(1.) HEARD the learned Advocates appearing for the parties.

(2.) ASSAILING the judgment and order dated 8th December, 2003 in W.P. No. 6390 (W) of 2003 passed by the learned trial Judge, this appeal has been preferred by the present appellant.

(3.) THE subject-matter of challenge in the writ application was the notice of superannuation on the ground that the same was contrary to the decree passed by the Civil Court declaring the age of the writ petitioner by contested hearing, wherein the employer was the party in the proceeding. It is an admitted position that the Civil Court passed a decree declaring the date of birth of the writ petitioner as 2nd day of November, 1948. But the notice of superannuation was issued by considering the date of birth as 10th day of July, 1942. When the judgment under appeal was delivered, at that time a First Appeal admittedly was pending from the judgment and decree dated 22nd March, 2002 passed by the Civil Court in Title Suit No. 136 of 1999 as filed by the present appellant before us. Now, it is submission of the learned Advocate for the appellant that the said First Appeal has been dismissed on merit, which was registered as Title Appeal No. 67/79 of 2002 in the Fast Track, 2nd Court of the Additional District Judge, Asansol. It has been further submitted that a second appeal with an application under section 5 of the Limitation Act praying for condonation of delay in preferring the appeal belatedly, which has been registered as S.A.T. No. 3148 of 2006 is pending in the High Court at Calcutta against the judgment and decree passed by the learned Trial Court as well as the First Appellate Court in the said civil proceeding. By the judgment under appeal the learned Trial Judge held that as there was a decree of Civil Court, notice of superannuation perse was bad in law as it was contrary to the age declared by the Civil Court. The learned Trial Judge further held that decree of Civil Court is binding in between the parties and the contention as raised that in the civil suit the writ petitioner since did not challenge the age recorded in the office fife of the employer/respondent, the superannuation notice as followed in terms of the said office record as kept in the B-Form cannot be interfered with, was not tenable applying the doctrine of constructive resjudicata.

(4.) FOR effective consideration of the issue of applicability of constructive resjudicata as observed by the learned Trial Judge, we have to consider the judgment and decree passed by the Civil Court, which is before us.

(5.) TITLE Suit No. 136 of 1999 was filed and, a judgment delivered on 22nd day of March, 2002 by the learned Additional Court of the Civil Judge, Junior division, Additional Court at Asansol within the District of Burdwan in the case Abinas Mondal v. Eastern Coalfields Ltd. and Ors. From the decree as annexed, it appears that there were three defendants in the suit, namely, (1) M/s. Eastern Coalfields Ltd., Sanctoria, P.O. Dishagarh, P.S. Kulti, Dist. Burdwan (W.B); (2) General Manager, Kenda Area, P.O. Bhaula, P.S. Jamuria, dist. Burdwan (W.B.) and (3) Agent, Haripur Colliery, P.O. Haripur, P.S. Jamuria, dist. Burdwan (W.B.). The decree reads such:-"plaintiff do get a decree of declaration that his date of birth is 2nd November, 1948. As because the plaintiff is in service, I do no grant any other relief, to him."

(6.) FROM the judgment leading to the said decree passed by the learned civil Court below it appears that the learned Court considered the impact of the document, namely, the B-Form, which as per submission of the learned advocate for the respondent was not considered. From the judgment it appears that defendants filed joint written statement denying each and every allegations and contentions of the plaint. Relevant issue was framed, namely, "is the date of birth of the plaintiff is 2.11.1948?". The findings of the judgment as are relevant is quoted herein below for our consideration:-"the