TaxTMI 
TaxTMI 
2022 (1) TMI 805
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....sent appeal is that respondent No.1 / plaintiff joined the service with the appellant / defendant No.1 on October 20, 1989, as Junior Engineer. According to respondent No.1 / plaintiff his date of birth i.e., October 02, 1962, has been recorded in all the documents of his office including the Application Form, Educational Certificates, Attestation form i.e., Form of Personal details, Service Book, Pay Fixation Certificate, Medical Card, etc. The appellant / defendant No.1 in the years 2003 and 2010 published the seniority list for some of its employees / office bearers and invited objections concerning the same if any. In respect of respondent No.1 / plaintiff, as stated by the appellant / defendant No.1, the date of birth reflected in the said seniority list was October 02, 1960. In addition, according to the appellant / defendant No.1, respondent No.1 / plaintiff in the year 2012 inspected its Service Book and did not object to any of its details. It is a case where respondent No.1 / plaintiff for the first time on July 31, 2013, submitted a letter to the appellant / defendant No.1 alleging erroneous entry of the date of birth of respondent No.1 / plaintiff in the Service Book as....
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....ervice Book. In the said scan, the date of birth was October 02, 1962, and there was some overwriting. d. Respondent No.1 / plaintiff filed the said Civil Suit on March 24, 2017, seeking a decree of declaration qua his date of birth and consequential decree of mandatory injunction seeking rectification of records in addition to other consequential relief. 5. It is contended by Mr. Bajaj that the Trial Court mislead the inquiry into the question that if the Matriculation Certificate was submitted (which contained the date of birth as October 02, 1962) with the appellant / defendant No.1, then why did the concerned officer failed to enter the correct date of birth. It is stated by Mr. Bajaj that this was neither the pleaded case of respondent No.1 / plaintiff nor any evidence was led to this effect and no formal issue was framed in respect of the same. Consequently, Mr. Bajaj stated that it is the settled principle of law that a litigant is only entitled to the relief based on the pleadings and no evidence can also be led beyond the case that has been pleaded by the party. In this regard, Mr. Bajaj placed his reliance upon the law laid down in the case titled Bachhaj Naha....
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....regard is made within five years of his entry into Government service; b) It is clearly established that a genuine bonafide mistake has occurred; and c) The date of birth so altered would not make him ineligible to appear in any school or University or Union Public Service Commission examination in which he had appeared, or for an entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service." 9. Mr. Bajaj stated that the Trial Court misconstrued the provision defined in F.R. 56 and held that the same is not applicable in the present case. He further stated that the Trial Court erred to consider the fact that the appellant / defendant No.1 was estopped from allowing any rectification in the case as the same was made after five years. In this regard, Mr. Bajaj relied upon the law laid down in the judgment of the Supreme Court in the case titled Union of India v. Harnam Singh, (1993) 2 SCC 162. 10. Moreover, reliance has also been placed by Mr. Bajaj in the judgment of the Supreme Court of India in the case titled U.P. Madhyamik Shiksha Parishad and Others. v. Raj Kumar Agnihotri,....
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....of both the parties in the CS No. 391/2017 on February 11, 2019, framed the following issues: "i. Whether the plaintiff is entitled to a declaration to the effect that his date of birth is October 02, 1962, and not October 02, 1960? OPP ii. Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendants to rectify his date of birth as October 02, 1962, instead of October 02, 1960? OPP iii. Whether the plaintiff is entitled to damages to the tune of Rs. 3 lacs as prayed for? OPP iv. Whether the plaintiff is entitled to interest on the above amount, if yes then at what rate and for what period? OPP v. Whether the suit of the plaintiff is barred by law of limitation? OPD vi. Relief" 15. The Trial Court in the CS No. 391/2017 while deciding the issue of limitation held that the appellant / defendant No.1 has failed to discharge its onus upon the point of limitation, therefore the issue regarding whether the suit of respondent No.1 / plaintiff is barred by law of limitation is decided against the appellant / defendant No.1 and in favour of respondent No.1 / plaintiff. The Trial Court recorded that as per F.R.....
