Punjab-Haryana High Court
Kendriya Vidyalaya Sangathan And Ors vs Balwinder Kumar on 20 November, 2024
Neutral Citation No:=2024:PHHC:152694
RSA No.2042
2042 of 2009 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA No.
No.2042 of 2009 (O&M)
Reserved on:12.11.2024
Pronounced on:20.
on:20.11.2024
Kendriya Vidyalaya Sangthan and others ...Appellants
Vs
Balwinder Kumar ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Harsh Aggarwal, Advocate and Mr. Lakshaya Aggarwal, Advocate for the appellants.
Mr. Karnail Singh, Advocate for the respondent.
-.-
HARPREET SINGH BRAR J.
1. The instant regular second appeal is preferred by the appellants--
defendants against the judgment and decree dated 28.01.2002 passed by the learned trial Court whereby the suit seeking declaration of the impugned order dated 03.07.1997 passed by the appellant appellant-defendant defendant No.3 vide which the respondent-plaintiff respondent plaintiff was dismissed from service as illegal, unlawful and unconstitutional, has been decreed and the judgment and decree dated ted 16.07.2008 passed by the learned lower Appellate Court vide which the appeal preferred by the appellants-defendants appellants defendants against the judgment and decree dated 28.01.2002 passed by the learned trial Court stood dismissed.
2. In brief, brief the facts are that the respondent espondent-plaintiff plaintiff was appointed as Sweeper in the Kendriya Vidyalaya, Gurdaspur on permanent basis and was discharging his duties honestly and diligently. However, vide order dated 03.07.1997 passed by the appellant-defendant appellant defendant No.3, the respondent respondent--
1 of 10 ::: Downloaded on - 30-11-2024 07:19:08 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -2- defendant ant was dismissed from service on the allegations that during the period from 29.08.1994 to 23.10.1994, he had failed to perform his duties and caused damage to the furniture lying in the class room intentionally.
He was issued memo dated 11.10.1994 appel appellant-defendant defendant No.3 informing him about his misconduct under Rule 3(1) (2) of the CCS Conduct Rules, 1984 stating therein that on 23.10.1994 at about 0800 hours when the Principal went to his office to check note books of the students, Kartar Singh, a 'Group D' employee entered into the office of the Principal and respondent--plaintiff was standing outside the office. He started abusing the Principal in Punjabi and gave lalkara by saying Kartar Singh kill him him.. He manhandled ndled the Principal and in order to save himself, Principal rushed outside and raised alarm. On hearing voice of the Principal, Dharam Singh PGT came at the spot and saved the Principal from both of them. As the act and conduct of the respondent-plaintif respondent plaintifff was unbecoming of a government servant, a departmental enquiry was conducted in which he was found guilty and vide order dated 03.07.1997, his services were terminated. Hence, the suit was filed.
3. The appellants-defendants appellants appeared and contested the ssuit by raising preliminary objections objection qua maintainability and mis-joinder of parties. On merit, it was stated that services of the respondent respondent-plaintiff plaintiff were terminated after conducting a departmental enquiry wherein charges framed against him were proved. He was given due opportunity to defend himself and thus, no cause of action arose to the respondent respondent-plaintiff.
4. On the basis of pleadings, the learned trial Court framed as many as five issues including relief. Parties led their respective evidence and on 2 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -3- appreciation of the documentary as well as oral evidence, the learned trial Court decreed the suit and the appeal preferred against the said judgment and decree passed by the learned trial Court also failed.
5. Learned State counsel nsel appearing on behalf of the appellants--
defendants argued argue that the Civil Court had no jurisdiction to try the suit filed by the respondent-plaintiff respondent plaintiff on the date of filing of the said suit, keeping in view the notification dated 17.12.19 17.12.1998 98 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) whereby 01.01.1999 has been specified as the date on and from which the provisions of sub sub-section section (3) of Section 14 of the Administrative Tribunal Act, 1985 (hereinafter referred to as the Act of 1985) were made applicable to Kendriya Vidyalaya Sangathan, meaning thereby, the Kendriya Vidyalaya Sangathan was brought within the ambit of the Central Administrative Tribuna Tribunall w.e.f.
01.01.1999 and thus, the suit ought to have been transferred to the Central Administrative Tribunal in terms of Sections 28 and 29 of the Act of 1985.. Administrative In support of his contention, reliance is place placed upon the order dated 03.04.2008 passed by the Hon'ble Supreme Court of India in Civil Appeal No.5108 of 2002 titled as Commnr. Kendriya Vidyalaya Sangathan and others Vs. Krishna. It was further argued that the decree passed by the learned trial Court and upheld by the learned lower Appellate Court wa wass a nullity being passed without having jurisdiction over the subject matter of the suit.
