In the High Court of Judicature at Madras Dated: 25.08.2008 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.57 of 1999 L.Nicholas ..Appellant/plaintiff v Tamil Nadu Electricity Board Nilgiris System rep by its Superintending Engineer Ootacamund The Nilgiris ..Respondent/defendant This Second appeal filed against the judgment and decree dated 25.8.1998 made in A.S.No.4 of 1998 on the file of the Court of Subordinate Judge, Ootacamund confirming the Judgment and decree dated 22.7.1997 passed in O.S.No.92 of 1996 on the file of the District Munsif's Court, Ootacamund. For Appellant : Mr.B.Ramamurthy,Advocate For Respondent : Mr.N.Muthuswami,Advocate(TNEB) JUDGMENT
The unsuccessful plaintiff, an employee under the Tamil Nadu Electricity Board,Nilgiris System, Ootacamund/defendant who had approached the Court for change of his date of birth from 1.7.1947 to 4.8.1950 on the basis of birth certificate(Ex A3) had filed the suit after lapse of five years from the joining the service, is the appellant herein.
2. The short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaintiff has joined as a Helper on temporary basis in the services of the defendant on 16.12.1969 and continued till 1.5.1974 when he was confirmed as a permanent employee. While his service was confirmed, the defendant has directed the plaintiff to produce the birth certificate. As the plaintiff was in anxiety as he was confirmed as a permanent employee, he could not ascertain and obtain the records regarding his date of birth immediately and as such at the directions of the defendant, the plaintiff was examined by one Dr. C.K.Theerthagiri, District Medical Officer, Nilgiris and the said doctor had issued an age certificate assessing the age of the plaintiff around 26 years and basing on the age certificate issued by the Doctor, the defendant had entered in the service register , the date of birth of the plaintiff as 1.7.1947 and the plaintiff continued the services with the defendant as Wireman and at present the plaintiff has been working at Ootacamund Town Central. In or about 1986, when the defendant had published a seniority list, he came to know that his date of birth has been registered in the service records as 1.7.1947 and immediately thereafter he had enquired with his parents and he came to understand that his actual date of birth is 4.8.1950 and not 1.7.1947 as registered in the service records with the defendant. Thereafter, the plaintiff has been corresponding with the defendant for all these years by producing all the relevant records to substantiate his correct date of birth as 4.8.1950 but however the defendant has been postponing the issue until 6.6.1995 when under the communication dated 6.6.1995 the defendant had issued a reply that the plaintiff is not entitled to rectify the mistake if any in the date of birth as he has not applied within five years from the date of his joining the services and as such refused to entertain any correspondence in that regard. The plaintiff has obtained the original birth certificate issued by the Commissioner, Ootacamund Municipality as 4.8.1950. The plaintiff had studied Foundation Course through Correspondence at Madurai Kamaraj University (which is equal to old S.S.L.C) and in the transfer certificate issued by the said Madurai Kamaraj University , the date of birth of the plaintiff has again been confirmed as 4.8.1950. The plaintiff has also obtained a certificate of Baptism from the Holy Trinity Church, Ootacamund wherein it has been confirmed that the plaintiff was baptised on 17.9.1950 in which the date of birth of the plaintiff has again been certified as 4.8.1950. The family of the plaintiff, the plaintiff is the seventh out of eight children and the plaintiff is also producing the original birth certificate of his elder sister Ms.Annie whose date of birth is 5.6.1947 and as such the plaintiff could not have born in 1947 and his correct date of birth is 4.8.1950 as certified in the birth certificate, in the transfer certificate issued by the Madurai Kamaraj University and the certificate of Baptism issued by the Holy Trinity Church, Ootacamund. All attempts made by the plaintiff to the defendant for correcting his date of birth from 1.7.1947 to 4.8.1950 ends futile. Hence the plaintiff has no other alternative but to file the suit for a declaration , declaring the date of birth of the plaintiff as 4.8.1950 and as a consequential relief to direct the defendant to enter the correct date of birth of the plaintiff as 4.8.1950 in the service records maintained by the defendant . Hence the suit.
