Rajasthan High Court - Jaipur
R.S.E.B.And Others vs Chhotu Ram on 29 November, 2011
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH O R D E R S.B.CIVIL SECOND APPEAL NO.276/1995 Rajasthan State Electricity Board and Ors. vs. Chhotu Ram DATE OF JUDGMENT ::::: 29.11.2011 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr. Virendra Lodha, Sr. Advocate assisted by Mr. Ankit Jain for the defendant-appellants. Mr. C.P. Sharma for plaintiff-respondent. By the Court:
Heard learned counsel for the parties.
This second appeal under Section 100 CPC has been filed by the defendant respondents against the judgment and decree dated 18th January, 1995 passed by the Additional District Judge No.6, Jaipur City, Jaipur in civil first appeal no.30/1993 whereby the judgment and decree dated 24th April, 1993 passed by the Munsif Magistrate, Jaipur City (West), Jaipur in civil suit no.114/1990, dismissing the suit of the plaintiff-respondent for permanent injunction to the effect that the defendants be restrained from retiring him before his attaining the age of 58 years from his correct date of birth 12th May, 1944 and allow him to continue in the service with all consequential benefits treating his date of birth as 12th May, 1994.
The relevant facts of the case in brief are that the plaintiff respondent filed the aforesaid civil suit for permanent injunction seeking injunction order against the order of superannuation on the basis of his date of birth as 5th February, 1932 and further sought correction in the date of birth as 12th May, 1944 with the further prayer that he should not be deprived of any consequential benefit on the basis of the said date of birth. The further averments in the plaint are that at the time of his initial recruitment on the post of Helper Gr.II, a check form was filled in mentioning his date of birth as 12th May, 1944 and the same date of birth has been mentioned in the seniority list issued for the first time on 26th November, 1975. However, in the subsequent seniority list his date of birth was mentioned as 5th February, 1932 which was without any basis. He came to know about this fact for the first time in the month of February, 1990. He then submitted a representation to defendant no.2 for correcting his date of birth as 12th May, 1944. However, vide letter dated 30.12.1989, defendant no.3 informed him that they are going to retire him w.e.f. 28th February, 1990 taking his date of birth as 5th February, 1932. Therefore, the aforesaid civil suit was filed by the plaintiff-respondent for permanent injunction seeking the aforesaid reliefs.
The appellant-respondents filed their written statement with the averments that in the service book and other documents, the date of birth of the plaintiff has been mentioned as 5th February, 1932, therefore, he is being retired on attaining the age of superannuation taking his date of birth as 5th February, 1932. It was also mentioned that the plaintiff was knowing that his date of birth is 5th February, 1932 but neither any objection was raised by him in this respect nor any steps were taken for getting the same corrected. It was further mentioned that only on the basis of the certificate of Medical Jurist, the same cannot be taken as 12th May, 1944. It was also disputed that the seniority list issued on 26th November, 1987 came to his knowledge in the month of February, 1990 and he also failed to raise any objection regarding the same. It was then mentioned that the plaintiff has been retired w.e.f. 28th February, 1990 on the basis of the date of birth mentioned in the service book. In the additional pleas, it was mentioned that the suit is only for permanent injunction and notice or the order of retirement have not been challenged hence, the suit for permanent injunction without getting the order illegal and void ab inito is liable to the dismissed. Thus, it was prayed that the suit be dismissed.
On the basis of the pleadings of the parties, the following issues were framed:-
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To prove his case, the plaintiff appeared himself as witness (PW1) and also got exhibited Ex.1 circular dated 26.11.1975, Ex.2 report of Medical Jurist and Ex.3 order dated 10th February,1992.
From the side of the defendants, Indra Singh was examined as DW.1 and documents Ex.A.1 Service Book and Ex.A.2 copy of the order dated 26.11.1988 were got exhibited.
The trial court after hearing both the parties and after consideration of the evidence of the parties vide judgment dated 24th April, 1993 decided issues no.1, 2, 4 and 5 in favour of defendant respondents whereas issue no.3 was decided in favour of the plaintiff and ultimately dismissed the suit of the plaintiff respondent.
Against the said judgment and decree of the trial court, the plaintiff-respondent filed regular civil appeal before the first appellate court.
