Union of India (UOI) vs S. Lachman

Chittatosh Mookerjee, J.—Union of India representing the South Eastern Railway has preferred this Second Appeal against the judgment and decree of the learned Addl. District Judge, Third Court, Midnapore, allowing the appeal of the Plaintiff-Respondent and decreeing the suit brought by him. The learned Addl. District Judge has declared that the order of retirement of the Plaintiff-Respondent from February 16, 1970, was not binding upon him and that the Plaintiff''s due date of retirement from service on attaining age of 58 years will be February 16, 1977. The Plaintiff''s prayer for promotion has been rejected as, in fact, no promotion was given to him.

On May 16, 1935, the Plaintiff-Respondent was appointed as a peon under the Medical Department of the then Bengal Nagpur Railway at Kharagpur. In his service-sheet, February 1912 was mentioned as the date of his birth. The Plaintiff''s case, however, is that he was taken in place of his father who had retired from service. He was running 17 when he entered into the service. He claimed that his date of birth was February 16, 1919. In 1947 he first came to know of the wrong recording of his date of birth. Then he had applied to the Divisional Medical Officer, Kharagpur, for correction of his date of birth. He had produced his horoscope in support of his claim. Under orders of the Chief Medical Officers of the Railway, the Divisional Medical Officers had set up an Age Committee which had accepted his date of birth as February 16, 1919, but the Railway did not make any correction of age. Again in 1950, a second Age Committee was formed. That Age Committee also accepted that his year of birth was 1919. Even then, no correction of his age was made. He had unsuccessfully made reports to the General Manager. In spite of these facts the Divisional Personnel Officer, Kharagpur, South Eastern Railway, by a memo had informed the Plaintiff that he would officially retire from service from February 16, 1970, on attaining the age of 58 years. Thereafter, the Plaintiff-Respondent brought the suit out of which this second appeal arises. He was granted a temporary injunction by virtue of which lie continued to serve the Railway Administration even after February 16, 1970. The Defendant-Appellant contested the Plaintiff''s claim by filing a written statement. The Railway Administration contended that the date of birth of the Plaintiff as February 16, 1912, was correctly entered in his service-sheet. The General Manager did not accept the recommendation of the Age Committee which had opined that the year of the Plaintiff''s birth was 1919. The Plaintiff did not produce either an extract from his Birth Register or a School Certificate showing the date of his birth. He had failed to prove that the entry in the service-sheet was incorrect. Therefore, he was bound to retire on February 16, 1970, on attaining the age of superannuation.

The learned Munsif, Third Court, Midnapore, dismissed the suit brought by the Plaintiff-Respondent. As already stated, the learned Addl. District Judge allowed the appeal of the Plaintiff and decreed the suit.

The main point in this second appeal is whether the Railway Administration have acted in accordance with law and within their powers by directing that the Plaintiff would retire on and from February 16, 1970. It is not disputed that under conditions of his service the Plaintiff was to retire on attaining 58 years of age. Therefore, both the trial Court and the lower appellate Court had addressed themselves to the question of date of birth of the Plaintiff and the date of his attaining 58 years. In the Plaintiff''s service-sheet (Ex. A) against the entry ''date of birth'' ''February 1912'' was written. In left-hand top portion of the said service-sheet the words ''16th February, 1912'' had been written out. The Plaintiff during his cross-examination himself stated that at the time he was given employment under the Bengal Nagpur Railway there was no system of opening service book for any Class IV employee; simply cards used to be prepared for Glass IV employees. The head of the department used to verify the date of birth noted in the card. He claimed that he was not asked with regard to the date of his birth.

