The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.279 of 2022 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment dated 03.08.2022 passed by the learned Additional District Judge, Champua in R.F.A. No.07 of 2018 setting aside the judgment and decree dated 21.03.2018 & 06.04.2018 respectively passed by the learned Civil Judge, Senior Division, Champua in C.S. No57 of 2015. ---- M/s. Odisha Mining Corporation Limited, Khurda, Bhubaneswar …. Appellant -versus- Chakradhar Giri …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondent - Mr. D. P. Nanda, Sr. Advocate Mr. A. P. Bose, Advocate CORAM: MR. JUSTICE D.DASH DATE OF HEARING :14.11.2023:: DATE OF JUDGMENT:04.12.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment dated 03.08.2022 passed by the learned Additional District Judge, Champua in R.F.A. No.07 of 2018. R.S.A. No.279 of 2022 Page 1 of 13 {{ 2 }}
Legal Reasoning
The Respondent as the Plaintiff had filed the suit i.e. Civil Suit No.57 of 2015 in the Court of Civil Judge, Senior Division, Champua with the prayer for declaration of his date of birth as 23.05.1967 and accordingly, correction of his date of birth from 31.07.1960 to 23.05.1967 in his service records and declare that the order passed by the Appellant (Defendant) on 28.05.2012 as null and void in seeking other consequential reliefs. The suit had been decreed by the Trial court by passing the following order. “The suit be and the same is decreed on contest against the defendants no.1 and 2 and it is hereby declared that the original date of birth of the plaintiff as on 23.05.1967 and the Defendants are directed to incorporate the correct date of birth in his E.S.I Corporation Identity Card so also in his service book and also directed to give benefits of the service according to his correct date of birth and the order passed by the Defendant No.2 on dated 28.05.2012 is hereby declared as null and void.” The present Appellant (Defendant) being aggrieved by the said judgment and decree passed by the Trial Court had carried the Appeal under section 96 of the Code (RFA No.7/2018). The First Appellate Court has passed the order as under- “The appeal be and same is allowed in part. The date of birth of the plaintiff-respondent is hereby declared as 23.05.1967. The defendants-appellants are directed to incorporate the correct date of birth of plaintiff-respondent in his E.S.I Corporation identity card so also in his service book and to give the plaintiff- respondent consequential service benefits of the service according to his corrected date of birth.” Therefore now the present Second Appeal is at the instance of the aggrieved Defendant. R.S.A. No.279 of 2022 Page 2 of 13 {{ 3 }} 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff’s case is that, he joined in Kalinga Iron Works Limited at Matkambeda on 20.02.1985 as a contract supply labour. It is stated that the original date of birth of the Plaintiff is 23.05.1967. The Employees State Insurance (ESI) Authority of the Industrial Development Corporation of Orissa Limited (IDCOL), however arbitrarily mentioned the year of birth of the Plaintiff in his ESI Corporation Identity Card as 1960. The Plaintiff made several representations to the Managing Director, IDCOL for correction of his date of birth in the ESI Identity Card, but no step was taken by the Defendants in that regard. The Plaintiff therefore filed a Writ Petition before this Court, which stood numbered as WP(C) NO.16813 of 2014. The said Writ Petition was disposed of directing the Defendants to consider and dispose of the representation of the Plaintiff within a stipulated period. The Managing Director, IDCOL (Defendant No.2) disposed of the said representation by order dated 12.01.2015, whereby the prayer of the Plaintiff for correction of his date of birth as 23.05.1967 was rejected. The Plaintiff then filed another Writ Petition vide WP(C) No.12582 of 2015. That Writ Petition was however disposed of directing the Plaintiff to approach the appropriate forum for declaration of his actual date of birth. Hence the Plaintiff filed the present suit seeking the prayer as aforestated. The Plaintiff has stated to have brought to the knowledge of the Defendant No.2 regarding the wrong entry in his ESI Identity Card by filing R.S.A. No.279 of 2022 Page 3 of 13 {{ 4 }} affidavit and documents such as the School Leaving Transfer Certificate of the year 1986 showing his date of birth as 23.05.1967. The Defendants had assured the Plaintiff that his original date of birth would be considered at the time of his appointment as a permanent worker as Majdoor in the department of IDCOL (Kalinga Iron work Limited (IKIWL)) but then the Defendant No.2 while issuing the Identity Card has indicated the date of birth of the Plaintiff therein as 31.07.1960. It is the further case of the Plaintiff that he was appointed as a permanent Majdoor in the sale department of IKIWL. At that time, his date of birth was not corrected. So he made several representations which were not paid any heed to. Therefore but he had filed the Writ Petition first in the year 2014 and thereafter another Writ Petition before filing the suit. 4. The Defendants in the written statement submitted that the Plaintiff had at the initial stage not filed any documents in support of his date of birth. They conducted a medical test and on that basis, the age of the Plaintiff was assessed and so recorded in the ESI Identity Card. It is stated that the above procedure is strictly followed to ascertain whether a person has completed 18 years of age as required under the statute. Thereafter, the assessed year of birth is corrected in the ESI Identity Card. Following the above procedure, the year of birth of the Plaintiff has been assessed to be 1960 and accordingly, it was recorded in his identity card. The Plaintiff had not approached the contractor or the ESI section of Defendant No.2 regarding correction of his date of birth. The Defendants further state that had the date of birth of the Plaintiff been actually 23.05.1967 then he would have been a minor on 20.05.1985 and as such would