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....36 dated April 12, 2010, and details of Family Card to the plaintiff showing the same date of birth as October 02, 1960. The Trial Court recorded that in the absence of any answer to the said questions and evidence led by the respondent No.1 / plaintiff is of such a nature which led to the irresistible conclusion that the date of birth of the respondent No.1 / plaintiff is October 02, 1962, and the same is conclusive and irrefutable proof. That apart, the Trial Court held that erroneous recording of the date of birth of the respondent No.1 / plaintiff by the appellant / defendant No.1 due to inadvertence oversight or clerical error, should not curtail the service of respondent No.1 / plaintiff. 17. The Trial Court in the impugned judgment further recorded that, it is a settled proposition of law that an employee seeking the correction of his date of birth, must show, the incorrect recording of date of birth was made due to negligence of some other person or that the same was an obvious clerical error failing which the relief should not be granted to him. It is also the settled proposition of law that the bonafide error would normally be one where an officer has indicated a pa....
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....o entitled to pendente-lite and future interest @9% and 6% per annum respectively on the said damages of Rs. 1,00,000/- along with coats of the suit. 19. The Trial Court based on the reasoning in the impugned judgment granted the following reliefs: "i. Plaintiff is entitled to the decree of declaration whereby it is declared that the date of birth of the plaintiff is October 02, 1962. ii. Plaintiff is also entitled to the decree of mandatory injunction whereby it is directed to defendant no. 1 to correct the date of birth of plaintiff from October 02, 1960, to October 02, 1962. iii. Plaintiff is also entitled to the damages for the tune of Rs. 1,00,000/- along with interest @9% per annum from the date of rejection of representation of plaintiff i.e., November 03, 2014, till the filing of the suit. iv. Plaintiff is also entitled to pendente-lite and future interest @9% & 6% per annum respectively on the said damages of Rs. 1,00,000/- along with the cost of the suit." 20. Written submissions have also been filed by the learned counsel Mr. Soumitra Chatterjee appearing on behalf of respondent No.1 / plaintiff who has argued that respondent No.....
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....ntiff from October 02, 1960, to October 02, 1962, which is also admitted by the appellant / defendant No.1. l) Copy of the application dated March 09, 2017, for carrying out the rectification of the date of birth of respondent No.1 / plaintiff from October 02, 1960, to October 02, 1962, which is also admitted by the appellant / defendant No.1. m) Compact Disc containing the scanned copy of the first page of the Service Book showing the respondent No.1 / plaintiff date of birth as October 02, 1962. n) Copy of the passport bearing number N-599985 dated January 02, 1979, as per which the date of birth of respondent No.1 / plaintiff is October 02, 1962, which is in the record of the appellant / defendant No.1 since February 2009. 22. Mr. Chatterjee also submitted that in July 2013, when respondent No.1 / plaintiff received his payslip, he noticed that his date of birth was wrongly mentioned therein as October 02, 1960, whereas it should have been October 02, 1962. It is further contended by Mr. Chatterjee that under a bonafide impression of a clerical mistake on the part of the appellant / defendant No.1, respondent No.1 / plaintiff immediately filed an ap....
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....ee based on the documents available on the record. 26. Mr. Chatterjee stated that as per the list of November 2001 which was shared by the appellant / defendant No.1 with the LIC of India for its employees' group insurance, wherein the date of birth of respondent No.1 / plaintiff was shown as October 02, 1960. However, as per the list of January 2014, the date of birth of respondent No.1 / plaintiff was shown October 02, 1962. Moreover, it was submitted by Mr. Chatterjee that on both the occasions in the years 2001 and 2014 the details were filled up by the appellant / defendant No.1 and respondent No.1 / plaintiff did not have any occasion to examine his date of birth which was being shared by the appellant / defendant No.1 with LIC of India and the same has also been confirmed by the witness D1 W-2 on February 02, 2021. 27. Mr. Chatterjee submitted that both the seniority list of the years 2003 and 2010 were never circulated among the employees of the appellant / defendant No.1. Further, it was submitted that the witness D1 W-2 and D1 W-4 in their cross-examination before the Trial Court in the CS No.391/2017 on February 02, 2021, deposed that the seniority list of 2003 was....
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....re this Court. This Court vide order dated October 22, 2020, directed that the respondent No.1 / plaintiff shall be continued in service till the next date of hearing, before the Trial Court i.e., November 20, 2020. On the said date i.e., November 20, 2020, the Trial Court after hearing the submissions of the parties directed that respondent No.1 / plaintiff will be allowed to continue in service till December 2020. The appellant / defendant No.1 aggrieved by the directions passed by this Court vide order dated October 22, 2020, filed Civil Appeal No. 4048/2020 which was decided by the Supreme Court on December 15, 2020, in terms of the following directions: "We direct the Trial Court to expedite the process and conclude the proceedings as early as possible and preferably by the end of February, 2021. Both sides agree that they shall not take any adjournment and shall cooperate in disposal of the suit at the earliest. We shall not be taken to have expressed any opinion on the merits of the matter which will be gone into in accordance with law." 32. On April 07, 2021, when the present appeal was listed, this Court noted the submission of Mr. Bajaj that responden....
