Chairman-Cum-Managing Director, ECL vs Baleswar Yadav & Ors

The instant Second Appeal has been filed assailing the judgment and decree dated May 12, 2011 passed by the learned Civil Judge (Senior Division), Asansol in Title Appeal No. 39 of 2009 affirming the judgment and decree dated April 30, 2009 passed by the learned Civil Judge (Junior Division), Second Court, Asansol in Title Suit No. 63 of 2008.

The plaintiff/respondent filed a suit for declaration that his actual date of birth is April 1, 1954 and the appellant should be restrained from terminating his services before April 1, 2014 on the ground of superannuation. It is not in dispute that the plaintiff/respondent was appointed on September 11, 1974. It is the specific case of the plaintiff that at the time of joining the service he submitted the School Leaving Certificate containing the date of birth but the authorities wrongly recorded the date of birth in the service record. Immediately upon such discrepancies having detected by the plaintiff/respondent an application was made before the appellant and it was communicated to him that the same would be corrected accordingly.

The plaint proceeds that despite an assurance being given that the date of birth would be corrected but the discrepancy remained and on being pointed out the authorities decided to have a medical examination of the plaintiff to ascertain the age. The plaintiff/respondent admitted to have undergone such medical examination but categorically averred that the report of such medical examination was not communicated to him until the year 2008 and immediately the said suit is filed for correction of the date of birth as well as the declaration that the report of the medical examination is bad and not binding on the plaintiff/respondent.

Though the defendant/appellant filed written-statement before the Trial Court but did not adduce any evidence to corroborate and prove the pleadings made therein. It is pleaded in the written-statement that the date of birth of the plaintiff/respondent has been correctly assessed and determined by the medical board in compliance with the provisions of National Coal Wage Agreement and the plaintiff/respondent accepted the same by making endorsement on the said document. It was thus stated that the moment the plaintiff/respondent accepted the report of the medical examination, the suit is not maintainable.

As indicated above, despite taking such plea in the written-statement, the appellant did not adduce any evidence nor tendered the relevant documents viz the report of the medical board and the other documents forming part of the service record and directed the suit to be decided on the basis of the evidence adduced by the plaintiff/respondent.

It appears that two documents were tendered for being received in evidence and were marked exhibits. Exhibit 1 relates to the service book and the exhibit 2 is a School Leaving Certificate of the plaintiff/respondent containing the date of birth. It does not appear from the findings recorded by both the Courts below that any objection was made at the time of marking the same as exhibit. Both the Courts below have held that the said School Leaving Certificate (Ext. 2) has been marked exhibit without any objection. The veracity and authenticity of the contents has also been accepted and, therefore, the appellant cannot detract therefrom. Both the Courts have also drawn adverse inference against the withholding of the vital piece of evidence viz the report of the medical board and the other documents kept in the service record. So far as the plea of limitation is concerned, the Court held that the cause of action arose on the date of the knowledge pertaining to the report of the medical board and the suit having instituted within three years therefrom, cannot be regarded as barred by limitation.

What can be seen from the stand of the respective parties that an objection to date of birth recorded in the service book was raised much earlier to the superannuation and it would not be wrong to say that such objection was, in fact, raised immediately after the appointment having made by the appellant. It is a long drawn dispute and the plaintiff/respondent was raising the same before the authority but the discrepancies remained in the service book. It is the specific stand of the plaintiff/ respondent that the School Leaving Certificate (Ext. 2) was furnished at the time of appointment and the discrepancy was also highlighted and/or brought to the notice of the authorities relating thereto. In the absence of any corroborative evidence both the Courts below relied upon the School Leaving Certificate as authenticated document relating the date of birth and such document being more than 30 years old, at the time of tendering in evidence, the presumption as to its genuiness was raised. It is a rule of evidence that the defendant should not only prove his case made out in the written-statement but also controvert the case made out by the plaintiff.

Having failed to do so, it impliedly accepted the version of plaintiff and, therefore, we do not find any infirmity and/or illegality in the judgments rendered by both the Courts below. Before we proceed to dismiss the appeal at the stage of Order XLI Rule 11 of the Code, we cannot ignore the application filed by the appellant under Order XLI Rule 27 of the Code seeking leave for additional evidence.

As indicated above, the appellant did not adduce any evidence. We do not find that the documents sought to be tendered by way of an additional evidence is necessary for the Court to deliver the judgment nor the same can be permitted in absence of evidence adduced in the Trial Court. The word 'additional' appearing in the aforesaid provision assumes significance and importance in this regard.

In view of the discussions made hereinabove, we do not find any substantial questions of law involved in the instant Second Appeal.

The appeal is thus dismissed.

The connected application being CAN 6051 of 2012 filed in the instant appeal is accordingly dismissed.

Urgent Photostat Certified copy of this order be given to the parties, if applied for, upon compliance of necessary formalities.