not at all have been eligible to get the job. So for the above reason, the Plaintiff having objected regarding his R.S.A. No.279 of 2022 Page 4 of 13 {{ 5 }} death of birth, had accepted the terms and conditions of the service, when he was appointed as the permanent Majdoor wherein his year of birth was recorded as 1960. So he is not permitted to say otherwise. It is further stated that the ESI Identity Card is in custody of the Plaintiff for 27 years and the Plaintiff has never complained before his immediate employer regarding the discrepancy in his date of birth as mentioned in ESI Identity Card. At the time of Plaintiffs joining as permanent Majdoor under Defendant No.2, he was communicated with the condition that their selection had been made without consideration to their actual additional qualification. Hence according to the Defendants, the date of birth as available as per the ESI record has been taken and accepted for all purposes whatsoever. They state that any claim whatsoever regarding the date of birth basing on any education qualification as per their practice is not entertainable. The birth certificate and other documents which are produced by the Plaintiff are said to have been obtained by giving false declarations and as such have nothing to do with the correction of his date of birth in the service record. 5. On the above rival pleadings, the Trial Court having answered the crucial issues as to the dispute regarding to the date of birth has held that the original date of birth of the Plaintiff is 23.05.1967 in stating that the Defendants have arbitrarily mentioned the date of birth of the Plaintiff as 31.07.1960 in his ESI Identity Card. This finding has led the Trial Court to decree the suit by the order as above noted. The First Appellate Court being moved by the aggrieved Defendant, has affirmed the said finding and confirmed the decision in suit. The present Appeal has been admitted to answer the following substantial questions of law. R.S.A. No.279 of 2022 Page 5 of 13 {{ 6 }} i. Whether on the admitted factual settings that the Plaintiff having sworn as affidavit way back on 12.02.2001 since has moved the matter relating to correction of his date of birth for the first time in the
Decision
2014 by filing the writ petition before this Court and later on filing the suit, the Courts below ought to have held the suit to be hopelessly barred by limitation. ii. Whether the Courts below are right in accepting the date of birth presented by the Plaintiff to be 23.05.1967 as against 31.07.1960 which had been indicated in the service records right from the beginning in the suit filed in the year, 2015, by relying upon the Ext.1 & 2, which are the School Leaving Certificate, and Birth Certificate respectively ignoring the ESI record and the affidavit of the Plaintiff which are Ext.4 and 3 respectively? 6. Mr. D. P. Nanda, learned Senior Counsel for the Appellant (Defendant) submitted that the Plaintiff joined as a contract labour on 20.02.1985 and at the fag end of his career, now he claims his original date of birth as 23.05.1967, when the fact remains that the Plaintiff being well aware of his act had sworn an affidavit on 12.02.2001 which has been admitted in evidence and marked from the side of the Plaintiff as Ext.3 and, therefore, the suit for declaration having not been filed within three years therefrom merely stating that he was going on making the representation and the same were not properly responded to by the Defendant, would not arrest the running of the period of the limitation of three years as provided under Article 59 of the Indian Limitation Act, 1963 for filing the suit claiming the reliefs. He further submitted that filing of the Writ petition in R.S.A. No.279 of 2022 Page 6 of 13 {{ 7 }} the year 2014 and thereafter the decision on the representation as directed by the Writ Court cannot make a deed cause of action alive by saying that the period of limitation would run afresh from that time either when the plaintiff filed the Writ Petition or when his representation pursuant to the order passed in the Writ Petition stood rejected and the period of limitation for the suit cannot get extended. He further submitted that even on merit, the Courts below without properly appreciating the evidence adduced by the parties and testing the same in the backdrop of the factual settings from the time the Plaintiff was taken to work as a contract labour onward till the suit have committed a grave error in ruling that the actual date of birth is 23.05.1967 that too without taking note of the fact that such documents on which the Plaintiff relies are all the documents obtained much later and thus inadmissible in the eye of law for the purpose of acceptance of the date of birth as indicated therein. It was also submitted that the findings of the Courts below even though are concurrent, for the above reasons, those suffer from the vice of perversity, and are liable to be annulled. 7. Mr. A. P. Bose, learned counsel for the Respondent (Plaintiff) submitted that the Courts below on detail discussion of evidence on record, when have concurrently found that the actual date of birth of the Plaintiff is 23.05.1967 and for the purpose the Courts below have taken note of the circumstance under which documents were obtained, since there surfaces no such infirmity much less to say perversity, the same is not liable to be set at naught and it is not permissible to be disturbed by this Court in seisin of the Second Appeal. He further submitted that the suit is well within the period of R.S.A. No.279 of 2022 Page 7 of 13 {{ 8 }} limitation. According to him, when the repeated representations of the Plaintiff were not heard, he was compelled to move the Writ Court, which ultimately directed the Defendants to consider and dispose of the representation of the Plaintiff as regards for correction of the date of birth, so the suit being well in a period of three years therefrom is not barred by the limitation. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings placed by the learned Counsel for the parties in course of hearing. 