TMI Blog2022 (1) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 appointment of the respondent No.1 / plaintiff and F.R. 56 also states any genuine bonafide mistake occurred in the record of the date of birth can be altered. The pages of the Service Book filed by the appellant / defendant No.1 and the respondent No.1 / plaintiff depicts the date as to when the entry of the particulars have been made in the Service Book. Though the relevant page of the Service Book at the bottom clearly states that entries on this page should be renewed / re-attested at least every five years and the signatures in volumes 11 and 12 should be dated, the date of entries / renewal or re-attested has not been mentioned. 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt / 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 October 02, 1960, instead of October 02, 1962. Thereafter, the appellant / defendant No.1 after conducting the necessary procedure responded to respondent No.1 / plaintiff stating the appointing authority s inability to correct the alleged error of the date of birth. Moreover, respondent No.1 / plaintiff on April 27, 2015, requested a copy of its Service Book under the Right to Information Act, 2005. Subsequently, on May 29, 2015, the appellant / defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculation 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 Nahar v. Nilima Mandal and Another, (2008) 17 SCC 491 . 6. Mr. Bajaj argued that the relief sought by respondent No.1 / plaintiff and as decreed, are barred by the Law of Limitation (Article 58 of the schedule of the Limitation Act, 1963) and impermissible to grant as per the Fundamental Rule 56 (hereinafter, F.R. 56 ) of the Department of Personnel and Training (hereinafter, DoPT ), Government of India (hereinafter, GOI ). Article 58 of the Limitation Act, 1963 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, (2005) 11 SCC 465 , wherein the Apex Court upheld that corrections in entries in government records based on which the government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag-end of his service. 11. It is submitted by Mr. Bajaj that the Trial Court has erred by holding that the cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ₹ 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. 56 it was the duty of the authority concerned to make correct entries of date of birth of employee as per matriculation certificate provided at the time of joining of service but the said authority has failed to record the said entries in respect of date of birth of respondent No.1 / plaintiff, therefore, limitation period mentioned in F.R. 56 that is for five yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff 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 particular date of birth in his application form or any other document at the time of his employment but by mistake or oversight, a different date has been recorded and for this reason alone reliance has been placed upon the judgment of the Supreme Court of India in the case titled State of Madhya Pradesh and Others v. Premlal Shrivas, (2011) 9 SCC 664. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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.1 / plaintiff was born on October 02, 1962, and passed his matriculation in the year 1978. Thereafter, he obtained his passport on January 02, 1979, as per which his date of birth is October 02, 1962. It is also submitted that respondent No.1 / plaintiff joined the services of the appellant / defendant No.1 on October 20, 1989, as Junior Engineer based on his Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook 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 application with it on July 31, 2013, for carrying out the necessary correction which got rejected by the appellant / defendant No.1 after a gap of 460 days on November 03, 2014. It is the contention of Mr. Chatterjee that respondent No.1 / plaintiff has been put to undue harassment by the appellant / defendant No.1 and it is evident from its conduct that it took 460 days to decide the representation which they rejected at the end. Further, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 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 updated and he was not sure as to when the same was pasted on the notice board of the appellant / defendant No.1. Furthermore, Mr. Chatterjee stated that the seniority list of 2010 also met the same fate and this list of 2010 was a draft seniority list which was never finalized and circulated by the appellant / defendant No.1 amongst its employees. 28. Mr. Chatterjee also submitted that upon a careful perusal of the F.R. 56 of DoPT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant / 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 respondent No.1 / plaintiff has been reinstated in service and is working in the appellant board. Having noted the above aspect, coming to the merits of the case, the broad submissions of Mr. Bajaj challenging the impugned judgment decree of the Trial Court are the following: i. Respondent No.1 / plaintiff has failed to prove his pleaded case of tampering of Service Book which resulted in altering of his date of birth from October 02, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, 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) submitted by the respondent No.1 / plaintiff at the time of his appointment in the year 1989. This submission of the certificate is much before the issuance of the seniority list in the year 2003, on which reliance has been placed by the appellant / defendant No.1. Even the pay fixation certificate performa is dated July 11, 2008 (Ex.PW2/2) which is also before the year 2010 when another seniority list was issued on which reliance has been placed by the appellant / defendant No.