A.L. Bahri, J.
1. Vide this judgment Regular Second Appeal No. 1154 of 1989 and Civil Revision No. 1877 of 1989 are being disposed of between the same parties. This order will also dispose of Civil Misc. No. 1569-C of 1989 filed in the Regular Second Appeal wherein prayer was made for staying execution proceedings.
2. Ishar Singh plaintiff was working as Sealman under the National Fertilizers Limited. He met with an accident and was relieved from service in December 1982. Thereafter he was appointed as Mazdoor with effect from January 1, 1983. His date of birth was wrongly entered as July 1, 1930. In fact his correct date of birth was October 23, 1933, as per certificate of birth obtained from the Registrar, Births and Deaths, Una (Himachal Pradesh). Apprehending that he would be retired on the basis of the date of birth recorded in the papers of the Company, he filed the present suit for declaration that his correct dale of birth was October 23, 1933 and it was wrongly mentioned in the records of the defendant Company as July 1, 1930. He also sought permanent injunction restraining the defendants from retiring him on the basis of his age as July 1, 1930. The suit was contested by the defendant-Company as well as its Personnel Officer. The suit was contested, inter alia, on the ground that the same was barred by time. The provisions of the industrial Disputes Act were applicable which barred jurisdiction of the civil Court. The plaintiff was estopped by his act and conduct from filing his suit His date of birth was accepted after his medical examination by the Medical Officer of the Company. It was further asserted that the plaintiff could not appropriate and reprobrate claiming different dates of birth to suit his convenience. On merits there was no such dispute. The plaintiff was asked several times to produce copy of the birth entry. It was on his failure that he accepted to be medically examined by the Chief Medical Officer. It was alter his medical examination that his date of birth as July 1, 1930 was taken as correct as recorded in the papers. The certificate relied upon by the plaintiff was stated to be fabricated. The suit was being filed after about 17 years of is service. Following issues were framed by the trial Court:-
1. Whether the date of birth of the plaintiff is 23-10 1933 OPP.
2. Whether the suit is time barred OPD.
3. Whether the Civil Court has no jurisdiction to try the suit OPD.
4. Whether the plaintiff is estopped to sue by his act and conduct OPD.
5. Relief.
3. Issues No. 1 and 4 were decided together and the trip I Court held both issues in favour of the plaintiff Issue No. 2 was also decided in favour of the plaintiff holding the suit to be within time. Under Issue No. 3 it was held that the civil Court had the jurisdiction to try the suit. An appeal was taken which was dismissed by the Additional District Jtidge, Ropar, on Jenuary 31, 1989. fierce this regular second appeal.
4. Ishar Singh decree-holder filed an execution application under Order 21, Rule 10 of the Code of Civil Procedure for enforcement of the decree aforesaid by taking the decree-holder on duty and payment of all the emoluments i.e. pay and allowances along with the interest by imprisonment or by attachment of the properties of both the judgment-debtors i e the Personnel Officer and the General Manager of the National Fertilizers Limited. The Executing Court passed an order on Jane 6, 1989 mentioning therein that an appeal was filed in the High Court, however, no stay order by then had been passed. Mere institution of the appeal was no ground for staying the execution proceedings He directed the judgment debtors to comply with the decree and to take hack the plaintiff in service and allow him all the benefits including pay and allowances etc. It may be stated that after filing of the suit the plaintiff was relieved which necessitated filing of the execution application. This order was challenged in the Civil Revision aforesaid.
5. Although on merits arguments were addressed by counsel for the parties regarding the correct date of birth of Ishar Singh plaintiff and some judgments on the point were also referred to on both sides, however, it is not considered appropriate to deal with the case on merits except to refer to the arguments and the authorities cited, as I am of the view that the civil court had no jurisdiction to entertain the suit.
6. On behalf of the appellants it was argued that challenge to the date of birth was being made at the fag end of the service and the plaintiff Isher Singh could not be permitted to do so. In support of this contention reliance has been placed on the decision of Central Administrative Tribunal, Madras Bench, in D, Thiruvengadum v. Union of India, 1987(1) S. L. J (CAT) 486.
