JUDGMENT
B.S. Sinha, J.
1. The defendant is the appellant. The appeal arises out of a suit instituted by the plaintiff-respondent for a declaration, that his record of age, as maintained by the defendant-Company is erroneous, and that his date of birth be recorded as 15th July, 1922 after rectifying the records maintained by the defendant-Company. There was also a prayer for an order of injunction in mandatory form against the defendant-Company from Superannuating the plaintiff prior to his attaining the age of superannuation calculated on the basis of his actual date of birth which was 15th July, 1922.
2. For the sake of convenience, hereinafter the appellant will be referred as the defendant and the respondent as the plaintiff. The plaintiff was an employee under the defendant working in the Plant Metal Department of the Tata Iron and Steel Company Limited having tickt No. 110063 and personnel No. 26017. According to the plaintiff, he hails from a village of the district of Vijagapatam and studied in Maharaja College School, Vijayanagaram from 1937 to 1941. In the school his date of birth was correctly recorded as 15.7.1922 He joined the defendant’s service in April, 1943 when he gave out his age as 20 years and 8 months and was informed that his age had been recorded accordingly. At that point of time the date of birth was not recorded by the defendant as there was no rule of superannuation and an employee could continue in service as long as he was physically fit and was in a position to perform his duties. In the year 1950 the defendant introduced a set of Standing Orders in sequence of Industiial Employment Standing Orders Act, 1946 and fixed 60 years as age for superannuation with discretion to grant extension up to three years. On the basis of such order a list of recorded age was circulated and the plaintiff was directed to sign the same. As a loyal servant of the company, the plaintiff affixed his signature on it under the buna fide belief that his date of birth was ctriectly recorded therein. The said entry according to the plaintiff, was not conclusive as a number of employees got their records of age rectified on the basis of their school leaving cettificate or other documents.
3. Further the plaintiffs case is that in 1971 Dew gate passes were issued and then he came to know that his date of birth was wrongly recorded as 9.4.1919 and he therefore started making representlon for rectification. After a prolonged correspondence, the Company, by its letter dated 16th July, 1973 directed the plaintiff to produce the school leaving cerfificate for scrutiny which was done.But the rectification was put off en one pretext or the other. Ultimately the plaintiff served a notice to the defendant addressed to its Director of Personnel for rectification of his age which was rejected by-a letter of September, 1977. Hence the suit, as the records maintained by the defendant had cast a cloud on the legitimate right of the plaintiff to remain in service of the defen dant till he attains 60 years of age.
4. The suit was contested by the defendant inter alia on the ground that the plaintiff’s case that he was born on 15.7.1922 was incorrect. It was denied that the plaintiff had asserted when appointed, that he was 20 years and 8 months of age. It was further asserted that at the time of being employed the plaintiff had given his age as 24 years and on that basis his age had been recorded. It was also asserted that the suit was barred under the provisions of the Specific Relief Act.
5. The trial Court on a consideration of the materials and taking into account the circumstances of the case held, that the age of the plaintiff had been wrongly recorded and his correct date of birth was 15.7.1922 and therefore, the plaintiff was entitled to a decree that the age of ths plaintiff as maintained by the defendant be corrected and was furtler entitled to an order of injunction restraining the defendant from superannuating the plaintiff prior to his attaining the age of superannuation calculated on the basis of the actual date of birth which was 15.7.1922.
6. Aggrieved by the judgment and decree of the learned Munsif, the defendant went up in appeal where it was urged that the court below had seriously erred in holding that tin plaintiff was born on 15.7.1922. It was further submitted before the lower appellate court that the suit was maintainable in view of the provisions of the Specific Relief Act. It was also submitted that the suit was barred by limitation. The lower appellate court negatived the submission made en behalf of the appellant and held that the suit was not barred under Section 34 of the Specific Relief Act and the plaintiff was entitled to a decree on the basis of the declaration sought for by him. It was also held that the suit was not barred by limitation.
