Madhya Pradesh High Court
Union Of India & Ors. vs M/S Ajay Construction Co. on 29 April, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 566 of 2000
BETWEEN:-
1. UNION OF INDIA, THROUGH THE
SECRETARY, MINISTRY OF LABOUR &
EMPLOYMENT, NEW DELHI, NOW
WORKING UNDER THE MINISTRY OF
ENERGY, SHRAM SHAKTI BHAWAN NEW
DELHI
2. THE REGIONAL COMMISSIONER, COAL
MINES PROVIDENT FUND AND MISC.
PROVISION ACT, 1948, CIRCULAR ROAD,
CHHINDWARA (M.P)
3. THE INSPECTOR,
UNDER THE COAL MINES PROVIDENT
FUND AND MISC. PROVISIONS ACT, 1948,
CIRCULAR ROAD CHHINDWARA (M.P)
.....APPELLANTS
(SHRI ANOOP NAIR - SR. ADVOCATE WITH MS. DISHA ROHITAS
ADVOCATE)
AND
1. M/S. MAN TRANSPORT COMPANY,
REGISTERED PARTNERSHIP FIRM,
TRANSPORT CONTRACTOR, TAHSIL
PARASIA, DISTRICT CHHINDWARA M.P
2. THE COLLECTOR, CHHINDWARA (M.P)
....RESPONDENTS
- 2 -
(NONE)
AND
SECOND APPEAL No. 567 of 2000
BETWEEN:-
1. UNION OF INDIA, THROUGH THE
SECRETARY, MINISTRY OF LABOUR &
EMPLOYMENT, NEW DELHI, NOW
WORKING UNDER THE MINISTRY OF
ENERGY, SHRAM SHAKTI BHAWAN NEW
DELHI
2. THE REGIONAL COMMISSIONER, COAL
MINES PROVIDENT FUND AND MISC.
PROVISION ACT, 1948, CIRCULAR ROAD,
CHHINDWARA (M.P)
3. THE INSPECTOR,
UNDER THE COAL MINES PROVIDENT
FUND AND MISC. PROVISIONS ACT, 1948,
CIRCULAR ROAD CHHINDWARA (M.P)
.....APPELLANTS
(SHRI ANOOP NAIR - SR. ADVOCATE WITH MS. DISHA ROHITAS
ADVOCATE)
AND
1. M/S. AJAY CONSTRUCTION COMPANY,
REGISTERED PARTNERSHIP FIRM,
TRANSPORT CONTRACTOR, THE, PARASIA,
DISTRICT CHHINDWARA (M.P)
2. THE COLLECTOR, CHHINDWARA (MP)
....RESPONDENTS
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...................................................................................................
Reserved on : 24.04.2024
Delivered on : 29.04.2024
...................................................................................................
These appeals having been heard and reserved for judgment, coming on for
pronouncement this day, the Court pronounced the following:
JUDGMENT
Both these appeals (S.A.No.566 of 2000 and S.A.No.567 of 2000) having arisen out of identical/common set of facts and having identical issues and substantial questions of law, are being decided by this common judgment.
2. Second appeal no. 566/2000 has been preferred by the appellants/defendants challenging judgment and decree dated 03.02.2000 passed by First Additional District Judge, Chhindwara in Regular Civil Appeal No. 21-A/1996 affirming judgment and decree dated 15.03.1996 passed by First Civil Judge Class-II, Chhindwara in Civil Suit No.514-A/1994 whereby Courts below have decreed civil suit filed by respondent 1 for declaration and permanent injunction.
3. In short the facts are that, the respondent 1/plaintiff instituted the suit with the allegations that plaintiff is a partnership firm engaged in the transport business and for operation of its transport business hires trucks from the market and also engages few trucks owned by it and no truck is ever hired from any Coal Mines. Plaintiff has been awarded a contract for a period of 12 months for transportation of coal from Shivpuri OCM No. 1 and Vishnupuri OCM to Broad Guage Railway siding at Parasia. The coal mines are owned by M/s Western Coal Fields limited which is a subsidiary of Coal India Limited.
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4. It is alleged that the defendant 2 issued notice dated 10.06.1987 and 03.12.1987 to the plaintiff for production of records such as attendance register, wages sheets etc., since April'1985 for inspection and scrutiny in order to enable the defendants' department to obtain information as to whether various provisions of CMPF Schemes are being implemented. In the suit declaration was sought to the effect that, (i) the provisions of the Coal Mines Provident Fund and Misc. Provisions Act, 1948 are not applicable to the employees working on the trucks employed by the plaintiff for transporting coal/goods and relief of permanent injunction was sought to the effect that, (ii) the defendants be restrained from exercising jurisdiction to the work of transporting coal/goods by the plaintiff in any manner.
