Andhra HC (Pre-Telangana)
Nizam Sugar Factory Ltd. vs Sarfaras Baig on 3 September, 2003
Equivalent citations: 2003(6)ALT488
JUDGMENT C.Y. Somayajulu, J.
1. Defendant in O.S.No. 138 of 1987 on the file of the Court of the District Munsif, Bodhan is the appellant. Respondent filed the aforesaid suit to declare his date of birth as 4th Khurdad 1341 Fasli equivalent to 4th April 1932 and consequently his date of superannuation as 3rd April 1992.
2. The case, in brief, of the respondent is that at the time of his entry into the service of appellant, since the appellant did not insist on production of proof of his date of birth, he did not produce proof relating to hid date of birth. In 1980 when the officials of the appellant wanted him to be present before the Age Fixation Committee he presented himself before the Committee and requested it to call for the record relating to his date of birth from Biloli School where he studied. But the Committee without calling for the record and without any basis arbitrarily fixed his age as 53 years as on 26-6-1980. Thereafter, though he has been continuously making representations to the appellant to fix his age by calling for the records from Bioli School, appellant without taking any action in that regard served a notice dated 5/6-3-1987 on him that he would be superannuated on 25-6-1987. So he gave a representation to the appellant on 18-3-1987 to fix the date of his superannuation on the basis that his date of birth is 4-4-1932 as per the school records. But ignoring the said representation, appellant served notice that he would be relieved from duty on 14-4-1997. Hence, the suit.
3. Appellant filed its written statement putting the respondent in proof of allegations in the plaint and contending that inasmuch as the respondent did not produce any authentic record relating to his date of birth he was directed to appear before the Chief Medical Officer to fix his age by conducting ossification test. Respondent without producing any school record appeared before the Chief Medical Officer. The Chief Medical Officer after examining the respondent fixed his age as 53 years as on 26-6-1980, for which the respondent did not raise any objection. Hence, the suit is not maintainable.
4. Basing on the pleadings five issues were settled for trial by the trial Court. In support of his case respondent examined himself as P.W.1 and another witness as P.W.2 and marked Exs.A-1 to A-8. In support of the case of the appellant two witnesses were examined as D.Ws.1 and 2 and Exs.B-1 to B-5 and Exs.X-1 to X-11 were marked. The trial Court dismissed the suit. On appeal by the respondent in A.S.No. 2 of 1989, the learned Subordinate Judge, Bodhan reversed the findings of the trial Court and declared the date of birth of the respondent as 4th April 1932 and his date of superannuation as 3-4-1992. Hence, this Second Appeal.
5. The point for consideration is whether the suit for the reliefs claimed is maintainable?
6. The contention of the learned counsel for the appellant is that question relating to age of superannuation would be an 'Industrial Dispute" within the meaning of Industrial Disputes Act, and so the Industrial Tribunal only, but not the civil Court that has jurisdiction to fix the date of superannuation of a workman. He placed a strong reliance on Chandrakant Tukaram Nikam and Ors. v. Municipal Corporation of Ahmedabad and Anr., where a workman of the Municipal Corporation of Ahmedabad questioned the order of his removal from service in a civil Court. Observing that legality of the order of termination passed by an employer will be an 'industrial dispute' within the meaning of Section 2(k) of the Industrial Disputes Act and so, the jurisdiction of Civil Court is impliedly barred, the Supreme Court dismissed the suit. He also relied on Isher Singh v. National Fertilizers and Anr., .
7. There is no representation on behalf of the respondents.
8. In my considered opinion, none of the two decisions relied on by the learned counsel for the appellant have application to the facts of this case because in Chandrakant Tukaram Nikam and Ors. v. Municipal Corporation of Ahmedabad and Anr., what was questioned in the civil Court was the order of termination of a workman. The workman in that case did not file a suit for declaration of his date of birth and consequently his date of superannuation, as in this case. Since respondent was not terminated from service, the ratio in that decision has no application to the facts of this case. In Ishar Singh case, the employee who was in service, after coming to know that he is going to be superannuated a few days or months subsequently, approached the Civil Court for declaration regarding his date of birth and sought an injunction against his superannuation and other reliefs. The Supreme Court held that the suit is maintainable, because none of the situations contemplated by Section 2-A of the Industrial Disputes Act had happened, so as to give a cause of action to the plaintiff to approach the Industrial Court.
9. The Supreme Court also held that if the proceeding is maintainable in the forum where it has been laid for one of the reliefs sought, it is not open to that forum to shut its doors to the suitor for the other part of the relief. If the ratio in the said decision is applied when the suit for declaration of the correct date of birth is held to be maintainable. Civil Court cannot refuse to grant the consequential relief and direct the respondent approach another forum for obtaining the consequential relief. So when it is conceded that civil Court has the jurisdiction to grant the relief relating to declaration of the date of birth of the respondent, as per the ratio in the above decision it also has jurisdiction to declare the date of superannuation of the respondent.
10. Declaratory suits are governed by Articles 56 to 58 of the Limitation Act. Article 56 prescribes the limitation for obtaining a declaration relating to a document being a forged document whereas Article 57 prescribes the period of limitation for obtaining a declaration relation to adoption. Those Articles do not apply to this case. Article 58 prescribes the period of limitation as three years from the date of accrual of the right to sue, for any other declaration. So the period of limitation for obtaining declaration relating to date of birth, as per Article 58 of Limitation Act, is three years from the accrual of the right to sue.
11. As per the averments in the plaint respondent was directed to appear before the Medical Board, ignoring his contention that the record in the school, where he studied, contains the entry relating to his date of birth and that his age was fixed as 53 years as on 26-6-1980, and that thereafter, he gave number of representations to correct his date of birth, but the appellant did not take any action. So, even in 1980 itself respondent is alive to the fact that his date of birth recorded in the register of the appellant is not correct. The right to sue for a declaration regarding his correct date of birth, accrued to the respondent, when the appellant, ignoring his contention and representation, fixed his age as 53 years on 26-6-1980. So respondent ought to have filed the suit for declaration of his date of birth within three years from the date of receipt of Ex.B-4 communication fixing his date of birth as 53 years as on 26-6-1980 if not within three years from 26-6-1980. Since this suit is filed in 1987 far beyond the three years period fixed by Article 58 of Limitation Act it is hopelessly barred by time.
12. I am alive to the fact that limitation is not pleaded as defence. Courts cannot close their eyes to the law of limitation. In fact even at the time of registration of the plaint the Court has to see if the suit is within limitation and reject the plaint if it is barred by limitation and Section 3 of Limitation Act empowers the court dismissing the proceeding on the ground of limitation though it is not pleaded in defence. Therefore, I hold that the suit is not maintainable on the ground of limitation. The point is answered accordingly.
13. Therefore, the appeal is allowed and the suit O.S.No. 138 of 1987 is dismissed. Parties are directed to bear their own costs.