1. The defendant in the suit who is aggrieved by the order of the Courts below that the suit filed by the Plaintiff is triable by Civil Courts and secondly the Plaintiff is entitled to an order of injunction till the disposal of the suit, is the revision petition.
2. The facts are simple : The respondent is a driver in the employment of the petitioner. In the year 1953, he gave certain particulars regarding his date of birth and on the basis of such information, his date of birth was entered in the registers of the company as 15th September, 1921. As per rules of the company, he would reach the age of superannuation on 30th September, 1981 on completion of 60 years of age. In August, 1980 the respondent addressed the Petitioner to have his date of birth corrected as 26th June, 1925. Since the Petitioner did not accept the revision of age sought for by the respondent, the later filed a suit O.S. No. 2058/81 praying for the reliefs of (1) a declaration of his date of birth as 26th June, 1925; (2) a direction to the Company to alter the records in conformity with the prayer mentioned above and (3) for consequential relief of injunction restraining the petitioner from terminating his service on 30th September, 1981. The respondent also obtained an order of interim injunction.
3. The Petitioner raised a two-fold objection against the order of injunction. The first was the suit was not maintainable before the Civil Court and the respondent ought to have raised an industrial dispute. The second was that in any event, the balance of convenience was not in favour of the respondent and hence interim injunction should not be granted.
4. The trial Court rejected both the contentions and confirmed the order of injunction. The petitioner appealed tot he Appellate Court; but did not meet with success. Hence the present revision.
5. Mr. Ramasubramaniam, learned counsel for the petitioner states that the view of the Courts below that the suit is maintainable is not correct. In support of such contention, he places reliance on the classifications contained in para 24 of the judgment of the Supreme Court in Premier Automobiles v. K. S. Wadke : (1975)IILLJ445SC . The Court below have placed reliance on clause 2 of para 23 of the abovesaid judgment and held that a suitor like the respondent in the instant case has a two-fold course viz., either to approach the Industrial Tribunal or the Civil Court and as such the Civil Courts' right to try his suit will not be barred. Mr. Ramasubramaniam contends that the scope and content of Clause 2 of para 23 of the judgment has been explained in para 24 and therefore the courts must have understood the case of the respondent in the restricted perspective set out in para 24. He would also urge that the judgment of Balasubramanyan, J., in Madurai District Co-operative Society Ltd., v. Sankaranarayanan 1982 1 M.L.J. 14 had been rendered without paying due attention to the qualifications given by the Supreme Court in para 24 of the said judgment.
6. On the other hand, learned counsel for the respondent contends that the case is fully covered by the Supreme Court's case mentioned above and secondly not only Balasubramanyan, J., has applied the correct principle of law in Madurai District Co-operative Society Ltd. v. Sankaranarayanan but the Calcutta High Court also has laid down the correct proposition of law in Titagarh Jute Factory Co. v. Sriram Tewari : (1979)ILLJ495Cal . The respondent's counsel also invited my attention tot he judgment of Sathiadev, J., in A.A.O. No. 204/79 (Indian Oil Corporation Ltd., Madras v. S. E. Murthy) dated 16th February, 1979 and the judgment of N. S. Ramaswami, J., in National Grindlays Bank employees Union v. Grindlays Bank Ltd., Madras. (53 Factories Journal Reports, 1). The learned counsel referred to the definition of the words 'industrial dispute' in S. 2(k) of the Industrial Disputes Act, 1947 and argued that the controversy raised by the respondent in the suit will not fall within the terms of S. 2(k)., since it is related to the determination of his correct date of birth. The counsel also referred to S. 2A of the Act and stated that since the respondent is still in service, he cannot raise an industrial dispute and he can only move the Civil Court for enforcement of his rights.
7. On a perusal of the case law on the subject I find that the contention of the petitioner that the civil court has no jurisdiction to try the suit is not a tenable one. No doubt the Supreme Court has observed in para 24 of the judgment referred to above, that it will be rare for a dispute falling within the ambit of S. 2(k) of the Act to have the characteristics of a dispute falling under the general or common law. Even so, the fact remains that the petitioner was in service when he filed the suit and the relief asked for by him was the correction of his date of birth from 26th September, 1921 to 26th June, 1925. Therefore, there can bo no difficulty in holding that the civil court has jurisdiction to try the suit.
8. The second grievance of the petitioner then requires consideration. The learned counsel would say that the balance of convenience is not in favour of the respondent but the petitioner and as such the courts below ought not to have passed an order of injunction in favour of the respondent till the disposal of the suit. There is considerable force in this argument. The question whether the respondent is entitled to have his age corrected or not can be decided only in the suit. In the event of his succeeding in the suit, he can get his wages, etc., for the extended period from the Petitioner. On the other hand, if he fails in the suit, it will amount to the petitioner being forced to keep the respondent in service unnecessarily and not only pay the employee his wages but also pay him further amount such as provident fund, gratuity etc. The learned counsel for the respondent states that the payment of money to the respondent during the extended period of service will be referable to the services rendered by him and as such, the petitioner does not lose anything by keeping the respondent in service and making payment to him. This argument will hold good so far as payment of salary is concerned but will not extend to payment of gratuity and provident fund. In all cases where an employee challenges the management's refusal to alter the date of birth, in the register maintained by the Company, this Court has uniformly taken the view that the employee has to establish his rights in the civil court and once he establishes his case, he is entitled to payment of wages for the further period he would not be entitled to obtain an order of injunction from the court and continues to be in service till such time his contentions in the suit is adjudicated. This crucial aspect of the matter has not been considered by the courts below. They have merely observed that the balance of convenience is in favour of the respondent and hence he is entitled to an order of injunction. They have failed to see that by not granting the injunction, the respondent will not be put to loss in any way if he eventually succeeds in the suit. But on the other hand, the petitioner will be put to considerable loss and made to do things contrary to rules framed by it if eventually it is found that the respondent is not entitled to have his date of birth corrected and work beyond 30th September, 1981. There is therefore, a clear error in the exercise of jurisdiction by the courts below on this aspect of the matter. Hence, the second contention of the petitioner is accepted and the interim injunction granted tot he respondent will stand vacated. To this extent, the revision is allowed and in other respects, it will stand dismissed. However there will be no order as to costs.