5. The defendants 1 and 2-3 appeared and filed two sets of written statement denying the plaint averments and took plea that suit is not maintainable and the defendants have all the rights to call for the records for inspection, as to whether provisions of CMPF Act and scheme made thereunder are complied with by the plaintiff(s) or not. Alleging the suit to be premature and on inter alia contentions the suit was prayed to be dismissed.
6. On the basis of pleadings of the parties, trial Court on 16.07.1993 framed as many as six issues fixed the case for evidence of the parties, but for the reasons best known to the plaintiff, it did not adduce evidence upto 23.09.1995 and instead of adducing evidence the counsel for the parties submitted that looking to the nature of case there is no need to adduce evidence and the issues can be decided only after hearing oral arguments. Resultantly, trial Court framed new four issues on 10.11.1995 and listed the
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case for hearing arguments on issue no. 1,2,3 treating them as preliminary issues.
7. Thereafter, on 08.03.1996 trial Court heard arguments of the counsel for the parties on the preliminary issues and thereafter vide judgment and decree dated 15.03.1996 placing reliance on the decision of Hon'ble Supreme Court in the case of State of Bihar vs. S.K Roy AIR 1966 S.C. 1995, decreed the suit in its entirety.
8. Upon filing appeal by the defendants, first appellate Court affirmed the judgment and decree of trial Court vide its judgment and decree dated 03.02.2000.
9. Aforesaid judgment and decree passed by Courts below are challenged by the defendants/appellants by filing second appeal. Second appeal no.566/2000 was admitted on 19.01.2009 for final hearing on the following substantial questions of law:-
"1. Whether the provisions of CMPF Act and the scheme framed thereunder are applicable to the Drivers and other allied employees engaged in Trucks/Dumpers used by the respondent in the transportation of coal from the place of raising coal to the siding ?
2. Whether the employees appointed/engaged by the respondent for execution of the work of transportation of coal from place of raising coal to the siding falls within the definition of employees as defined u/s 2(d) of the CMPF Act ?
3. Whether the respondents who carry the business of aforesaid transportation of coal are liable for payment of contribution of Provident Fund under CMPF Act?
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4. Whether the employees employed by the respondent are governed by the provisions of Motor Transport Workers Act, 1961 and are exempted from the liability of payment of contribution under the provisions of CMPF Act or not for the employees employed by them?
5. Whether the judgment and decree of both the courts below deserve to be set aside on the ground of lack of jurisdiction?"
Similarly, second appeal no.567/2000 was admitted on 17.10.2013 for final hearing on the following substantial questions of law:-
"1. Whether the provisions of Coal Mines and Provident Fund Act and the scheme framed thereunder are applicable to the drivers and other allied employees engaged in trucks/dumpers used by the respondent No.1 in transportation of coal from the place of raising coal to the siding ?
2. Whether the employees appointed/engaged by the respondent No.1 for execution of the work of transportation of coal from place of raising coal to the siding falls within the definition of employees as defined under section 2(d) of the Coal Mines Provident Fund Act ?"
10. By distinguishing the decision of Hon'ble Supreme Court in the case of State of Bihar vs. S.K Roy (supra) & by placing reliance on a Division Bench decision of Telangana High Court in W.P No. 33111/2013 (J.V. Rama Rao vs. Union of India) dated 26.07.2022, learned counsel for the appellants submits that drivers employed by transport Contractor engaged by Western Coalfields Ltd., for transportation of coal would fall within the definition of the term 'employee' under Section 2(d) of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948, therefore, impugned judgment and decree passed by Courts below are not sustainable and liable to be set aside by allowing the second appeal(s).
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11. From perusal of impugned judgment and decree passed by Courts below, it is apparent that Courts below have passed impugned judgment and decree and decreed the suit in its entirety placing reliance on the decision of Hon'ble Supreme Court in the case of State of Bihar vs. S.K Roy (supra) and there being no other decision of Supreme Court on this point and Telangana High Court in the being of J.V. Rama Rao (Supra) having not considered the said decision of Supreme Court, prima facie final conclusion recorded in the impugned judgment and decree does not appear to be illegal, but the present case being a glaring example of procedural/jurisdictional illegalities committed by trial Court and affirmed by first appellate Court, merits of the case are not being dealt with in detail.
