Allahabad High Court
Shivdhesar Singh vs Union Of India & Others on 21 September, 2010
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R [Reserved] Second Appeal No. 1022 of 2003 Shivdhesar Singh Plaintiff-Appellant Vs. Union of India and others Defendant-Respondents ************** Hon'ble Pankaj Mithal, J.
Plaintiff appellant was a constable in the Central Reserve Police Force. He was involved in a criminal case and was arrested and released on bail. He was put under suspension. He proceeded on leave from 14.5.1990 to 12.6.1990 with due permission granted on 8.5.1990. He applied for extension of leave but the extension was not granted. He absented from duty or over stayed on leave and on the said ground his services were terminated w.e.f. 5.6.1992.
The plaintiff appellant instituted Original Suit No.138 of 1993 for declaring the order of termination as illegal, null and void. The suit was filed without serving notice under Section 80 CPC upon the Central Government ie., the Union of India, one of the defendants to the suit.
The suit was contested on merits and on certain technical pleas vis-a-vis the jurisdiction of the court; the suit being barred by Central Administrative Tribunal Act and for want of notice under Section 80 CPC; and that Union of India was not properly arrayed.
The court of first instance on all the above pleas framed issues and finally vide judgment and order dated 30.5.1996 decreed the same and the order of termination of services of the plaintiff appellant dated 5.6.1992 was declared to be illegal null and void. The court held that the suit is not barred by Central Administrative Tribunal Act; it is not bad even for want of notice under Section 80 CPC as Court had granted leave to sue without notice; the suit is also not bad for mis-joinder of parties on account of Union of India not being arrayed properly as both the Union of India as well as Central Reserved Police Force were duly represented; the defendant-respondents are unable to establish that the civil court has no jurisdiction in the matter; and the termination of the services of the plaintiff appellant are in violation of the principles of natural justice.
The defendant respondents aggrieved by the judgment, order and decree passed by the first court preferred an appeal. The said appeal has been allowed by the impugned judgment and order dated 16.10.1998 and after setting aside the decree passed by the court below below the suit has been dismissed.
The lower appellate court has allowed the appeal and non suited the plaintiff appellant only on two counts; first, suit is bad for want of notice under Section 80 CPC and secondly, it is barred by Section 41(h) of the Specific relief Act. No other finding of the lower court has been touched or interfered with.
It is against the judgment, order and decree of the lower appellate court that this second appeal has been preferred by the plaintiff-appellant.
Sri Pradeep Kumar Pandey, learned counsel for the appellant raising the aforesaid two points has submitted that in all other respects the judgment and order of the trial court has attained finality and therefore if the above two questions of law are decided in favour of the plaintiff appellant the suit would stand decreed.
In view of the above facts and circumstances and the respective submissions of the parties following two substantial questions of law arises for determination in the present appeal:-
1.Whether the suit is bad for want of notice under Section 80 CPC to the Union of India even when it was instituted with the leave of the Court?
2.Whether the suit is barred by Section 41(h) of the Specific Relief Act?
I have heard Sri Pradeep Kumar Pandey, learned counsel for the plaintiff appellant and Sri Tej Prakash, learned counsel for the Union of India on both the above questions of law.
First Question:
The suit was admittedly instituted by the plaintiff appellant without issuing/serving any notice as required under Section 80 CPC upon the respondents. However, the record reveals that the suit was accompanied by an application for leave to sue without such a notice. The court of first instance on consideration of the said application vide order dated 23.3.1993 had allowed the said application and in view of the urgency of the matter had granted permission to the plaintiff appellant to sue without serving such a notice.
Section 80 (1) CPC mandates that no suit shall be instituted against the government until expiration of two months next after notice in writing has been delivered to the secretary to the Central Government and in a case the suit is against the State Government to the secretary to the government concerned or the Collector of the district. However, sub-section (2) of Section 80 CPC provides for an exception. It provides that a suit to obtain an urgent relief against the government may be instituted with the leave of the Court without serving any notice as required under Sub-section (1) of Section 80 CPC. Thus, the court in exercise of powers under Sub-Section 2 of Section 80 CPC has the authority to grant leave to institute suit without serving notice under Section 80(1) CPC. Now where such leave had been granted by following the due procedure prescribed and the grant of such leave was not questioned, it was not open for the lower appellate court to throw out the suit on the ground of non issuance or service of notice. Accordingly, the lower court committed gross illegally in holding the suit to be bad for want of notice under Section 80 (1) CPC.