2. The defendant in his written statement would contend that the plaintiff was appointed as regular helper in the Tamil Nadu Electricity Board and he joined as Helper on 1.5.1974. At the time of his joining, he was asked to produce the date of birth to enable the Board to prepare the service register of the plaintiff. The plaintiff produced a certificate issued by the then District Medical Officer Dr.C.K.Theerthakiri in which the date of birth of the plaintiff was mentioned as 1.7.1947. As per the regulation of the service Rules, the date of birth given by the plaintiff was recorded in the first page of his service register. Acknowledging in the entries of date of birth is correct, the plaintiff has signed and affixed his thumb impression on the service register standing on the name of the plaintiff. As per the standing order applicable to a workman other than clerical employee NO.36(iii) , it has been stipulated that”after a person has entered service under the Board as application to alter the date of birth as entered in the records of the Board shall be entertained only if such application is made within five years of such entry into service. But the plaintiff had submitted his application requesting to alter his date of birth as 4.8.1950 instead of 1.7.1947 only on 16.8.1994 , after a lapse of more than 20 years from his date of joining ie., on 1.5.1974 which cannot be considered as per the above said standing order of the Board. The inability of the Board was informed to the plaintiff through the proceedings in Memo No.045335/ep//gp/2-c/2-fl;L/bghJ vz;/218-95 ehs; 6/6/95 .The plaintiff is an Indian Christian. If at all the Baptism is done to him as early as 17.9.1950 and his date of birth is recorded in the Baptism as 4.8.1950 he could have given the said certificate during the time of joining in service. Further, the plaintiff states that his sister Ms.Annie was born in 5.6.1947. But in support of this fact, the plaintiff had concealed all these facts before joining into service which itself shows that he is trying to get unlawful gain from the department. Hence the suit is liable to be dismissed.
3. On the above pleadings, the trial Court had framed four issues for trial . On the side of the plaintiff, the plaintiff has examined himself as P.W.1 and exhibited Exs A1 to A6. Neither oral nor documentary evidence was let in on the side of the defendant. The learned trial Judge,after meticulously going through the evidence both oral and documentary adduced before him, has dismissed the suit on the ground that since the plaintiff has failed to approach the Court within five years from the date of joining into service for the purpose of correcting his date of birth from 1.7.1947 to 4.8.1950. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred an appeal in A.S.No.4 of 1998 before the Court of Subordinate Judge, Ootacamund. The learned Subordinate Judge, after giving due consideration to the submissions made by the counsel on both sides, finding no merit in the appeal, had dismissed the appeal with costs which made the plaintiff to approach this Court by way of this second appeal.
4. The substantial questions of law involved in this appeal are
i) Whether a public record namely extract from Birth and Death Register maintained by the Government can be rejected on the ground that it was given after time limit given in the Rule?
ii) Whether a certificate issued by the Medical Officer after physically examining a person for fixing the date of birth of the said person will prevail over several documents which are given by several other authorities?
5. Point No.1
Admittedly, P.W1/plaintiff joined in the service as Helper under the defendant Tamil Nadu Electricity Board as a temporary wireman in the year 1969. Since he was appointed only on a temporary basis his service register was not opened at the time of his joining into service as a temporary helper in the year 1969. According to the plaintiff as P.W.1 his post was made permanent only on 1.7.1947 and at that time, his employer had directed him to produce his birth certificate. It is the admitted case of P.W1/plaintiff that since he failed to produce any birth certificate, he was asked to appear before the District Medical Officer to obtain a birth certificate and produce the same and thereafter he was referred to Medical Board which had fixed his date of birth as 1.7.1947, after examining him and also on the basis of his physical appearance. Ex A1 is the seniority list maintained by the Tamil Nadu Electricity Board for the workman who were working under the Board as on 31.3.1986. The plaintiff’s name figures at Sl.No.501 wherein his date of birth is shown as 1.7.1947. Only thereafter, according to the plaintiff, he enquired his parents and on the basis of the information furnished by his parents, he applied for the copy of the birth certificate Ex A3 and produced the same before the authorities with a request to change his date of birth from 1.7.1947 to 4.8.1950 by making necessary corrections in his service register. Ex A2 is the reply received from the defendant. Under Ex A2, the defendant