Patna High Court
Ram Narain vs Union Of India (Uoi) And Anr. on 4 December, 1964
Equivalent citations: AIR1965PAT374, AIR 1965 PATNA 374, ILR 45 PAT 363 1965 BLJR 503, 1965 BLJR 503
JUDGMENT Misra, J.
1. This appeal under Clause 10 of the Letters Patent arises out of the judgment of Raj Kishore Prasad, J., who upheld the judgment of the Subordinate Judge, Purnea, dismissing the appellant's suit. The appellant is a railway servant. According to his case, he was appointed as a khalasi of the E. B. Railway in 1926. He came to be promoted as a driver in 1945. He was transferred from the E. B. Railway to the Assam Railway until his services were terminated in 1950 when he was working as a loco-shed driver at Katihar under the Assam Railway. The order of termination of his services was passed by the Deputy Chief Mechanical Engineer, Assam Railway, contained in the letter dated the 20th November, 1950 (Exhibit 1). The ground mentioned in the letter stood thus:
"As your services are no longer required by this Administration, they are terminated on and from 20-11-50 with a month's pay in lieu of notice in terms of your agreement."
Accordingly the plaintiff instituted the suit giving rise to this appeal on the 24th July, 1951. The relief prayed for in the plaint was for a decree for Rs. 18,720/- by way of damages for his wrongful, illegal and unjust dismissal. The damages were assessed on the basis of the period of service of the plaintiff for twelve years at the rate of Rs. 130/-per month as salary from the date of the termination of his service up to the due date of his retirement as calculated by him. A claim was also made for interest at the rate of 6 per cent per annum both pendente life and future till the date of realisation. The plaint was amended later on to the effect that the court might be pleased to declare that the dismissal of the plaintiff was wrongful. It may be stated that this amendment was allowed on the 29th August, 1961, when the present Letters Patent appeal was pending. This was substituted for the original claim of damages for wrongful dismissal, no prayer having been made therein for reinstatement to service of the plaintiff.
2. The suit was resisted by the defendant, Union of India, mainly on the ground that the termination of the service of the plaintiff was legal, proper and equitable and that the order was passed in terms of the agreement executed by him under Rule 148 of the Railway Establishment Code, which was applicable to all non-Gazetted raliway servants to which category the plaintiff belonged. It was denied that he was dismissed at all. The allegation in the plaint that he did not execute any agreement in favour of the E. B. Railway was denied by the defendants.
3. The learned Subordinate Judge who tried the suit came to the conclusion on a consideration of the evidence of the parties and the relevant rules governing the conditions of service of the plaintiff that the termination was effected in pursuance of Rule 148 of the Railway Establishment Code and no question of wrongful dismissal of the plaintiff arose in the circumstances. The suit was accordingly dismissed. As I have already stated, the appeal preferred by the plaintiff to this Court, being First Appeal No. 25 of 1955, was also dismissed by the learned single Judge, Hence the present appeal under the Letters Patent.
4. Mr. Prem Lal appearing in support of the appeal has contended that the judgment of the learned single Judge was beyond his jurisdiction inasmuch as he heard the appeal arising out of a suit which was valued at Rs. 18,720/-. The jurisdiction of the learned single Judge to hear the appeal was challenged in the course of argument before the learned single Judge but the contention was overruled on the ground that the value of the appeal preferred to this Court was fixed at 9,250/-. Thus the value of the appeal was below Rs. 10,000/-and as such in pursuance of Rule 1 Sub-clause (b) to Clause (i) in Chapter II, part I, page 5 of the Patna High Court Rules, the wording of this amendment to Rule 1 of Chapter II, Part I, stands thus :
"An appeal from an original decree below Rs. 10,000/- in value and any cross objection therein, irrespective of the date of institution of such appeal or cross objection".
