UNION OF INDIA Vs. BAKHSHI AMRIK SINGH

JUDGEMENT

(1.) THIS civil revision is preferred by Union of India against the plaintiff Bakhshi amrik Singh who was Station Superintendent at the Railway Station Ambala.

(2.) THE facts giving rise to this case are that the plaintiff joined service of the North western Railway on 28th of August, 1927, and had been in the railway service ewer since. According to the rules governing his service the age of retirement is 55 years. The Divisional 'personnel Officer, New Delhi on 23rd of January 1961 sent a communication to the officers concerned of the Railway Depratment to the effect that Shri Amrik Singh was due to retire on 14th of July 1961 and the General manager had desired that he might be relieved in time and information was sought if any monies were due from him on account of any claim of Railway or of government on 24th of May 1s61. The plaintiff made an application for amendment of the order contending that the dale of his birth was not 15-7-1906 but 18th of July 1907 and therefore he would be due to retire on 18th of July 1962. The Divisional Superintendent on this wrote to the General Manager that according to the plaintiff's B Card, the date of birth shown to be 15th of July 1906 and he had not produced any school leaving certificate in support of his contention. He had produced an affidavit of his elder brother and a photostat copy of the birth register but that was not sufficient to warrant the recommendation for change in the date of birth. This communication was sent to the General Manager as the post of Station Superintendent was controlled by his office. The plaintiff was informed of the above communication. As the plaintiff's request was turned down he sent a notice under Section 80, Civil procedure. Code, to the General Manager on 27th of April 1961, in which he stated that the date of his retirement should be postponed and if this was not done a suit would be instituted against the Union of India. In the last para of the notice the the plaintiff said,

(3.) ON 10th of July 1961, lour days before the official date of his retirement, a suit was filed, in the Court of Sub Judge First Class, Ambala Cantonment, against the union of India. In the plaint It was alleged that by art inadvertent error resulting either from the ignorance of the true state of affairs or from some clerical error on the part of North Western Railway, the date of birth of the plaintiff was entered in the records of the Railway as the 15th of July 1906, the true date of birth of the plaintiff being the 18th of July 1907. According to the forms of contract of his employment he could be retired only on. 18th of July, 1962, and the order of the divisional Personnel Officer was against the terms and conditions of the plaintiff's employment and was therefore void. He, therefore, prayed for decree for permanent injunction restraining defendant from retiring him as from 14th of July 1961 and compelling it to rectify the date of birth of the plaintiff as the 18th of july 1907 and postponing the retirement of the plaintiff to the 18th of July 1952. On the same date an application was made under Order 39 Rules 1 and 2 and section 151, Civil Procedure Code, by the plaintiff for the issuance of temporary injunction to the defendant pending the disposal of the suit restraining the defendant from retiring the plaintiff as from 14th of July 1961, as otherwise, the suit would be-come infructuous and the plaintiff would suffer en irreparable injury. It was stated that he had prima facie a good case and the balance of convenience also lay on his side. On 10th of July 1961, Shri Sarup Chand Goel, Sub Judge, passed an order granting an ad interim injunction and restraining the defendant from retiring the plaintiff from service till further orders. Notice of the application was ordered to be issued to the defendant for showing cause against this order on or before 31st of July 1961. On 31st of July 1961, a written reply on behalf of the defendant was filed to the application under Order, 39 Rules 1 and 2. A written statement was also put in court on the same date. It was stated by the defendant that the certified copy showing birth of a son to Bakhshi Diwan Singh at Chuman in District Lahore on 18th of July 1907 was not admissible, and, moreover, it did not prove as to whether it related to the plaintiff, it was denied that there was any term in the plaintiff's contract of employment by which he could claim correction in birth entry at any time ho liked. The suit was not entertainable as the orders had been made on the administrative side and for the same reason no temporary injunction could be granted. It was also stated that if the temporary injunction continued, the result would be that the plaintiff would take full advantage of the relief claimed even though, the suit ultimately might fail. It was said, that there was no prima fade case, and the conduct of the plaintiff had not been fair, inasmuch as, he kept quiet for a long time and agitated the matter on the eve of his retirement. The application was alleged to be bad because of laches on the part of the plaintiff and that the balance of convenience was on the defendant's side. It was also said that even if the plaintiff was successful, in showing that he had been retired prematurely he could sue for damages; but if the plaintiff's services were inflicted on the defendant the latter would have no remedy against the plaintiff in case date of retirement proved to be 14th of July 1951. The matter was not disposed of on 31st of July 1961 despite the request of the defendant's counsel, that the matter, in view of its urgency, be decided on that very day. The Sub Judge adjourned the hearing for arguments to 11th of August 1961.