has rejected the claim of the plaintiff on the ground that as per Rule 36(iii) of Tamil Nadu Electricity Board, the plaintiff is not entitled to the relief of correcting his date of birth in the service register since he has failed to apply within five years from the date of joining into service. The plaintiff, to substantiate his contention that he was born only on 4.8.1950 and not on 1.7.1947 has produced Exs A3 to A6. In the cross examination P.W.1would contend that his service register was opened on 1.5.1994 itself even though he was appointed as a temporary helper in the defendant’s department even in 1969 itself, would further admit that only on 16.8.1994, he has filed an application before the defendant for change of his date of birth in the service register from 1.7.1947 to 4.8.1950. So this admission of the plaintiff as P.W.1 in the cross examination itself will go to show that even after obtaining Ex A3 copy of the birth certificate on 12.8.1987, for no reason, he has not approached the defendant for change of his date of birth in his service register. There is no explanation forthcoming from the plaintiff why he has not applied immediately with the authorities of the defendant, soon after getting Ex A3 copy of the date of birth certificate from the Ootacamund Municipality and also has not taken any steps to change of date of birth in the service register. Even he would further admit in the cross examination that within five years as per Rules prevailing in the Tamil Nadu Electricity Board Rule 110(ii) of Tamil Nadu Elelctricity Board Service Regulations and Leave Regulation Manuel 1989, he is entitled to correct his date of birth from the date of entering into service. The learned trial Judge after quoting Rules 110((b) (ii) of the Tamil Nadu Elelctricity Board Service Regulations and Leave Regulation Manuel 1989, has held that since the plaintiff has failed to take any steps to correct the date of birth from 1.7.1947 to 4.8.1950 within five years from the date of his joining into service, he is not entitled to the relief prayed for in the plaint has dismissed the suit filed by the plaintiff. The learned trial Judge has also relied on a dictum reported in State Bank of Tamil Nadu-v- T.V.Venugopalan (1995(1) L.W.13) for the said proposition of law. The appeal preferred by the plaintiff before the first appellate Court was also dismissed on the same ground that within five years from the date of joining into service, the plaintiff has not applied before the concerned authorities of the Tamil Nadu Electricity Board for correcting his date of birth in his service register, has dismissed the appeal.
5a) The learned counsel appearing for the appellant relying on a decision reported in Manickchand Sao and others-v- V.Bhagwan Das(AIR 1984 Patna 353) would contend that the plaintiff had obtained Ex A3 birth certificate only in the year 1987 from where he came to know his date of birth as 4.8.1950 and not 1.7.1947 has applied to the concerned authorities of the defendant for making necessary corrections in his service register relating to his date of birth. But as admitted by the plaintiff in the cross examination in his deposition as P.W.1, the plaintiff has approached the concerned authorities not as soon as he received Ex A3 in the year 1987 but only in the year 1994. The facts of the above said ratio is that the minor plaintiff instituted a suit through his mother as his guardian for partition of his = share in the properties scheduled to the plaint in the said suit. In the said case, one Balchand Sao had two sons, Nemchand Sao and Lachhman Sao. Nemchand left two sons, namely, Chamari Sao and Hira Lal Sao. Lachhman Sao left no issues and similar was the position with Hira Lal Sao. Chamari Sao left two sons, Ramdhani Sao and Mohan Chand Sao. Mossammat Sahodri was the widow of Ramdhani , Mossammat Kousaliya Devi(D2) is the widow of Mohan Chand Sao who died on 22.3.1947. Mohanchand had one son Manick Chand Sao(D1) and a daughter Shanti Devi (D3) through his married wife(D2). Mohanchand kept in his house Mostt.Jichhia, the mother of the plaintiff, as concubine and the plaintiff was a ‘dasiputra’ of Mohanchand. During his life time of Mohan Chand Sao, Ramdhani Sao and others died one after another and Mohan Chand got all the properties by survivorship and he came in possession of all the properties belonging to his family. Mohan Chand died leaving behind the plaintiff and the defendants 1 to 3 and they came in possession of all the properties. Mohan Chand was a ‘teli’ that is , ‘Sudra,’ and the plaintiff being the ‘dasiputra’ had half share in all the properties of Mohanchand. Mohand Chand during his life time gave some properties about 10 years ago to Jichhia, the mother of the plaintiff, and the plaintiff, and they came in possession of that property. The plaintiff had sold some of the properties, but the plaintiff and these defendants were jointly in possession of the remaining properties. The plaintiff, after having considerable difficulty in living jointly and hence he requested the defendants several times to divide the properties, but