Gh.Mohmmad Bhat vs J & K Industries Ltd and Others

Revision petitioner before this court filed the civil suit for declaration and injunction against respondents/defendants with prayer for declaration

that the date of birth recorded in the alleged service book of the petitioner, be acted upon and injunction to restrain the respondents from altering

his date of birth

for purpose of Els retirement on superannuation under the respondents, from Industries Department of the State. In the suit petitioner also moved

an application for adinterim injunction before the trial court of judge small causes Srinagar. The trail court passed the order directing the defendants

to ""Strictly act upon the entry made in the service book regarding his date of birth as for as the superannuation of the plaintiff is concerned till final

disposal of the suit."" Against this order dated: 4.7.95 of Judge small Causes Srinagar, District Judge Srinagar after examining the matter and on

hearing the parties, has set aside this restraint order on 19.4.96. Against this order the present revision is filed,

For our present purposes, reference in brief to following facts is necessary.

Plaintiff has averred in plaint that he is an illiterate person and at the time of entry in service he has declared his date of birth as 1.07.1950 in

presence of two or three persons as accepted and attested by Manager Plyboard Industries Ltd. Srinagar. Copy of service book has not been

provided to him As he suspects that the respondents may prepare a fraudulent service book with modified date of birth, therefore, the suit.

The defendants, who have filled the written statement in the suit, are resisting the suit on the ground that the plaintiff was initially inducted in

service on 15.02.1965, as labourer in Brick and Tile Factory at Pampore. At the time of entry in service and in his declaration in Employees

Provident Fund Form Non, plaintiff has declared his date of birth as 1.7.1938'. This has been done pursuant to and as required by the state

Service Regulations and Standing orders of J and K Industries. Plaintiff has consciously chosen not to mention anything of the sort in the plaint. The

petitioner has been given three years extension earlier on his attaining age of 55years, accepted without any murmur. After availing this benefit the

petitioner has turned around to claim further benefit of 13 years extension in age. In the services record of the plaintiff clearly and unambiguously

his date of birth is recorded as July 1,1938. This entry regarding his age is recorded since 1965, the time of plaintiff's initial entry in service. The

service book is not prepared, as only his service. The service record is maintained, as required by rules applicable to plaintiff, an employee of

Industries. The extension is claimed after over three decades at the fag end of service in order to get benefit of claim advanced on sought extended

superannuation age.

The counsel for the petitioner submits that the order of District Judge in appeal challenged in this revision, suffers from impropriety and illegality,

as it is based on improper exercise of jurisdiction vested in court below. The plaintiff has set up the case of declaration and injunction and not a

case of alteration or modification of age record in the service book. The recorded age in the service book cannot be modified without notice and

the order of the trial judge small causes court issuing directions to the employer to act on recorded entries in service book for purpose of

superannuation is just and proper. The documents produced by the respondents in the case are not reliable and cannot be acted upon. He further

submits that the respondents had even appointed the Committee to examine his case and service record, this Committee/has finalised its minutes

and recommended that the date of birth of petitioner may be determined by reference of his case to the Medical Board. The counsel submits that

supplementary affidavit to that effect has been placed on record.

Counsel for respondents submits that the appellate court has passed impugned order within jurisdiction. The appellate court on examination of

the factual matrix and legal aspects of the case has come to the definite conclusion that the exercise of discretion by the trial court in issuing

directions in question to the employer, has been misplaced and not in accord with the settled law as applicable to the facts and circumstances of

the case. The District Judge has exercised the discretion and passed the impugned order properly, legally and within jurisdiction. The counsel

further contends that the service book of the petitioner has not been prepared or attested by the respondentemployer. The service record available

with the department fully establishes that the petitioner has declared his date birth as 1.07.1938 at the initial entry in service in 1965, as even

documented by plaintiff's declaration on the prescribed form for purpose of employees provident fund scheme. The District Judge has examined

the matter thoroughly and has come to the conclusion that the whole exercise of petitioner is to get benefit by seeking extension in his

superannuation age atleast by 13 years and that too at the fag of his service.