7. In support of this appeal, Mr. Chatterjee for the defendant has submitted:
(i) that under the provisions of Section 34 of the Act, the suit was not maintainable;
(ii) that the suit was barred having been filed after three years as the suit will be governed by the residuary article of the Limitation Act and;
(iii) that the findings of the courts below that the plaintiff was born on 1.5.1922 is based upon a document which has no evidentiary value and hence was finding which was not based upon ‘evidence proper’.
8. Mr. Sinha, appearing for the plaintiff, however, submitted that the suit, as framed, was maintainable and it was not barred by limitation particularly when this plea was not specifically taken up at the Initial stage and no issue had been framed with regard to limitation. Mr. Sinha further contended that the finding with regard to the date of birth of the plaintiff was based upon appreciation of facts by the courts below which cannot be challenged in second appeal.
9. I shall take up the submission made on behalf of the defendant in the sequence in which it has been stated earlier. The first submission is that a suit for declaration of this nature was not maintainable under Section 4 of the Act. It was submitted that the suit does not involve either any ‘legal character’ or ‘any right to property’ on the facts alleged by the plaintiff. At this stage it would be convenient to refer to the prayer of the plaintiff in his plaint which is extracted hereunder:
(a) That a decree may kindly be passed in favour of the plaintiff declaring that the record of age of the plaintiff as maintained by the defendant is erroneous and the date of birth of the plaintiff should be recorded as 15.7.1922 by rectifying the age record maintained by the defendant-company.
(b) That an order of injunction in mandatory form may kindly be issued against the defendant–Company from superannuating the plaintiff prior to his attaining the age of superannuation calculated on the basis of his actual date of birth i.e. 15th July, 1922.
(c) For costs of the suit.
(d) for any other relief or reliefs for which ths plaintiff is entitled to under law and equity.
10. From what has been quoted above, it is obvious that the main prayer of the plaintiff in the suit is for a declaration that he was born on 15.7.1922 and the records maintained by the defendant be accordingly corrected. Therefore, the question that falls for consideration is whether such a declaration is permissible in law? Section 34 of the Act, 1963 is in the same terms as Section 42 of the old Act. Under Section 34 of the Act a person can ask for a declaration to any ‘lagal character’ or to any right as to property and the court may, in its discretion make a declaration that he is so entitled. Therefore what has to be determined is whether the date of birth of a person is a ‘legal character attaching to that person’. The trial court did not discuss this aspect of the matter. However, the lower appellate court, in considering this matter has held that the expression of ‘legal character and right to property’ as used under Section 34 are equivalent to legal status. The conclusion of the lower appellate court that legal character is equivalent to legal status has rightly not been challenged by Mr. Chatterjee, However Mr. Chatterjee strenuously challenged the conclusion of the lower appellate court that the date of birth is so inseparably connected wiih the status of a person that it must be taken to be directly connected with the legal character of a person at any point of time and hence a suit for declaration of correction of the records of the age of the plaintiff was maintainable. In the case of Major General Shanta Shamsher Jung Buhadur Rana v. Kamani Brothers Private Ltd. and Ors. A.I.R. 1955 Bom. 201, a learned single judge held that legal character as used in Section 42 of the Act which is equivalent to Section 34 of the present Act is equivalent to legal status. With this observation I am in respectful agreement. In an unreporled decision, a copy of which was produced before me, of this Court delivered on 21st March, 1960 by Mahaparta, J. in second appeal The Tata iron and Steel Company Ltd. v. Vazir Khan 1960 B.L.R., the summary of which is to be found in it was held that birth on a particula date if declared, would neither relate to legal character or to right in any property. Declaration of date of birth, at best, would be a part of a suit for damages for wrongful discharge from employment. He further held by relying upon a decision of this Court reported ia 8 P.L.T. 447 that a court will not make a declaration of an abstract right exclusive of practical utility specially when that declaration cannot or may not be productive of any benefit to the party obtaining the declaration. In the instant case the declaration, that is sought for by the plaintiff of a status. Birth on a particular date does not clothe a person with any status of character. Date of birth is only an event in a persons life. It is quite possible to contemplate tint serious consequences might follow from such date of birth but in substance it would always amount to asking for the declaration of an event.
