Allowed

Central Coalfields Ltd. And Ors. v. Brahmdeo Singh

Jharkhand HC19 Jul 2022SA/244/2003

Case brief

AI extract

What is this about?

In this appeal challenging a title appeal's judgment allowing a claim for corrected date of birth, the High Court held that the first appellate court erred by deciding an issue not pleaded and granting relief beyond the prayer in the plaint. It restored the trial court's decree dismissing the suit.

What did the court decide?

Impugned judgment of the first appellate court set aside; judgment and decree of the trial court restored.

Central Coalfields Ltd. And Ors. Vs Brahmdeo Singh — Property and Title | Jharkhand HC (2022)

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S.A.No.244 of 2003

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.244 of 2003

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------

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(Against the judgment dated 23.11.2002 {decree signed on 20.01.2003} passed by learned 3^rd Additional District Judge, Bermo at Tenughat, in Title Appeal No.29 of 2001/01 of 2002)

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Central Coalfields Limited, a Subsidiary Company of Coal India Limited, having its Head Office at Darbhanga House, Ranchi, P.O. Ranchi, P.S. and District Ranchi.

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General Manager, Dhori Area, Central Coalfields Limited, P.O. and P.S. Bermo, District Bokaro.

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Project Officer, Dhori Colliery, Central Coalfields Limited, P.O. and P.S. Bermo, District Bokaro.

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.... .... …. Defendants/Respondents/Appellants

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Versus

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Brahmdeo Singh son of Late Jagdish Singh, resident of Kargali, P.O. and P.S. Bermo, District Bokaro.

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.... .... …. Plaintiff/Appellant/Respondent ------ For the Appellants : Mr. Vijay Kant Dubey, Advocate For the Respondents : Ms. Rita Kumari, Advocate

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court :- Heard the parties.

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This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree of reversal dated 23.11.2002 passed by learned 3rd Additional District Judge, Bermo at Tenughat, in Title Appeal No.29 of 2001/01 of 2002 whereby and where under the learned first appellate court allowed the appeal and reversed the judgment and decree of the trial court by which the learned trial court dismissed the suit of the plaintiffs filed with a prayer for declaration of a change in his date of birth entered in his service records and the first

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appellate court ordered that the plaintiff be treated as being continuing on the basis of the entry as recorded in the statutory register and the plaintiff will also be getting consolidated full salary of the intervening period during which he was forced by the management not to work.

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The plaintiff filed Title Suit No.19 of 1999 with a prayer for declaring his date of birth to be 19.11.1951. The plaintiff was employed on 17.08.1972 as P.R. ( piece rated) worker Grade-7 with the appellantCompany. At the time of his employment, the plaintiff declared his aged to be 22 years. The same was entered into C.M.P.F. Register of the colliery but later on when the service book was prepared, in the same, the age of the plaintiff was mentioned as 35 years as on 17.08.1972. It is the further case of the plaintiff that the plaintiff all along protested his wrong mentioning of age but the appellant-Company did not pay any heed. Though wrong date of birth has been mentioned in his service book prepared in 1987 but the same was not corrected by the appellantCompany and suddenly the plaintiff was served with the superannuation notice on 24/29.05.1997 received by the plaintiff on 18.07.1997. Thereafter the plaintiff raised an industrial dispute with the Assistant Labour Commissioner (Central), Hazaribag which was sent to the Central Government but the Central Government vide letter dated 27.01.1999 refused to send the matter to the Labour Tribunal and the plaintiff was forcibly made to superannuate on the basis of wrong date of birth mentioned in his service book. Thereafter, the plaintiff filed the suit.

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The case of the defendant/appellant-Company on the other hand is that as per the service book the date of birth of the plaintiff is 17.08.1937. It is also the case of the defendant/appellant-Company that the entry in the service book was made on the basis of Form-B register which is a legal record. The defendant/appellant-Company further pleaded that the plaintiff has rightly been superannuated.

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The learned trial court, on the basis of rival pleadings framed the following six issues:-

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(i) Whether the suit as framed and filed is maintainable?

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(ii)Whether there is any cause of action for filing the suit?

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(iii)Whether the suit is barred by limitation?

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(iv)Whether the suit is barred by provisions of Specific Relief Act?

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(v)Whether the date of birth of the plaintiff is 19.11.1951 and the date of birth entered in the service book is wrong?

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(vi)To what relief or reliefs the plaintiff is entitled to?

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Learned trial court has observed in its judgment that the issue Nos.(i), (ii) and (iv) were not pressed. So far as issue No. (iii) is concerned, it has been stated that the said issue was not agitated by either of the parties. In respect of issue No. (v), the learned trial court by considering the evidence put forth by the rival parties both oral and documentary, considered the admission made by the plaintiff who was examined as P.W.5; as in his deposition he has stated that in the service sheet at the time of his employment, his age was mentioned as 35 years. The trial court also considered the Ext. 1- the family declaration Form D.H.O.- 16 wherein the plaintiff has made an entry that his date of birth is not mentioned perfectly and his date of birth is October, 1951. The Form-B register has been marked Ext.2 and in serial No.1750, the age of the plaintiff has been mentioned 23 years. The trial court also considered the oral testimony of the three witnesses examined as also the service sheets which were marked Ext. A. The trial court also considered the oral testimony of D.W.2 in paragraph-5 who has stated that the plaintiff/respondent has claimed his date of birth to be October, 1951. The defendant/appellant-Company asked the plaintiff to produce documents in respect of his contention that his date of birth is October, 1951 but the plaintiff did not file any document whatsoever. Hence, the claim of the plaintiff was rejected.