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 that there is no material on record suggesting that the said draft of seniority list was pasted on the notice board. Counsel for plaintiff in support of the said arguments has drawn attention of the court on photo of notice board i.e. Ex.D1W2/PX-2 showing the fact that several notices have been displayed/ pasted but same were pasted upon each other, therefore, it cannot be inferred that proper notice was displayed at the notice board. It is further submitted by counsel for plaintiff that D1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maining 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 defendant no.1 i.e. D1W-2 (Assistant Superintendent) for showing position of notice board. The said witness admitted that the said notice board has been shown in the premises of defendant no.1. He also admitted that many times old notices were not removed from the said notice board and new notices were pasted upon the old notices. Perusal of said photograph of notice board, it is apparent that many notices have been put upon old notices, which also strengthen the plaintiff's plea that notices have not been displa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff 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 mistakes may have taken place while receiving salary in cash. 9.3 After having gone through the submissions advanced by counsels for both the parties regarding cash receipts showing the alleged date of birth of plaintiff 02.10.1960 , I find that plaintiff has shown from the testimony of PW-6 and D1W-4 that there are several discrepancies in the pay bill register, particularly in the signature of plaintiff which strengthen the plaintiff s view that it was very difficult for the plaintiff or any other employee to obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered 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 No.1 / plaintiff that he had come to know about incorrect depiction of his date of birth as October 02, 1960, in July 2013, when he received the payslip in which his date of birth was incorrectly shown. He made a representation on July 31, 2013, which was rejected by the appellant / defendant No.1 on November 03, 2014, and has filed the suit for declaration within three years in terms of Article 58 of the Limitation Act, 1963. This case of respondent No.1 / plaintiff has been accepted by the Trial Court by distinguishing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 appointment of the respondent No.1 / plaintiff and F.R. 56 also states any genuine bonafide mistake occurred in the record of the date of birth can be altered. It is precisely for this reason that the Trial Court held that F.R. 56 has no applicability in the present case. Much reliance has been placed by the appellant / defendant No.1 on the Service Book, where the date of birth of respondent No.1 / plaintiff is depicted as October 02, 1960, but at the same time, the copy of Service Book given to the respondent No.1 / plaintiff under the RTI Act, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, defendant no.1 also issued several documents to the plaintiff during the course of his service i.e. Pay fixation performa dated 11.07.2008 (Ex.PW2/2), Permanent Pass/ Identity Card bearing no.136 dated 12.04.2010 (Ex.DIW4/PX-1) and Details of Family Card (Ex.PW2/3) showing the same date of birth of plaintiff as 02.10.1962. Plaintiff has also brought on record the passport (Ex.PW5/l) issued by the passport authority to him on January 2, 1979, which is 10 years, prior to the joining of service of defendant no.1 and same also recorded the date of birth of plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to correct the date of birth as 07.04.1938 . In the present case, it is admitted fact that plaintiff furnished matriculation certificate and other documents at the time of his joining of the service which also recorded the date of birth of the plaintiff as 02.10.1962 . It is also admitted fact that plaintiff had only inspected his service book first time in the year 2012. Further, plaintiff made a representation seeking for correction of his date of birth in the service record in the year 2013 i.e. before seven years of alleged superannuation in the year 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court in the said case was dealing with the facts wherein the respondent No.1 / original plaintiff was appointed with the appellant corporation in the year 1984. In the service record, his date of birth was reflected as January 04, 1960, as per SSLC Marks Card. After a lapse of nearly 24 years, respondent No.1 therein, the original plaintiff requested for a change of date of birth from January 04, 1960, to January 24, 1961. Thereafter he filed a Suit for Declaration before the Additional City Civil and Sessions Judge at Bangalore to declare his date of birth as Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 delaying the trial by not filing written statement for more than 16 months and not providing the copy of service book of plaintiff. It is further submitted that plaintiff has proved the fact that he had furnished the matriculation certificate Ex.PW1/4 to defendant no.1, at the time of joining of his service showing his date of birth as 02.10.1962 but despite that, officials of defendant No.1 either made wrong entry of date of birth of plaintiff or forged the same by mentioning the wrong date of birth as 02.10.1960. It is prayed that it is a fit case for awarding damag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation 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. Suffice to state, there are justifiable reasons for the Trial Court to award damages to the respondent No.1 / plaintiff. 48. A Coordinate Bench of this Court in the case of Anjum Nath v. British Airways, MANU/DE/4242/2015 , while awarding an amount of ₹ 1 Lac as compensation for mental agony, coercion and harassment was of the following view: 49. The sequence of events may be relooked. The plaintiff had an unblemished career for more than 28 years. She joined services with the defendant on 20.05.1974 as Secretary to Assistant to Manager, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 and degrading treatment. 53. A clear case of harassment of plaintiff is made out in the facts of this case. 54. It may be relevant to mention here the observations of the Supreme Court in Indian Railway Constructions Co. Ltd. v. Ajay Kumar, MANU/SC/0166/2003: AIR 2003 SC 1843. While dealing with duties of an employer and an employee, the court observed as follows: 26. We find substance in the plea of learned counsel for the appellant that an employee even if he claims to be a member of the employee's union has to act with sense of discipline and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest on this amount. In that background this court awarded an overall compensation of ₹ 15 lacs. 56. The plaintiff has claimed ₹ 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 ₹ 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. Further, I award a token sum of ₹ 1.00 lac on account of mental agony, coercion and harassment that the plaintiff was subjected to by the defendant. 58. A decree is passed in favour of the plaintiff and against the defendant for a sum of ₹ 2.00 lacs (Two Lacs only). The plaintiff will also be entitled to simple interest @ 12% p.a. on the said amount from the date of filing of the suit till recovery. The plaintiff shall also be entitled to costs. 49. The Trial Court has highlighted the facts which weighed with it for awarding damages. Keeping in view the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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