9. The present suit for declaration of the date of birth of the Plaintiff as 23.05.1967 has been instituted on 05.12.2015 when the Plaintiff was to be superannuated with effect from 01.07.2020 as per the date of birth maintained in his service record indicating therein as 31.07.1960, on the own saying of the plaintiff when he joined as contract supply labour in the Kalinga Iron works Limited on 20.02.1985. His year of birth was mentioned in the ESI Identity Card as 1960. Subsequently, he was taken as Majdoor and then his date of birth has been recorded as 31.07.1960. The Plaintiff was appointed as Majdoor by letter dated 28.05.2012 as a permanent worker. 10. The Apex Court has consistently held that the request for change of date of birth in the service records at the fag end of service is not sustainable. 11. In the State of Maharashtra –vrs- Gorakhnath Sitaram Kamble; (2010) 14 SCC 423 has held “Learned counsel for the appellant has placed reliance on the judgment of this Court in U.P.Madhyamik Shiksha Parishad –vrs- Raj Kumar Agnihotri, (2005) 11 R.S.A. No.279 of 2022 Page 8 of 13 {{ 9 }} SCC 465. In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.” “In another judgment in State of Uttaranchal-vrs- Pitamber Dutt Semwal (2005) 11 SCC 477, relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.” “These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of large number of employees, therefore, any correction at the fag end must be discouraged by the Court.” 12. In Home Department -vrs- R Kirubakaran; 1994 supp(1) SCC 155, it has been held as under:- “An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever………. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of R.S.A. No.279 of 2022 Page 9 of 13 {{ 10 }} a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order…….. the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book” It has been the view of the Hon’ble Apex Court that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be must be claim as a matter of right. 13. The view expressed in case of State of M.P. -vrs- Premlal Shrivas (2011) 9 SCC 664, it is held as hereunder:- “It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag-end of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless, the Court or the Tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of R.S.A. No.279 of 2022 Page 10 of 13 {{ 11 }} the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No Court or the Tribunal can come to the aid of those who sleep over their rights.” to the fatal “Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex-facie respondent, the case of notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book.” 14. In case of Kirloskar Brothers Limited v. Laxman; 2023 SCC 419 the belated claim with regard to the correction of the date of birth was not entertained. 15. It has been held in case of Eastern Coalfields Ltd. –vrs- Ram Samugh Yadav (2020) 3 SCC 421, it has been held:- “Nothing is on record that in the year 1987 when the opportunity was given to respondent no.1, to raise any issue/dispute record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his the service regarding R.S.A. No.279 of 2022 Page 11 of 13 {{ 12 }} superannuation, respondent no.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.” “The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of respondent no.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier.” 16. From the side of the Plaintiff an affidavit sworn by him has been admitted in evidence and marked Ext.3, which is dated 12.02.2001. The contents of the affidavit are as under:- i. That my year of birth in my service record is wrongly entered as 1960. ii. That my actual date of birth is 23.05.1967, which is also mentioned in my educational certificate. Thus on the own saying of the Plaintiff, when he had the full knowledge about the wrong recording of the year of birth in his ESI Identity Card which has been followed in the years to come, the suit has been filed almost after one and half decade. Simply, the Plaintiff by stating that he was making representations which were not considered that would not arrest the period of running of limitation for filing a suit in asserting his right that his actual date of birth be declared in advancing the date of birth from what has been indicated in the previous record. The Plaintiff having approached to assert the right in filing the Writ Petition in the year 2014, the direction of this Court for consideration of the representation cannot be taken in the eye R.S.A. No.279 of 2022 Page 12 of 13 {{ 13 }} of law to have given life to a dead cause of action by giving birth to a fresh cause of action for the Plaintiff which can safely be said to have at least arisen way back in the year 2001 for him to set right his date of birth by filing the suit and by the time of filing of the Writ Petition, that period to institute the suit had expired since long in view of the Article 59 of the Indian Limitation Act, 1963. 17. In view of all the aforesaid, this Court finds that the suit filed by the Plaintiff was hopelessly time barred and the Courts below have committed grave error by not dismissing the suit on the ground of limitation. Having answered the first substantial question of law as above, there arises no further need to proceed to answer the second substantial question of law which may merely serve some academic purpose. 18. In the result, the Appeal stands allowed. The judgments and decrees passed by the Courts below are hereby set aside. The Plaintiff’s suit for the reliefs claimed stands dismissed. There shall however be no order as to cost. It is however, pertinent to observe that if the Plaintiff is in service, although he for all purpose be deemed to have been superannuated with effect from 01.08.2020, yet the financial benefits received by him for having remained in service therefrom till today would not be recoverable. True Copy Signature Not Verified Jr. Stenographer Gitanjali Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 12-Dec-2023 13:57:18 R.S.A. No.279 of 2022 Sd/- (D. Dash), Judge. Page 13 of 13