In view of the above, the first substantial question is answered in favour of the plaintiff appellant and against the defendant respondents and it is held that the plaintiff appellant could not have been non suited on the ground of non issuance of notice under Section 80 CPC when the suit was instituted with the leave of the Court.
Second Question:-
Now, I would like to to deal with the other question.
Generally, all suits are triable by the civil court. Section 9 CPC provides that the courts shall have jurisdiction to try all suits of civil nature except those whose cognizance is either expressly or impliedly barred.
In Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddi AIR 1967 SC 781 the Apex Court held that in view of Section 9 of the CPC, the court shall have jurisdiction to try all suits of civil nature except suits which are expressly or impliedly barred.
It has also been laid down in the above case as well as in Abdul Waheed Khan Vs. Bhawani and others AIR 1996 SC 1718 that it is for the party who seeks to oust the jurisdiction of a civil court to establish that the jurisdiction of the civil court is so barred either expressly or impliedly.
It is equally settled that the statute ousting the jurisdiction of the civil court must be strictly construed. In Sahebgouda (Dead) by LRS and others Vs. Ogeppa and others (2003)6 SCC 151 the Apex Court held that it is well settled that a provision of law ousting the jurisdiction of the civil court must be strictly construed and onus lies on the party seeking to oust the jurisdiction to establish the same.
In another case Dwarika Prasad Agrawal (D) by LRS Vs. Ramesh Chnadra Agrawal and others (2003) 6 SCC 220 it has been held that Section 9 CPC confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same are barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. Normally, the court would lean in favour of the construction, which would upheld retention of the jurisdiction. The burden of proof of ouster of jurisdiction of civil court is always upon the party who asserts the ouster of jurisdiction.
In addition to Section 9 CPC, Section 34 of the Specific Relief Act also provides that any person entitle to any legal character may institute a suit for declaration and the court may in its discretion make a declaration that he is so entitled and the plaintiff in such a suit need not ask any further relief.
The power of the civil court to issue declaratory decrees in exercise of power under Section 34 Specific Relief Act is not exhaustive and the civil court has power to grant further declaratory decrees independently of the requireouments provided under Section 34 of the Specific Relief Act. The Apex Court while considering the provisions of Section 14 along with the Section 34 of the Specific Relief Act in the case of Ashok Kumar Srivastava Vs. National Insurance Company Limited and others, 1998 (4) AWC 886 (SC) after due consideration of all the above authorities on the point held that Section 34 of the Specific Relief Act is wide enough to open the corridors of the civil court to admit suits filed for verity of the decrees of declaratory nature and the language of Section 34 of the Specific Relief Act does not exhaust the power of the court to grant declaratory reliefs not contemplated therein.
Thus, in view of Section 9 CPC read with Section 34 apparently the civil court is possessed with the jurisdiction to hear the matter.
Now it is for the defendant/respondents to establish the ouster of jurisdiction of the civil court.
The ground taken by the lower appellate court to defeat the suit is that it is barred by Section 41(h) of the Specific Relief Act. Such a ground on the face of it can not be sustained in law.
First of all there is no issue regarding suit being barred by Section 41(h) of the Specific Relief Act. Law is settled that the court should not decide a suit on a matter on which no issue has been raised and is put to notice/knowledge of the parties. It is a very obvious legal principle that there should be no decision against a person who has no opportunity of being heard upon a point which is to be decided. In other words, there should be no finding by the court on a point which was not a point of issue.
Secondly, Section 41(h) of the Specific Relief Act is in connection with the injunction matters and can not be imported and applied to a case where relief for declaration has been sought. It only postulates that an injunction can not be granted when equally efficacious relief can certainly be obtained by any other mode of proceeding. The case at hand is not for the relief of permanent injunction rather it is for declaration of an order to be illegal, null and void.
