P. Natesan vs Tamil Nadu Electricity Board

Somasundaram, J.—The plaintiff in O.S. No. 301 of 1982 on the file of the District Munsif of Mettur is the appellant in the second appeal.

The defendant in the said suit is the respondent in the second appeal. For the sake of convenience the parties arereferred to in this judgment by

their nomenclature given in the suit.

The plaintiff filed the suit, O.S. No. 301 of 1982 on the file of the District Munsif of Mettur for a declaration that the memo dated 7.3.1981

issued by the defendant retiring the plaintiff from service with effect from 30.6.1982 is void and not binding on him and for a permanent injunction

restraining the defendant from retiring the plaintiff from service on 30.6.1982. The case of the plaintiff is as follows:

The plaintiff joined the Electricity Board as a casual labour at Karur in 1960. Subsequently he joined the office of the defendant at Sentharapatti in

1965. He was permanently appointed as a helper in the defendant-Board on 1.1.1973. The plaintiff was asked to appear before the District

Medical Officer, Salem by the defendant in the year 1977 and obtain a medical certificate regarding the age of the plaintiff. The District Medical

Officer, Salem gave a certificate on 1.2.1977 stating that the plaintiff was aged 53 years on the date of issue of that certificate, and thereby fixing

the date of birth of the plaintiff as 1.2.1924. The certificate issued by the District Medical Officer regarding his age is not binding on the date of

issue of that certificate, and thereby fixing the date of birth of the plaintiff as 1.2.1924. The certificate issued by the District Medical Officer

regarding his age is not binding on the plaintiff. Subsequently the plaintiff obtained a certificate showing the correct date of birth and the said

certificate was issued by the Registering Authority. As per the certificate issued by the Registering Authority, the correct date of birth of the plaintiff

is 7.9.1932. The plaintiff applied to the Chairman of the defendant-Board to enter the correct date of birth of the plaintiff as 7.9.1932 in his service

register. But, the plaintiff received the memo dated 7.3.1981 informing him that his date of birth is 1.7.1924. As the defendant failed to conduct an

enquiry before entering his date of birth as 1.7.1924 in the service register, the date of birth shown in the Birth Register extract produced by him

before the defendant has to be accepted. The Birth Register extract produced by the plaintiff before the defendant shows that he was born on

7.9.1932 and, therefore, he is entitled to be in service till 30.9.1990. The memo dated 7.3.1981 retiring the plaintiff from service with effect from

30.6.1982 is illegal.

The defendant resisted the suit contending that the plaintiff was permanently employed on 1.1.1973 as a helper in the defendant-Board. The

plaintiff did not produce any record to prove his date of birth. Therefore, he was directed to appear before the District Medical Officer and obtain

a certificate from the District Medical Officer regarding the age and date of birth of the plaintiff. The plaintiff was examined by the District Medical

Officer, Salem on 1.2.1977 and he issued a certificate to the effect that the plaintiff was aged 53 years on 1.2.1977. Further the plaintiff has also

signed the declaration form on 5.2.1977 stating that he was aged 53 years on the date of signing the declaration form. The plaintiff''s petition for

altering the date of birth was rejected by the defendant because, the plaintiff failed to ask for the alternation of his date of birth within five years

from the date of joining the service.

The trial court held that the date of birth of the plaintiff was not fixed by the defendant after conducting an enquiry and, therefore, the date of

birth given in the Birth Register extract subsequently produced by the plaintiff and which was marked as Ex. A-1 in this case must be accepted as

the correct date of birth of the plaintiff. Consequently the trial court decreed the suit as prayed for by the plaintiff.

As against the judgment of the trial court the defendant filed the appeal A.S. No. 11 of 1985 before the Sub-Court, Sankari. The appellate

court accepted the case of the defendant, allowed the appeal and dismissed the suit O.S. No. 301 of 1982. Aggrieved by the judgment and

decree of the lower appellate court the plaintiff has filed this second appeal.

