Decided on January 25,2005

JOHAN RAM Appellant


- (1.) By this writ petition filed under Art. 226/227 of the Constitution of India, the petitioner has substantially challenged the validity of the impugned order dated 28-2-2004 (Annexure P-9) passed in Misc. Civil Appeal No. 5/2003 by the Additional District Judge, Balod, District Durg (C. G.).
(2.) The facts of the case are that the petitioner filed a civil suit in the Court of Civil Judge, Class-II, Balod for the relief of declaration that the actual date of birth of the petitioner is 9-11-1948. He further claims that according to the said date of birth, he is entitled to work to the age of 60 years (the age of superannuation) and thereafter he should be retired on 30-11-2008. A relief of permanent injunction was also sought for by the petitioner praying that the defendants should be restrained from superannuating the petitioner on 31-3-2003. A copy of the plaint is filed as Annexure P-3. The case of the petitioner is that he was appointed as a labour on 27-3-1973 and thereafter he was appointed as a regular employee in the Civil Maintenance Department of Town Administration, Rajahra on 17-1-1979. Initially, by mistake, his date of birth was recorded as 26-3-1938. At the time of his regular appointment on 17-1-1979, his date of birth was again recorded as 18-1-1952 which was also incorrect. In fact, his date of birth is 9-11-1948 and according to the age of superannuation that is 60 years, he would retire on 30-11-2008. When the notice for retirement on 31-3-2003 was received, the cause of action arose and the petitioner filed the instant suit. The petitioner also filed application for temporary injunction under O. 39, Rr. 1 and 2 of the Code of Civil Procedure praying that the defendants should be restrained from effecting the retirement of the plaintiff/petitioner on 31-3-2003 and the effect and operation of the order dated 28-2-2003 should also be stayed.
(3.) The learned trial Court after hearing the parties, allowed the application for temporary injunction vide order dated 29-3-2003. It was directed that the petitioner shall not be retired in pursuance of the order dated 28-2-2003. Against the aforesaid order passed by the trial Court, the defendants (respondents herein) filed a Misc. Appeal before the Court of Additional District Judge, Balod vide M. A. No. 5/2003. The said Misc. Appeal was finally decided by the impugned order dated 28-2-2004 and the same was allowed and the order of temporary injunction granted on 29-3-2003 by the trial Court was set aside. The main contention raised by the counsel for the respondents before the Miscellaneous Appellate Court was that in fact, the actual dispute raised by the plaintiff was a dispute in relation to superannuation from the service and the same comes within the meaning of an "industrial dispute", therefore, the Jurisdiction of the Civil Court was barred. Since the Civil Court's jurisdiction was barred, therefore, the suit itself was not maintainable and no orders of temporary injunction would have been passed by the trial Court.;

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