therein. Page No.1 of the service book Ex.PW1/D2, wherein the plaintiff's date of birth is recorded as "131950 first March Nineteen fifty)", bears the plaintiff's signatures and thumb impressions at points A, T, U, V, W and X, which stand admitted by the plaintiff/PW1. Although, in his crossexamination, PW1 Civil Suit No. 250/10 Page 55 of 78 has volunteered an explanation that when his thumb impressions were obtained on the first page of the service book Ex.PW1/D2, the same was blank and nothing had been written thereon, however, he has also admitted that he had not made any complaint to the management or the higher authorities regarding his signatures having been obtained on a blank page of the service book. Thus, the explanation that the plaintiff's signatures had been obtained on a blank page of the service book is not found worthy of reliance. From the aforesaid, the only possible inference that can be drawn is that the plaintiff had signed the first page of the service book Ex.PW1/D2 knowing well that his date of birth had been recorded therein as '01.03.1950'.
(ii) PW2 has deposed that neither were the Class IV employees of the defendant No.1 school ever supplied with copies of their service books nor were they allowed to read the same or raise objections to the entries therein. His testimony to the extent that the employees were not allowed to read their service books or raise objections to Civil Suit No. 250/10 Page 56 of 78 the entries therein cannot be read in evidence being beyond the plaintiff's pleadings. As long as the plaintiff was allowed a right to inspect his service book, the fact that he was not supplied with a copy of the service book is not relevant.
(iii) Further, in his crossexamination, PW1 admitted that he had seen the service book in the year 2007 and noticed that there were certain cutting and alteration in the same. Although, PW1 volunteered an explanation that the service book used to be shown after hiding/covering certain portions thereof so that only certain limited particulars could be seen, the same is not reliable as neither has any such allegation been made in the plaint nor admittedly has any complaint or representation been made by the plaintiff in that regard.
(iv) The plaintiff's stand in paragraph 3 of the plaint and paragraph 4 of his affidavit Ex.PW1/A is that since he had not been supplied with a copy of his service book, he being illiterate it was impossible for him to know the date of his birth recorded in the service book. It is not his case Civil Suit No. 250/10 Page 57 of 78 that the service book was not shown to him rather, in his crossexamination, he has specifically admitted having seen the service book in the year 2007 and also having signed at various places in the service book. So far as the plaintiff's plea that, on account of illiteracy, it was not possible for him to know his age (date of birth) recorded in the service records is concerned, the same is clearly a false plea inasmuch as, as already noted above, the plaintiff's own document Ex.PW1/1 records that the plaintiff is a literate.
(v) Thus, this Court is constrained to hold that the plaintiff had throughout known that his date of birth had been recorded in the service book as '01.03.1950'.
B. Re: Inaction despite knowledge
(i) In his crossexamination, the plaintiff/PW1 stated, "I was
appointed on 15.04.1988 on Kutcha basis. My appointment was made regular w.e.f. From 01.05.1988. (The witness is shown the document Ex.PW1/3) It is correct that I had written the said letter dated 22.01.2010 Civil Suit No. 250/10 Page 58 of 78 to the school. I did not write any letter to the defendant No.1 school regarding my age/date of birth from the date of my appointment till 22.01.2010.". Thus, the plaintiff has admitted that prior to 22.01.2010, i.e. immediately before the filing of the present suit, he had never made any representation to the defendants regarding the alleged wrongful recording of his age in the records maintained by the defendant No.1 school.
(ii) PW1 further admitted that having seen the service book in the year 2007 he wrote the first letter to the school regarding his date of birth on 22.01.2010.
(iii) Thus, it is clear that despite having signed the service book Ex.PW1/D2 and, therefore, known the entry as to his date of birth made therein, and also despite having admittedly seen the service book in the year 2007 and noticed cuttings and alterations therein, the plaintiff did not make any representation to the defendants for correction of his date of birth prior to letter dated 22.01.2010, i.e. immediately before filing of the present suit. During the length of his entire service with the Civil Suit No. 250/10 Page 59 of 78 defendant No.1 school of about 21 years since April/May 1988, the plaintiff did not raise any dispute regarding his date of birth having been wrongly recorded, let alone seeking correction thereof. The plaintiff has approached the Court after about 21 years of his appointment in service and without having raised any dispute, regarding his date of birth recorded in the service records, prior to January 2010. The present appears to be a motivated attempt at continuing in service despite having attained the age of superannuation.
