JUDGMENT
S.S. Subramani, J.
1. Defendant in O.S. No. 458 of 1993, on the file of District Munsif’s Court, Tuticorin, is the appellant. Plaintiff is the sole respondent herein.
2. He filed the above suit to declare that his date of birth is 30.3.1940, and consequently to grant a permanent prohibitory injunction restraining the appellant from superannuating him from service before 30.3.1993, and to award costs.
3. Material averments in the plaint may be summarised as follows:
Respondent is an employee under the appellant/defendant working as shore labourer for 12 years prior to the filing of the suit. Like other dock workers, plaintiff was also brought under the administration of the defendant in the year 1981. In the year 1983, the dockworkers were asked to produce documentary evidence to prove their name, father’s name and age for screening. At that time, plaintiff produced the voters’ list which was the only document available with him. Plaintiff was not having any School Certificate or Birth Certificate, and therefore, he could not file any such Certificate. Later, when plaintiff was subjected to medical check-up ascertain physical fitness, no test was conducted to determine the age of plaintiff, and result of the medical check-up was not informed to plaintiff. On 30.8.1993, when plaintiff went to defendant’s Office, he enquired the concerned clerk to verify his age entered in his Service Register maintained by defendant. At that time, it was informed that his date of birth was entered as 1.1.1936. It is said that the plaintiff then only realised that his name has been wrongly mentioned in the voters’ list and that basing on that, he has to retire on his completing the 58th year. Immediately, plaintiff obtained a Birth Certificate and produced the same before the defendant. He also sent a petition asking the defendant to correct his date of birth in the Service Register, and he also moved an application to the Traffic Manager of the Tuticorin Port Trust in that regard. He further averred that he is a Hindu Harijan and he is a native of Velayuthapuram. His father’s name is Muthukaruppan and his mother’s name is Valliammal. It is said that as per the Standing order of defendant, a cargo handling worker will retire from service after the completes the age of 58 years. The age of the plaintiff is only 55, and he has to retire only on 30.3.1998. But it is wrongly entered in the Register maintained by the defendant, as 1.1.1994. Plaintiff therefore, seeks for the above reliefs, with a declaration that he is entitled to continue in service till 30.3.1998.
4. In the written statement filed by defendant (appellant), they put forward the following contentions: The suit is not maintainable. It is further contended that in 1983, a screening was conducted, for regularising the records, and the workers were asked to prove their age. Primarily they were asked to produce birth certificate or school certificate. Workers who claimed that they did not have birth certificate were permitted to produce voters ‘list, if they would admit the age therein to be correct. Thereafter, plaintiff produced the voters’ list, on the basis on which necessary entries were made in his Service Register regarding date of birth. It is further averred that no medical examination was conducted for determining age. It is further said that the alleged knowledge about the wrong entry in the service register as stated in the plaint is correct. It is said that even he gate pass issued prior to 1990 will show the date of the retirement, and that is a document in the possession of the plaintiff himself. They also denied that the date of birth of plaintiff is 30.3.1940. They said that the plaintiff has no cause of action, and the suit for prohibitory injunction or declaration cannot be granted.
5. On the above pleadings, parties went on trial. Evidence, both oral and documentary, was let in, and, after considering the evidence, trial court held that the date of birth as entered in the voters’ list produced by the plaintiff is not correct. It further held that the date of birth as stated in the plaint, namely, 30.3.1940 is the correct age, and, therefore, the plaintiff is entitled to be in service till 30.3.1998. It further came to the conclusion that the plaintiff came to know about the wrong entry only on the date mentioned in the plaint, and there is no bar of limitation as contended. It may be stated that as against the plaintiff’s documentary and oral evidence, the defendant did not produce any evidence at all. So, whatever the plaintiff and his witness said in the box was accepted by the trial court. P.W. 2 is none other than the plaintiff’s elder brother. He also gave deposition as to the date of birth and also proved the statement of the plaintiff. Taking into consideration these facts, trial court gave a decree as prayed for.
