Jammu & Kashmir High Court
J And K Minerals Ltd. vs Saif-Ud-Din Hakak on 29 May, 2003
Equivalent citations: 2004(1)JKJ266
JUDGMENT Y.P. Nargotra, J.
1. The Respondent/plaintiff was initially engaged as Mali on Daily wage basis in 1979. His services were regularized by the petitioner defendant-corporation vide order No. WCF (Estt) 83-1054-62 dated 12.5.1983. The plaintiff in proof of his age presented a certificate of chowkidar showing his age at 34 years. The defendant did not accept the same and referred the plaintiff to State Medical Board for determination of his age. The Board vide its letter dated 31.10.1989 opined that age of the plaintiff approximately could be 42 years and accordingly the said age was entered in his service Book. As per the said recorded age, the plaintiff was to retire on 31.10.2005.
2. The defendant Corporation, however, came to know somewhere in 1998 that the plaintiff had studied in Government High School Khrew upto 4th standard which fact stood suppressed by him so the defendant wrote and obtained Date of Birth certificate from the said school which certified the date of birth of the plaintiff to be 21.12.1937. On the basis of the said date, the plaintiffs retirement was to take place w.e.f. 1.1.1996 so saying that the plaintiff had overstayed the defendant by its order No. Estt. PF/2004-6760-66 dated 1.8.2001 terminated the services of the plaintiff with immediate effect.
3. The plaintiff challenged the termination order in a Civil Suit before the Trial Court and along with suit moved an application for ad-interim injunction. Learned Trial Court being of the view that plaintiff has a strong prima facie case commanded the defendant to allow the plaintiff to join and continue in service and not to treat his services as terminated.
4. The order dated 26.7.2002 of the Trial Court was challenged in appeal before the District Judge, Srinagar. Learned District Judge dismissed the appeal primarily on the following reasoning;
"It is now the settled law as has been laid down in various authorities of the Hon'ble Supreme Court and the High Court of Jammu and Kashmir that the recorded date of birth should not be altered or changed except in accordance with the procedure of law. Once date of birth is recorded in the service record of any employee and the same is accepted by the department under which the said employee works, it is to be taken as correct except for clerical mistakes. If any material becomes available to any of the parties, i.e., the employer or the employee which necessitates the correction of the date of birth, the same should be done after following the procedure provided by the rules. Where the employer accepts the date of birth of an employee, it has to give a show cause notice and provide sufficient opportunity to the employee in case he decides to alter the same on the basis of new material coming to its notice. When an employee is appointed substantively on a permanent establishment, all services rules require that his service record should be maintained containing history of his service including minute details of his service carrier. The date of birth of such employee should also be recorded in his service record after verification. The date of birth so recorded by the appropriate authority shall not be subject to any alteration, exception the case of a clerical error without the orders of the competent authority. Even the rules applicable to the State Government employees, which also provide guidance even to State owned Corporations provide, under Article 35 Civil Service Regulations that no alteration of date of birth of a government servant shall be made by the Government (Administrative Department) unless a request in this regard is made by the concerned Government servant within a period of five years of his/her entry into Government service and it is clearly established that a genuine/bonafide mistake has occurred. The Government has, however, reserved the right to make a correction in the recorded age of government servant at any time, against the interests of the government employee when it is satisfied that the age recorded in his/her service record is incorrect, but this right can be exercised by the Government only after following the procedure in accordance with the service rules and the rules of natural justice for the reason that once date of birth of an employee has been recorded in his service record he gets a right to continue in service till the age of retirement."
5. Aggrieved by the order of appellate Court the defendant has approached this court in revision. The challenge to the impugned order is two fold; one, that the plaintiff is a worker and defendant is an industry as such dispute is covered by the Industrial Disputes Act and therefore, the Civil Courts have no jurisdiction; two, that the injury likely to be caused to the plaintiff by granting injunction can be adequately compensated monetarily when balance of convenience is also not in favour of the plaintiff.
6. Learned counsel for the petitioner submitted that the Civil Court inherently lacked jurisdiction for adjudication of the dispute in a Civil Suit as the dispute of termination of service was between a workman the plaintiff being a Mali and defendant Corporation which, is an industry. Dispute raised is covered by the provisions of Industrial Disputes Act. Industrial Disputes Act excludes the jurisdiction of Civil Court and therefore, Civil Court i.e. Trial Court possessed no jurisdiction to entertain and try the suit of the plaintiff and as such possessed no jurisdiction to grant the injunction also. The Objection to the jurisdiction was duly raised by the petitioner before the Trial Court and appellate Court but both the Courts have not determined the same. The impugned order of the appellate Court and that of Trial Court as therefore, illegal. Mr. Lone, learned counsel for the petitioner relies on the case reported in A.I.R. 2002 S.C. 997, wherein Supreme Court has held:-
"The workmen of Ahmedabad Municipal Corporation challenged the orders of dismissal/removal from service, by filling a Civil Suit. Relief sought was whether the orders of termination of services were null and void having been passed by an authority who had no competence to pass the same.
Held, having regard to the relief sought for in the suits filed in the Civil Court, jurisdiction of the Civil Court is impliedly barred and the appropriate forum for resolution of such dispute is the forum consulted under the Industrial Disputes Act."
7. Mr. Shah, learned counsel for the respondent/plaintiff has argued that the question whether plaintiff is a workman and defendant an industry to be covered by the provisions of Industrial Disputes Act is a mixed question of fact and law. The necessary facts required proof by evidence which can only be done in the trial of the suit after framing an issue in this behalf and simply because objection is raised in opposition to the granting of interim injunction, the jurisdiction of a Civil Court is not affected when otherwise the suit is within the jurisdiction of the Court. According to him if such question was to be tried before deciding the question of granting of injunction then the time consumed in determination thereof may render an otherwise emergent relief in fructuous and meaningless. He submitted that learned appellate court therefore was justified in leaving the determination of the said question to the trial of the main suit.