11. In considering whether a declaration of a date of birth can be given or not distinction has got to be made between private em loyment and public employment. In public employment rights are protected under the general law, for example, under Article 311 of the Constitution while in private employment, relationship is contractual except in cases where the act is in violation of mandatory obligation imposed by statute. In private employment an employee cannot have as many declarations as are stipulated in the agreement or contract. Mr. Sinha, on the other hand contended that on the basis of the declaration of his correct date of birth the plaintiff would superannuate only at a later date and, therefore, he was entitled to a declaration that he would superannuate only when he attains the age of 60 years by computing his age on ths basis that he was born on 15.7.1922. Therefore, according to Mr. Sinha ths declaration was of legal character of a right which related to properly, lam unable to accept this submission because even assuming that the age of the plaintiff is corrected and the defendant superannuates the plaintiff before he attains 60 years of age, the termination in private employment would not give the plaintiff the right to continue in service till 60 years of age What would be available to him if the termination is in breach of contract is a decree for damages. It is settled that under the general law of master and servant normally in cases of personal employment, the servant cannot insist on employment; but has the right to claim damages if the termination is otherwise bad. In support of his subnrission that even the court has power to make declaration even with regard to rights arising out of a contract. Mr. Sinha relied upon the case of Harson v. Radcliffe Urban District Council 19322 All E.L.R. 160. Where it was observed that the power of the court to make declaration to the rights of parties to a contract is now almost unlimited and limited only by the discretion of the court. Apart from the fact that this observation was made in a case where it was held that the termination of the plaintiff upon educational grounds cannot be sustained on which it was tried to sustained. I have my grave doubt whether the principle as enunciated therein can be applied in this country.
12. Mr Sinha, in support of his submission that a suit can lie for declaration of the plaintiff’s date of binb, relied upon a number of decisions. In A.I.R 1941 Calcutta 136 one of the reliefs claimed was for a declaration that the plaintiff continued to be the director of the Company. The relief was granted ano therefore, that suit has no application to the present case where declaration asked for is regarding the date of birth of the plaintiff which, as 1 have already held does not grant him legal status. Similarly, 1951 Madras 870 was a case in which the declaration was sought that the dismissal was wrongful. It was held that it was amintainable. In 72 C.C. 335, it was held that if the termination of service was null and void, then a suit can lie for such a declaration. Such declaration is distinguishable from a suit for enforcement of a contract to continue in service. Similarly, in 1969 Kerala 36 dismissal of the plaintiff was set aside by a competent authority which was acted uoon. In such a situation.it was held that a suit for declaration to continue in service was maintainable. In the case of Hill v. C.A. Parsons and Co Ltd. 1971 All E.L.R. 1345 (Vol. III), the termination of a number of employees was held to hi bad and an injunction was granted restraining the company from terminating their service on the ground that damages would not be an adequate remedy and as such this case is also distinguishable.
13. In a Division Bench decision of this court, in the case of Bihar Journals Ltd. v. Ali Hasan and Anr. 1959 Pat. L.R. 185, it was held that the termination of the petitioner’s service was in violation of the statutory standing orders and therefore maintainable. Lastly a Single Judge of the Calcutta High Court in the case of Titagarh Jute Factory Co. Ltd. v. Sriram Tiwari 1979 Lab. I.C. 513, held that a suit for correction of age was maintainable as it violated the statutory standing orders. However, in that case itself it has bsen pointed out that a contract of employment if wrongly repudiated the court of law would not pass a decree for specific performance for such a contract but a suit in exceptional circumstance for a declaration to enforce a contract of personal service or declaration that the dismissal of an employee is invalid and is a nullity can be granted in certain exceptional circumstances namely when a public servant is dismissed in contravention of the provisions of Article 711 of the Constitution when the Industrial Law permits re-instatement of the dismissed workman or where a statutory body acted in violation of mandatory obligation imposed upon the statute.