A plain reading of the aforesaid provision itself makes it apparent that it would not be applicable to a suit for declaration and its application is confined to matters concerning injunctions only.
Let me further examine, independent of Section 41(h) of Specific Relief Act as to whether the jurisdiction of the civil court in respect of the matter in dispute stands excluded.
Sri Tej Prakash learned counsel for the defendant respondents submitted that under the Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act) a complete mechanism in respect of the disciplinary proceedings has been provided and therefore the jurisdiction of the civil court stands ousted.
I have gone through the provisions of the above Act and the rules framed thereunder. It provides for holding a disciplinary enquiry for the purposes of imposing a major punishment of termination of an employee and against the order of termination an appeal under Rule 28 of the Rules as well as further revision under Rule 29 of the Rules is permitted. However, there is no provision which expressly bars the jurisdiction of the civil court.
A plain reading of the provisions of the Act in no way conveys that the jurisdiction of the civil court is barred not even by implication. It may be another thing to say that the plaintiff appellant would have been better advised to have exhausted departmental remedies before instituting the suit but the same can not be a ground for inferring the exclusion of the jurisdiction of the civil court. In Mohammad Din and others Vs. Imam Din and others AIR 1948 PC 33 it was clearly laid down that where the authorities/executive acts beyond its jurisdiction, civil court has power to entertain suits challenging such actions. It implies that the final order passed ultimately in the departmental remedies is always open to challenge by means of a civil suit for which at least there is no bar either express or implied.
A five Judges Bench of the Supreme Court presided by the CJI in Firm of Illuri Subbayya Chetty and Sons Vs. State of Andhra Pradesh AIR 1964 SC 322 while dealing with the question as to the whether the suit instituted in the civil court was competent or not held that existence of special remedy under a special Act does not necessarily oust the jurisdiction of the civil court and went on to observe as under:-
"In dealing with the question whether Civil Courts' jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the Civil Courts to deal with a case brought before it in respect of some of the matters covered by the said statute."
In view of the above, the provision of a departmental remedy against the termination order in the Rules would not by implication oust the jurisdiction of the civil court.
In this connection, the provisions of Section 14 of the Specific Relief Act are also required to be examined. Section 14 of the Specific Relief Act mandates that certain contracts can not be enforced and it includes a contract which, if not, performed can be compensated in money, and a contract which in its nature is determinable.
In the case of Nandganj Sihori Sugar Co. Ltd. Raebareli and another Vs. Badri Nath Dixit and others AIR 1991 SC 1525 the Apex Court in the light of Section 14 of the Specific Relief Act held that in a private contractual relationship of employer and employee, neither the principle of law nor equity confers upon the employee a legally enforceable right to continue with the privity of such relationship. It further laid down that a contract of employment can not ordinarily be enforced by or against the employer and the only remedy available to the parties is to sue for damages and to get compensated for the loss subject to three well recognized exceptions ie. (i) where a public servant is sought to be removed from service in violation of Article 311 of the Constitution of India; (ii) where a dismissed worker is sought to be reinstated under the industrial law; and (iii) where a statutory body acts in breach of any mandatory provisions of law indispensing with the services.
The exclusion of the jurisdiction of the civil court vested in it by virtue of section 9 CPC came up for consideration before the 5 Judges Bench of the Supreme Court in the case of Dhula Bhai etc Vs. State of M.P., and another AIR 1969 SC 78 in which it was held that exclusion of the jurisdiction of the civil court is not readily to be inferred. It further provides that that where the statutes gives finality to the orders of the special tribunals the jurisdiction of the civil courts' must be held to be excluded provided there is adequate remedy to do what the civil court would normally do in a suit but nonetheless this does not exclude the jurisdiction of the civil court in cases where the provisions of the particular Act have not been complied with or the statutory tribunal has acted in violation of the fundamental principles of judicial procedure or also where the vires of the provision of the Act itself has been questioned or the provision has already been declared to be unconstitutional.
