The Chief Manager, Personnel Department Central Bank of India vs Dhan Bahadur Thapa and Others

G.C. Garg, J.—Dhan Bahadur Thapa, an ex-serviceman was employed with the petitioner-bank as an Armed Guard. He joined regular service with the petitioner w.e.f. September, 1972 after he had been declared reserve by the Army Authorities. At the time of joining service of the petitioner-bank, the respondent gave his date of birth as November 15, 1932 which finds mention in the official record. On subsequent dates also, while applying for loan facilities for house building, bicycles, allotment of house and other benefits, he always gave his date of birth as November 15, 1932. After putting a number of years of service, the respondent submitted an application that his date of birth is July 1, 1935 and not November 15, 1932 and consequently prayed that his date of birth be changed in the official record of the bank. The request was declined by observing that he himself gave his date of birth as mentioned in the official record and the date recorded therein was given by him on subsequent occasions also. Aggrieved by the rejection of his request by the petitioner, the respondent filed a suit on November 10, 1990 in the Court of Sub Judge Chandigarh where he prayed for correction of his date of birth as July 1, 1935 instead of November 15, 1932 and asked for permanent injunction against his superannuation, and claimed ancillary reliefs. It may be mentioned at this stage that there is no dispute between the parties that the respondent-workman was to retire at the age of 60 years on superannuation and that he was a workman within the meaning of the Industrial Disputes Act (for short ''the Act'').

The petitioner joined issue, inter alia, on the question of civil court''s jurisdiction to entertain the suit on she ground that it has no jurisdiction. On the pleadings of the parties, an issue was framed to the effect, whether the jurisdiction of Civil Court is barred? OPD". The trial Court relying on Ishar Singh Vs. National Fertilizers and another, , concluded that the civil court had jurisdiction to entertain the suit. This is how the present revision petition has been filed by the petitioner-bank.

The challenge to the jurisdiction of civil court is on the basis of provisions of Section 2A of the Act, on the ground that the reliefs available in the present suit could be asked for under the Industrial Disputes Act. According to the petitioner, the respondent is a workman governed by the provisions of the Act. The bipartite settlement governs and controls all the employees of the petitioner Company including the respondent. There is no dispute about this fact and the one that bipartite settlement has force of law. This settlement provides the age of superannuation of Armed Guards at the age of 60 years. On these premises, it is submitted that by filing the present suit, the. respondent not only seeks declaration for correction of his date of birth but also as a consequential relief for remaining in service upto July 1, 1995. According to the petitioner-bank, a right to remain in service upto that date is not a common law right, it having been specifically conferred by bipartite settlement, a special law governing the conditions of service of the respondent. Learned counsel for the petitioner contended that superannuation in accordance with the bipartite settlement at the age of 60 years has been challenged by the respondent in the suit in the garb of declaration for changing his date of birth and grant of consequential benefits would squarely fall under the Act, and, therefore, the jurisdiction of the civil Court is barred. In support of his contention, learned counsel relied upon Jitendra Nath Biswas Vs. M/s. Empire of India and Ceylon Tea Co. and Another, and V.A. Damodaran v. E.I.D. Parry (India) Ltd., 3 1992 (I) L.L.J. 886.

In Jitendra Nath Biswas''s case (supra) there were certain charges of misconduct against the workman. During domestic enquiry, the workman was dismissed from service. According to the workman, the order of dismissal was contrary to the provisions of the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 and on these premises sought relief of declaration that dismissal was null and void and inoperative as he was not guilty of any misconduct and that no inquiry was conducted, therefore, dismissal was bad being not in terms of the Standing Orders. Relief for back wages and injunction not to give effect to the order of dismissal was also sought. On an objection raised by the employer as to the jurisdiction of the civil Court to try the suit, the trial Court came to the conclusion that civil Court had jurisdiction to try the suit. The High Court, however, reversed the order of the trial Court by observing that the relief claimed could only be granted under the Industrial Disputes Act and, therefore, the civil Court had no jurisdiction to try the suit. In the above premises, it was held as under :-

" It is therefore, clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit."

"It is therefore clear that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act."

It is in these circumstances, the apex Court dismissed the appeal of the workman.