This amendment as added in Rule 1 provides for matters which may be heard and disposed of by a single Judge. It was held, therefore, that the value of the appeal being less than Rs. 10,000/-, the amended provision of this rule will he applicable to that appeal and it was rightly placed before a single Judge for disposal. Reliance was placed in this connection on another decision of this Court in Sah Sita Ram v. Mohammad Mehdi Nawab, AIR 1959 Pat 139, which too was a decision of the same Judge, Raj Kishore Prasad, J., in which the view expressed was that the true meaning and construction of Clause 1(i) (a) is that if an appeal to this Court from an original decree is below Rs. 10,000/-in value the said appeal may be heard and disposed of by a single Judge irrespective of the value of the suit or the decree passed in the suit. A distinction was made in that judgment between the value of the suit and the value of appeal. The argument advanced in that case for the consideration of the Court was that the forum of the appeal and as to whether it would be heard by a single Judge or a Division Bench would depend upon the value of the suit and not upon the amount involved in the appeal to this Court. Where the value of the suit exceeds a sum of Rs. 10,000/- but the claim in the appeal is short of that amount, although appeal lies to the High Court in terms of the aforesaid rule, the matter would be disposed of only by a single Judge. The learned Judge stressed, therefore, the word "appeal" as being of governing importance in determining whether the subject matter would be disposed of by a single Judge or by a Division Bench. The argument to the contrary was overruled. Accordingly in the present appeal as well he reaffirmed the conclusion which he arrived at in the above case in AIR 1959 Pat 139 and held that the language of this amendment to Rule 1 of Chapter II Part I was somewhat ambiguous and a contrary point of view might also be urged with a certain degree of force and plausibility but all the same he adhered to the view expressed in the previous decision as this appeared to him to be more consonant with the spirit and wording of the amended rule. Mr. Prem Lal contends that now that the matter is before a Division Bench, this matter may also be gone into by this Court and the reasoning of the learned single Judge may be re-examined. Accordingly the matter has been considered afresh by us.
Since the learned single Judge also expressed the opinion that the language of this amended rule was ambiguous, it becomes all the more necessary to consider the background of this amendment. It may be stated that under Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887) all appeals arising out of suits or proceedings with a value which did not exceed Rs. 5,000/- would lie to the District Judge even if the judgment under appeal be that of the Subordinate Judge. In any other case an appeal would lie to the High Court. An appeal from a decree or order of a Munsif would lie to the District Judge in all cases. On account of congestion of work in High Courts one of the measures thought of for relieving the congestion was to enhance the jurisdiction of the District judge in regard to the value of the suit from which an appeal would lie to the District Judge direct and not to the High Court. Accordingly by Bihar Act 5 of 1959 the amendment introduced was that the maximum amount of the suit from which an appeal would lie to the District Judge, having been fixed as not exceeding Rs. 5,000/-, was raised to a sum of Rupees 10,000/- and it was laid down there that an appeal would lie to the District Judge from any judgment of the original suit where the value of the suit is less than Rs. 10,000/-. The situation which arose as a result of this amendment was one which necessitated the consideration as to what would become of those appeals which were preferred to the High Court in terms of Section 21 prior to the amendment under Bihar Act 5 of 1959. It was then decided that such appeals would continue to be on the file of the High Court on account of practical convenience of retaining them in the High Court but all the same it was considered expedient that if other appeals under the same Act would be heard thereafter by the District Judge there was no reason why appeals still left in the High Court should not be disposed of by a single Judge. That is the background under which Clause (b) was added to Rule 1, Clause (i) in Chapter II, Part I, of the High Court Rules, which is for consideration before us.