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Learned trial court considered that as per the Ext.2, the age of the plaintiff has been mentioned as 23 years on the date of his employment on 17.08.1972 so, his date of birth should have been 17.08.1949 and as stated by the witnesses examined in this case on behalf of the plaintiff that the plaintiff was aged 22 years. The date of birth of the plaintiff should have been 17.08.1950 but the plaintiff could not adduce any oral or documentary evidence to that effect that his date of birth is 19.11.1951. Hence, the learned trial court held that the plaintiff failed to establish that his date of birth is 19.11.1951 and answered the issue No. (v) in negative

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and dismissed the suit.

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Being aggrieved by the said judgment and decree passed by the trial court, the plaintiff filed Title Appeal No.29 of 2001/01 of 2002 in the court of learned 3rd Additional District Judge, Bermo at Tenughat which was ultimately heard and disposed of by the learned first appellate court. The learned first appellate court framed the following seven issues:-

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(i) Is the suit maintainable in its present form?

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(ii) Has the plaintiff cause of action for the suit?

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(iii) Is the suit barred by law of limitation?

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(iv) Whether the suit is hit by the provision of the specific relief Act?

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(v) Whether the suit is barred by principle of jurisdiction?

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(vi) Whether the date of birth of the plaintiff is 17.8.49?

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(vii) Too what other relief or reliefs the plaintiff is entitled to in law

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and equity?

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And made independent appreciation of the evidence in respect of the issues framed by it and by relying upon the judgment of a co-ordinate Bench of this Court passed in the case of Karu Nonia Vs. Bharat Coking Coal Ltd. reported in 2002 0 Supreme (Jhk) 280, 2002 1 JCR 418; 2002 1 JLJR 798 held that as it was observed in Karu Nonia Vs. Bharat Coking Coal Ltd. (supra) that the date of birth recorded in statutory Form B Register cannot be changed, if the same is not changed within ten years from the date of entry in the service book and the same cannot be changed without giving any notice and reasonable ground by the employer and went out to observe that as per the Ext. 2, the age of the plaintiff was declared as 23 years as on 17.08.1972 and set aside the judgment and decree of the trial court.

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At the time of admission of this second appeal, the following substantial question of law was formulated:-

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“Whether the lower Appellate Court has committed an error of law in deciding the appeal in cryptic and laconic manner without giving proper consideration to the evidences on record?”

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Mr. Vijay Kant Dubey- learned counsel for the appellants submits that the suit was filed simpliciter for declaration of the date of birth of the plaintiff to be 19.11.1951. As rightly observed by the learned trial court

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there is absolutely no evidence in the record either oral or documentary to suggest that the date of birth of the plaintiff was 19.11.1951. It is next submitted that it is a settled principle of law that if the plaintiff pleads and prays for specific declaration a different prayer cannot be granted by the court making a case out of its own beyond the pleadings of the plaintiff; so, since the prayer in the plaint was specific that the date of birth of the plaintiff to be declared as 19.11.1951, the first appellate court ought to have come to a conclusion by returning a finding that the date of birth of the plaintiff is not 19.11.1951 but having not done so, the act of the first appellate court of still setting aside the judgment and decree of the trial court granting a relief that the date of birth of the plaintiff was 17.8.49 which was never prayed for by the plaintiff and on that basis holding that that “the superannuation of the appellant/plaintiff is being to be continuing on the basis of the entry as recorded in statutory register and the appellant/plaintiff will also get full salary of the intervening period during which he was forced by the management not to work” (the birth is reproduced as appearing in the judgment of the first appellate court) is definitely an error in law and a conduct of laconic manner. Mr. Vijay Kant Dubey- learned counsel for the appellant relies upon the judgment of Hon’ble Supreme Court of India in the case of Karnataka Rural Infrastructure Development Limited Vs. T.P. Nataraja and Others reported in 2021 SCC OnLine SC 767 paragraphs-17, 20 and 22 of which read as under:-

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“ 17. Even otherwise and assuming that the reasoning given by the High Court for the sake of convenience is accepted in that case also even respondent No. 1 - employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service. At this stage, few decisions of this court on the issue of correction of the date of birth are required to be referred to.

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20. In the case of Life Insurance Corporation of India v. R. Basavaraju (Supra), it is observed as under:—

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“5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement”

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22. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:

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(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

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(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

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(iii) application can be rejected on the ground of delay and laches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.”

