Madras High Court
Nalayiram vs Ganesan on 10 March, 2021
S.A(MD)No.520 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2021
CORAM:
THE HON'BLE MRS.JUSTICE R.THARANI
S.A(MD)No.520 of 2015
Nalayiram ...Appellant/Respondent/
Plaintiff
Vs.
1.Ganesan ...Respondent/2nd Respondent/
Defendant
2.The Proprietor,
M.S.V.Beedi Company,
108, Mettu Street,
Kulathoor Road,
Thirunevlei Town,
Thirunelveli District. ...Respondent/2nd Respondent/
Defendant
3.The Commissioner,
Employees Provident Fund Office,
N.G.O.B.Colony,
Thirunelveli,
Thirunelveli District. ...Respondent/Appellant/
3rd Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 30.01.2010 passed
in A.S.No.6/2009 on the file of the Subordinate Judge, Ambasamudram,
reversing the decree and judgment dated 07.09.2007 passed in O.S.No.
193/2006 on the file of the Principal District Munsif, Ambasamudram.
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S.A(MD)No.520 of 2015
For Appellants : M/s.S.Devasena
For R1 and R2 : Mr.S.Karthik
For R3 : Mr.K.Muralisankar
JUDGMENT
This appeal is filed against the judgment and decree dated
30.01.2010 passed in A.S.No.6/2009 on the file of the Subordinate Judge,
Ambasamudram, reversing the decree and judgment dated 07.09.2007
passed in O.S.No.193/2006 on the file of the Principal District Munsif,
Ambasamudram.
2.The appellant is the plaintiff. The respondents are the defendants
in the original suit. The appellant herein has filed a suit in O.S.No.193 of
2006 for mandatory injunction to grant pension to the plaintiff.
3.The brief substance of the plain is follows:
The plaintiff was working as a labourer under the first defendant,
who is a manufacturer of Beedi. Third respondent is the Employees
Provident Fund Office. Even prior to 16.11.1995 ie., from 01.12.1994,
the plaintiff was working as a labourer under the defendants 1 and 2. In
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S.A(MD)No.520 of 2015
such circumstances, in 10 pass books, the plaintiff was working for a
period of 10 years and since she was entitled for pension, she was
stopped from service on 31.12.2004,. The plaintiff filed an application
for pension and the said petition was forwarded by the defendants 1 and
2 to the third defendant. The said application was returned stating that at
the time of joining the service, the age of the plaintiff was 60 years and
hence, she was not entitled to receive pension and other retirement
benefits. Since the plaintiff was entitled to receive pension on 08.11.2005
she gave a petition through legal aid. In reply, the plaintiff was directed
to produce the relevant documents regarding the age and date of birth.
On 12.01.2006 the plaintiff sent an advocate notice along with a copy of
the birth certificate. The second defendant returned the petition on
03.03.2006 with some false observations. The plaintiff is an old and
uneducated lady and pension cannot be rejected due to the mistakes of
the Contractor, who gave a false date of birth in the records.
4.A brief substance of the written statement of the first defendant
adopted by the second defendant is as follows:
The first defendant was running a Beedi Company in
Prammadesam, wherein, the plaintiff joined on 01.10.1994 and she left
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S.A(MD)No.520 of 2015
the work on her own accord on 31.12.2004. At the time of joining the
service, the plaintiff has mentioned her date of birth as 18th, but she failed
to intimate the month and year of her birth. After she left the service, it
was found out that the date of her birth was 01.12.1994. After that, the
plaintiff has produced a birth certificate mentioning her date of birth as
13.03.1947 and the said certificate was obtained on 17.06.2005. The
defendant is not having any objection for altering the date of birth and
she has to prove the same before the provident fund authorities.
5.A brief substance of the written statement filed by the third
defendant is as follows:
It is true that the plaintiff worked as a labourer in Beedi
Manufacturing Unit and she retired from service. It is wrong to state that
the plaintiff joined service on 01.12.1994 and worked for 10 years and
was stopped from service on 30.12.2004. The plaintiff was working only
under the second defendant and the second defendant was maintaining
the name, date of birth, date of joining the service and other particulars of
the plaintiff. Provident Fund(PF) amount was collected only through the
second defendant and the third defendant office is maintaining only the
particulars given by the second defendant. As per the documents filed by
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S.A(MD)No.520 of 2015
the second defendant, the age of the plaintiff as on 01.12.1994 is 60
years. As per the PF Rules, the plaintiff, who crossed the age 58 cannot
be a member in the EPF Scheme. The Plaintiff was allowed to continue
service upto the age of 60. Since the plaintiff was allowed to work as a
labourer, the premium was paid through the second defendant. The
plaintiff is not entitled to claim pension, if PF amount was closed in the
year 2005. The plaintiff is not entitled to change the date of birth as per
Section 15 of the Indian Evidence Act, and the prayer of the plaint is
barred by limitation.