they paid no heed to it. In these circumstances, the plaintiff instituted the suit on 11.1.1958 for partition of his half share in the properties in suit. The suit was contested by D1 to D3, contending that the mother of the plaintiff was a concubine of Mohan Chand Sao and then she was living with Nathuni Singh and the plaintiff was the son of Nathuni Singh and hence the plaintiff is not entitled to a share in the property left by Mohan Chand Sao. Incidentally, the question arose whether the plaintiff was a minor or major. While substantiating his contention that the plaintiff was minor on the date of filing of the suit, he had filed Ex A4 birth register maintained by the Bihar Municipality. While deciding the validity of the said birth register Ex A4, the learned Judge has held as follows:
” It is true that the information was not given within eight days of the birth, but on that account, it cannot be held that the entries were not admissible, inasmuch as these entries can safely come within the purview of Section 35 of the Evidence Act. The birth register was maintained by a public servant in the discharge of his official duty and it cannot be ignored. The entries no doubt indicate that a son was born to Mohanchand in August 1945. Learned counsel for the plaintiff further pointed out that according to the written statement of the defendants, only one son and one daughter were born to Mohanchand from his legally married wife(defendant 2) and therefore, the entry with regard to the son born on 12.8.1945 must refer to the present plaintiff Bhagwan Das”.
Now in the case on hand, the question is not whether Ex A3 and Ex A6 birth certificate for the plaintiff and his sister respectively were genuine or not. But the question is whether the plaintiff has approached the Court within five years from the date of joining into service under the defendant Tamil Nadu Electricity Board for the relief of correcting the entries regarding the date of birth of the plaintiff in the service register. So the facts of the above said ratio stated by the learned counsel for the appellant has no bearing to the present facts of the case.
5b)The learned counsel for the appellant while placing reliance on the ratio in Umesh Chadra-v- State of Rajasthan(AIR 1982 Supreme Court Cases,1057)wherein the question arose whether the delinquent child had committed an offence under Sections 364, 302 IPC on 22.6.1957. To show that on the date of commission of the offence, the delinquent was only a minor two documents were relied upon on the side of delinquent. While deciding the admissibility of those documents, issued by the two different public schools showing the same age of the child , it was held by the Honourable Apex Court that those documents can be admissible under Section 35 of the Evidence Act and those documents will not be hit by Section 73 and 74 of the Evidence Act. The relevant observation in the above said dictum runs as follows:
“The first document wherein the age of the appellant was clearly entered is Ext.D-1 which is the admission form under which he was admitted to class III in St.Teressa’s Primary School, Ajmer. In the admission form, the date of birth of the appellant has been shown as 22.6.1957. The form is signed by Sister Stella who was the Headmistress. The form also contains the seal of the school. DW1 Ratilal Mehta, who proved the admission form, has clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents. The evidence of Ratilal Mehta (D.W.1) is corroborated by the evidence of Sister Stella(D.W3) herself who has also endorsed the fact of the date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in regular course and that they were signed by her. She has also stated that at the time when the appellant was first admitted she was the Headmistress of St.Teressa Primary School, Ajmer. The High Court seems to have rejected this document by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous. The High Court seems to think that the admission forms as also the School’s register(Ext.D3) both of which were, according to the evidence, maintained in due course of business, were not admissible in evidence because they were not kept or made by any public officer. Under Section 35 of the Evidence Act, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. The High Court seems to have confused the provisions of Sections 35, 73 and 74 of the Evidence Act in interpreting the documents which were admissible not as public documents or documents maintained by public servants under S.34,73 or 74 but which were admissible under Sec.35 of the Evidence Act.”
But the question is whether Exs A3 and A6 copy of birth certificate of plaintiff and his sister respectively issued by the Ootacamund Municipality is valid or not? But the pertinent question herein is whether the suit instituted by the plaintiff for correcting the entries relating to his date of birth in the service register , after a lapse of five years from the date of joining in to service is maintainable. So the facts in the above said case is also not relevant for the facts in issue in this case.