12. Record of civil suit depicts that by filing two sets of written statement(s), the defendant 1 & defendants 2-3 denied plaint allegations with the prayer of dismissal of suit, thereupon trial Court framed following six issues on 16.07.1993 :-
1- D;k izfroknh dzekad&2] 3 ¼dksyekbZul izksfoMsUV QaM ,aM felysfu;l izksohtu ,DV 1948 ds vUrxZr oknh ds dk;Z dks½ dksy ekbZUl ds varxZr lacaf/kr oknh ds deZpkjh fu;ksftr djus dk vf/kdkj oknh dks gS\ 2- ;fn ugha rks izHkko\ 3- D;k oknh eksVj VªkaliksVZ o"kZ vf/kfu;e 1961 ds vUrxZr ifjHkk"kk esa vkrs gSa\ 4- D;k oknh ekbZUl ¼MCY;w-lh-,y-½ ds deZpkjh vFkok fu;qDrk] dksy ekbZUl izksfoMsUV QaM felysfu;l izksohtu ,DV 1948 dh ifjHkk"kk esa vkrs gSa rFkk oknh ds lafonk ds ckn MCY;w- lh- ,y- ds deZpkjh gksus dk vf/kdkj oknh dks izkIr gS\ 5- LisflfQd fjyhQ ,DV dh /kkjk 34 ds vUrxZr ifj.kke ds vuqrks"k ds vHkko esa oknh dk okn izpyuh; & vizpyuh; gSa\ 6- lgk;rk ,oa O;;\
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Apparently no objection to the said issues, was raised by any of the parties to the suit, therefore, trial Court fixed the case for evidence of the plaintiff for 23.07.1993 and due to nonappearance of witnesses of the plaintiff, the case was adjourned for 20.11.1993, 14.02.1994, 21.04.1994, 18.08.1994, 22.11.1994, 18.01.1995, 06.05.1995, 14.08.1995 and 23.09.1995, but instead of adducing evidence the counsel for the plaintiff and defendants submitted that in the present case, no question of fact is involved and only the issues of law are to be decided, therefore, there is no need to adduce evidence and the issues can be decided only after hearing oral arguments.
13. As such trial Court struck off all the previously framed issues and framed following new issues on 10.11.1995 :-
1- D;k dksy ekbZUl izkohMsUV Q.M ,.M felysfu;l izksfotUl ,DV 1948 ds izko/kku mu deZpkfj;ksa dks ykxw ugha gksrs gS] ftUgsa fd oknh us mu Vªd ij dke djus fu;qDr fd;k gS] ftudk mi;ksx dks;ys ds ykus ys tkus esa gksrk gS\ 2- D;k mDr vf/kfu;e dh /kkjk 11 v ds vUrxZr bl U;k;ky; dks fopkj.k dk {ks=kf/kdkj ugha gSA 3- D;k ;g nkok le;kof/k iwoZ ¼ premature½ gS\ 4- vuqrks"k ,oa okn O;;\ Thereafter, trial Court treated aforesaid issues 1,2,3 as preliminary issues and fixed the case for arguments on newly framed issues. Then on 16.11.1995, 15.12.1995, 20.12.1995, 12.01.1996, 02.02.1996 & 16.02.1996 case was adjourned at the request of counsel for the parties and lastly on 08.03.1996 trial Court heard arguments on alleged preliminary issues and on the next date 15.03.1996 passed final judgment and decree, decreeing the suit in its entirety. It is pertinent to mention here that in both the civil suits, issues are identical and order sheets from 23.07.1993 to 08.03.1996 are also identical.
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14. Perusal of record of trial Court shows that both the parties have not produced any oral or documentary evidence and even the photocopy of any of the notices dated 10.06.1987 and 03.12.1987 was not placed on record of trial Court, issuance/service of which has been alleged as a cause of action for filing the suit.
15. With a view to understand the scope of decision on preliminary issues, provision of Order 14 Rule 2 CPC deserves to be taken into consideration, which is quoted as under:-
Order 14 Rule 2 CPC : Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
16. From perusal of aforesaid provision, it is clear that, (i) the issue of jurisdiction of the Court; and (ii) the issue of a bar to the suit created by any law for the time being in force, only can be decided as preliminary issue(s), that too when such issue(s) does/do not require evidence. It further makes clear that if such preliminary issue(s) is/are decided against the plaintiff, then the Court can dismiss the suit and if such issue(s) is/are decided in favour of the plaintiff, the Court shall proceed to decide the suit on merits after following the procedure prescribed under the law.
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17. Hon'ble Supreme Court in the case of Alka Gupta vs. Narendra Kumar Gupta (2010) 10 SCC 141, has held as under:-
"30. But where the summons have been issued for settlement of issues, and a suit is listed for consideration of a preliminary issue, the court cannot make a roving enquiry into the alleged conduct of the plaintiff, tenability of the claim, the strength and validity and contents of documents, without a trial and on that basis dismiss a suit. A suit cannot be short-circuited by deciding issues of fact merely on pleadings and documents produced without a trial."