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and submits that as the plaintiff approached the Civil Court only after his superannuation about 25 years after his joining of service, certainly in view of the settled principle of law the relief of change of date of birth ought not have been given by the first appellate court. In this respect, learned counsel for the appellant also relies upon the judgment of Hon’ble Supreme Court of India in the case of Bharat Coking Coal Ltd. & Others Vs. Shyam Kishore Singh reported in (2020) 3 SCC 411 para-12 of which reads as under:-

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“12. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer, namely, the appellants herein in Bharat Coking Coal Ltd. v. Chhota Birsa Uranw [Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, (2014) 12 SCC 570 : (2014) 3 SCC (L&S) 725] wherein this Court with reference to the earlier decisions of this Court has upheld the order [Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, 2010 SCC OnLine Jhar 1228] of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement III was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, father's name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him.”

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Hence, it is submitted that the impugned judgment and decree passed by the first appellate court be set aside and the judgment and

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decree passed by the trial court be restored.

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Ms. Rita Kumari- learned counsel for the respondent on the other hand defended the impugned judgment of the first appellate court and submitted that in view of the settled principle of law which has been reiterated by the co-ordinate Bench of this Court in the case of Karu Nonia Vs. Bharat Coking Coal Ltd. (supra), the learned first appellate court has rightly held that the date of birth of the plaintiff was 17.8.49 and his superannuation ought to have been calculated on the basis of date of birth, as recorded in the Statutory Form-B Register which is marked Ext.2 during the trial. Hence, it is submitted that this appeal, being without any merit, be dismissed.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that it is a fundamental rule of Civil Procedure that:-

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(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court.

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(ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint as has been held by the Hon’ble Supreme Court of India in the case of Bachhaj Nahar Vs. Nilima Mandal & Another reported in (2008) 17 SCC 491 para-10 of which reads as under:-

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“10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:

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(iii) A factual issue cannot be raised or considered for the first time in a

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second appeal.”

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Now, coming to the facts of this case the plaintiff filed a suit of declaration simpliciter that his date of birth is 19.11.1951 so, the suit of the plaintiff ought to have ben decreed if and only if the plaintiff would have been able to establish that his date of birth is 19.11.1951 which was the issue No. (v) settled by the learned trial court. But the first appellate court erred by framing the issue No. (vi) which is as follows:-

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(vi) Whether the date of birth of the plaintiff is 17.8.49?

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when it is the specific pleading of the plaintiff that his date of birth is 19.11.1951 and it is the specific pleading of the respondent that the date of birth of the plaintiff is 17.08.1937 and neither the plaintiff nor the defendant pleaded that the date of part of the plaintiff is 17.8.49. Without any doubt, the first appellate court has committed a perversity by violating the fundamental rule of Civil Procedure. Further, the first appellate court failed to consider the settled principle of law that the claim for change of date of birth cannot be entertained at the fag end of retirement which in this case is after the retirement of the plaintiff from his service with the appellant-Company. The first appellate court also failed to properly appreciate the settled principle of law reiterated by the co-ordinate Bench of this Court in the case of Karu Nonia Vs. Bharat Coking Coal Ltd. (supra) is not applicable to the facts of the present case because in that case the respondent-Company admitted that the date of birth of the appellant employee recorded in statutory Form-B register was 15^th September, 1945 but the appellant-Company constituted a Medical Board in the year 1994 even though the employer in that case was appointed on 11.04.1973 and assessed the age of the employee of that case to be 48 years on 17^th April, 1984. But the facts of this case are different. Here, nowhere the date of birth of the plaintiff has been mentioned. Only his age has been mentioned and the plaintiff does not have any document whatsoever to the effect that his date of birth is 19.11.1951 rather he made representation to the appellant-Company stating that his date of birth was in October, 1951 but filed this suit stating that his date of birth is 19.11.1951, while calculating his date of birth on the basis of age of 23

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years as mentioned in the Ext. 2, the statutory Form-B Register, his date of birth comes out to 17.08.1949. The first appellate court also erred by failing to apply the settled principle of law as has been summarised in the case of Karnataka Rural Infrastructure Development Limited Vs. T.P. Nataraja and Others (supra) that application for change of date of birth can only be as per the relevant provisions/regulations applicable but the plaintiff has neither nor approved any provisions/regulation on the basis of which he claimed change of his date of birth without any authentic proof of his date of birth like matriculation certificate.

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Under such circumstances, this Court has no hesitation in holding that the first appellate court has committed an error of law in deciding the appeal without giving proper consideration to the evidence in the record in violation of the fundamental rule of Civil Procedure and the settled principle of law that at the fag end of retirement, a claim for change of date of birth cannot be entertained that too in absence of any provisions/regulation applicable to the plaintiff. The sole point for determination is answered accordingly.

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In view of the answer to the sole substantial question of law, this Court is of the considered view that the impugned judgment and decree passed by the first appellate court is not sustainable in law. Accordingly, the same is set aside and the judgment and decree of the trial court passed in Title Suit No.19 of 1999 dated 31.08.2001 is restored.

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