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.... 2013. Hence, the Said Civil Suit which was filed much later on 05.04.2017 being beyond the prescribed period of three (3) years [reliance is placed on Article 58 of the Schedule appended on the Limitation Act, 1963 (hereinafter referred to as "Limitation Act")]; is ex-facie barred by limitation. On this aspect as well, the Learned Trial Court erred and held that the cause of action would commence from the date when the representation was rejected by the Appellant." 34. Even otherwise, it is not the only case of respondent No.1 / plaintiff seeking a declaration that his date of birth is October 02, 1962. He did rely upon the application form, educational certificates, attestation form i.e., form giving personal details, Service Book, pay fixation certificate, medical card, and passport to contend that his date of birth is October 02, 1962. I may state here that Mr. Bajaj during his submissions did concede that the date of birth of respondent No.1 / plaintiff is, in fact, October 02, 1962, as per the certificate issued by the CBSE on September 15, 1978. Even the Trial Court finding in this regard in paragraph 11.8 is also based on the certificate issued by the CBSE (Ex.PW4/1) sub....
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....nt no.1. It is further submitted that there is no evidence on record suggesting that said seniority list were published. It is further submitted that first time plaintiff became aware of the said seniority lists when the same were filed by defendant no.1 along with the written statement. Counsel for plaintiff has also drawn attention of the court on document Ex.D1W2/4 i.e. draft of seniority list dated 12.03.2010 and submitted that the said draft of seniority list was never circulated to the plaintiff's branch i.e. A.E. (Civil). Counsel for plaintiff in support of said arguments has also drawn the attention of the court on the contents of said draft seniority list and submitted that as per the contents of said document, the said seniority list was to be circulated to all 12 branch heads of defendant no.1 including the head branch of plaintiff i.e. AE(Civil). It is further submitted that since it was neither circulated to all 12 branch heads except Office Superintendent (mentioned at serial no.1), nor the said information was brought in the notice of the plaintiff, therefore, there is no receiving of seniority list by all the Branch Heads of defendant no.1. It is further submitted t....
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....t is also inferred from the draft seniority list that the said draft seniority list was to be circulated to the 12 Heads of Branches of defendant including plaintiff branch i.e. AE(Civil), which is mentioned at Serial no.4. 8.4 Perusal of the said seniority list, it appears that the said seniority List was only sent to the Office Superintendent i.e. at Serial No.1 and same was duly received by the said Office of Superintendent. It also appears that the said seniority list was not forwarded to the remaining 11 branches of the defendant no.1 as there is no receiving of the said Branch Heads. The aforesaid fact has strengthen the plea of the plaintiff that the said information of seniority list of 2010 was not supplied to 11 Branch Heads, including, branch of plaintiff i.e. AE(Civil), therefore, it cannot be said that the plaintiff was aware about the alleged date of birth '02.10.1960' mentioned in the said seniority list. 8.5 Now coming on the aspect of displaying/ publication of seniority list. It is to be note here that during the course of evidence, counsel for plaintiff has shown a photo of notice board of defendant no.1 (D1W2/PX-2) to official witness of defend....
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....on of the court in the testimony of official witness of defendant no.1 i.e. Ms. Nirdesh Kumari (D1W-4), who admitted that two signatures of plaintiff shown on Ex.D1W4/5 and Ex.D1W4/8 are done from front/ right side whereas remaining three signatures of plaintiff shown on the document Ex.D1W4/4, Ex.D1W4/6 and Ex.D1W4/7, are from the opposite side. Counsel for plaintiff further submitted that in view of the aforesaid admissions of official witness of defendant no.1, it is apparent that it is very difficult for the plaintiff or any other employee to observe every minute details of the cash receipts while taking salary from a window. It is further submitted that in view of aforesaid facts & circumstances, the plaintiff could hot have seen min0te details of said cash receipts showing the alleged date of birth of plaintiff as '02.10.1960', therefore, it cannot be said that plaintiff was aware about the alleged date of birth at the time of receiving of salary in cash. 9.2 In rebuttal, counsel for defendant no.1 opposed the said argument of counsel for plaintiff stating that the salary was disbursed to the employees in the open room therefore, it was not possible that the alleged ....
