JUDGMENT
N.K. Kapoor, J.
1. This is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendants has been accepted, thus, dismissing the suit filed by the plaintiff.
2. Plaintiff filed a suit for declaration to the effect that order No. 28 dated 20.6.1974 prematurely retiring him from service is illegal, malicious and so liable to be set aside and that the plaintiff should be deemed to be in service and hence entitled to all the privileges and the benefits of service. In addition thereto plaintiff claimed pay for the period from 1.5.1974 to 4.7.1974.
3. As per facts which have come on record, plaintiff was working as a secretary in a Gram Panchayat since the year 1954. His services were transferred to Panchayat Samiti, Jalandhar where he had remained working till 4.7.1974 when the impugned order No. 28, dated 20.6.1974 was served upon him.
4. Defendants contested the suit, raised few preliminary objections and replied as well on merits. Defendants pleaded that suit is not maintainable as the alleged order of retirement has not been passed by way of punishment. Besides it, plaintiff was not a government servant and as no notice had been served upon the defendants the suit was incompetent. Even otherwise, the defendants justified the order retiring the plaintiff stating that on his attaining the age of 55 years, he was retired.
Following issues were frames by the trial Court :-
1) Whether the suit is not maintainable in the present form? OPD.
2) Whether the suit is bad for misjoinder of parties? OPD.
3) Whether the impugned order dated 20.6.1974 is illegal and void for the reasons given in para 2 of the plaint? OPP.
4. Relief.
The contest between the parties revolved around issue No. 3.
5. As per the case set up by the plaintiff, he was born on 15.8.1927 and had not attained the age of superannuation and so the impugned order of retirement is per se bad in law, ineffective and inoperative. To prove the factum of his birth, plaintiff examined Munsha Singh PW1, who testified that the plaintiff migrated from Chak No. 103, now in Pakistan. He further stated that plaintiff is son of his uncle and by further giving the dates of the other members of the family, namely, brothers of the plaintiff, he stated that plaintiff was born in the year 1927. Plaintiff, too appeared as his own witness and deposed in respect of the averments made in the plaint.
6. The defendant on the other hand adduced evidence to the effect that the plaintiff did not disclose his date of birth at the time of his entering the service. A number of communications were addressed to the plaintiff to give proof with regard to his exact date of birth but he had been postponing the same and so the authorities thought it appropriate to retire him from service on his attaining the age of superannuation.
7. The trial Court on considering the evidence of both the parties finally came to the conclusion that before an order retiring him from service could be passed, it was incumbent upon the authorities to hold a proper enquiry to determine the age of the concerned person. The Court further noticed that since in the present case the plaintiff had produced his janampatra, it was incumbent upon the authorities to examine the same and further afford him an opportunity to prove his date of birth before passing and order of retirement. Trial Court accordingly decided issue No. 3 in favour of the plaintiff. Resultantly, suit of the plaintiff was decreed as prayed for.
8. Lower appellate Court re-considered the matter in the light of submissions made by the counsel for the parties. Lower appellate Court declined to place reliance upon the oral testimony of Munsha Singh PW1, Chanchal Singh PW2, Puran Singh PW3 and plaintiff PW5 for the reason that this oral testimony cannot be accepted unless supported by any documentary evidence. Lower appellate Court further observed that Sarvshri Munsha Singh PW1 and Chanchal Singh PW2 have no personal knowledge about the age of the plaintiff. Consequently, the appeal was accepted resulting in dismissal of the suit filed by the plaintiff.
9. With a view to seek reversal of the judgment and decree of the Additional District Judge the learned counsel for the appellant argued that judgment and decree of the lower appellate Court is in-sustainable in law as the Court has taken a conjunctural view of the case. According to the counsel, law permits a party to adduce oral and in case there is any documentary proof to adduce documentary evidence. In the present case, the plaintiff with a view to prove his date of birth has placed on record his janampatra and has also examined other witnesses who had knowledge about the birth of the plaintiff. Statement of these witnesses could not be brushed aside merely for the reason that no documentary evidence has been adduced in support of their verbal deposition. No attempt has been made by the Court to examine the veracity of the statement of these witnesses of the plaintiff independently. Infact, in the present case there being no rebuttal evidence to the evidence adduced by the plaintiff the Court below ought to have taken that the fact stands proved in view of the deposition of these witnesses. In any case, even if it would be taken that plaintiff had reached the age of 55 years on 20.6.1974, the age of retirement being 58 years such an order ought to have been declared to be illegal.