The learned Counsel for the plaintiff contended that the certificate issued by the District Medical Officer, Salem, which was marked as Ex.P-4 in

the suit, cannot be relied on for any purpose, because, the District Medical Officer was not examined in the suit to prove the certificate, Ex.B-4

and that the Birth Register extract produced by the plaintiff and which was marked as Ex.A-1 in the suit should be taken as a conclusive proof of

the fact that the correct date of birth of the plaintiff is only 7.9.1932. In support of his contention the learned Counsel for the plaintiff relied on the

decisions reported in Ramalinga Reddi v. R. Kotayya ILR 41 Mad. 26 Rangappa Nayakar Vs. Rangaswami Nayakar and Others, and Bagiammal

v. Kamalammal 77 L.W. 679.

The learned Counsel for the plaintiff further contended that even though the plaintiff has given an undertaking under Ex. B-3 to the effect that he

was aged 53 years on 5.2.1977, it is open to the plaintiff to seek the alteration of his date of birth by producing proof of his correct date of birth

within five years from 5.2.1977 when his service register was opened by the defendant, in view of Standing Order 36(1)(iii) of the Tamil Nadu

Electricity Board''s Standing Orders in respect of a workman other than those engaged in clerical work. There is no force in the contention of the

learned Counsel for the plaintiff. The evidence in this case shows that the plaintiff joined the service of the defendant-Board in the year 1966 as a

casual labourer and that he was working as a casual labourer from 1.7.1966 to 31.12.1972. The plaintiff became a permanent employee of the

defendant-Board with effect from 1.1.1973 as a helper. At the time when the plaintiff joined the service or when he was made permanent on

1.1.1973 he has not produced any document to prove his date of Birth. Therefore, the plaintiff was asked by the defendant to appear before the

District Medical Officer, Salem and obtain a certificate regarding his age, Ex.B-4 is the certificate issued by the District Medical Officer, Salem. In

Ex.B-4, the District Medical Officer noted the identification marks of the plaintiff and then opined that the plaintiff by physical appearance appears

to be aged 53 years as on 1.2.1977. On 5.2.1977 the plaintiff gave an undertaking regarding his age as per Standing Order 36(2) stating that his

date of birth was not entered in any Birth Register, and that he was aged 53 years on the date of giving the undertaking. In Ex.B-3 the plaintiff gave

a further undertaking that the age given by him in the declaration is his correct age and that he will not ask for the alteration of his date of birth at

any time. As the plaintiff has accepted his age as 53 years as on 5.2.1977 in Ex.B-3, his date of birth must be taken as only 7.1.1924. In Ex.B-4,

the District Medical Officer, Salem has also opined, on a physical examination of the plaintiff, that the plaintiff was aged 53 years as on 1.2.1977.

Though the plaintiff denied Ex.B-3 undertaking he accepted his signature in Ex.B-3 and his signature in Ex.B-3 is marked as Ex.B-1. Ex.B-3

undertaking is in Tamil and, therefore, the case of the plaintiff that he signed Ex.B-3 without knowing the contents of Ex.B-3 cannot be accepted.

In view of the undertaking given by the plaintiff under Ex.B-3 that he was aged 53 years as on 5.2.1977 and that he will not ask for the alteration

of his date of birth at any time subsequently, it is not open to the plaintiff to claim in the suit that his age and his date of birth are different from the

one mentioned in Exs.B-3 and B-4. In the above position, it is not necessary to go into the question regarding the genuineness, admissibility or

proof of the Birth Register extract, Ex.A-1. Neither Standing Order 36(1)(iii) nor Regulation No. 110(b)(iv) of the Tamil Nadu Electricity Board

Service Regulations, is helpful to the plaintiff, because, the plaintiff has not admittedly applied for the alteration of the date of birth within five years

from the date of his entry into the defendant Board''s service. In these circumstances the contention of the learned Counsel for the plaintiff, that

notwithstanding the undertaking given by the plaintiff under Ex.B-3 that he was aged 53 years as on 5.2.1977, still, it is open to the plaintiff to seek

alteration of his date of birth by producing the Birth Register extract, Ex.A-1, cannot be countenanced. The lower appellate court rightly held that

the plaintiff is not entitled to pray for alteration of date of birth after accepting the date of birth mentioned in the service register and after signing the

service register annually thereafter. The lower appellate court has given valid reasons for refusing to grant the relief prayed for by the plaintiff in the

suit. There is no infirmity in the judgment of the lower appellate court. There are no merits in the second appeal and the same is liable to be

dismissed. Accordingly, it is dismissed, but, in the circumstances of the case, there is no order as to costs.