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....ately made representation dated 31.07.2013 to the defendant no.1 for correction of his date of birth as '02.10.1962'. The said representation was rejected by defendant no.1 on 03.11.2014. As I have already discussed in abovesaid paras that defendant no.1 has failed to prove that plaintiff was aware about his date of birth as '02.10.1960' at the time of publication of seniority list in the year 2003 and 2010 respectively or at the time of receiving of salary in cash. In view of the aforesaid facts & circumstances. I am of the considered view that cause of action in the present suit had accrued in favour of plaintiff on the date of rejection of representation i.e. on 03.11.2014 and the present suit was filed on 05.04.2017, which is well within the period of limitation as per Article 58 of the Limitation Act." 39. I concur with the view taken by the Trial Court. This I say because the finding of the Trial Court was that before 2013, the respondent No.1 / plaintiff was not in the knowledge of his date of birth being shown as October 02, 1960. In the absence of any knowledge, there was no occasion for respondent No.1 / plaintiff to make a representation. It was the case of respondent....
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.... what basis the date of birth of respondent No.1 / plaintiff has been mentioned as October 02, 1960. In fact, F.R. 56 clearly stipulates the age of retirement of a Government servant is determined with reference to the date of birth declared by the Government servant at the time of appointment on production as far as possible documentary evidence such as high school certificate or extracts from the birth register. It is not the case of the appellant / defendant No.1 that the date of birth certificate submitted by respondent No.1 / plaintiff has not been accepted by the appellant / defendant No.1. The stand of the appellant / defendant No.1 is that the date of birth can be altered within five years of appointment but the said rule does not contemplate, if, an error occurs after five years how the same has to be dealt with. The appellant / defendant No.1 has relied upon the LIC, Group Insurance Policy of 1997 wherein the personal data of the employees including of the respondent No.1 / plaintiff was submitted which includes the date of birth; the seniority list issued in the year 2003 and 2010 respectively, and the salary payslips. All the documents are post 5 years of the appointmen....
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....fendant no.1 (D1W-2), has admitted during the course of cross-examination that he got the service record of plaintiff containing letter dated 20.10.1989 which is the joining report of plaintiff and same was received at the office of defendant no.1 vide diary no.7013 (Ex.D1 W2/PX-1). He further admitted that service record of plaintiff also contains the class 10th certificate of plaintiff issued by CBSE on 15.09.1978 vide s. no.DSSC/78/055847 wherein the date of birth of plaintiff is mentioned as '02.10.1962'. Copy of the same is already Ex.PW4/1. 11.8 Bare perusal of the said admission of Assistant Superintendent of defendant no.1, it is apparent that plaintiff furnished his matriculation certificate (EX.PW4/1) at the time of joining of his service. In the said matriculation certificate, the date of birth of plaintiff is mentioned as '02.10.1962'. In addition of the aforesaid documents, plaintiff also furnished attestation form (Ex.PW2/1) to the defendant no.1 after joining of service which also recorded the same date of birth of plaintiff as '02.10.1962', the same is also admitted by the official witness of defendant no.1 i.e. PW-2. Apart from the aforesaid facts,....
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.... that the date of birth could not have been altered after five years and just a few years before retirement. Both the judgments have been dealt with by the Trial Court in the following manner in paragraphs 7.8 and 7.9 which I reproduced as under: - "7.8 As far as cases referred by counsel for defendant no.1 are concerned, I find that the same are not applicable upon the facts & circumstances of the present case. In first citation i.e. Harnam Singh case (Supra), a government employee (respondent) was appointed in Class IV post as a Peon on February 22, 1956 and date of birth as recorded in the first sheet of his service book was May 20, 1934. On passing the matriculation examination in May, 1956, the said employee was appointed as LDC in 1957. The date of birth of said employee as recorded in the matriculation certificate was April 7, 1938. Moreover, he signed the service book at a number of places at different times and he saw the seniority list. Further, he filed representation for correction of his date of birth first time only on September, 1991, just a few months before his notified date of superannuation. In view of the said facts, the said employee was not permitted ....