During pendency of the first appeal, on 19th September, 1994 an application under Order 6 Rule 17 CPC was filed on behalf of the plaintiff respondent seeking addition in the prayer clause to the effect that it may be declared that the correct date of birth of the plaintiff is 12th May, 1944 and his retirement from service w.e.f. 28th February, 1990 is illegal and void abinitio. The appellate court vide order dated 21st November, 1994 allowed the application on cost of Rs.250/-.
The first appellate court vide its judgment and decree dated 18th January, 1995 reversed the findings of the trial court on issues no. 1,2,4 and 5, allowed the appeal declaring that the date of birth of the plaintiff respondent is 12th May, 1944, therefore, his retirement w.e.f. 28th February, 1990 is illegal and ineffective and the plaintiff is entitled to continue in service and to get all the consequential benefits taking his date of birth as 12th May, 1944.
Hence, this second appeal by the defendant appellants.
The co-ordinate Bench vide order dated 8th April, 1999 admitted the second appeal on the following substantial question of law:-
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Submission of the counsel for the defendant appellants is that service book is an authenticate document and the appellate court has committed an error in ignoring the entry regarding date of birth made in the same on account of the fact of non-production of the original check form and non-explanation about the date of birth mentioned in the seniority list Ex.1.
Submissions of the counsel for the plaintiff respondent are that it was the duty of the defendant appellants to produce the check form which was the initial document wherein the date of birth of the plaintiff-respondent was mentioned as 12th May, 1944 and further no explanation was given by them for repeating the same date of birth in the seniority list Ex.1. The other supporting document was the report of Medical Jurist wherein on 16th January, 1990 the age of the plaintiff was about 45 years which further finds support from the fact that the plaintiff was appointed in the year 1965 at that time the minimum and maximum age for entrance in service was 16 and 28 years respectively and in case the date of birth of the plaintiff is taken as 5th February,1932 then at the time of his initial appointment in the year 1965 his age would have been 33 years. The first appellate court has rightly drawn adverse inference against the defendant-appellants for not producing the check form and further not giving any explanation of mentioning the same date of birth of the plaintiff respondent as 12th May, 1944 which are the documents of initial entry in service and the same were the original documents to controvert the age of the plaintiff respondent which have been withheld by the defendant appellants.
I have gone through the record of the second appeal and further considered the submissions of counsel for the plaintiff appellant with reference to the judgments of both the courts below.
On consideration of the judgments of both the courts below and also the submissions of counsel for the parties, I am of the view that the appellate court has rightly drawn adverse inference against the defendants of not producing the check form and for not furnishing explanation regarding date of birth in the seniority list Ex.1 which are the documents of initial entry in service and are best piece of evidence to controvert the date of birth claimed by the plaintiff respondent and also the fact that the defendants appellants have also failed to explain as to on what basis the date of birth 5th February, 1932 instead of 12th May, 1944 has been mentioned. The present case is not seeking alteration in the date of birth by the plaintiff respondent himself but the same is alteration in the date of birth by the defendant appellants in the subsequent documents i.e. in the service book which is usually prepared on the basis of the first document in the entry of service i.e. check form and the same is repeated in Seniority List Ex.1 and no explanation was given by the defendant-appellants. Therefore, the present case is of the nature wherein the defendant appellants could not substantiate the fact that on what basis the entry of date of birth as 5th February, 1932 has been made whereas the plaintiff respondent has produced one more document in support of the date of birth i.e. the report of the Medical Jurist wherein in the year 1990, he has been shown 45 years of age. The appellate court has rightly considered the fact that in case 5th February, 1932 is taken as the date of birth of the plaintiff respondent, as per the upper age prescribed at that time, he would have been overage in the year 1965 in which year he was initially appointed in the service. The appellate court has rightly considered the fact that the basis of alteration in the date of birth was to be proved by the defendant-appellants but they have failed to do so.
In view of the above, my answer to the substantial question of law is as under:-
The entry in the service book regarding date of birth usually made on the basis of the initial document of entry in service i.e. the check form which has not been produced, therefore, the entry in the service book is a secondary evidence and on account of non-production of check form and and further not giving explanation about mentioning of date of birth as 12.5.1944 in seniority list Ex.1, the first appellate court has rightly drawn adverse inference and further non-production of the horoscope is not of much significance. Hence, the same is decided against the defendant-appellants. Consequently, the second appeal fails and is, hereby dismissed.
(PREM SHANKER ASOPA)J. Bairwa all corrections made in the judgment/order have been incorporated in the judgment/order being emailed Kailash Chandra Bairwa Sr.P.A