8. I have considered the respective contentions of the parties and passed the record.
9. Learned Trial Court has not addressed to the question of jurisdiction at all and learned appellate Court has said as follows:--
"Maintaining the conclusion of the trial court on the ad interim relief this appeal stands dismissed. Before concluding, however, I may point out that an important issue has been raised by the learned counsel for the defendants relating to the jurisdiction of the Civil Court to adjudicate upon the rights of the parties in the present case in view of the provisions of Industrial Disputes Act. The defendants have taken a plea that since the dispute pertains to Industrial Disputes Act, the Civil Court has got no jurisdiction to entertain such type of cases. The issue raised being of very important nature, I would advise the learned trial Court to frame proper issue and treat it as a preliminary issue and decide it first as on the decision on this issue rests the fate of this case. It would be just and proper if the trial court does so on the next date of hearing and return its finding immediately thereafter."
10. The interim injunctions are granted under Order 39 and Section 151 C.P. in appropriate cases for protecting the rights of the parties for the period of trial of a suit which is time consuming exercise. The plaintiff can not be left to wait for settlement of his legal rights till disposal of his suit because it may lead to the causing of irreparable loss and injury. Legal Principles for granting interim injunctions have been evolved by case law. These may be stated as thus: the party claiming injunction has to satisfy the courts that he has a strong prima facie case meaning thereby that, if the, averments made in the plaint are taken at their face value, his suits merits a decree. The term 'prima facie' case would also include within its ambit the fact that his suit is legally maintainable, which would mean that the plaintiff must also show that there is no ex-facie express or by necessary implication statutory bar in law to the maintainability of the suit. Such party is also to show to the court that balance of convenience is in his favour. The balance of convenience would be in his favour if irreparable loss and injury is likely to be caused by not granting the injunction and no such loss or injury is likely to be caused to the party against which the injunction is to be granted. Granting of injunction would also depend upon the consideration of the question whether harm caused by refusal of injunction is such which can be adequately compensated monetarily and if answer comes in affirmative, then the injunction should not be granted.
11. With the above principles in mind, let us examine the contentions raised. But for alleged status position of the parties the suit of the plaintiff is maintainable under Section 9 of C.P.C. The alleged status position of the parties is a question of fact and law and requires proof. Therefore, it cannot be said at the stage of considering the granting of interim injunction that there is any ex facie express or by necessary implication statutory bar to the maintainability of the suit. Therefore, simply on the defendants' plea the trial Court's jurisdiction to issue injunction would not be ousted.
12. Learned counsel for the petitioner next contended that balance of convenience was not in favour of the petitioner as he has prima facie no right to continue in service in view of the authentic proof of his date of birth.
13. Undisputedly the certificate of school is yet to be proved. It is also yet a matter of proof that date of Birth mentioned that the school certificate is that of the plaintiff and against that is the recorded date of birth in the service book based upon the opinion of the Medical Board examination by which was directed by the defendant itself and the same has remained unchallenged by the defendant for a period of about 10 years. Which of the two would prima-facie be more reliable? In my view prima facie the service book entry relied by the plaintiff is more reliable than the school certificate entry and especially when plaintiff has not been confronted with the school certificate entry for seeking his explanation. The plaintiff, therefore, appears to have a strong prima facie case.
14. Learned counsel for the petitioner further argued that firstly balance of convenience was not in favour of the plaintiff and secondly if injunction would not have been granted and ultimately he would have succeeded in his suit he could be given all the monetary benefits. Therefore, no such loss was likely to be incurred by the plaintiff in the event of refusal of interim injunction which could not be compensated in terms of money. In support, he relied on A.I.R. 1988 Cal. 257.
15. This authority in my view has no application to the present case because plaintiff in present case has not challenged the superannuation order on the strength of a different date of birth than the recorded one. Here the plaintiff is seeking to rely on recorded date of birth whereas employer has ousted him on a different date of birth which is yet to be established to be a correct one. The other authorities reported in 2002 SLJ 285, 2000 SLJ 101 and 2001 KLJ 323 are distinguishable and as such also do not apply directly.
16. Now let us advert to the question whether loss likely to be caused in the event of refusal to grant injunction would be such which can be compensated monetarily. In my view the loss which the plaintiff is likely to suffer cannot be adequately compensated in terms of monetary compensation because the nature of the post held by the plaintiff is such which is not a source of income alone. It carries with it a source of livelihood for the plaintiff. In view of the financial resources which a person like plaintiff can be expected to have withholding of the salary even for a period of few months can lead him to starvation and in such a situation the promise of getting his arrears in lump sum can not ultimately be an answer to his agony which he is likely to face. Law ordains that an employee unless removed under law shall be allowed to work on the post till he attains the fixed age of superannuation. The age for superannuation as per the Service Book entry of the plaintiff is yet to reach but one sidedly the employer has decided to retire him by assuming his date of birth different than the recorded one without issuance of any show cause notice to him.
17. The case of a person who on the basis of date of birth other than the date of birth recorded in the service Book seeks the continuation in service stands on a weaker wicket than the person who seeks continuation of his service on the basis of an entry recorded in service book and accepted by an employer for along time and changed without observing the basic rules of natural justice. In the former case, promise of all monetary benefits in the event of ultimate success in the litigation may be a good answer but in the later case, it can not hold so good because he would lose something else also which cannot be compensated in terms of money.
18. Therefore, in the peculiar circumstances of this case, I find no reason to interface with the concurrent findings of the Court below. The Revision petition is therefore, dismissed.