6. Aggrieved by the judgment, defendant preferred A.S. No. 384 of 1994, on the file of Principal District Judge, Tuticorin. The lower appellate court also confirmed all the findings of the trial court.
7. The lower appellate court further found that even though the plaintiff is said to have produced the voters’ list, when the defendant makes reference to the age, that document was also not produced by the defendant. The lower appellate court was of the view that not even an explanation was offered by defendant as to wy the voter’s list produced by plaintiff was not furnished by the defendant before court, and consequently the lower appellate court held that an adverse inference has to be drawn. Without production of the voters’ list, it cannot be said that the plaintiff has to retire on 1.1.1994. For this added reason, the findings of the trial court were accepted by the lower appellant court.
8. It is against the concurrent judgments of both the courts below, defendant has preferred this second appeal.
9. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:
1. Whether the suit filed by the respondent is maintainable when the relief sought for by the respondent is barred under Section 124 of the Specific Relief Act?
2. Whether the suit for injunction against superannuation is maintainable when there are specific provisions available for the employee under the Industrial Disputes Act?
3. Whether the court can grant the relief of declaration and injunction at the verge of his retirement from service? and
4. Whether the suit is barred by limitation under Article 113 of Limitation Act?
10. The main point that is urged by learned Counsel for the appellant was the maintainability of the suit before civil court. Even though that point has not been argued before the courts below, since the very jurisdiction of the civil court is challenged, the court allowed the same to be raised, and that is how substantial question of law No. 2 (extracted above) came to be formulated.
11. Before discussing about question No. 2, a finding on other question of law may also be required.
12. The relief sought for cannot be said to be barred under Section 14 of the Specific Relief Act. What the plaintiff seeks before court is that he should not be superannuated or sent out of service before he completes 58 years of age, calculating his date of retirement from 30.3.1940, which according to him is the correct date of birth. It is not a personal service that he is seeking to enforce. If a civil suit is maintainable, it cannot be said that the suit is barred under other provisions or under the provisions of the Specific Relief Act. If on the basis of Service Rules, plaintiff is entitled to continue in service till he completes the age of 58, and if it is ultimately found that his date of birth is 30.3.1940, naturally, he will be entitled to the relief sought for in the plaint. Therefore, the contention of learned Counsel that the suit is barred under Section 14, and the declaration sought for on the verge of the retirement cannot be accepted. Further, both the courts below have come to the conclusion that the suit is not barred by limitation on the finding of fact. Courts below have held that the plaintiff came to know about the wrong entry of his date of birth only a few months before he instituted the suit. From the date of knowledge, he has come to court within a short period. Even though it may be a few months before his retirement as per the case of the defendant, if it is within the period of limitation, the suit cannot be thrown out. The findings of the courts below are also based on materials. Therefore, question Nos. 1, 3 and 4 will have to be answered against the appellant.
13. What remains is only as to the maintainability of the suit.
14. Even in paragraph 9 of the plaint, it is alleged that they are bound by the Standing Orders. It is said that as per Standing Orders of the defendant, a cargo handling servant will retire after he completes the age of 58 years. What is the effect of a binding Standing Order, and what are the provisions of the Standing Orders, have to be considered for deciding the maintainability of the suit.
15. Section 7 of the Industrial Disputes act, Second Schedule provides for matters within the jurisdiction of Labour Courts. Items 1 and 2 of the Second Schedule say that the propriety or legality of an Order passed by-an employer under the Standing Orders and the application and Interpretation of Standing Orders are all matters within the jurisdiction of the Labour Courts. As mentioned earlier, under the Industrial Employment (Standing Orders) Act, 1946, Schedule 1-B deals within Model Standing Orders on additional items applicable to all industries. Rule 1 deals with Service Record. In the ‘Service Record’, one of the matters to be provided is ‘record of age’. In that regard, what are the matters to be provided are also stated. It says, while considering the age, what are the records to be maintained by the employer and how far the same are binding, and what is the basis for fixing the date of retirement. Clause (iv)(b) says:
The date of birth of a workman, once entered in the service card of the establishment shall be the sole evidence of his age in relation to all matters pertaining to his service including fixation of the date of his retirement from the service of the establishment. All formalities regarding recording of the date of birth shall be finalised within three months of the appointment of a workman.