7. The Calcutta High Court in Titagarh Jute Factory Co. Limited v. Sriram Tiwari, 1979 (1) L. L. J. 495, held that where the workman challenged notice of superannuation, his right under the general law accrued for which civil suit could be filed It was further held that the Industrial Disputes Act did not bar a remedy in such circumstances In that ease also the date of birth was being disputed. In Hari Parshad Handa v. The State of Punjab and Anr., (1985-1) 87 P. L. R. 39, while in service Hari Parsad Handa, a member of the PCS. (Judicial Branch) sought correction of his date of birth It was held that the date of birth was nothing but a representation as to the age of the person concerned The claim for the change of the date of birth would not amount to the change of condition or contract of service and as such question of estoppel by contract will not be attracted to such a situation. The matter of correction of date of birth of Government employee was under consideration of the Himachal Pradesh High Court in Shri Monak Chand Vaidya v. State of Himachal Pradesh and Ors., 1976(1) S.L. R. 402. The executive in- structions as contained under the Financial Rules provided period of limitation within which date of birth could be corrected. It was held that right to get erroneous entry as to date of birth corrected could not be curtailed by the executive instructions. There was to estoppel in moving for correction of erroneous date of birth. The Central Administrative Tribunal, Chandigarh, in Jogan Nath Sharma v. Union of India 1987 (1) S.L.R. 744, held that correction of date of birth was a legal right and it could not be denied merely on the basis of administrative instructions. The Central Administrative Tribunal, Patna Bench. in Sami Ahmed v. Union of India and Ors. 1987 (1) S. L. R. 432, held that by not challenging the date of birth as recorded, the employee acquiesced therein and they gained finality to the date of birth The Central Administrative Tribunal, Madras Bench, in D. Thiruvengadum v. Union of India and Ors., 1987 (1) S. L. J. (CAT) 486, held' that the date of birth recorded as per discussion and on assessment by the Doctor to which no objection was taken till fag end of retirement could not be altered. Out of the aforesaid cases only the Calcutta case could be made application to the facts of the case in hand relating to the workmen and the management. Other cases were of Government employees to whom the provisions of Industrial Disputes Act were not applicable.
8. The Bombay High Court in Bank of Baroda v. Triveniprasad Jamnaprasad Misted, 1988 (2) L. L. J. 163, took the view contrary to that of Calcutta High Court as referred to above, inter alia holding that the right of declaration of date of birth and injunction restraining the Bank from retiring the plaintiff was not a common law right but a right under special statute i.e. Industrial Disputes Act. Impliedly the jurisdiction of the civil Court would be barred. The matter has been concluded by the Supreme Court in Jitendra Nath Biswas v. M/s. Empire of India and Ceylone Tea Co., A. I. R. 1990 S. C. 255. As to what reliefs cannot be granted by the civil court when the case is covered by the Industrial Disputes Act, it was observed in para 5 of the judgment as under : -
'It is therefore clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit.'
9. While making reference to Section 10 of the Industrial Disputes Act it was held as under : -
'Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court.'
10. After making reference to the earlier decision of Supreme Court in Dhulabhai v. State of Madhya Pradesh, A. I. R. 1969 S. C. 78, it was held :-
'It was therefore clear that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act,'
11. In order to find out the pith and substance of the suit it is not only its forum which is to be seen. What Ishar Singh plaintiff claims in the present suit is not merely a declaration regarding his correct date of birth but in consequence his contemplated removal from service on attaining the age of superannuation and his wages for the disputed period. Since the plaintiff would be a workman and the company management sod the dispute referred to above being an industrial dispute, the appropriate relief can be claimed by having a reference made to the Labour Court under the provisions of the Indus- trial Disputes Act as held by the Bombay High Court in the case of Bank of Baroda, referred to above. The jurisdiction of the civil Court is thus being impliedly barred. The findings of the Courts below on the question of jurisdiction is, therefore, reversed.
12. Since the matter is to be decided by the Court competent to try the dispute, it is not considered appropriate to decide the case on merits.
13. Since the civil Court has no jurisdiction to try the suit. The appeal is accepted, the suit is dismissed, leaving the parties to bear their own costs. With the result Civil Misc. application No. 1569-C of 1989 stands dismissed and Civil Revision No. 1877 of 1989 stands allowed and the order of the Executing Court directing the judgment- debtor to comply with the decree stands set aside There will be no order as to costs in the revision petition.