Regular Second Appeal No. 163 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 163 of 2008 Date of decision: 27.08.2009 Lakhbir Singh son of Darshan Singh, Key No.1110, Knitting Department BIC, Ltd. New Egerton Woolen Mills Branch, Dhariwal,resident of village Kang, PO Dhariwal, Tehsil and District Gurdaspur. ..... Appellant. Versus The British India Corporation Ltd. New Egerton Woolen Mills, Branch Dhariwal through its General Manager. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Arun Abrol,Advocate for the appellant. Mr. Puneet Sharma, Advocate for the respondent. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 13.03.2004, rendered by the Court of Additional Civil Judge, (Senior Division), Regular Second Appeal No. 163 of 2008 -2- Gurdaspur, vide which it decreed the suit of the plaintiff(now appellant), for the correction of his date of birth, and the judgment and decree dated 26.09.2007, rendered by the Court of Additional District Judge, Gurdaspur, vide which it held that the suit was liable to be dismissed on reversal of findings on issue nos. 1 to 4 and dismissed the appeal as having been rendered infructuous. 2. The plaintiff (now appellant) joined as a Worker in British India Corporation Ltd., New Egerton Woolen Mills, Branch Dhariwal on 15.07.1971. He rendered more than 28 years of service. It was stated that, at the time of joining service, with the defendant, the exact date of birth of the plaintiff, was not recorded, in the record of the Company, as the same was not available. It was further stated that the plaintiff obtained a copy of the Gazette Notification of Punjab University, Chandigarh, regarding his Matriculation Examination, which was held in the year 1969 as also the school leaving certificate. As per these documents, the date of birth of the plaintiff was 12.10.1949 instead of 10.04.1941, which was recorded, in the record, at the time of joining service. It was further stated that the authorities, on the basis of the representation, made by the plaintiff, corrected his date Regular Second Appeal No. 163 of 2008 -3- of birth. Lateron, the order correcting the date of birth of the plaintiff, was withdrawn, with malafide intention, by the defendant. It was further stated that the order dated 30.03.1999, vide which the earlier order for correction of date of birth, was withdrawn, being illegal, was liable to be set aside and the plaintiff was entitled to remain in service upto 11.10.2009, on attaining the age of superannuation, on the basis of the amended date of birth as 12.10.1949. It was further stated that the defendant was many a time, asked to accept the request of the plaintiff, but to no avail. Ultimately, a suit for declaration and mandatory injunction was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable; and the Civil Court had no jurisdiction to entertain and try the same. It was stated that the plaintiff joined service on 11.02.1970, and not on 15.07.1971. It was further stated that at the time of joining, the plaintiff of his own will, declared his date of birth as 10.04.1941. It was further stated that the defendant never directed the plaintiff to produce any document, regarding his date of birth. In fact, the plaintiff, after 28 years of service, vide his application dated 15.05.1998, demanded the change, in Regular Second Appeal No. 163 of 2008 -4- his date of birth, which was never amended by the Competent Authority. It was further stated that the plaintiff was informed vide memo dated 30.03.1999, about the rejection of his application, for amending the date of birth. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- “1- What is the actual date of birth of the plaintiff? Onus on parties. 2- Whether letter No. Admn./254 dated 30.3.1999 issued to the plaintiff by the defendant, is null and void, illegal and not binding on the plaintiff ?OPP 3- Whether the plaintiff is entitled to grant of declaration as prayed for?OPP 4- Whether the plaintiff is entitled to alternative relief of mandatory injunction, as prayed for ?OPD 5- Whether the jurisdiction of civil suit is barred under the provisions of Industrial Disputes Act, 1947 ? OPD 6- Relief.” Regular Second Appeal No. 163 of 2008 -5- 5. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the trial Court decreed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellant/defendant, which was dismissed by the Court of Additional District Judge, Gurdaspur, vide its judgment and decree dated 26.09.2007, as having been rendered infructuous, as the plaintiff/appellant had since retired from service, in the meanwhile and had not sought amendment of the plaint seeking the appropriate relief, but at the same time reversed the findings of the trial Court, on issue nos. 1 to 4, leading to the dismissal of the suit. 7. Feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 9. The following substantial questions of law, arise, in this appeal, for the determination of this Court:- “1. Whether the first Appellate Court recorded perverse findings on account of mis-reading and mis- appreciation of evidence and ignoring the material pieces of evidence i.e. Copies of certificates,(Ex.P1 and Ex.P2) resulting into the dismissal of the suit? 2. Whether the first Appellate Court recorded perverse findings to the effect that since the plaintiff, applied for correction of his date of birth, after a long time, he was not entitled to the same.? Regular Second Appeal No. 163 of 2008 -6- 10. The Counsel for the appellant, submitted that once the order correcting the date of birth of the plaintiff was passed, the same could not be withdrawn. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that the suit was barred by time, and latches. He further submitted that the first Appellate Court, recorded a perverse finding, that no convincing evidence was produced by the plaintiff to prove that his actual date of birth was 12.10.1949. He further submitted that the judgment and decree of the first Appellate Court were illegal and liable to be set aside. 11. The Counsel for the respondent, however, submitted that the order correcting the date of birth of the plaintiff had not been passed by the Competent Authority. He further submitted that the Competent Authority was right in passing the order, rejecting the claim of the plaintiff. He also supported the findings of the first Appellate Court. 12. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Regular Second Appeal No. 163 of 2008 -7- Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature, never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The plaintiff (now appellant) with a view to seek correction, in his date of birth, produced Ranjit Kaur, Senior Clerk, Office of the DEO, Gurdaspur, (PW-1), who proved Ex.P1, copy of duplicate Matriculation examination. During the course of cross-examination, she admitted that she was not having any record, which showed that the plaintiff (now appellant) had appeared at Roll No. 12110 in the matriculation examination. She also did not bring the application, allegedly moved by the plaintiff, to obtain the Regular Second Appeal No. 163 of 2008 -8- duplicate Matriculation Certificate. Ex.P-2 is the school leaving certificate, produced by the plaintiff. Manju Bala, (PW-2) produced the photocopy of the admission register, (Ex.P-3). The first Appellate Court was, thus, right in coming to the conclusion, that the duplicate copy of the matriculation examination certificate and photostat copy of the admission register, could not be said, to be beyond doubt, as the relevant record, on the basis whereof, the same were issued, was not produced. The first Appellate Court was also right in coming to the conclusion, that the record, which could be said to be authentic, with regard to the date of birth of the plaintiff, was the certificate issued by the Registrar (Births & Deaths) or an entry from the register of the Chowkidar, but the same was not produced. The first Appellate Court was also right, in coming to the conclusion, that, in the absence of production of such cogent and convincing evidence, no finding could be recorded that the date of birth recorded, in the documents, produced by the plaintiff was correct. The first Appellate Court was, thus, right in coming to the conclusion that on the basis Ex.P1 and Ex.P2, the date of birth of the plaintiff, could not be corrected. Regular Second Appeal No. 163 of 2008 -9- 13. The plaintiff joined the service of the defendant on 11.02.1970 and for the first time, in the year 1998, he presented the application before the defendant, for the correction of his date of birth. Why he slept over the matter right from 11.02.1970 until 1998 i.e. for a period of more than 28 years, is not known. Had there been any notification issued or rule framed by the defendant that an employee, who had not earlier made a representation, for the correction of his date of birth, could move such a representation, within the specified period, and had the plaintiff applied for correction of his date of birth, within that specified period, the matter would have been different. There is nothing, on the record, that any rule was framed or any notification was issued, by the defendant, giving an option to the employees, to apply for correction of date of birth, if the same had been wrongly recorded, within the stipulated period. If the plaintiff slept over the matter, for a period of more than 28 years and did not move for the correction of his date of birth, he must thank his stars. In Union of India v. Ram Suia Sharma, 1996(7) Supreme Court Cases 421, the claim for correction of the recorded date of birth was made after 25 long years of joining the Regular Second Appeal No. 163 of 2008 -10- service. The Tribunal directed the correction of the date of birth. The Apex Court dismissed the claim of the employee, on account of laches and delay. In State of Orissa and others v. Ramanath Patnaik, AIR 1997 Supreme Court 2452(1) similar principle of law, was laid down, by the Apex Court. The first Appellate Court was right, in holding that the plaintiff was not entitled to the correction of his date of birth, after such a long time and suit was liable to be dismissed, on account of delay and latches. 14. Now coming to the next question, as to what was the effect of order, (Ex.P-3), which was allegedly issued by the Factory Manager, correcting the date of birth of the plaintiff, it may be stated here, that there is nothing, on the record, that the Factory Manager was the competent authority to correct the date of birth of the plaintiff. Since he was not the competent authority, to correct the date of birth of the plaintiff, any order passed by him, in that regard, could be said to be illegal. Not only this, after the issuance of letter Ex.P-3, when the Factory Manager, detected his mistake, he wrote a letter dated 30.03.1999, copy whereof is Ex.P4, stating therein, that the matter regarding the change of date of birth had been referred to the Head Office and, Regular Second Appeal No. 163 of 2008 -11- therefore, the memo dated 24.02.1999,(Ex.P-3) stood cancelled. Under these circumstances, the plaintiff could not claim any right on the basis of letter,(Ex.P3). 15. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law on the point, do not suffer from any illegality, material irregularity or perversity, warranting the interference of this Court. The first Appellate Court rightly reversed the findings of the trial Court, on issue nos. 1 to 4 leading to the dismissal of the suit. The first Appellate Court was also right in dismissing the appeal, as having been rendered infructuous, as the plaintiff had retired in the meanwhile, and had not amended the plaint, seeking the appropriate relief. The judgment and decree of the first Appellate Court, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellant. 16. In view of the above discussion, it is held that on account of reversal of findings of the trial Court on issue nos. 1 to 4, by the first Appellate Court, the suit filed Regular Second Appeal No. 163 of 2008 -12- by the plaintiff (now appellant) stood dismissed, and the appeal filed , in the first Appellate Court was rightly dismissed as having been rendered infructuous as the plaintiff, in the meanwhile retired, and no application for the amendment of plaint was filed seeking the appropriate relief. Consequently, the instant appeal, being devoid of merit, is dismissed with costs. (Sham Sunder) 27.08.2009, Judge dinesh