In V.A. Damodaran''s case (supra), plaintiff filed a suit asserting that his date of birth was December 7, 1930 and that he was entitled to continue in service till December 7, 1988 and for a permanent injunction restraining the defendants from in any way interfering with his services. The suit was resisted on the ground that there was a final settlement arrived at between the parties and the said settlement was binding on the management and the workers of the Company, in view of the provisions of Section 12(3) of the Act. It was pleaded that as per the settlement, an elaborate procedure was detailed therein for settling the dispute about the age of the workman. The age of the plaintiff was published on October 2, 1961 to be January 1, 1919 and the plaintiff never gave any representation disputing his age within a period of 30 days and thus his age as also the record of the Company became final in terms of the settlement. It is in these circumstances, the objection as to the jurisdiction of civil Court to try the suit was raised. It was in this situation, concluded as under:-

" What has been claimed is the right which has accrued to the plaintiff under the Standing Orders and not a right which has accrued to the plaintiff under common law and as such, this case would not be covered by the principle No. 2 laid down by the Supreme Court in the decision referred to above. In other words, the right which the plaintiff is pressing before the Court is not a right under the common law. What the plaintiff has sought before the Trial Court in substance is that under the Standing Orders he has a right to continue till the age of 58 years and the letter Ext. A2, served on him by the defendant calling upon him to retire on December 31, 1977 is illegal. His right to continue in service till the expiry of 58 years of age is a right not under common law but a right under the special law. The obligation of the defendant not to oust the plaintiff before he completes 58 years of age is not an obligation under common law but it is the obligation under the Standing Orders. It is this right which the plaintiff is enforcing in the Civil Court contending that his right is a right under the Common law. This right, not being under the common law but being an exclusive right flowing from the Standing Orders, cannot be covered by the second principle laid down by the Supreme Court in the decision referred to above."

It was later on concluded that the civil Court cannot legitimately have jurisdiction to entertain and decide the suit in the present case because the relief claimed in the suit is in substance regarding the legality of the action taken by the defendant under Ex. A.2.

In a latter in Ishar Singh Vs. National Fertilizers and another, , the apex Court had an occasion to consider about the jurisdiction of the civil Court. In that case the workman had initially given his date of birth as July 1, 1930, later on changed to October 23, 1933. Sometime before the workman reached the age of superannuation, he approached civil Court by filing a suit on January 7, 1988 for correction of his date of birth and asked fur injunction against superannuation. He also claimed other ancillary reliefs. The employer joined issue, inter alia, on the question of civil court''s jurisdiction to maintain action of this type. The stand of the employer was upheld and this led to filing of an appeal before the Supreme Court by the workman. After referring to the scope of Section 9 of the Code of civil Procedure, it was held as under:-

" The main challenge to the Civil Court''s jurisdiction is by placing reliance on Section 2A of the Industrial Disputes Act. On a reference to that provision, we find that on the happening of certain eventualities, the reliefs available under that provision can be asked for. On 7.1.1988, none of the situations contemplated u/s 2A had happened so as to give the appellant a cause of action to approach the Industrial Court. It cannot be doubted that the maintainability of the suit has to be decided with reference to the date of institution of the proceeding and since on 7.1.1988 when the civil suit was filed none of the eventualities covered by Section 2A had appened, the appellant could not have approached the forum under the 1947 Act for relief."

In regard to the question, whether the civil Court had jurisdiction to grant injunction against superannuation or the other ancillary reliefs contemplated to a workman against his employer, it was observed that "if for a part of the reliefs the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out its doors to the suitor." It went on to say that "so far as the relief of rectification of the record, relating to date of birth is concerned, the civil Court has jurisdiction and the High Court was not right in saying that the suit was not maintainable at all."

As regards the ancillary reliefs, the apex Court observed as under:-

" It is unnecessary to go into the other aspect, namely, whether the residuary reliefs were available in the Civil Court inasmuch as the appellant has by now superannuated, even on the basis of the corrected record the only relief to which he is entitled is one of backwages. We do not think that is a relief which the Civil Court could have granted. On the basis of the rectification of the date of birth granted by the Civil Court, the appellant is entitled to work out his remedy in a different forum prescribed by law."

In V.A. Damodaran''s case (supra), complete procedure had been detailed in the settlement arrived at between the parties before the Conciliation Officer u/s 12 of the Industrial Disputes Act. In the present case, it was not brought out, whether there was any procedure contemplated by bipartite settlement to correct the date of birth of the employees of the petitioner-bank as was the case in V.A. Damodaran''s case (supra).

Again in Jitendra Nath Biswas''s case (supra), the challenge was to an Standing Orders. Such is not the situation in the present case. No action of the petitioner-bank is under challenge before the civil Court.

In the above premises, it can safely be concluded that the case in hand is squarely akin to the facts of Jitendra Nath Biswas''s case (supra). It may be noticed that in the present case, the workman has already superannuated on November 15, 1992 and is not in service at present. Thus, the only declaration, that civil Court at present can give is about correction of date of birth. As regards ancillary benefits, the workman will have to knock the door of the forum prescribed by law after the disposal of the suit in the event of his date of birth being ordered to be corrected. The relief of injunction that the workman continues to be in the service of the petitioner-bank has become redundant, he having already superannuated.

For the foregoing, reasons, the revision petition fails and is dismissed, leaving the parties to bear own costs.