What are the formalities to be followed for entering the age are also provided in the earlier clause. It is on that basis, the age is entered in the Service Record. If this is a matter which has to be provided under the Standing Orders, naturally, any question concerning the date of birth and the date of retirement must also be decided only by the Industrial Tribunal or by the Labour Court.
16. I am bound to take this view in view of the decision of the Supreme Court reported in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. . In that case, their Lordships have exhausted the case law regarding the bar of civil court, and also as to what are the matters which could be taken by the Industrial Disputes Act. Their Lordships also took into consideration various provisions under the Industrial Employment (Standing Orders) Act, 1946. Section 13-A of the said Act was also taken into consideration by their Lordships. It deals within any question as to the interpretation of the Standing Orders certified under the Act. That is also a matter which has to be decided under the Industrial Disputes Act. In that case, their Lordships considered as to what is the nature of the Standing Orders and how far Section 13-A of the Act bars the jurisdiction of civil court. And, finally, in paragraph 35 of the judgment, their Lordships summarised the entire law. It reads thus:
We may now summarise the principles flowing from the above discussion:
(1) Where the dispute arises from general law of contract i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 – which can be called “sister enactments” to Industrial Disputes Act – and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is totally frivolous one ex facie The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly – i.e., without the requirement of a reference by the Government – in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to “statutory provisions”. Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute. Applying the above principles, we must hold that the suit filed by the respondents in these appeals were not maintainable in law….
Appellant establishment is one coming under the Industrial Disputes Act and also governed by the Industrial Employment (Standing Orders) Act. If, as per the Schedule, the age of retirement is also a matter coming within Section 13-A of the Act, and on that basis, the age is entered in the Service Record of the workman, any dispute connecting the same can only be decided either by the Labour Court or by the Industrial Tribunal. Their Lordships said that if it is a question coming under either Industrial Disputes Act or under any sister statute like Industrial Employment (Standing Orders) Act, jurisdiction is exclusively by that court, and not to a civil court. Of course, that was a case where service of an employee was terminated in view of alleged misconduct. A civil suit was filed challenging the punishment imposed on the employee. It was in that context, their Lordships considered the scope of Industrial Disputes Act read along with the ‘sister Statutes’. If it is in any way connected with the Industrial Disputes Act, their Lordships said that a civil suit is barred. Except in case here the disputes arose from general law of contracts, i.e., where the reliefs claimed are on the basis of general law of contracts, a civil suit could not be maintained. In all other respondents it was held by the Apex Court that the court established under the Industrial Disputes Act are the only forums through which the grievance could be redressed. Jurisdiction of civil court is completely ousted according to that decision.
17. In that view of the matter, and on the basis of the law declared by the Supreme Court, I have to hold that the suit filed by the the respondent is not maintainable. Question No. 2 has, therefore, to be found in favour of the appellant.
18. I allow the second appeal by settling aside the judgment of both the court below. The suit O.S. No. 458 of 1993, on the file of Additional District Munsif’s Court, Tuticorin, filed by the respondent herein will stand dismissed. However, there will be no order as to costs. Even though I have allowed the appeal, and dismissed the suit, this will not be a bar for the respondent/plaintiff to invoke the jurisdiction of the Labour Court and get appropriate relief.
19. On the basis of the interim Orders passed by the courts below which are still in force, respondent is continuing in service till date. Fie has also been drawing salary for the period of his service. I make it clear that the dismissal of the suit will not enable the appellant establishment to recover back the salary from the respondent/plaintiff, nor can the salary be adjusted from his retirement benefits, if any, payable to him. C.M.P. No. 12544 of 1996 stay is dismissed, consequently.