6.The trial Court framed the following issues.
(i)Whether the plaintiff is entitled for the relief of declaration and
for mandatory injunction or not?
(ii)What are the other reliefs?
7.On the side of the plaintiff, one witness was examined as P.W.1
and five documents were marked as Ex.P.1 to Ex.P.5. On the side of the
defendants, two witnesses were examined as D.W.1 and D.W.2 and two
documents were marked as Ex.D.1 and Ex.D.2.
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S.A(MD)No.520 of 2015
8.The trial Court declared that the plaintiff is entitled for pension
and decreed the suit, against which, the third defendant had filed an
appeal in A.S.No.6 of 2009, before the Subordinate Court
Ambasamuthiram, on the following grounds:-
“The date of birth stated by the plaintiff is not correct. The
plaintiff suppressed the real facts in Ex.P.1 and Ex.P.2. At the time of
joining the service, her age was 60 years. The plaintiff failed to alter the
date of birth. After joining the service only, when the plaintiff applied for
pension, she has altered the day of birth. Ex.P.1 birth certificate was
registered as per the order of the Judicial Magistrate, dated 13.06.2005.
There was no prayer to declare the date of birth as 13.03.1947. Therefore,
the plaintiff is not entitled to claim pension.
9.On the above grounds of appeal, the following issues are framed
by the first Appellate Court.
(i)Whether the plaintiff proved that her date of birth is 13.03.1947?
(ii)Whether the plaintiff is entitled for declaration and for
mandatory injunction?
(iii)Whether the appeal is to be allowed?
(iv)What are the other reliefs?
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S.A(MD)No.520 of 2015
10.The first appellate Court allowed the appeal and set aside the
judgment and decree of the trial Court. Against which, this second appeal
has been filed.
11.When the Second Appeal was admitted by this Court on
09.09.2015, the following substantial questions of law have been framed.
“a)Whether the Birth Certificate obtained as per the
orders of the Judicial Magistrate is not a conclusive proof?
b)Whether the findings given by the lower Appellate
Court in respect of Ex.P.1 is a legal notice or not?
c)Whether the findings given by the lower Appellate
Court in respect of the non-production of any other oral and
documentary evidence to prove the date of birth is acceptable
in law?”
Issues a, b & c:-
12.The lower Appellate Court has failed to see that there is no
evidence to disprove the date of birth of the appellant. From the date of
employment, the appellant has made contributions towards PF to the
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S.A(MD)No.520 of 2015
third respondent and the employer has also contributed to the PF. The
appellant is an uneducated Beedi Worker and the appellant was not
referred to the Medical Board to fix her age.
13.On the side of the third respondent, it is stated that the appellant
has produced the age certificate obtained from the Medical Officer and
based on that certificate, her date of birth was approved by the
competent authority as 01.07.1948 and the claim F/10D for pension
benefit has been processed and pension was released in favour of the
appellant under PPO No.124775 in 8/2017. The learned counsel for the
third respondent has also produced a copy of the communication dated
21.08.2017 in this regard.
14.From the copy of the communication
No.MDU/TNY/S.A(MD)No.520 of 2015/Legal/2017, dated 21.08.2017,
it is seen that already pension was sanctioned to the appellant/plaintiff.
The learned counsel appearing for the appellant also admitted that the
appellant is now receiving pension.
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S.A(MD)No.520 of 2015
15.Since the matter was already settled, the second appeal is
allowed in accordance with the copy of the communication dated
21.08.2017 submitted by the third respondent. No costs.
10.03.2022
Index:Yes/No
Internet:Yes/No
Ns
To
1.The Subordinate Court,
Ambasamudram.
2.The Principal District Munsif,
Ambasamudram.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.520 of 2015
R.THARANI, J.
Ns
S.A(MD)No.520 of 2015
10.03.2022
https://www.mhc.tn.gov.in/judis