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...., have no applicability in the facts of this case rather, I find that the appellant / defendant No.1 has failed to explain the discrepancy in the date of birth of the respondent No.1 / plaintiff as October 02, 1960, in the Service Book despite the certificate issued by CBSE being on record. The plea of falsities cannot be imputed to the respondent No.1 / plaintiff. I have considered the latest judgment of the Supreme Court in the case of Karnataka Rural Infrastructure Development Limited and Ors. v. T.P. Nataraja and Ors., MANU/SC/0680/2021, wherein the Supreme Court in paragraph 10 has held as under: "10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under: (i) application for change of date of birth can only be as per the relevant provisions/Regulations applicable; (ii) even if there is cogent evidence, the same cannot be claimed as a matter of right; (iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation." The Supreme Cour....
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....as filed by respondent No.1 / plaintiff after nearly 24 years. In the present case, the respondent No.1 / plaintiff has approached the Court immediately after the rejection of the request, which plea has been accepted by the Trial Court in his favour, which according to me was on justifiable reasons as is clear from my discussion above. 45. In so far as the compensation of Rs. 1,00,000/- (Rupees One Lac Only) granted by the Trial Court in favour of respondent No.1 / plaintiff is concerned the only submission by Mr. Bajaj is that no evidence was led by respondent No.1 / plaintiff to claim the said amount and the claim itself amounted to seeking premium for his own wrongs. 46. The Trial Court has awarded the compensation by coming to the following conclusion in the impugned judgment: "12.1 Onus to prove these issues were fixed upon plaintiff. During the course of arguments, counsel for the plaintiff submitted that plaintiff has been put to undue harassment by defendant no.1 which is evident from its conduct. Initially, defendant No.1 took 460 days to decide the representation of plaintiff dated 31.07.2013 and then rejected it on 03.11.2014. Secondly, it also kept delay....
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....iff is also entitled for pendent-lite and future interest @9% and 6% per annum respectively on the said damages of Rs. 1,00,000/- along with costs of the suit. With these observations, issue no.3 & 4 are also decided in favour of the plaintiff and against the defendants." 47. From the above, it is noted that the basis for the Trial Court to grant damages is primarily for the reason that the respondent No.1 /plaintiff was put to undue harassment by the appellant / defendant No.1, inasmuch as the appellant / defendant No.1 took 460 days to decide the representation of the respondent No.1 / plaintiff dated July 31, 2013, by rejecting it on November 03, 2014. It also kept on delaying the filing of the written statement for more than 16 months and not providing a copy of the Service Book to respondent No.1 / plaintiff. Despite respondent No.1 / plaintiff furnishing the date of birth certificate to the appellant / defendant No.1 at the time of joining showing as October 02, 1962, the officials of the appellant / defendant No.1 either made a wrong entry of the date of birth of the respondent No.1 / plaintiff or forged the same by mentioning the wrong date of birth as October 02, 1960. ....
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.... 52. Reference may be had to the judgment of the Supreme Court in Mehmood Nayyar Azam v. State of Chhattisgarh and Others, MANU/SC/0615/2012: (2012) 8 SCC 1 where the Supreme Court held as follows:-- "22. At this juncture, it becomes absolutely necessary to appreciate what is meant by the term "harassment". In P. Ramanatha Aiyar's Law Lexicon, 2nd Edn., the term "harass" has been defined, thus:-- Harass. "injure" and "injury" are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word "harass" excluding the latter from being comprehended within the word "injure" or "injury". The synonyms of "harass" are: To weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit." The term "harassment" in its connotative expanse includes torment and vexation. The term "torture" also engulfs the concept of torment. The word "torture" in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman a....
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.... suitable compensation after considering all the facts and circumstances of the case before it. 19. Taking into consideration all the facts and circumstances of the case including the fact that the Plaintiff has been practicing as an Advocate of this Court seems to be doing well as is evident from the income disclosed in his affidavit, I am of the view that the ends of justice would be met if the Plaintiff is awarded an all inclusive compensation amounting to Rs. 15,00,000/- on account of his wrongful dismissal from service. He will not be entitled to any pendent lite and future interest on this amount." In that background this court awarded an overall compensation of Rs. 15 lacs. 56. The plaintiff has claimed Rs. 5.00 lacs on account of mental agony, humiliation, deliberate default and delay on the part of the defendant in settling the plaintiff's account as per EVR Scheme. 57. Delay in settling the account of the plaintiff as per calculations of the defendant is apparent as stated above. I award a sum of Rs. 1.00 lac to the plaintiff on account of the said delay in settling the account of the plaintiff as per calculations of the defendant. ....