It is thus clear that the rule is not of a general character laying stress upon the value of an appeal but came into force to deal with special class of cases which came to be retained in the High Court which arose out of suits of the value of more than Rupees 5,000/- but less than Rs. 10,000/-. It is thus clear that this class of appeals filed under Section 21 of Act 12 of 1887 was governed by the wording of that section wherein stress is laid upon the value of the original suit or proceeding out of which the decree or order is made. If, therefore, the amended provision of this rule is read along with Section 21, Sub-section (i) of the aforesaid Act, there can be no doubt that stress is laid more upon the original suit than upon the appeal. The view expressed by Raj Kishore Prasad, J., however, seems to be concentrated upon the word "appeal" so that the words "from an original decree below Rs. 10,000/- in value and any cross objection therein" would qualify the word "appeal" whereas stress in Section 21 was upon the words "original suit". On a proper consideration of the rule it appears to me, however, that if there be ambiguity in this rule and it may be read either as laying stresses upon the word "appeal" as governing the matter as to whether it is to be heard by a single Judge or by a Division Bench or "appeal" may be read as unqualified and the phrase "original decree" may be taken as being qualified by the words which follow before Rs. 10,000/- etc., then the question for consideration would be as to what is the meaning of original decree in a suit which is valued at more than Rs. 10,000/- where the suit has been, dismissed. It is well settled that even where a suit of the plaintiff is dismissed, the value of the decree passed by that court dismissing the suit would be the value of the suit itself us laid by the plaintiff although if the plaintiff would come up in appeal, it might be open to him to put a different valuation. The value of the original decree, however, will be the same as value of the suit itself. In the present case the plaintiffs suit was dismissed and this suit was valued at Rs. 18,720/-, as I have already stated. Therefore, the value of the original decree from which the appeal was preferred to this Court would be Rs. 18,720/- and not the reduced valuation which the plaintiff for one reason or another thought fit to put in his appeal to which he confined his relief. Hence the rule should be read divorced from the word "appeal" as an appeal arising out of an original decree exceeding Rupees 10,000/- and not below that amount. If this view of these words is taken it is in consonance with the object with which this amendment was introduced. If it were otherwise, several anomalies might arise, for instance, where the suit would be valued, say at a sum of Rs. 1,00,000/, but the decree is passed say for a sum of Rs. 5,000/- only and an appeal is preferred by the defendant against that decree of Rs. 5,000/-, then the appeal would be preferred before the District Judge whereas if the plaintiff will be aggrieved by the judgment of the trial court dismissing the suit for the remaining amount, his appeal would obviously lie to the High Court. It is not necessary to elaborate the point further and it must be held that the value of the original decree in a suit, at any rate where it is dismissed, must necessarily be the value of the suit itself, as has been the position in the present case. In ray opinion, therefore, the view expressed by Raj Kishore Prasad J., in the above decision as also in the judgment giving rise to this appeal holding that he had jurisdiction as a single Judge to hear this appeal in pursuance of the amendment to Rule 1, Chapter II, Part I, of the Patna High Court Rules cannot be sustained as correct.
5. The next question for consideration is whether this appeal is to be heard now as Letters Patent arising out of a judgment passed without jurisdiction or as an appeal to be heard by a Division Bench which has jurisdiction to hear the appeal, although it has been labelled as the Letters Patent appeal. In my opinion, if the judgment of the learned single Judge is held to be one without jurisdiction, the judgment has to be ignored altogether and along with that has to be ignored what steps have been taken by the plaintiff by way of amendment of plaint etc., whatever the reasons for that amendment might be which weighed with him after the Letters Patent appeal was preferred. Mr. P. K. Bose appearing for the respondent, Union of India, has contended that this Letters Patent Bench having come to the conclusion that the judgment of the learned single Judge was beyond his jurisdiction, the only course left open to it was to send this case back to the Chief Justice to put it up before the proper Bench. In my opinion, this argument cannot be accepted for the obvious reason that there is no such thing as Letters Patent Bench either under the High Court Rules or in law. There may be appeals under the Letters Patent but law does not contemplate anywhere the constitution of the Bench to be called Letters Patent Bench with a special jurisdiction. All that the Letters Patent requires is an appeal from the decision of a single Judge of this Court which would be disposed of by two Judges and there is no particular restriction as to which Division Bench would hear the appeal. The objection urged by Mr. P. K. Bose, therefore, has no substance and it must be held that the case should not be put up before the Chief Justice and it is open to this Court to proceed to dispose of the matter in accordance with law.