In a subsequent decision of the 3 Judges Bench of the Supreme Court in the case of Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others, AIR 1976 SC 888 while considering a similar controversy with regard to enforceability of the contract of personal service it was laid down that a contract of personal service can not ordinarily be enforced and a court would normally not give a declaration that the contract subsists and that the employee even after having been removed from service can be deemed to be in service against the will of the employer. However, three broad exceptions as discussed earlier to the aforesaid rule were carved out. The exceptions have further been explained in the same very judgment by one of the judges writing his separate judgment by saying that the doctrine that a contract of personal service cannot specifically be enforced would not stand in way of the employee in a case whose relationship with the employee is governed by statute and where the termination is null and void. In such a case there would be no repudiation of the contract at all in the eye of law and as such there would be no question for enforcing such a contract of the employment. In the said circumstances the employee would only be claiming declaration of statutory invalidity of an act done by the employer and not enforcement of the contract of personal service. A further example of termination out side the statutory powers was cited and it was said that where the statutory body has no power to terminate an employment or where the termination in in effect in breach of mandatory obligation imposed by law, in such cases, the termination would be a nullity and the employee would be entitled to ignore it and to seek a declaration to this effect which may in the ultimate result in treating him to be still service. Therefore, the legal position that emerges out from the above authorities is that the purpose behind Section 14 of the Act is that the employer could not be forced to retain in service an employee against his wishes or who is not required by him. Accordingly, such suits for enforcement of contract of employment are 'ordinarily' barred subject to the exceptions specified.
Even the latest decisions on the point ie. M/S Pearlite Liners Pvt. Ltd. v. Manorama Sirsi, JT 2004(1) SC 58 and Swamy Atmananda and others Vs. Sri Ramakrishna Tapovanam and others, (2005) 10 SCC 51 followed the ratio of the earlier decision of the Supreme Court in the case of Executive Committee of Vaish Degree College, Shamli (supra) and nothing contrary has been laid down.
In the instant case the plaintiff appellant has claimed that the order of termination is illegal, null and void and has sought declaration to the above effect on the ground that the enquiry on the basis of which such an order was passed was patently in violation of the principles of natural justice and that his termination was in contravention of the provisions of Article 311 of the Constitution of India. The court of first instance has even found the order of termination to be bad and in contravention of the provisions of Article 311 of the Constitution which finding has not been reversed by the lower appellate court. Thus, in such a situation the case of the plaintiff appellant falls within one of the exceptions carved out by the Apex Court in the cases of Dhula Bhai and Executive Committee of Vaish Decree College (Supra) and the exclusion of the jurisdiction of the civil court in view of Section 14 of the Specific Relief Act or even on account of the fact that the Central Reserve Police Force Act provides for a complete mechanism for redressal of the grievance of the plaintiff appellant can not be inferred.
A Bench of 3 Judges of the Supreme Court in the Case of Ramendra Kishore Biswas Vs. State of Tripura AIR 1999 SC 294 while dealing with Section 9 CPC vis-a-vis provisions of Article 311 of the Constitution of India in relation to the maintainability of the suit in civil court concluded that where relevant service rules neither expressly nor by implication takes away, the jurisdiction of the civil court to deal with the service matter, it is not proper to hold that the civil court had no jurisdiction.
In view of the aforesaid facts and circumstances, the second substantial question of law is also answered in favour of the plaintiff appellant and it is held that the civil suit as framed by the plaintiff appellant was neither barred by Section 41 (h) of the Specific Relief Act nor otherwise, the jurisdiction of the civil court stood excluded either expressly or impliedly or even by virtue of Section 14 of the Specific Relief Act.
Accordingly, I am of the opinion that the appeal has to succeed. It is therefore allowed. The judgment, order and decree of the lower appellate court dated 16.10.1998 passed in Civil Appeal no. 13 of 1998 is set aside and that of the lower court dated 30.5.1996 passed in Original Suit No. 138 of 1993 decreeing the suit is restored with no order as to costs.
Dt.21.9.2010 SKS