C. Re: Dispute regarding date of birth: Not be raised at fag end of career
(i) Courts cannot come to the aid of those who sleep over their rights. It is settled law that a person cannot be allowed to raise a dispute regarding his date of birth at the fag end of his career.
(ii) In State of U.P. & Anr. v. Shiv Narain Upadhyaya (supra), the Hon'ble Supreme Court observed:
"6. Normally, in public service, with Civil Suit No. 250/10 Page 60 of 78 entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, and it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement waking up from their supine slumber raise a dispute about their service records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution or by filing applications before Administrative Tribunals concerned, or even filing suits for adjudication as to whether the date of birth recorded is correct or not.
...
9. An application for correction of the date of birth should not be dealt with by the courts, Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective Civil Suit No. 250/10 Page 61 of 78 promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion may lose the promotion for ever. ... As such, unless a clear case on the basis of clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. ... If no rule or order has been framed or made, prescribing the period within such application has to be filed, then such application must be within at least a reasonable time. ... In many cases it is a part of the strategy on the part of such public servants to approach the court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are Civil Suit No. 250/10 Page 62 of 78 dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit or extended service and thereby caused injustice to his immediate junior." (emphasis supplied)
(iii) In Hindustan Lever Ltd. v. S.M. Jadhav & Anr., (supra), the Hon'ble Apex Court in paragraph 10 observed:
"10. ... It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. ..."
(iv) In paragraph 6 of the judgment in State of Uttaranchal & Ors. v. Pitamber Dutt Semwal (supra), it was held as under:
"These Rules, the validity of which have not been challenged, clearly stipulate that no application or representation shall be entertained for correcting any date or age record and the entry made in the service Civil Suit No. 250/10 Page 63 of 78 book shall be deemed to be the correct date of birth. Be that as it may, even dehors the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. He joined service in 1964, the servicebook was prepared in 1965 and according to the appellant he has signed the said servicebook at least on three occasions. In any case, the plea of the wrong recording of the age in the servicebook has been taken nearly thirty years after the servicebook was prepared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even otherwise, in the facts of this case, there was no occasion for the High Court to have interfered with the decision of the appellant."
(v) Recently also, in Punjab & Haryana High Court v.
Megh Raj Garg & Anr. (supra), the Hon'ble Supreme Court in paragraph 12 of the judgment stated:
"This Court has time and again cautioned civil courts and the High Courts against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth. ..."
(vi) In the instant case, not only has the plaintiff failed to Civil Suit No. 250/10 Page 64 of 78 approach the Court for correction of his date of birth in the records of the defendant No.1 within reasonable time, he has also failed to establish that at the time of joining he had told his year of birth as 1960 to the defendants and also that he was in fact born in the year 1960, whether in the month of January or any other. Thus, having slept over his rights, if any, for about 21 years, the plaintiff cannot be allowed to raise a dispute regarding his date of birth as recorded in the service records today i.e. at the fag end of his career.
31. In Tata Iron and Steel Co. Ltd. v. Padala Appanna (supra), the Hon'ble Patna High Court in paragraph 11 observed as under:
"In considering whether a declaration of a date of birth can be given or not distinction has got to be made between private employment and public employment. In public employment rights are protected under the general law, for example, under Article 311 of the Constitution while in private employment, relationship is contractual except in cases where the act is in violation of mandatory obligation imposed by statute. In private employment an employee cannot have as many declarations as are stipulated in the agreement or contract. Mr. Sinha, on the other hand contended that on the basis of the declaration of his correct date of birth the plaintiff would Civil Suit No. 250/10 Page 65 of 78 superannuate only at a later date and, therefore, he was entitled to a declaration that he would superannuate only when he attains the age of 60 years by computing his age on the basis that he was born on 1571922. Therefore, according to Mr. Sinha the declaration was of legal character of a right which related to property. I am unable to accept this submission because even assuming that the age of the plaintiff is corrected and the defendant superannuates the plaintiff before he attains 60 years of age, the termination in private employment would not give the plaintiff the right to continue in service till 60 years of age. What would be available to him if the termination is in breach of contract is a decree for damages. It is settled that under the general law of master and servant normally in cases of personal employment, the servant cannot insist on employment ; but has the right to claim damages if the termination is otherwise bad."