6. Per contra, learned counsel appearing for the respondent respondent-plaintiff plaintiff submitted that the judgment and decree passed by the learned lower 3 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -4- Appellate Court is based upon correct appreciation of fact and law and therefore, the same does not require any interference in the instant regular second appeal. It was further argued that the suit was filed on 22.10.1997 and the notification was issued on 17.12.1998 making it appli applicable cable from 01.01.1999, however, no objection qua jurisdiction was raised by the appellants-defendants defendants at any stage of trial nor any such objection or reference made in the grounds of appeal before the learned lower Appellate Court. For the very first time, time, issue qua jurisdiction of the learned trial Court in view of notification dated 17.12.1998 issued by the Government of India has been raised before this Court. Both the Courts below have set aside the order dated 03.07.1997 dismissing the respondent respondent-plaintiff intiff from service by holding that the enquiry officer merely recommended transfer of the respondent-plaintiff respondent plaintiff to any other place but against the said recommendation, dismissal order was passed. Even the complainant, Principal Attar Singh was also advised advised to mend his behavior. During the course of enquiry, the respondent-plaintiff respondent plaintiff was not even given proper opportunity of hearing to defend himself neither he was allowed to cross cross--
examine the witnesses produced by the appellants appellants-defendants.
defendants. Moreover, the Enquiry quiry Officer himself examined the witnesses produced by the appellants in the enquiry. The said conduct of the enquiry officer vitiates the entire enquiry
7. I have heard learned counsel for the parties and have gone through paper book with their able assistance.
8. This Court vide order dated 01.09.2009 while admitting the instant appeal has framed the following substantial question of law:
law:-
4 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -5-
"Whether Whether in view of notification dated 17.12.1998 effective from 1.1.1999, the Civil Court has the jurisdiction to entertain the suit by the plaintiff pertaining to order of punishment as all such disputes pertaining to service matter exclusively vest in the Central Administrative Tribunal, constituted under the Administrative Tribunal Act, 1985?"
9. Section on 9 of the Code of Civil Procedure, 1908 contemplates that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or implied barred barred.. Section 28 of the Act of 1985 expressly excludes udes the jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution. For the sake of brevity, Section 28 of the Act of 1985 is reproduced as under:
under:-
"Section Section 28. Exclusion of jurisdiction of courts except the Supreme Court under under article 136 of the Constitution. On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, 1[no court except except--
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947)) or any other corresponding law for the time being in force, shall have], or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."
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10. It is also apt to reproduce sub-section sub section (3) of Section 14 of the Act of 1985, which is as under:-
under:
"Section Section 14. Jurisdiction, powers and authority of the Central Administrative Tribunal.
xxxxx xxxxx xxxxx (3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section sub section apply to any local or other authority or corporation or society,, all the jurisdiction, powers and authority eexercisable xercisable immediately before that date by all courts (except the Supreme Court) in relation to--
to
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation or society and society;
(b) all service service matters concerning a person other than a person referred to in clause (a) or clause (b) of sub-section (1) appointed to any service or post in connection with the affairs of such local or other authority or corporation or society ty and pertaining to the service of such person in connection with such affairs.
affairs."
11. A perusal of the notification dated 17.12.1998 issued by the Government of India reveals that w.e.f. 01.01.1999, the Kendriya Vidyalaya Sangathan was brought within the ambit of the Central Administrative Tribunal and by virtue of provisions of sub sub-section section (3) of Section 14 of the Act of 1985, the suit ought to have been transferred to the Central Administrative Tribunal. The moment notification dated 17.12.1998 came into force, force, the Civil Court was rendered incompetent to try the instant suit, being ceased of the jurisdiction over the subject matter.
The he contention of learned counsel appearing for the respondent respondent-plaintiff plaintiff that the appellants-defendants appellants defendants have raised the objecti objection on qua jurisdiction for the first time at the second appellate stage is of no help, as it is settled law 6 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -7- that a decree passed by a court without jurisdiction is a nullity. A defect of jurisdiction strikes at the very authority of the Court to pass any dec decree, ree, and such a defect cannot be cured even by consent of parties. A two Judge Bench of the Hon'ble Supreme Court in the judgment passed in Sneh Lal Goel Vs. Pushplata and others (2019) 3 SCC 594 speaking through Justice Dr. Dhananjaya Y Chandrachud has held held as under:
under:-
"18. The Court in Kiran Singh case [Kiran Kiran Singh v. Chaman Paswan,, AIR 1954 SC 340] disallowed the objection to jurisdiction on the ground that no objection was raised at the first instance and that the party filing the suit was precluded from raising an objection to jurisdiction of that court at the appellate stage. This Court concluded thus : (AIR p. 345, para 16) "16. ... If the law were that the decree of a court which would have had no jurisdiction over the suit or appeal but for the overvaluation ervaluation or undervaluation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the court by the fact of their having themselves invoked it. That, however, is not the position under Section 111 of the Suits Valuation Act."
Thus, where the defect in jurisdiction is of kind which falls within Section 21 CPC or Section 11 of the Suits Valuation Act, 1887, an objection to jurisdiction cannot be raised except in the manner and subject to the conditions mentioned thereunder. Far from rom helping the case of the respondent, the judgment in Kiran Singh [Kiran Kiran Singh v. Chaman Paswan,, AIR 1954 SC 340] holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subje subject-matter.
matter.
An objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit.
19. In Hira Lal Patni v. Kali Nath [Hira Hira Lal Patni v. Kali Nath,, AIR 1962 SC 199] , a person filed a suit on the original side of the High Court of Judicature at Bombay for recovering commission due to him. The matter was referred to arbitration and it resulted in an award in favour of the plaintiff. A decree was pass passed ed in terms of the award and was eventually incorporated in a decree of the High Court. In execution proceedings, the judgment judgment-debtor debtor resisted it on the ground that no part of the cause of action had arisen in Bombay, and therefore, the High Court had no jjurisdiction urisdiction to try the cause and that all proceedings following thereon where wholly without 7 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -8- jurisdiction and thus a nullity. Rejecting this contention, a four four--
Judge Bench of this Court held thus : (AIR p. 201, para 4) "4. The objection to its [Bombay High High Court] territorial jurisdiction is one which does not go to the competence of the court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under Clause 12 of the Letters Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through court, he would be deemed to have waived his objection to the territorial jurisdiction of the court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and th this is principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure."
Procedure
20. In Harshad Chiman Lal Modi v. DLF Universal Ltd. [Harshad Harshad Chiman Lal Modi v. DLF Universal Ltd.,, (2005) 7 SCC 791], this Court held that an objection to territorial and pecuniary jurisdiction has to be taken at the earliest possible opportunity. If it is not raised at the earliest, it cannot be allowed to be taken at a subsequent stage. This Court held thus :
(SCC pp. 803-04, 803 para 30) "30. ... The jurisdiction of a court may be classified into several categories. The important categories are ((i)) territorial or local jurisdiction; (ii) ( ) pecuniary jurisdiction; and ((iii)) jurisdiction over the subject-matter.
subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject subject-matter, matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take limitation up the cause or matter. An order passed by a court having no jurisdiction is a nullity."
21. In Hasham Abbas Sayyad v. Usman Abbas Sayyad [Hasham Hasham Abbas Sayyad v. Usman Abbas Sayyad, Sayyad, (2007) 2 SSCC 355] , a two-Judge Judge Bench of this Court held thus : (SCC pp. 363-64, 363 64, para 24) "24. We may, however, hasten to add that a distinction must be made between a decree passed by a court which has no territorial 8 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -9- or pecuniary jurisdiction in the light of Secti Section on 21 of the Code of Civil Procedure, and a decree passed by a court having no jurisdiction in regard to the subject-
subject subject-matter matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with."
(emphasis supplied).
12. Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice judice,, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, First Appellate or the Second Appellate stage.
tage. (see ( Chief Engineer, Hydel Project & Ors. Vs. Ravinder Nath & Ors.
Ors (2008 ) 2 SCC 350).
13. In n view of the judgments passed by the Hon' Hon'ble Supreme Court in Pankajakshi (Dead) through Legal Representatives and others Vs. Chandrika and others (2016) 6 SCC 157, 157, Randhir Kaur Vs. Prithvi Pal Singh and others (2019) 17 SCC 71 and Gurbachan Singh (dead) through LRs Vs. Gurcharan Singh (dead) through LRs and others others,, questions of law are not required to be framed in second appeal before the Punjab and Haryana High Court whose jurisdiction is circumscribed by provisions of Section 41 of o the Punjab Courts Act, 1918. However, since this Court vide order dated 01.09.2009 has already framed the substantial question of law as reproduced above, the same is answered in favour of the appellants-defendants defendants and against the respondent respondent-plaintiff.
14. Consequently the judgments and decree Consequently, decrees rendered by both the Courts below are set aside and the suit is ordered to be transferred to the Central Administrative Tribunal, Tribunal, Chandigarh Bench, Chandigarh Chandigarh..
However, keeping in view the fact that more than 25 ye years ars have elapsed 9 of 10 ::: Downloaded on - 30-11-2024 07:19:09 ::: Neutral Citation No:=2024:PHHC:152694 RSA No.2042 2042 of 2009 (O&M) -10- since the suit was filed in the year 1997, the Central Administrative Tribunal, Chandigarh Bench, Chandigarh will adjudicate upon the same based on the record of the instant regular second appeal within a period of four months from date of receipt of the same same, as a de novo adjudication of the matter will seriously prejudice the rights of respondent-plaintiff and it would be a travesty of justice if the respondent respondent-plaintiff is asked to undergo the rigmarole of the legal proceedings from the very inception. Registry is directed to dispatch entire record of the instant regular second appeal (if original record is not available, the same be downloaded from the DMS) along with photocopy of pleadings before this Court as well as copy of this order to the Central Administrative Tribunal, Chandigarh Bench within a period of two weeks from today.
15. The instant regular second appeal stands disposed of. Decree sheet be prepared accordingly.
(HARPREET HARPREET SINGH BRAR BRAR) JUDGE November 20, 20 2024 Pankaj* Whether speaking/reasoned Yes/No Whether reportable Yes/No 10 of 10 ::: Downloaded on - 30-11-2024 07:19:09 :::