14. Realiance has also been placed by the respondent on two decisions of the Privy Council reported in 1948 P.C. 121 and 1950 Privy Council 81. In I.M. Lal’s cases (1948 P.C 121) it was held that a declaration that the dismissal of the government servant was wrongful and void can be given but the claim for arrears of pay for the period between his wrongful dismissal and the institution of the suit for damages cannot be paid. In 1950 P.C. 81 it was held that when the company removes its managing agent by an ordinary resolution which is contrary to the Articles of association and the court affirms the continuance in the force of the managing agency a decree prevents dismissal of the managing agent or termination of their appointment and it as between the company and the managing agent has not the effect of enforcing the contract of personal service. I atn therefore of the view that even the decisions cited on behalf on the defendant are of not much avail to him.
15. Thereafter on the basis of the decisions in the case of Vemareddi Ramaraghawa Reddy and Ors. v. Kondurruseshu Reddy and Ors. Ors it was submitted on behalf of the defendant, that Section 34 of the Specific Relief Act is not exhaustive and the courts have power to grant such a decree independently of the requirement of this section. In that case the suit was filed by a worship per for a declaration that a compromise decree is not binding on the deity. It was held that although it was a suit which was out side the scope of Section 42 of the old Specific Relief Act a declaration of the character namely that the compromise decree is not binding upon the deity is a substant ial relief and has coercive effect. Therefore this decision is also in my view of no avail to the respondent. Declaration of date of birth in the instant case will have no coercive effect.
16. Alternatively Mr. Sinha submitted that on the basis of the plaintiff would be entitled to continue in service for a longer psriod and the termination earlier would be a violation of the standing orders of the defendant which had been certified under the Industrial Employment Standing Orders Act, 1946 and therefore, would involve violation ot’a statutory right. He cited the case of Tata Chemicals Ltd, and Ors v. Kailash C. Adhvaryu A.I.R. 1964 Guj. 256, where it was held that the rights arising cut of an siancing ordtr arc statutory and do not arise out of a contractual obligation. He also, in this coniext ciied the case of Vine v. National Dock Labour Board 1956 Vol III All E.L.R. 939. In that case the plaintiff’s prayer was for a declaration that his purported dismissal was illegal, ultra vires and invalid. It was held that the plaintiff’s purported dismissal was a nullity since the local Beard under the provisions of the enactment did not have the power to delegate its disciplinary function It was also held although the grant of declaration was discretionary and as damages in that case would not be an adequate remedy the declaration granted was properly made.
17. This takes me to the question whether the reliefs sought by the plaintiff in ibe instant case is based upon a statute i.e. the certified standing Orders of the defendant Section 2(g) of the Industrial Employment Standing Orders Act, 1946 (Hereinafter referred to as the S.O. Act) defines the Standing orders to mean the rules relating to matters set out in the schedule. In 1960 Supreme Court 665, Gajendra Gadkar, J. as he then was, held that the certifying Officer has to be satisfied that the standing orders with the several matters set out in the schedule and are otherwise in conformity with the provisions of the Act. Therefore I am of the view that the standing Orders, only to the extent, that it refers to matters in the schedule would be statutory. In the schedule attached to the Standing Orders while there is reference to termination of employments there is no reference to superannuation and it has not been brought to my notice that any other matter which may be prescribed which is provided in item No. 11 of the schedule has been prescribed which according to Section 2(f) means made by the rules of the appropriate Government under this Act provides for superannuation. Superannuation is a distinct concept from termination in as much as superannuation takes place automatically on an employee reaching a particular age lor which no noiice is required, while termination is dependent upon distinct action or decision ending the employment. Therefore the provisions for superannuation is the standing orders would not be a statutory provision. However I should not be meant to understood that it means that the age of superannuation provided for in the standing orders is not binding on the part as concerned. All that I mean to convey is that such a provision would be a contractual obligation and not a statutory obligation. The view which I take gets support from a Division Bench decision oftheOrissa High Court reported in AIR 1970 Orissa 126 and the Single Judge decision of the Punjab High Court reported in 1975 LLJ Vol. III 143).