32. The relief of declaration is a discretionary relief. In the facts and circumstances of the case and on a consideration of the law, this Court does not deem it appropriate to exercise the discretion vested in it in favour of the plaintiff. The plaintiff is, therefore, not entitled to the relief prayed for in prayer clause (a) of the plaint.
33. This issue is accordingly decided in favour of the defendants and against the plaintiff.
Civil Suit No. 250/10 Page 66 of 78 Issue No.5:Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for?
AND Issue No.6: Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?
34. The onus of proof with respect to both these issues was on the plaintiff.
35. The reliefs sought in prayer clauses (b) and (c) of the plaint are essentially consequential to the relief of declaration sought in prayer clause (a). Since, with regard to issue No.4, it has already been found that the plaintiff is not entitled to a decree of declaration as prayed for in clause (a) of the prayer in the plaint, the prayer of mandatory injunction in prayer clause (b) of the plaint and that of permanent injunction in prayer clause (c) thereof can also not be granted.
36. Even otherwise, by way of prayer clauses (b) and (c) of the plaint, the plaintiff is seeking nothing but specific performance of his contract of personal service, whether oral or written, with the defendant No.1 school. However, a contract of personal service is not specifically enforceable.
Civil Suit No. 250/10 Page 67 of 78
37. Reliance is placed on Executive Committee of Vaish Degree College v. Lakshmi Narain (supra), wherein the Hon'ble Supreme Court of India in paragraph 17 had held as under:
"On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions
(i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute."
(emphasis supplied)
38. The question for consideration, thus, is whether the plaintiff's case falls within the exceptions laid down by the Hon'ble Apex Court to the general rule that a contract of personal service is not specifically enforceable.
39. Admittedly, the plaintiff is not a public servant. Further, the present case is not one under the industrial law. Learned counsel for the plaintiff had sought to argue that the defendant No.1 is a statutory Civil Suit No. 250/10 Page 68 of 78 body and, therefore, the present case is covered within the exceptions as aforesaid. Per contra, learned counsel for the defendants submitted that the defendant No.1 is not a statutory body and, therefore, the present case is not covered within the exceptions to the general rule.
40. Considering the question as to when an institution can be regarded as a statutory body, the Hon'ble Supreme Court in Executive Committee of Vaish Degree College v. Lakshmi Narain (supra) held:
" 9. ... It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe it existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character. ... It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provision of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its power, the Civil Suit No. 250/10 Page 69 of 78 question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.
10. ... in Kumari Regina v. St. Aloysius Higher Elementary School, AIR 1971 SC 1920 ... "But it cannot be gainsaid that as the Govt.has the power, to admit schools to recognition and grantsinaid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach of noncompliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or noncompliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a Civil Suit No. 250/10 Page 70 of 78 matter between the Government and the management, and a third party, such as a teacher aggrieved by some order of the management, cannot derive from the rules any enforceable right against the management on the ground of a breach or noncompliance of any of the rules." (emphasis supplied)
41. In the instant case, the defendant No.1 is an unaided minority school. It is nobody's case that the defendant No.1 is the creation of a statute. Although it being a recognized school, the provisions of the Delhi School Education Act, 1973 may be applicable to it, however, it cannot be called a statutory body as it does not owe its existence to the Delhi School Education Act or any other statute. It is not that, but for the Delhi School Education Act, the defendant No.1 would have had no existence. Thus, the defendant No.1 cannot be called a statutory body.
42. Relying upon paragraph 10 of the decision in Management Committee of Montfort Senior Secondary School v. Vijay Kumar & Ors. (supra), learned counsel for the plaintiff submitted that the services of an employee of an unaided minority school were statutory in nature. The issue involved in the aforesaid case was that whether, on an application filed before it by the management of the school under Civil Suit No. 250/10 Page 71 of 78 Section 8(1) of the Arbitration and Conciliation Act, 1996, the Delhi School Tribunal was required to refer an appeal preferred by a dismissed employee to an arbitrator. The question involved in the present suit is not the same and is rather entirely different. Further, the observation of the Court in the aforesaid paragraph of the said judgment, to the effect that services of the employees in unaided minority schools governed by the provisions of Chapter V of the Delhi School Education Act are no longer contractual in nature but are statutory, cannot be termed as the 'ratio' of the judgment. The reliance placed on the aforesaid decision is, therefore, misconceived.