10. Counsel for the respondents on the other hand argued that the department time and again had been asking the plaintiff to give his exact date of birth, who, however, has been avoiding it and so finally the defendant had no option but to terminate his services on his attaining the age of superannuation. Since the plaintiff has failed to prove his date of birth, even in equity he is not entitled to the relief prayed.
11. I have heard the learned counsel for the parties and perused the judgment of the trial Court as well as of the Additional District Judge. Facts as emerged on reading of these two judgments are that plaintiff joined as Secretary in a Gram Panchayat sometime in the year 1954. Plaintiff’s service record in the Gram panchayat is not forth coming. Whether he had given the necessary information regarding his date of birth when he joined as Secretary in the Gram Panchayat again remains within the realm of imagination. On his transfer to Panchayat Samiti as Secretary; the service record is silent as regards his date of birth. Precisely to fill up this gap in the service record that the defendants time and again had been asking the plaintiff to furnish the requisite proof regarding his date of birth. Concededly, the request made by the defendants remained un-attended and finally the authorities thought it proper to retire him from service on his attaining the age of superannuation. As per the case of the defendants the plaintiff was to retire on 20.6.1974 as he was more than 55 years of age. How and in what manner authorities came to this conclusion again is a matter of sheer guess. Thus, this case had indeed peculiar features. Plaintiff has failed to adduce any credible evidence to prove that his date of birth is 15.8.1927. The additional District Judge rightly declined to place any reliance upon the janampatra prepared by a Pandit. As is well known, such a document can be prepared on any information which a person may furnish regarding information which a person may furnish regarding his date of birth. The person who prepares the janampatra, of course, does not know the date of birth of the person. He merely prepares this document on the information so furnished by the person. The other oral evidence adduced by the plaintiff also does not inspire confidence. Conclusion arrived at by the lower appellate Court in this regard is just and proper.
12. The next point which needs consideration is whether plaintiff had attained the age of 55 years when order of retirement was passed on 20.6.1974. Counsel for the respondent when pressed to explain as to how authorities have come to this conclusion, infact, in all fairness, conceded that there is no material on record to prove that plaintiff had attained the age of 55 years when his order of retirement was passed. Thus, one can say that whereas there is no evidence as regards the date of birth of the plaintiff, there is also no proof on record that he attained the age of 55 years on 20.6.1974. No doubt normally it is for the plaintiff to prove his case before any relief can be granted by the Court but keeping in view the peculiar facts of the present case some deviation needs to be made in the present case. Plaintiff is stated to have retired on his attaining the age of 55 years. Both the counsel agrees that the age of superannuation of a Secretary of a Panchayat Samiti is 58 years and not 55 years. Examined so, even as per the case of the defendants, the plaintiff ought to have been retired on his attaining the age of 58 years. Thus, the order retiring the plaintiff on 20.6.1974 can easily be termed to be pre-mature.
13. Matter has remained pending in this Court for the last 17 years and so I am of the view that no useful purpose would be served in now directing the defendants to re-examine the case of the plaintiff. So, in the given circumstances I am of the view that it would be just and proper to grant the plaintiff the pecuniary benefits of his service of three years (as he could retire on attaining the age of superannuation of 58 years). Accordingly, I partly accept the appeal and direct the respondents-defendants to pay the appellant-the plaintiff salary of three years with all consequential benefits as he would have earned, had he been permitted to work at the post. The amount due towards the appellant be paid to him within a period of four months from the passing of the judgment of this Court.
14. parties to bear their own costs.