Dispute regarding date of birth of employees attained finality.

P. Shanmugam, J.

1. Cholan Roadways Corporation Limited (hereinafter referred to as the Corporation), who were the defendants in the suit and respondents in the writ petition are the appellants herein.

2. One P.N. Karuppaiyan, plaintiff in the suit O.S. No.178 of 1988 in the District Munsif Court, Mayiladuthurai was an employee with Sri Rama Vilas Bus Service Limited, which was taken over by the Corporation, as a result of which the said Karuppaiyan was absorbed in the services of the appellant Corporation with continuity of service. The employee, while he was in his service with S.R.V.S., had declared his date of birth as 23.3.1930. In the official records of the Corporation also, his date of birth was entered as 23.3.1930. The Standing Orders for the employees of the Corporation, which came into force on 30.11.1976, provided for retirement of employees on their attaining the age of 58 years. The said employee was intimated that he would be superannuated on 31.3.1988 by the intimation of the corporation dated 15.2.1988. The employee filed a suit O.S. No.178 of 1988 on 22.3.1988 for a declaration that his date of birth is 25.2.1934 and consequently restraining the defendant Corporation by a permanent injunction from effecting the retirement of the employee's service on 31.3.1988 on the ground of his having attained the age of 58 years. The suit was decreed insofar as declaring his date of birth as 25.2.1934, but it was dismissed in reference to the relief of permanent injunction. On appeal by the Corporation, the Sub Judge, Mayiladuthurai in A.S. No.31 of 1991 confirmed the decree of the trial court. Thereafter, the employee filed Writ Petition No.2156 of 1991 in February 1991 for the issue of a Writ of Mandamus directing the respondent Corporation to reinstate him in service with backwages pursuant to the decree in O.S. No.178 of 1988 dated 8.8.1990. The Management field Second Appeal No.960 of 19092 on 12.2.1992 against the decrees and judgments of the courts below. The learned single Judge, by an order in the writ petition dated 13.11.1998, ordered the Corporation to grant the service benefits to the employee on the basis of the decree of the civil court with regard to the date of birth declared. The Corporation has filed the Writ Appeal and as the learned single Judge has proceeded on the basis of the civil court decree to grant the relief sought for, both the second appeal as well as the writ appeal are before us.

3. Thequestions that arise for consideration in these appeals are as follows :

(i) Whether a civil suit in respect of age and the consequent employment is maintainable in the light of the Standing Orders ?

(ii) Assuming that the suit is maintainable, whether the civil court and the learned Judge considered the issue in the light of the Standing Orders ?

4. The learned counsel Mr. Sanjay Mohan arguing on behalf of the Corporation submitted that the jurisdiction of the civil court is barred by virtue of the Standing Orders and an alternative remedy is available to an employee under the provisions of the Industrial Disputes Act. According to him, a declaration in reference to the age of an employee could not be pressed into service in relation to his employment, but could be used only for purposes other than employment. Assuming that the civil court has got jurisdiction, its judgment and decree cannot be sustained inasmuch as they have ignored the Standing Orders and other remedies available to the employee under the Industrial Disputes Act. He further submits that since the learned single Judge has proceeded only on the basis of the civil court decree, once it is found that the civil court has no jurisdiction to employment on the basis of a declaration of this nature, the order in the writ petition has to be set aside.

5. Learned senior counsel Mr. K. Chandru appearing on behalf of the respondent employee submitted that the Management cannot be permitted to argue questions which were not raised by the