The Plaintiff had made representations for alteration of the above date of his birth recorded in his service-sheet claiming that he was born on February 13, 1919. Under Rule 144(3) of the Indian Railways Establishment Code, vol. I, second reprint, published in the year 1951, a General Manager in case of a non-gazetted Railway servant would cause the date of his birth to be altered under the two circumstances mentioned herein. Rule 145 of the Indian Railways Establishment Code, vol. I, revised edition, published in the year 1959, contains provisions relating to date of birth of Railway employees. Two additional circumstances have been laid down for alteration of the date of birth as recorded in accordance with Rule 145. In this case the Plaintiff was unable to produce any copy of the School Register or Transfer Certificate. Therefore, strictly specking Rule 145(3), Clause (iv) was not attracted. The further question would be whether the Plaintiff had succeeded in giving any satisfactory explanation of the circumstances in which allegedly a wrong date came to be entered in his service-sheet. In the above view, the burden of proof in the instant case was clearly upon the Plaintiff.

in my view, the learned Addl. District Judge has clearly erred in law in decreeing the suit brought by the Plaintiff-Respondent. The learned Addl. District Judge also did not reverse the material and relevant findings of the learned Munsif who had dismissed the suit. The reasons given by the learned Addl. District Judge on the face of it are erroneous. He referred to the opinion of the Age Committee dated February 22, 1950 and observed that the Defendant Railway did not produce any evidence at all to show that the said finding of the Age Committee was erroneous. Under the relevant rule the General Manager, subject to any order of delegation of his powers, is the competent authority in the matter of alteration of recorded age of the Plaintiff. Therefore, the learned Addl. District Judge clearly erred in law in holding that the Railway authority was bound to accept the finding of the Age Committee. Further, the learned Addl. District Judge also erred in law in holding that the order for retirement of the Plaintiff amounted to removal and therefore, the same was in infringement of Article 311 of the Constitution.

The Supreme Court in State of Assam and Another Vs. Daksha Prasad Deka and Others, held:

The date of compulsory retirement under Fundamental Rules, Rule 56(3), must be determined on the basis of the service record and not on what the Government servant claims to be his date of birth unless the service record is first corrected consistently with appropriate procedure. Until the record is so corrected, employee cannot claim that he had been deprived of the guarantee under Article 311(2) by halving been compulsorily retired on attaining age of superannuation as determined on the basis of his date of birth in the service record.

In the said case tile supreme Court held that, the application for rectification of service record was filed with in three years prior to the date of the employee''s date of superannuation as entered in his service record. Therefore, the said application was not entertainable and as such, the retirement of the Government servant without giving him opportunity to prove his true age as claimed by him did not amount to infringement of the guarantee of Article 311(2).

In the instant case, the Plaintiff began to represent regarding the correction of his age since the year 1947, but he was not successful. The Railway Administration did not produce any evidence showing that the competent authority had passed any reasoned order upon his said representations for alteration of recorded date of his birth. But the learned Advocate for the Respondent did not produce before me any service rule applicable to his client providing that in case of representation by an employee for correction of his date of birth, automatically his retirement should be deferred till the disposal of such representation. Further, in the instant case, the Plaintiff did not pray for mandatory order directing the Railway Administration to re-consider his representation regarding alteration of the date of his birth as recorded in his service-sheet. The date of birth of the Plaintiff, as originally recorded, had remained unaltered and according to the said date, the Plaintiff was due to attain the age of superannuation on February 16, 1970.

The learned Addl. District Judge at all did not apply his mind to the evidence of the Plaintiff, P.VV. 1, who had stated that he had no personal knowledge about the date of his birth, but nonetheless had claimed that he was born on February 16, 1919. In course of his cross-examination, the Plaintiff, who was the only witness on his side, made the following statement:

The age of my elder son is 21, who was born one year after my marriage. I was married in the year 1949. The age of my wife was 30 when I got married. She is younger to me 7/8 years.

Although the Plaintiff was recalled, he did not try to explain the above statements which would show that he was born in the year 1912. The trial Court had relied upon the above statement. I cannot entertain the suggestion of the learned Advocate for the Respondent that this P.W. 1 made this statement in his cross-examination by mistake. Undoubtedly, this statement was not conclusive but only relevant. The lower appellate Court, further, did not at all consider this part of the deposition of the P.W. 1. Undoubtedly, in assessing the value of the testimony of the P.W. 1 the Court should apply its mind to the totality of the evidence of the P.W. 1. In my view, the trial Court had correctly appraised the evidence of P.W. 1 and the lower appellate Court clearly committed error of law by ignoring this relevant part of the testimony of the P.W. 1.

