UNITED BANK OF INDIA Vs. RAM RAJ GOALA

JUDGEMENT

(1.) This Rule is directed against Order No.58 dated 18th March, 1978 passed by the learned Judge, 4th Bench, City Civil Court, Calcutta, in Title Suit No. 1727 of 1974. By the aforesaid impugned order the learned Judge disposed of Issue No.1 framed in the said Title Suit on the prayer of the defendant. The said Issue No. 1 is to the following effect: - "Issue No.1 - Is the suit maintainable in its present form?" By the said impugned order the learned Judge came to the finding that although a personal contract of service sought to be enforced in this suit is not enforceable under the Specific Relief Act but at the sego of the suit it was not possible to hold that the suit was not maintainable in its present form because the question of determination of age of the plaintiff raising thereby a civil dispute could not be determined on merits at that stage of the suit. The learned Judge was also of the view that a civil dispute was raised by the plaintiff in claiming superannuation at a particular age and illegal determination of the age of the plaintiff and the Civil Court had jurisdiction to determine the correct age.

(2.) The short facts relating to the said suit are as follows: - The plaintiff was a subordinate employee in the category of armed guards of United Bank of India Ltd. After the enforcement of the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969, the plaintiff's service along with other employees were transferred to the defendant No.1 Bank on the same terms and conditions as were existing on the date of the enforcement of the said Act, i.e., on and from 19th July, 1969. The plaintiff alleged that under the terms and conditions of service the age of retirement of the plaintiff was fixed at 60 years as per provisions contained in Chapter XVIII Clause 18-1 of the Tripartite Settlement Agreement dated 19th November, 1966 made by and between the Bank Employees Union and the Indian Bank's Association and the Chief Labour Commissioner, Central, under the Industrial Disputes Act. The plaintiff contended that he was born n 1st February, 1922 and such date of birth is borne out from the entries in the School register where the plaintiff was admitted. A copy of the certificate issued by the School to the plaintiff was also annexed to the plaint. The defendant Bank by it's letter dated 5th June, 1974 informed the plaintiff that he would attain the age of superannuation at 60 yeas on December 30, 1974 and as such the service of the petitioner under the defendant Bank would cease after the close of business on the said date. The plaintiff thereafter sent a representation through the defendant No.1 to the Bank by his letter dated 25th July, 1974 inter alia stating therein that his date of birth was 1st February, 1922 and as such he should retire 8 years later from the date mentioned by the Bank in the said impugned notice dated 30th December, 1974. It appears that the plaintiff was initially an employee of the Hooghly Bank Ltd. and after amalgamation of different Banks, the United Bank of India Ltd. was constituted and the plaintiff became an employee of the United Bank of India Ltd. The defendant Bank informed the petitioner that from the records of the Hooghly Bank Ltd. viz. the original employer of the plaintiff transpires that the plaintiff was 36 years of age on 31st December, 1950 and accordingly the date of birth of the plaintiff was 30th December, 1914 and hence the plaintiff would attain the age of superannuation at 60 on 30th December, 1974. The plaintiff contended that such determination of the age was incorrectly done by the Bank authorities without giving the plaintiff any opportunity of being heard and the defendant Bank had no authority to determine the age on the basis of the said alleged records and thereafter compelling the plaintiff to retire from service prematurely with effect from 31st December, 1974. The plaintiff contended that the said notice and the proposed action to treat the petitioner's superannuation with effect from 31st December, 1974 were mala fide and contrary to the statutory terms and conditions of the service conditions of the plaintiff under the defendant Bank. The defendants including the defendant Bank entered appearance in the said suit and filed a joint written statement inter alia denying the allegations made in the plaint. It was contended by the defendants that the suit was not maintainable in the form in which the suit was framed and the plaintiff was not entitled to the relief claimed by the plaintiff in the said suit. Thereafter the defendants made an application for deciding the Issue No. 1 as preliminary issue inasmuch as the defendants contended that the Court has no jurisdiction to entertain and try the suit. The defendants contended that the plaintiff being an armed guard of the defendant No.1 Bank was a workman as defined in the Industrial Disputes Act and the remedy is available to the plaintiff under the said Act and the Civil Court had no jurisdiction to try the suit. It was also contended that the plaintiff's service conditions were not covered by any statutory rules and the conditions of service being matters of contract between the plaintiff and the defendants, the personal service of the plaintiff could not be specifically enforced in the said suit and such suit is barred by the provisions of Specific Relief Act.

(3.) Mr. Moitra, the learned Counsel appearing for the plaintiff petitioner, (opposite party?) contended at the first instance that the revisional application under S. 115 was not maintainable inasmuch as when a civil suit had been instituted, the learned Judge was competent to decide an issue and such adjudication of Issue No.1 cannot be challenged in revision under S. 115 of the Code of Civil Procedure even assuming that the learned Judge had decided the said issue wrongly. Mr. Moitra contended that it cannot be held that there was inherent lack of jurisdiction of the civil court to entertain the said suit and the preliminary issue could be decided by Civil Court when the defendants challenged the jurisdiction of the Court to decide the suit on the aforesaid grounds. Mr. Moitra contended that mere illegal decision made by the Court below does not warrant interference in revision by this Court under S. 115 of the Code of Civil Procedure.