5c) The other Judgment relied on by the learned counsel for the appellant in Director of Technical Education-v- Smt.K.Sitadevi (AIR 1991 Supreme Court 308) is also not applicable to the present facts of the case. In the above said case, the respondent , a lady Engineer entered into State Government Service in 1955. The Matriculation certificate produced by her indicated her date of birth to be 19.10.1929 She filed suit for alteration of her date of birth to 21.8.1933. Andhra University alone was impleaded and not the State Government. Decree was obtained and a fresh certificate was issued correcting the date of birth. Her application for consequential correction in her service record was rejected by the Government.Only under such circumstances, the Honourable Apex Court has held as follows:
“We would have agreed with Mr.Madhava Reddy if the decree had been made the sole foundation for the relief granted by the Tribunal. But the additional fact that the original certificate was produced and the Tribunal looked into the date of birth of the other members of the family to find out the reasonableness of the claim of the respondent about her changed date of birth are features which make the dispute factual and the conclusion reached by the Tribunal must therefore, be taken to be one where on facts found the decision has been taken. What exactly is the date of birth of a person is undoubtedly a question of fact and, therefore, the objection raised by learned counsel for the respondent has to be accepted. We, therefore, clarify the legal position that a decree without the State being a party is not binding on the employer(The State) in the matter of determination of the date of birth. But in the present case the Tribunal, on the basis of materials placed before it, apart from the decree of the Civil Court, has come to its own conclusion on the question of fact. We, therefore, dismiss the appeal.”
6. Per contra, the learned counsel appearing for the respondent(Tamil Nadu Electricity Board) relying on a decision reported in State of U.P-v- Shiv Narain Upadhyaya(2006-1 L.W.568) would contend that since the plaintiff has not approached the court within the time prescribed under the Tamil Nadu Electricity Board Service Regulations and Leave Regulations Manuel corrected upto 30th June 1989,is not entitled to the relief asked for in the plaint. The relevant observation in the above said ratio of the Honourable Apex Court runs as follows:
” Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuating or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, and it is necessary to maintain the date of birth in the service records. But, of late, a trend can be noticed, that many public servants, on the eve of their retirement waking up from their supine slumber raise a dispute about their service records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the concerned Administrative Tribunals, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained.”
But in this case, the plaintiff has not approached the Court within the time stipulated under the Tamil Nadu Electricity Board Service Regulations and Leave Regulations Manuel corrected upto 30th June 1989. As per Rule 110(b)(ii) of the Tamil Nadu Electricity Board Service Regulations and Leave Regulations Manuel corrected upto 30th June 1989, which reads as follows”
“After a person has entered service under the Board, an application to alter the date of birth as entered in the records of the Board shall normally be entertained only if such application is made within five years of such entry into service”
Hence the point No.1 is answered accordingly.
7. Point No.2:
The age certificate issued by the Medical Officer was also produced only by the plaintiff and not by the defendant after examining the plaintiff by a doctor appointed by the defendant. Even according to the evidence of P.W.1, his date of birth was certified by the District Medical Officer only after examining him. But only at the time of fixing his seniority, through Ex A1, he came to know from his parents that his date of birth was 4.8.1950 and not 1.7.1947. Ex A1 seniority list was published on 16.4.1986 itself . But the plaintiff has challenged his date of birth by way of a civil suit only in the year 1996. P.W.1 would further admit in the cross examination that he objected to Ex A1 only on 16.8.1994. So viewed from any angle, it cannot be said that the date of birth fixed by the defendant on the basis of the certificate issued by the District Medical Officer is incorrect. Since the plaintiff has not approached the Court within the time prescribed under the Tamil Nadu Electricity Board Service Regulations and Leave Regulations Manuel corrected upto 30th June 1989, I hold on point No.2 that the plaintiff is not entitled to any relief asked for in the plaint.
11. In fine, this second appeal fails and the same is dismissed confirming the decree and Judgment in A.S.No.4 of 1998 on the file of the Court of Subordinate Judge, Ootacamund. In the circumstances of the case, there will be no order as to costs.
25.08.2008
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To
1. The Subordinate Judge, Ootacamund
2. The District Munsif ,Ootacamund
A.C.ARUMUGAPERUMAL ADITYAN,J
sg
Second Appeal No.57 of 1999
25.8.2008