Gauhati High Court
Ashutosh Kundu vs Laksheswar Talukdar & 3 Ors on 27 February, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P. NO. 134/2016
Ashutosh Kundu
.....Petitioner
-Vs-
Laksheswar Talukdar & 6 others
....Respondents
For the petitioner : Mr. B. Bannerjee, Sr. Adv.
Mr.RKD Choudhury,
Mrs. L. Devi,
Mr. J. Laskar, Advs.
For the respondent : Mr. L. Talukdar, Adv.
Ms. J. Dutta,
Ms. R. Choudhury, advs,
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Date of hearing : 02-02-2017 & 22-2-2017
Date of Judgment : 27-02-2017
JUDGMENT & ORDER(CAV)
1) Heard Mr. B. Banerjee, learned Senior Counsel assisted by Mr. J. Laskar,
learned counsel for the petitioner, Mr. Laksheswar Talukdar, respondent No.1- in- person, Ms. J. Dutta, learned State Counsel appearing for the respondent No.2 and Mrs. R. Choudhury, learned counsel for the respondents No. 3, 4 and 7, none appears on call for the remaining respondents.
2) By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 9.3.16 passed by the learned Munsiff CRP No. 134/2016 Page 1 of 13 No.1 , Kamrup(M), Guwahati in Title Suit No.487/2012, rejecting the prayer of the petitioner to frame the following preliminary issue:
"Whether the instant suit is maintainable in view of the expressed bar/ jurisdiction of civil court to any of the matters relating to any condition of service which falls within the jurisdiction of the Assam Administrative Tribunal as contemplated u/s 9 (2) of the Assam Administrative & Pension Tribunal Act, 1977?"
3) The case of the respondent No.1 in the plaint of TS No. 487/12 in short for the purpose of this present application is that at the relevant time when the suit was filed, the respondent No.1 was working as the Whole-Time lecturer in B.R. Medhi Law College, Guwahati since 10.10.1987. Apprehending his termination from service, the respondent No.1 approached this court by filing writ petition, which was registered and numbered as Civil Rule No. 885/98. This court by an order dated 27.06.2006 directed the State Respondents therein to take steps for regularization of the service of the respondent No.1 and to complete the process within one month from the date of receipt of certified copy or the order. When no steps was taken by the State Respondents, the petitioner filed a contempt petition, which was registered and numbered as Cont. Case (C) No. 288/07. It is projected for more than 12 (twelve) years, the said college was being run with the petitioner being the sole Whole-Time Lecturer, but by depriving the petitioner of his rightful benefits in terms of the direction issued by this Court, the State Respondents had appointed the petitioner herein as the Whole Time Lecturer. The petitioner was also deprived from holding charge as the In-charge Headmaster by appointing the respondent No.1 to the said post. However, pursuant to order dated 06.04.2011 passed by this court in the said Cont. Case (C) No. 288/07, the service of the respondent No.1 was regularized and he was also allowed to hold charge as the In-Charge Principal of B.R. Medhi Govt. Law College, Guwahati. The Respondent No.1, after issuing notice under CRP No. 134/2016 Page 2 of 13 section 80 of the Code of Civil Procedure, instituted the present suit, with the prayer for a decree:-
"(a)Of declaration that the plaintiff's right to take over the charge of the Principal, BRM Govt. Law College, Guwahati on 28.2.2011 could not have legally been curtailed by the defendants by duly complying with the Hon'ble High Court's judgment dt 27-06-06 in Civil Rule No.885/98.
(a) Declaring that claim for seniority of defendant No.4 over the plaintiff is illegal and that appointment order of defendant No.4 vide Notification No.AHE.111/2004/Pt-II/70 dt. 27-01-10 is illegal, void ab-initio and liable to be cancelled.
(b) Decree of cancellation of said Govt. Notification No.AHE.111/2004/Pt-II/70 dt. 27-01-10 (Plaintiff's Doc. No. 7) as being illegal and void ab-initio.
(c) Of mandatory injunction against the defendants No. 1 & 2 to wipe off from their official record all documents illegally favouring undue relaxation of age of defendant No.4 in violation of the extant rules/notifications etc.
(d) For all costs of the suit and
(e) For any other relief /reliefs to which the plaintiff is entitled under the law and equity."
4) The present petitioner is the defendant No.4 in the aforesaid TS No.487/12. It would be pertinent to state that on 29.5.13, the defendants No. 2,3,6 & 7 in the suit by filing an application bearing Petition No.5487 under Order VII Rule 11(d) read with section 151 CPC had prayed for rejection of plaint on the ground that the intention behind the establishing of the Assam Administrative Tribunal under the Assam Administrative & Pension Tribunal Act, 1977 (for short, '1977 Act') was to create separate judicial appellate Forum for service matters and simultaneously to bar jurisdiction of civil courts in such matters. It was further urged that as per section 6 & 9 of the 1977 Act shall have the powers of CRP No. 134/2016 Page 3 of 13 civil courts as well as finality of decision and bar of suit, powers of review and for transfer of pending proceeding, and, as such, it was submitted that in such matters, the Assam Administrative Tribunal only has the jurisdiction to try and decide the case of the plaintiff.
