Coal Mines P.F.
Commr. Thr. Board of Trustee Vs. Ramesh Chandra Jha
[Civil Appeal No.41 of
2012 Arising out of SLP (C) No.5827 of 2011]
J U D G M E N T
ALTAMAS KABIR, J.
1.
Leave
granted.
2.
The
appellant herein is the Coal Mines Provident Fund Commissioner through the Board
of Trustees, constituted under Section 3 of the Coal Mines Provident Fund and Miscellaneous
Provisions Act, CMPF Organisation, Dhanbad. The Respondent was appointed as a Lower
Division Clerk on 16th January, 1967, by the Chief Commissioner in the service of
the Coal Mines Provident Fund Organisation, hereinafter referred to as `CMPFO'.
In connection with the forcible occupation of a Type III quarter, a departmental
proceeding was commenced against the Respondent and on 16th March, 1979, on being
found guilty of the charge framed against him, the Respondent was removed from
service.
3.
Challenging
his removal from service, the Respondent filed Title Suit No.78 of 1979 in the
Court of Munsif at Dhanbad. Simultaneously, the Respondent also filed an appeal
before the Appellate Authority under Regulation 37 of the Staff Regulations,
which was dismissed on 4th March, 1980.
4.
Meanwhile,
in the suit, the learned Munsif, Dhanbad (Jharkhand) framed a preliminary issue
in Suit No.78 of 1979 as to whether in the absence of notice under Section 80 of
the Code of Civil Procedure, the suit was maintainable?
Aggrieved by the said
order, the Respondent filed Civil Revision No.341 of 1980(R) in the Ranchi
Bench of the Patna High Court, which held that since the Appellant was not a "public
officer" as defined in the Code of Civil Procedure, no notice under Section
80 was required to be served upon him before the suit was filed.
By its order dated
7th September, 1981, the Ranchi Bench of the Patna High Court set aside the
findings of the learned Munsif and held the suit to be maintainable. The
Appellant, thereafter, brought the matter to this Court and in Civil Appeal
No.1932 of 1982 this Court by its judgment dated 31st January, 1990, reversed the
finding of the Appellate Authority upon holding that the Coal Mines Provident Fund
Commissioner is a "public officer" within the meaning of Section
2(17) of the aforesaid Code.
It was, therefore, settled
upto this Court that the Appellant herein was a public officer and that notice under
Section 80 was required to be given to him before the suit was filed by the
Respondent.
5.
On
account of the above decision of this Court, on 15th February, 2002, the Respondent
withdrew his Title Suit No.78 of 1979 and filed a fresh suit being Title Suit No.102
of 1990 after serving notice upon the Appellant under Section 80 CPC.
The Appellant contested
the suit which was decreed in favour of the Respondent on 15th February, 2002,
by the Second Munsif, Dhanbad, declaring the removal of the Respondent from service
to be arbitrary and in violation of the principles of natural justice and the provisions
of Article 311 of the Constitution.
Holding the same not to
be binding on the Respondent/Plaintiff, the Munsif declared that the Respondent
would be deemed to be in continuous service in the CMPF Organisation under the
Appellant, together with all benefits and privileges.
6.
Aggrieved
by the order of the learned Munsif decreeing the Respondent's Title Suit No.102
of 1990, the Appellant preferred Title Appeal No.29 of 2002 before the Court of
XIIIth Additional District Judge, Dhanbad. In the said Appeal, the Respondent
herein raised the question as to whether the suit of the Respondent was bad for
non-joinder of the Union of India which was a necessary party in the suit?
Accepting the contention
of the Appellant, the First Appellate Court held that since the Coal Mines Provident
Fund Commissioner was a public officer under the Union of India so as to attract
the provisions of Order XXVII Rule 5A and Section 79 of the Code of Civil
Procedure, the suit was bad for non-joinder of the Union of India which was a 6necessary
party.
The XIIIth Additional
District Judge, Dhanbad, accordingly, set aside the order of the learned
Munsif, Second Court, Dhanbad, in Title Suit No.102 of 1990 by its judgment and
order dated 16th February, 2005.
7.
Aggrieved
by the order of the First Appellate Authority, the Respondent filed Second Appeal
No.134 of 2005 before the Jharkhand High Court at Ranchi. Four years later, on
15th June, 2009, since the Respondent had not delivered vacant possession of the
quarters in his possession, the Estate Officer, by his order dated 15th June, 2009,
gave the Respondent 15 days' time to vacate the suit premises along with other members
of his family.
The Respondent, however,
did not vacate the quarters as directed, whereupon the Appellant filed I.A.
No.1871 of 2009 in the Second Appeal No.134 of 2005 pending before the High
Court, for a direction upon the Respondent to vacate the quarters occupied 7by him.
On 24th August, 2009, the Respondent, through his counsel, gave an undertaking to
vacate the quarters by 30th November, 2009.
In addition, the
Estate Officer passed an order in the execution proceedings on 28th August, 2009,
for eviction of the Respondent from the quarters in question.
On his failure to honour
the undertaking given by him to vacate the suit premises, the High Court took
strong exception to the violation of the undertaking given by the Respondent and
initiated fresh contempt proceedings against him and ordered the Superintendent
of Police, Dhanbad, to get the quarters vacated and to hand over vacant
possession of the same to the competent authority of the CMPFO, Dhanbad within 48
hours of the receipt of the order.
On 19th February,
2010, the High Court heard the contempt case when it was informed that the Respondent
had vacated the quarters and had handed over the keys to the concerned authorities
on 17th February, 2010.