18. This matter can be considered from another point of view also. Under the standing orders as person superannuates at the age of 58. When that age is reached, is a question of fact dependent upon the date of birth of the person concerned. My attention has not been drawn to any provision in the standing orders concerned which provides that if there is a dispute with regard to the date of birth between the employee and the employer it has to be decided in a particular manner. In the instant case the suit for a declaration that the plaintiff was born on a particular date is therefore not a matter which comes within the purview of the Standing orders of the defendant.
19. For the reasons given above. I am of the view that the suit was not maintainable.
20. Turning to the next submission of Mr. Chatterjee that the suit is barred under Section 13 of Ihe Limitation Act. The lower appellate Court has held that it was cot barred because the cause of action for the suit accrued only after the letter rejecting his prayer for rectification, was communicated to the plaintiff in September 1977, According to Mr. Chatterjee inlany view the plaintiff had been given his gate pass in 1971 wherein his date of birth was recorded to be sometime in 1919 and hence limitation would start from that date particularly so because, according to the plaintiff’s own admission Ext. B was the record of age which bad been circulated in 1948 and on 10.10.1958 the plaintiff had signed his personal history card in which his age was shown to have been some time in 1919. It has been submitted that the cause of action arose in 1971 and merely by filing a representation the period of limitation cannot be arrested. In support of this submission reliance was placed on the case of Sitaram Goyal v. Municipal Board Kanpur and Ors. , where it was held that the resolution dismissing the plaintiff was communicated to him on 19.3.1951 and it could not be extended because he had filed an appeal against the order of dismissal. Mr. Chatterjee also relied upon a decision of our own High Court in the case of Ajab Lai Mundar and Ors. v. Jay Prakash Lal and Ors. it was held that limitation was not suspended by subsequent objections to a sale.
21. Mr. Sinha on the other hand for the respondent countered the submission made on behalf of the defendant by submitting that the plea of limitation was not raised in the written ‘Statement and no issue was framed and this question was not raised before the Trial Court and hence the defendant was not entitled to raise this question before the lower appellate Court and cannot raise it now in second appeal. According to him on the face of the plaint the suit was within the period of limitation and now the question cannot be permitted to be raised Learned Counsel relied upon a case of Ashoka Construction Co. v. Union of India A.I.R. 1973 S.C.C. 66. Where it has been held that the question of limitation was not a pure question of law where claim of Bar by the law of limitation is dependant upon facts, He also relied upon a case of Rajpati Prasad v. Kaushalya Kuer and Ors. 1981 B.L.J. 422 where a single Judge held that as the question of limitation is not one purely of law but is a mixed question of law and fact it cannot be permitted to be raised for the first time in argument in the second appeal.
22. It is true that this question was not specifically raised in the written statement and no issue was framed. However it was raised before the lower appellate Court which as pointed out above held that the cause of action arose only when the representation of the plaintiff was finally rejected by the defendant in 1977. In the instant case it has to be borne in mind that on the pleadings of the plaintiff himself, it has been submitted, that suit was barred by limitation. It is not in dispute that the plaintiff on receiving the gate pass in 1971 found that the entry with regard to his date of birth was in 1919. He then made a representation against that entry and wanted its rectification. This was not done under any statutory provision Therefore the cause of action arose when the information about plaintiff’s date of birth as recorded by the defendant was communicated to him by the gate pass having been given to him. Therefore on the facts pleaded it is obvious that the cause of action arose when that gate pass was given. I have already referred to Supreme Court decisions to show that when an order of dismissal was communicated, the limitation was not suspended as an appeal was filed against it. Therefore I have no hesitation in holding that on the pleadings of the plaintiff, cause of action arose when the plaintiff received the gate pass and it could not be extended by his representation which was ultimately rejected in September 1977. It has therefore, to be held that the suit, having not been filed within three years from September 1977 was hopelessly barred by limitation.