18. In the case of Food Corporation of India vs. Laxmi Cattle Feed Industries (2006) 2 SCC 699, Hon'ble Supreme Court has held as under:-
"6.It is to be noted from the judgment of the trial court that no evidence was led by the plaintiff. The High Court proceeded on the basis as if the plaintiff had led evidence and the appellant Corporation had not led any evidence. On the contrary, the records clearly show that evidence was led to establish loss suffered on account of delay in lifting the damaged stock. Without any material whatsoever the trial court as well as the High Court held that the appellant had committed breach. On the contrary the evidence clearly established that the appellant had proved the loss sustained. The plaintiff was to establish its own case. It did not choose to lead evidence. Therefore, the trial court in the absence of any evidence tendered by the plaintiff should not have decreed the suit . The High Court committed error by proceeding under the erroneous assumption that the plaintiff had led evidence and not the appellant Corporation which was the defendant."
19. In the case of Smt. Swaran Lata Ghosh vs. H.K Banerjee and others 1969 (1) SCC 709, Hon'ble Supreme Court held as under:-
"6. Trial of a civil dispute in court is intended to achieve, according to law and the procedure of the court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of
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the court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the court has decided against him, and more so, when the judgment is subject to appeal. The appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plaint.
7. The defendants, it is true, led no oral evidence and produced no documentary evidence. But the defendants had apparently no personal knowledge about the transactions and there is no clear evidence on the record that the first defendant Swaran Lata had in her possession any books of account of the deceased which she could have produced and had withheld. The burden of proving the claim in all its details lay upon the plaintiff. Absence of documentary evidence in support of the case made the burden more onerous."
20. The overall procedure followed by trial Court is unknown to the settled law and procedure prescribed under the Civil Procedure Code and the Evidence Act. Some relevant provisions such as Order XIII Rule 4 CPC; Order XVIII Rule 1,2 CPC and Section 59 of the Evidence Act are quoted as under:-
"Order XIII Rule 4: Endorsements on documents admitted in evidence.--
(1) Subject to the provisions of the next following sub-rule, there shall be en-
dorsed on every document which has been admitted in evidence in the suit the following particulars, namely:--
(a) the number and title of the suit,
(b) the name of the person producing the document,
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(c) the date on which it was produced, and
(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next follow-
ing rule, the particulars aforesaid shall be endorsed on the copy and the en- dorsement thereon shall be signed or initialled by the Judge."
"Order XVIII Rule 1,2: Hearing of the Suit and examination of witnesses :
1. Right to begin The plaintiff has the right to begin unless the defendant admits the facts al-
leged by the plaintiff and contends that either in point of law or on some addi- tional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
2. Statement and production of evidence (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case."
"59. Proof of facts by oral evidence.
All facts, except the contents of documents or electronic record, may be proved by oral evidence."
21. As per pleadings made in the plaint and written statement, several facts were in dispute and because the defendants did not admit the claim of plaintiff, therefore, the pleadings were required to be proved by evidence also. As has already been said in above paragraphs, after deciding the preliminary issues, either trial Court should have dismissed the suit or in any case suit could not have been decreed in absence of any evidence and resultantly trial Court ought to have proceeded further with the suit for final adjudication after recording evidence of the parties. Because in the present suit, the plaintiff despite giving several opportunities did not adduce
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evidence, therefore, trial Court was well within its jurisdiction to dismiss the suit for want of evidence.
22. Although, in view of the aforesaid scenario matter should be remanded to trial Court for decision of civil suit afresh, but in view of observation of trial Court made while deciding issue no. 4 to the effect that on the date of filing of suit although the suit was premature but during pendency it has become mature, and further in view of fact that plaintiff itself did not choose to adduce evidence during the period from 20.11.1993 to 23.09.1995 and even that refused to adduce evidence by stating that the suit does not require evidence, in my considered opinion no fruitful purpose would be served by remanding the matter to trial Court.
23. As such in view of the aforesaid discussion, instead of remanding the matter to trial Court, suit(s) is/are held to be premature and is/are hereby dismissed as such, however liberty is reserved with the plaintiff(s) to file fresh suit(s) as and when fresh cause of action arises to the plaintiff(s).
24. With the aforesaid, second appeal(s) is/are allowed and disposed off. However, no order as to the costs.
25. Misc. applications, pending if any, shall stand closed.
(DWARKA DHISH BANSAL) JUDGE SN Digitally signed by SATTYENDAR NAGDEVE Date: 2024.04.29 19:44:08 +05'30'