8.
It
is necessary to indicate at this stage that Second Appeal No.134 of 2006, which
had been filed by the Respondent, was admitted on the substantial question of law
as to whether the Lower Appellate Court had committed a serious error in dismissing
the Respondent/Plaintiff's suit on the ground of non-joinder of the Union of
India thereby upsetting the judgment and decree of the Trial Court without
deciding the question as to whether the Coal Mines Provident Fund Commissioner is
a public officer under the Union of India so as to attract the provisions of Order
XXVII Rule 5A of the Code of Civil Procedure.
9.
Appearing
in support of the Appeal, Mr. J.P. Singh, learned Senior Advocate, urged that
the High Court had not properly answered the aforesaid question ignoring the fact
that earlier this Court had in Civil Appeal No.1932 of 1982 between the same parties,
categorically decided that the Coal Mines Provident Fund Commissioner, though
functioning as the Chairman of the Board of Trustees constituted under paragraph
3 of the Coal Mines Provident Fund Act, is a public officer and was, therefore,
required to be made a party in the proceedings under Order XXVII Rule 5A of the
Code of Civil Procedure, which, inter alia, provides as follows :-
"Order 27 Rule
5A - To be joined as a party in suit against a public officer. - Where a suit is
instituted against a public officer for damages or other relief in respect of any
act alleged to have been done by him in his official capacity, the Government shall
be joined as a party to the suit." Mr. J.P. Singh urged that since this
Court had already decided the issue, there was no further need for the High Court
to go into the question once again and decide the same in a manner which was contrary
to the law declared by this Court.
Mr. Singh submitted that
this was in blatant violation of the principles of hierarchy of Courts 10and
also the binding nature of the judgments of the Supreme Court in terms of Article
141 of the Constitution of India. Learned counsel submitted that this was a fit
case where the order of the High Court was liable to be set aside since the
provisions of Order XXVII Rule 5A of the Code of Civil Procedure were squarely attracted
to the facts of the case.
10.
The
Respondent, who appeared in-person, urged that notwithstanding the earlier decision
of this Court in which the Coal Mines Provident Fund Commissioner had been held
to be a public officer, such a stand was contrary to the other decisions of
this Court in (1) R.P.F. Commissioner Vs. Shiv Kumar Joshi [AIR 2000 SC 331] and
(2) Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers
and Ors. [2001 (7) SCC 1], wherein it had been held that the Regional Provident
Fund Commissioner under
the Employees Provident Fund Act and the Employees Provident Fund Scheme, 1952,
is not a public officer, though it discharges statutory functions for running the
Scheme. It was also observed that the Board of Trustees had not in any way been
delegated with the sovereign powers of the State even if it is held that administrative
charges were payable by the Central Government.
The Respondent urged that
the finding of the lower Appellate Court holding the suit to be bad for non-joinder
of the Union of India as a party in the Appeal, was patently erroneous, contrary
to law and unsustainable. Consequently, the order of the learned lower
Appellate Court was set aside and the judgment and decree of the Trial Court in
Title Suit No.102 of 1990 was restored.
11.
Challenging
the order of the learned Single Judge of the Jharkhand High Court, the Appellant
herein filed Second Appeal No.134 of 2005, which 12was ultimately allowed and
the finding of the lower Appellate Court that the suit was bad for non-joinder of
the Union of India as a party was held to be erroneous and was liable to be set
aside.
12.
As
indicated hereinbefore, it is the said judgment and order of the High Court of Jharkhand
which is the subject matter of the present Civil Appeal.
13.
Having
considered the submissions made on behalf of the Appellant and the Respondent
appearing in-person, we are of the view that the judgment and order of the High
Court does not require any interference, particularly when the issue raised in this
Appeal has already been decided by this Court in Civil Appeal No.1932 of 1982, wherein
it was categorically held that the Coal Mines Provident Fund Commissioner is a
"public servant" within the meaning of Section 2(17) of the Code of Civil
Procedure.
It cannot be forgotten
that the First Suit filed by the Respondent, being Title Suit No.78 of 1979, was
withdrawn on the ground that it had been held that a notice under Section 80 of
the Code was necessary since the Coal Mines Provident Fund Commissioner was a public
servant and, thereafter, a second suit, being Title Suit No.102 of 1990, was filed
by the Respondent upon due notice to the Coal Mines Provident Fund
Commissioner.
In view of the aforesaid
finding regarding the status of the Coal Mines Provident Fund Commissioner, the
First Appellate Court erred in reversing the finding of the Trial Court on this
score. It was not open to the First Appellate Court to re-open the question which
had been decided by this Court, at least on the same submissions which had been
made earlier that though the officer concerned was an employee of the Central
Government, he no longer enjoyed the said status when he was discharging the functions
of the Chairman of the Board of Trustees of the Coal Mines Provident Fund
Scheme.
14.
We,
therefore, have no hesitation in holding that in view of the fact that the Coal
Mines Provident Fund Commissioner has been held by this Court to be a public officer,
it was necessary to join the Union of India as a party in the suit in view of the
provisions of Order XXVII Rule 5A of the Code of Civil Procedure. We, accordingly,
see no reason to interfere with the judgment and order appealed against and the
Appeal filed by the Coal Mines Provident Fund Commissioner is dismissed, though
without any order as to costs.
.........................................................J.
(ALTAMAS KABIR)
.........................................................J.
(SURINDER SINGH NIJJAR)
.........................................................J.
(J. CHELAMESWAR)
New
Delhi
4th
January, 2012.
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