23. Thereafter, it is submitted that in computing the limitation, distinction has to be made between cases where the relationship between the parties has come to an end where the relationship has not ended but there is a threat to it. In other words, it has been submitted that in the instant case in 1971, the relationship of employer and employee between the plaintiff and the defendant had not come to an end but only there was a threat of its coming to an end. In this context, reliance was placed on the case of Mosstt. Rukhma Bai y. Lala Laxami Narain it was held that where there are successive invasions or denials of the right, right to sue under Article 122 accrued when the defendant had clearly come in unequivocal possession of the right as asserted by the plaintiff in the suit. Further where a particular threat gives the right of a cause of action is dependant upon the question the said right when the said right is invaded or to penalised. I have also pointed out sabove, that In the instant case the right to sue to the plaintiff had been threatened by the circulation of age in 1948 and thereafter on 10.10.1958 when the personal history card of the plaintiff was given to him which he signed. He has however, stated that the blindly signedjt as a loyal servant. But when the new gate pass was given in 1971 and again his date of birth was shown in it which, according to the plaintiff, was not correct, then it must be held that on the facts of this case it was clearly an unequivocal threat to infringe the right of the plaintiff. In the case of M.V.S. Manikayala Rao v. M. Narsingh Swami and Ors. A.I.R. 1965 S.C. 470. On its fact it was held, that there was nothing to show that the plaintiff’s right was ever challenged in any way by the respondents and, therefore, the suit was not barred under Article 120. In the case of State of Assam v. Gopal Krishna Mehra A.I.R. 1974 Gau. 10 it was held that where the Government refuses to fix the salary according to the revised scale, in such a case Article 113 is applicable and the right to sue for arrears of salary under the revised scale would accrue on the date of refusal. These two cases are therefore distinguishable for the present case. The case of Ahmad Hussain v. Mosstt. Chembelli and Ors. not of much assistance in the present case. There it was held that the notice of dishonour of a cheque is a part of the cause of action on a dishonoured cheque and not a condition precedent necessary for a cause of action. Similarly in the Full Bench case of Musaddi Lal v. Governor General in Council , what was explained was the meaning of the phrase ‘when the case ought to be delivered’is of no help in the instant case.
24. Therefore, on a consideration of the law and in the circumstances of the case. I am of the view that the cause of action clearly and unequivocally arose when the plaintiff was given a new gate pass in 1971 and not in 1977 when the plaintiff’s representation was rejected by the defendant and hence the suit is also barred by limitation.
25. The last submission of Mr. Chatterjee is that the entry in the school register has no evidentiary value. When one is ignorant about the basis of the entry in the school register and no evidence was forthcoming as to how it was made. It, therefore, cannot be a basis for holding that the plaintiff was born in 1922 and not in 1919. Mr. Chatterjee has relied on the case of Braj Mohan Singh v. Priyabarta Narain Sinha , where it was held that a judge of fact cannot Ignore the position that in actual life false statements of age with a view to secure an advantage in getting a public service is not infrequent and, therefore, an entry In the school register should not be conclusive. Similar observations are also to be found in other cases cited by Mr. Chatterjee. However, in the instant case the Courts below, by taking into account the evidence of the plaintiff and the entry in the school register, came to the conclusion that the plaintiff’s date of birth was some time in 1922 and not in 1919. This, being a finding of fact cannot be interfered with in second appeal. Therefore, this submission of Mr. Chatterjee has to be rejected.
26. In the result in view of my findings above, the appeal is allowed and the judgments and decree for the Courts below are set aside but in the circumstances, there will be no order as to costs.