- (1.)The petitioner/plaintiff has filed the present revisional application challenging judgement of the order dated 4-11-1987 passed by the learned Additional District Judge, 1st court, at Howrah in Misc. Appeal No. 52 of 1987 reversing the order No. 15 dated 25-3-1987 passed by the Ld. Munsif, 2nd Court at Howrah in Title Suit No. 66 of 1987. It appears that the plaintiff has filed the aforementioned title suit No. 66 of 1987, praying inter alia, for declaration that the actual date of birth as recorded by the defendant No. 1 employer is wrong and as such it is liable to be rectified as 1-7-1939 instead of 1-1-1929 and for other consequential reliefs including injunction. In the said suit the plaintiff/petitioner filed an application for temporary injunction under O.39, Rr.1 and 2 with S.151 of the Code of Civil Procedure for granting temporary injunction restraining the opposite parties defendants from giving effect to the date of retirement from the date as recorded in the books of the defendants for the sake of equity and justice. The learned munsif disposed of the petition for temporary injunction restraining the defendants from giving effect to retirement of the plaintiff on the basis of the date of birth i.e. 1-1-1929 as recorded in the books of the defendants till the disposal of the suit. Against the said order allowing plaintiff's petition for temporary injunction the defendant No. 1 Company filed Misc. Appeal No. 52 of 1987 and the learned appeal court having heard both sides allowed the Misc. Appeal and the order of the learned munsif was set aside. The plaintiffs petition for temporary injunction was dismissed. Feeling aggrieved the petitioner/plaintiff has come to this Court. The petition was entertained on 23-11-1987 and the operation of the impugned order passed in Misc. Appeal No. 52 of 1987 was stayed and the parties were directed to maintain status quo in the meantime.
(2.)Having heard Mr. Mitra, learned Advocate for the petitioner and Mr. Mukherjee for the opposite party/defendant company this Court finds that it is essentially a suit for injunction to restrain the defendant employer company from giving effect to the alleged step of superannuation of the plaintiff on the basis of the age recorded in the books of the defendant. Such an entry of age in the books of the defendant has been challenged and it has to be decided whether the defendants are going to superannuate the plaintiff wrongfully on the basis of erroneous entry of age. A question has arisen as to whether the present suit is at all maintainable. It has, however, been conceded by the opposite party defendant that the suit may be maintainable and such an issue is not required to be considered at the present stage while the petition for temporary injunction is going to be disposed of. In this connection, the attention of this Court is drawn to a decision reported in AIR 1975 SC 2238 (Premier Automobiles Ltd. v. Kamalakar Shantaram). In that case the following principles have been laid down for ascertaining whether the jurisdiction of the civil court is barred or not :- (a) If the dispute is not an industrial dispute, nor does it relate to the enforcement of any other right under the Act, remedy lies only in the civil court; (b) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act the jurisdiction of the civil Court is alternative, leaving it to the election of a suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy; (c) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act; (d) If the right which is sought to be enforced is a right created under the Act, such as, Chapter VA then the remedy for its enforcement is either S.33C or the raising of an industrial dispute, as the may be.
(3.)There is clear observation in Premier Automobiles v. Kamalakar Shantaram, AIR 1975 SC 2238 (supra) that the civil court's jurisdiction to entertain a suit like the present one is not ousted. It has further been brought to the notice of this Court to a judgement of this Court reported in (1979) 1 Lab Ld 495 : (1979) Lab IC 513) (Titagarh Jute Factory Co. Ltd. v. Sriram Tiwari). In the said case the question of superannuation as to the civil law and industrial law and the age of a workman as well as the disputed notice of superannuation and filing of the snit in civil court and as to its maintainability were gone into. It was found in the said decision that since a right accrues to workman under the general law, suit in civil Court is maintainable and more so, as the Industrial Disputes Act does not bar a remedy and where both civil and industrial remedies are available it is open to the employer to choose either of them. From this aspect of the matter a suit for rectification of the age and/or to restrain the employer from giving effect to an erroneous entry recorded in the books affecting the right of the petitioner and for such necessary declarations as envisaged under the provisions of the Specific Relief Act is quite maintainable. This aspect of the matter is not seriously contested by the opposite party defendant. Mr. Mukherjee, learned advocate for the opposite parties has fairly submitted that the question of maintainability is not the sole criterion in the instant revisional application and the observations made by the appeal court, in Misc. Appeal No. 52 of 1987 are not fully justified.