43. In view of the aforesaid, the defendant No.1 cannot be called a statutory body. Therefore, the present case does not fall within the exceptions to the general rule that a contract of personal service is not specifically enforceable.
44. Even otherwise, the Hon'ble Apex Court in State Bank of India & Ors. v. S.N. Goyal (supra), in paragraph 11 held:
"Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of Civil Suit No. 250/10 Page 72 of 78 employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article
309);
(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.
There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief - damages or reinstatement with consequential reliefs - is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a nonstatutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that Civil Suit No. 250/10 Page 73 of 78 the employee should be reinstated can be granted by courts. ..."
45. Thus, as per the decision in State Bank of India & Ors. v. S.N. Goyal (supra), where the relationship is purely governed by contract, even if the employer is a statutory body, the contact of personal service is not specifically enforceable. In the plaint itself, the plaintiff has admitted having a contract of service with the defendant No.1 school. His contention that the same was unilateral, or that his signatures were obtained on it under coercion cannot be looked into as the same has not been proved. Thus, admittedly, there does exist a contract of service between the plaintiff and the defendant No.1 and the relationship between the plaintiff and the defendant No.1 is purely contractual. Therefore, the contract of personal service between the plaintiff and the defendant No.1 school cannot be specifically enforced by granting the injunctions prayed for.
46. Relying on Executive Committee of Vaish Degree College v. Lakshmi Narain (supra), the Hon'ble Apex Court, in Pearlite Liners (P.) Ltd. v. Manorama Sirsi (supra), held as under:
"8. The present case does not fall in any of the three exceptions. It is neither a case of public employment so as to attract Art. 311 of the Constitution of India nor the Civil Suit No. 250/10 Page 74 of 78 case is under the Industrial Disputes Act. The defendant is not a statutory body. There is no statute governing her service conditions. The present is a case of private employment which normally would be governed by the terms of the contract between the parties. Since there is no written contract between the parties, the dispute cannot be resolved with reference to any terms and conditions governing the relationship between the parties. The plaintiff has neither pleaded nor there has been any effort on her part to show that the impugned transfer order was in violation of any term of her employment. In the absence of a term prohibiting transfer of the employee, prima facie the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never reported for work at the place where she was transferred. As a matter of fact, she also stopped attending the office from where she was transferred. Noncompliance of the transfer order by the plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the concerned employee. Even though it is a case of private employment, the management proposed to hold an enquiry against the delinquent officer, that is, the plaintiff. In case of such insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the management. An injunction against a transfer order or against holding a departmental enquiry in the facts of the present case would clearly amount to imposing an employee on an Civil Suit No. 250/10 Page 75 of 78 employer, or to enforcement of a contract of personal service, which is not permissible under the law. An employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two.
10. ... Ultimately, this relief if granted would indirectly mean that the Court is assisting the plaintiff in continuing with her employment with the defendantCompany, which is nothing but enforcing a contract of personal service. ..."
47. Similarly, even in the instant case, if the injunction prayed for is granted it would amount to imposing upon the defendants a direction to allow the plaintiff to serve despite his having attained the age of superannuation. The same is neither allowed under the law nor appears just in the facts and circumstances of this case as noted above.
48. Even otherwise, the relief of injunction is a discretionary relief. In Executive Committee of Vaish Degree College v. Lakshmi Narain (supra), the Court in paragraph 26 thereof held as under:
"... It is manifestly clear from the authorities discussed above that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot Civil Suit No. 250/10 Page 76 of 78 convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum."
49. However, as already found with regard to issue No.3, the plaintiff has suppressed material facts and has not approached the Court with clean hands. Further, as noted under issue No.4, the plaintiff's claim is barred by delay and laches. In the said circumstances, this Court does not deem it a fit case for granting the discretionary relief of injunction.
50. In view of the aforesaid, the relief sought in prayer clauses (b) and (c) of the plaint cannot be granted to the plaintiff. Accordingly, these issues are decided in favour of the defendants and against the plaintiff.
Issue No.7: Relief
51. In view of the findings on issues No.3, 4, 5 and 6, the plaintiff is not entitled to any relief.
52. Accordingly, the suit is hereby dismissed. Parties are directed to Civil Suit No. 250/10 Page 77 of 78 bear their own costs.
53. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court on 27.09.2011 (MANIKA) Civil Judge05 (South), New Delhi 27.09.2011 Civil Suit No. 250/10 Page 78 of 78