The learned District and Sessions Judge, Srinagar has in his order referred to all salient features, circumstances and facts of the case. He has

considered the contentions of the parties, in the light of the pleadings, applications and objections, for interim relief. The documents placed along

for consideration of matter by the trial court have been also considered with contentious issues by the Appellate Court. The District Judge has

applied the legal principle to this case. The case has been examined and considered in light of the rule position as also case law (AIR 1995

S.C.1499). Though photostat leaves of the service book have been placed on record but the very existence of this alleged service book is

disputed by the employer. It is also denied that the respondent No.4, as alleged has signed and certified plaintiff's dater of birth as 1.7.1950.

Therefore, the correctness of the entry and its genuineness has to be proved on evidence on trial. Similarly, the parties are also disputing the date of

birth as given in the declaration filed for purpose of employees provident Fund Scheme at the relevant time and intact two different photocopies or

forms have been produced. The correctness of the entries as to age in either of these two forms, is also disputed. This aspect is also to be gone

and determined on trial. The petitioner has been working with respondents since 1965 for over last three decades. He did not dispute his date of

birth entered as 1.07.1938 in respondent's records for long three decades and came forward only when he was to retire shortly and that too on his

own on the basis of the aforementioned alleged mines.

The learned District Judge has considered the case even from the angle that incase petitioner's claim that in case petitioners claim that has

entered age is 171950 is taken so then he would not be entitled, as per service rules applicable to plaintiff, to enter service in 1965, as he would

have been by then underage. On the otherhand if age was to be counted on the basis of July 1938 entry, then he was entitled to enter in service. In

this context he has referred to the law and obviously for purpose of interim injunction prima facie discounted that petitioner's age should have been

1.07.1950 at the time of initial entry. In Burn Standard Co. Ltd. and Others. Vs. Dinabandhu Majumdar and another case (AIR 1995 S.C.1499),

the Apex Court has observed:

..Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the

angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every

establishment has its own set of service conditions governed by rules, it is equally known that practically every establishment prescribes a minimum

age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the

employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of

time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date

opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line

resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must

be remembered that such student and belated change may upset the legitimate expectation of others who may have joined service hoping that on

the retirement of the senior on the due date there would be an upward movement in the hierarchy. In any case is in such cases interim injunction for

continuance in service should not be granted as it visits the juniothers with irreparable injury, in that, they would be denied promotions, a damage

which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continence in service is

granted and ultimately his claim for correction of birth date is found , to be acceptable, the damage can be repaired by granting him all those

monetary benefits which he would have received had he continued in service...

Obviously, even if no interim relief for continuance in service is granted to petitioner and ultimately on trail he succeed in his claim that his correct

date of birth is 1.07.1950, he can recover all the monetary benefits which he should receive, had he been in continuous service.

The appellate Court while exercising the powers in this case, has come to the conclusion that trial court while exercising its discretion in

adinterim injunction matter, has acted unreasonably and ignored the relevant facts, The exercise of discretion by the trial court has been found not

in the spirit of the statute and in accord with the rules of reason and justice. Even if District Judge has placed erroneous construction on the

documents placed on record, the same would not amount to exercise of jurisdiction with any error or illegality or material irregularity, the impugned

order has been passed by the District Judge in exercise of its discretion within the parameters of law. In such situation the High Court will not

ordinarily he justified to interfere with it in revision. (Reference can he made with benefit to AIR 1976 J and K 76 FB,AIR 1977 S.C.577 and AIR

1960 Madras 1220 FB).

The impugned order has not occasioned substential failure of justice. Petitioner as observed above can recover the whole monetary benefits to

which he is deemed entitled on ultimate decision of the case as if he had been in continuance service till the relevant date. The injury if any to

petitioner!, can be atoned in money terms. Similarly the District Judge has come to the conclusion that the petitioner has not made out primafacie

case for interim injunction on detailed discussion on examination of the material and essential features of the case in the totality of facts

circumstances appearing on record. All these prominent aspects and salient features in the factsituation and circumstances of the case when

considered by the revisional court, it is found that no failure of justice has occasioned in this case. The impugned order sought to be revised does

not suffer from any jurisdictional error not has it occasioned in failure of justice while passing the order in question no irregularity much material

irregularity is seen Committed. In the result, revision petition is dismissed. Inform the court below of this decision, send record back.