6. Coming to the merits of the matter, however, it may be stated that the position has now been simplified as to whether the termination of the service Of a railway employee in pursuance of Rule 148 of the Railway Establishment Code is one which will attract the operation of Article 311 of the Constitution of India. It is clear that, at one time, the view expressed in several decisions of the High Courts was that such a termination was in pursuance of the agreement between the parties as provided for in Rule 148 which laid down that the Railway Administration was entitled to terminate the appointment giving one month's notice or one month's salary in lieu thereof to the employee and any railway servant who comes within the ambit of that rule could not be entitled to invoke the protection of Article 311 of the Constitution. Mr. PREM Lal has brought to our notice the decision of the Supreme Court in Moti Ram v. N. E. Frontier Railway, AIR 1964 SC 600 wherein the validity of Rules 148(3) and 149(3) of the Railway Establishment Code came to be considered by their Lordships of the Supreme Court and it has been laid down there that the termination of service of an employee in terms of Rules 148 (3) and 149 (3) without recourse to Article 311(2) of the Constitution of India is not valid because such a termination amounts to removal from service of a railway employee and the provision for an agreement making it lawful for the Railway Administration to dispense with the service of a railway servant by one month's notice is not valid. Hence their Lordships held that the rules which empowered the Railway Administration to dispense with the services of a railway employee without compliance with the procedure prescribed by Article 311(2) must be struck down as invalid. The decisions of this Court and some other High Courts laying down the contrary view were overruled. Mr. P. K. Bose has made a feeble attempt to contend against the argument of Mr. Prem Lal based on the decision of the Supreme Court with respect to certain other considerations. In my opinion, however, Mr. Bose has not succeeded in making any substantial point and if Rule 148(3) Itself is struck down, the position is clear beyond doubt that the termination of he appointment of the appellant without giving him notice under Article 311(2) of the Constitution must be held to he invalid in law and beyond the power of the railway authorities. Mr. Bose's contention that the appellant amended his plaint and gave up his consequential relief by way of damages etc., and as such he would come within the mischief of Section 42 of the Specific Relief Act cannot be accepted. In my opinion, in view of the aforesaid decision of the Supreme Court, no other question, strictly speaking, arises. Once it is held that the order passed by the railway authorities terminating the appointment of the appellant is invalid and that he is entitled to notice to show cause against the punishment proposed in terms of Article 311(2) of the Constitution then it would mean that the next step to be taken by the Railway Administration would be to resort to the provisions of Article 311(2) and pass necessary order in compliance with the requirements of that Article.
7. The next question, therefore, is what after this; because it is difficult to visualise at this stage what the railway authorities would do in the case of the appellant if opportunity is given to him to show cause against the punishment, if any, that is sought to be meeted out to him because of the way in which he discharged his duties as a driver in the Assam Railway. There has been some argument at the bar as to what order is to be passed by us in regard to the claim for damages which were given up in the Letters Patent stage or what should be the form of the order to be passed by this Court, Mr. Prem Lal has contended that it is not necessary to go into these matters in detail because the facts of the present case are on all fours wish the decision of the Supreme Court in Moti Ram's case, AIR 1964 SC 600 and this Court should pass order in the same terms as was the order passed by the Supreme Court. In that case also the relief was for a declaration that the termination of the service of appellant Moti Ram was illegal and void and the Supreme Court gave the declaration. It is no doubt true that the matter there cropped up in the writ application whereas in the present case the matter is connected with a regular suit filed by the appellant in the court of the Subordinate Judge. That, however, is hardly a point of difference between the two so far as the nature of the relief to be granted is concerned. Accordingly it should be held that the termination of the service of the appellant in pursuance of Rule 148 of the Railway Establishment Code was bad and any order passed against him must be held to be invalid. The next step to he taken by the railway authorities, as I have already indicated, would be to take recourse to the provisions of Article 311(2) of the Constitution of India. Mr. Bose has also urged that in terms of the allegations in the plaint itself, the appellant must be taken to have reached the age of superannuation and he is not entitled to reinstatement. Mr. Prem Lal has urged in general terms that the age of retirement in railway service has now been raised and that the appellant is entitled to serve until sometime in 1965. These matters, however, do not appear to be relevant for our consideration in the present appeal as this will be gone into by the railway authorities when the matter is taken up there in due course.
8. In the result, the appeal is allowed, but in the circumstances of the case the parties should bear their own costs throughout. Since, however, the suit has been decreed and it was filed in forma pauperis, the Government will be entitled to realisation of proper Court-fee from the plaintiff.
G.N. Prasad, J.
9. I agree.