The lower appellate Court also erred in law in over-looking that the horoscope produced by the Plaintiff was not admitted into evidence by the trial Court. But the same was marked with the identification mark ''X''. It is not a case of accidental omission on the part of the trial Court to put any exhibit mark upon the said horoscope, but presumably the trial Court did not admit the same into evidence as the P.W. 1 failed to prove the same according to law. Section 67 of the Evidence Act provides that if a document is alleged to have been signed or to have been written wholly or in part by any person, the signature or the hand-writing of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his hand-writing. It is well-settled that production of a document is no evidence of its authorship. Hence, the genuineness and the execution must be proved by evidence.

P.W. 1 in course of his examination-in-chief had slated that he had sent a horoscope in proof of his age. His next sentence was--

this is that horoscope filed in the Court. My father made over this horoscope to me 2/3 months before his death....Since then I have been keeping this horoscope marked ''X'' for identification.

He further stated that he had once sent the horoscope in the year 1942 to Hindusthan Co-operative Insurance Society for proving his age for the purpose of insurance. The Insurance Company accepted his date of birth as February 16, 1919. P.W. 1 in course of his cross-examination stated that he had no personal knowledge about the preparation of the horoscope. Thus, the Plaintiff did not give any evidence in proof of the writing in the horoscope marked with the letter ''X''. Therefore, the same was not evidence in the case. Only if the horoscope had been proved, according to law, the question of admissibility of the writings in the horoscope in terms of Section 32(5) of the Evidence Act would arise. The Plaintiff failed to prove who was the maker of the statements contained in the horoscope. There is no question of receiving the same u/s 32(5) about the age of the Plaintiff.

The decision of McNair J. in Noni Gopal Ganguly Vs. Trustees for the Improvement of Calcutta, is distinguishable on facts. In the said case the Plaintiff had produced a horoscope as evidence regarding the date of his birth. The Plaintiff had deposed that the horoscope was made by his uncle who was a member of his family, a priest and who kept a tale or school. The said uncle who had prepared the horoscope was dead. In these circumstances, the learned Judge in Noni Gopal Ganguly Vs. Trustees for the Improvement of Calcutta, held that the horoscope in the said case was admissible in evidence u/s 32. In this connection he had relied upon the earlier decision of this Court in Sin. Nirmalanalini Devi v. Sm. Kamalabala Dassi and Ors. 36 C.W.N. 838. Mitter and Bartley JJ. held that the Court below did not err in law in admitting a horoscope u/s 32 of the Evidence Act. Their Lordships referred to the finding of the lower appellate Court that the horoscope came from the custody of the Defendant No. 2, the brother of the husband of the Defendant No. 1 and who had made over that horoscope to the father of the Defendant No. 1 for filing it in the record of the suit. It was further found that it was written by an astrologer, now dead, whose hand-writing had been proved by a near relation of the astrologer. It was further found that the astrologer died in 1326 B.S. before the death of Dharmadas and that the said astrologer used to prepare horoscopes for others in the village in which Dharmadas resided. In these circumstances, the horoscope was held to be admissible u/s 32(5).

In the present case, unfortunately the Plaintiff, apart from saying that he had obtained the horoscope in question from his father, did not state the name of the astrologer who might have prepared the same and as to whether he was familiar with the writings of the said astrologer. In the absence of proof of the writings contained in the horoscope in terms of Section 67 of the Evidence Act the said horoscope could not be made an exhibit in the case. Therefore, the same was not also admissible as evidence of the Plaintiff''s age in terms of Section 32(5). The lower appellate Court clearly erred in law in relying upon the said horoscope as evidence of the Plaintiff''s birth in the year 1919. Incidentally, the lower appellate Court did not hold that the horoscope had been duly proved and that the same was admissible.

In the instant case, no question arises of receiving the said horoscope as additional evidence when the Plaintiff has not even now offered to prove the writings contained in the same. I, accordingly, hold that the lower appellate Court had erred in law in decreeing the Plaintiff''s appeal and in reversing the decision of the learned Munsif.

I therefore, allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. In the circumstances of the case, respective parties will bear their own costs throughout.

Let the operation of this order be stayed for one month. Although the appeal has succeeded I direct that the Plaintiff-Respondent will be entitled to retain the benefits including the salary drawn by him under the interim order made by the trial Court and continued up to the disposal of this second appeal.