The Regional Manager, Punjab National Bank vs D..P. Venkataraman and Others

Abdul Hadi, J.—The seventh defendant bank in O.S. No. 1510 of 1984 on the file of VII Judge, City Civil Court, Madras has filed this

second appeal against the reversing judgment in A.S. No. 62 of 1993 on the file of VI Additional Judge, City Civil Court, Madras, whereby the

suit, of the first respondent/plaintiff who is an employee of the appellant/7th defendant, for a declaration that his date of birth is 30.1.1937 was

decreed as prayed for. The first defendant is the mother of the plaintiff. The second defendant is the Director of Public Instruction. The third

defendant is the State of Tamil Nadu. The fourth defendant is the Director of School Education. The fifth defendant is the Director of Collegiate

Education. The sixth defendant is the Registrar, University of Madras and the seventh defendant is the Regional Manager, Punjab National Bank,

Madras. All the defendants excepting the seventh defendant are respondents in the second appeal.

Even at the outset, it must be noted that the appellant was ex parte throughout both in the trial court and in the lower appellate court in the first

appeal filed by the plaintiff.

The plaintiff, for the claim made by him relied on Ex. A-1, photostat copy of his horoscope and Ex. A-2 dated 14.6.1980, birth certificate is

granted by the Kumbakonam Municipality. No doubt on the side of the plaintiff, he alone was examined as witness and not even his mother went

into the witness box. It must be noted that Ex. A. 1 and Ex. A. 2 were filed along with the plaint and if really the appellant wanted to show that

those documents should not be relied in for any reason, he should have filed a written statement to that effect. As already mentioned the appellant

remained ex parte and so there was no written statement by him. According to the plaintiff, his father died in 1949 and at that time, the plaintiff was

a minor and his mother, the first defendant who is not an educated lady, did not take any steps to have the date of birth rectified and further the

wrong date of birth given by mistake in the school of the plaintiff was causing hardship to him in his service in the bank and by its letter dated

24.12.1983 the appellant refused to change the date of birth in the service records and therefore he is seeking the above declaration in the suit.

In the above background, the first submission of the learned Counsel for the appellant is that if the date of birth is recorded, in the service

register of the plaintiff, as given by the plaintiff, the claim to alter it, is altering the contract of the employment and hence such alteration of the

contract of employment is not maintainable. But I am unable to accept this contention, because neither there is a plea nor an evidence regarding the

above referred to contract of employment, since, as already stated the appellant neither filed any written statement nor let in evidence.

The second submission of the learned Counsel for the appellant is that having given a declaration in the service register of the bank, the plaintiff

cannot seek to reopen it for making an alteration therein. In this connection, he relied on Burn Standard Co. Ltd. and Others Vs. Dinabandhu

Majumdar and Another, . But that decision will have no application to the present case. There, the employee sought a writ directing his employer,

not to retire him on superannuation according to the date of birth declared and accepted at the time of his appointment, and to correct his date of

birth in the records in accordance with newly found material. In that context, the Supreme Court held that the writ court cannot exercise its writ

jurisdiction in favour of such an employee as a matter of course. The reasoning is obvious in that the writ court cannot go into the factual aspect

regarding the true date of birth, But if the employee concerned seeks relief in a regular civil court in a suit and establishes, on evidence recorded,

his true date of birth, then the civil court can very well give a declaration regarding his true date of birth. There can be no two opinions on that

point.

The third submission of the learned Counsel for the appellant purports to be based on Chief Medical Officer Vs. Khadeer Khadri, to contend

that the suit claim is barred by limitation. But this contention has also no merit. First of all, I must point out that no such plea of limitation has been

raised even by the defendants other than the appellant. However the abovesaid decision only dealt with an employee who was a Government

servant governed by certain rules which provided a time limit for making any application to the employer to change the date of birth originally

recorded in the service register. In the present case, no document is placed before the court by the appellant of other defendants sitting out any

such rules. In fact no document at all was filed in the present case on behalf of any of the defendants. In fact, there was no oral evidence at all on

behalf of any of the defendants. Therefore Chief Medical Officer Vs. Khadeer Khadri, has no application all to the present case.

The fourth submission is that there was laches on the part of the plaintiff incoming to the court with the relief asked for. The learned Counsel

pressed into service Union of India Vs. Harnam Singh, and contended that the plaintiff should not have been given any relief. This contention also

has no merit. When a party comes to a civil court seeking relief, unless the claim is barred by limitation, the suit claim cannot be held to have been

affected by any laches. No doubt, in the plaint there is no specific allegation as to when the plaintiff came to know of his real date of birth. But he

stated that the appellant/Bank refused to grant his request for correction of his date of birth on 24.12.1983 and the cause of action arose on that

day. When a plea was made that the cause of action arose on 24.12.1983, if really the appellant wanted to contend that the cause of action did not

arise on that day, but earlier and the suit was out of time, the appellant should have appeared before the trial court and filed a written statement to

that fact and proved the said claim. But, he having not done so, the appellant is not entitled to make such a contention in this second appeal Union

of India Vs. Harnam Singh, , is a case where certain rules applicable to the employee therein prescribed a particular period of or claiming alteration

of date of birth, But that is not the case here. That apart, I also find that the said Supreme Court case, which related to Government servants, also

holds that the Government servant is not precluded from making a request for correcting his date of birth if he is in possession of irrefutable proof

relating to his date of birth.

Another submission of the learned Counsel for the appellant is that the court cannot compel any employer to enter into a contract for alteration

of date of birth. In this connection he relied on Bathul Gabriel v. District Manager, A.P.S.R.T.C. Kurnool 1982 Lab.L.C. 297. But this decision

has no application to the present case. In this case, the suit was only for ""declaring"" that the true date of birth of the plaintiff is 30.1.1937. So no

relief to compel the employer as stated above is asked for at all.

One another submission of the learned Counsel for the appellant is that the lower court relied only on Ex. A-1, which according to the counsel,

cannot be relied on at all. This contention has also no merit. First of all the court below has not relied only on Ex. A-1. It has relied on Ex. A-2

also. Regarding Ex. A-2, it observes thus:

Futher, regarding Ex. A-1 also it observes thus:

When the appellant has not filed any written statement or cross examined P.W. 1 to disprove these documents, it is not open to it to contend that

the lower court should not have relied on Ex. A-1 or Ex. A-2. In the above circumstances, the non-examination of the mother of the plaintiff (first

defendant) is also not fatal.

Further I must also state that in the above circumstances, when the appellant has not even chosen to appear either in the trial court or in the

appellate court and file any written statement or cross examine P.W. I, it cannot be said that the appellant''s right, if any, has been ""substantially

affected. If that is so, I cannot hold that the case involves any ""substantial question of law"". It is well known that if the case involves any substantial

question of law, it must inter alia ""directly and substantially affect the rights of the parties ""Vide Sir Chunilal V. Mehta and Sons, Ltd. Vs. The

Century Spinning and Manufacturing Co., Ltd., and State of Assam v. Basanta Kumar Das AIR 1973 S.C. 4251 : (1973) 3 S.C.R. 159. It has

also been held in Bholaram Vs. Ameerchand, , that the High Court cannot traverse beyond its limitation of the second appellate jurisdiction. There

is absolutely 1 no merit in this second appeal.

Therefore, this second appeal is dismissed with costs.