5) It may be pertinent to state herein that by order dated 27.5.16 passed by this Court, the names of respondents No. 6 & 7 as well as respondent No.5 had been striked out.
6) That the respondent No.1 herein had filed his written objection to the aforesaid petition No.4587 and the learned Munsiff No.1, Kamrup (M),Guwahati by the order dated 20.3.14 by referring to the arguments advanced by the parties and relying on various case law citations referred by the learned counsel for the parties and referring to section 6 & 9 of the 1977 Act rejected the said petition. The operative portion whereof reads as follows:
"...In that instant case the plaintiff had prayed for (1) declaration of his right to take over as the principal of BRM Govt. Law College, Guwahati ; (2) declaration that eh claim of seniority of Defendant no.4 over the plaintiff is illegal; (3) decree for cancellation of Govt. Notification no. AHE.111/2004/pt-II/70 etc. but Assam Administrative Tribunal has no power to grant the above prayers, if the plaintiff proves his case, I am of the considered view that this Court has the power and jurisdiction to try the suit of the plaintiff."
7) In the present case in hand, the learned trial court in his short finding held that the said preliminary issue has already been decided by the court and on the said precise finding, the petition No.4587 was rejected by order dated 9.3.16. The said order is in challenge in the present revision.
CRP No. 134/2016 Page 4 of 138) Mr. B. Bannerjee, learned senior counsel for the petitioner by referring to the various provisions of the 1977 Act has submitted that the nature of prayer made in the plaint would go to show that essentially suit was for enforcement of various conditions of service and therefore, only the Assam Administrative Tribunal was vested with the jurisdiction to try the matter because as per section 4 of the said 1977 Act , jurisdiction was vested on the Tribunal constituted under the 1977 Act to entertain and dispose of appeal preferred by civil servants. It was further argued that as per section 6 of the 1977 Act, the Tribunal have the power of the civil court and that sub-section 2 of section 9 of the said 1977 Act expressly barred the jurisdiction of civil courts to entertain any civil suit or other proceeding with respect to any matter relating to any condition of service. The learned senior counsel for the petitioner had alternatively argued that assuming but not admitting that the earlier order dated 20.3.14 is deemed to operate as resjudicata, then by sub-section 3 of section 9 of the 1977 Act, the present suit which is a matter relating to condition of service is required by law to be transferred to the Tribunal and thereupon the Tribunal shall decide the suit in the same manner as it they were appeals referred under the provisions of the 1977 Act.
9) It is strenuously argued that the order dated 20.3.14 was passed when deciding an application under Order VII Rule 11(d) read with section 151 CPC, which was essentially a prayer for rejection of plaint. It is submitted that the order passed for rejecting the prayer for rejection of plaint cannot operate as a resjudicata and/or hit by the principles of constructive resjudicata.
10) Per contra, the respondent No.1 in person, has urged that the petitioner had raised the question of jurisdiction of the Administrative Tribunal under the 1977 Act as well as the bar of jurisdiction of civil court specifically referring Section 9(2) of the said 1977 Act and the learned trial court while rejecting the application for rejection of plaint had considered the provisions of Section 6 & 9 of the 1977 Act. It is argued that the application for rejection of plaint was specifically passed on the ground that by the operation of Section 6 & 9 of the CRP No. 134/2016 Page 5 of 13 1977 Act , only the Assam Administrative Tribunal constituted under the said Act had the jurisdiction to try and decide the case of the plaintiff. It is further submitted that the present petitioner did not choose to argue the matter when the application for rejection of plaint was being heard and therefore, the petitioner cannot be allowed to raise exactly the same plea, in respect of the bar to the jurisdiction of civil court and/or ouster of the jurisdiction of the civil court u/s 6 & 9 of the said 1977 Act by invoking the provision of Order 14 Rule 2 CPC for framing of preliminary issue once again after the order dated 20.2.2014 had attained finality. It is further submitted that the issue of ouster of jurisdiction of civil court was extensively heard and decided by the order dated 20.3.14 and therefore, the present application filed by the petitioner for framing preliminary issue about bar of jurisdiction of civil court is squarely hit by the principles of resjudicata. It is also argued that sub-section 2 and sub-section 3 of section 9 of the 1977 Act constitutes an integral part of provision of section 9 and therefore it is not open for the petitioner to project in the present case that his petition for framing preliminary issue was u/s 9(2) of the 1977 Act.
11) In both the two petitions, the crux of the issue are same as to whether by the operation of Section 9(2) of the 1977 Act, there is a bar of jurisdiction of the civil court within the meaning of section 9 of the CPC. It is further argued that in order to confer jurisdiction to the Assam Administrative Tribunal within the meaning of Section 4 of the 1977 Act, there is a pre-condition that there must be some order passed by a competent authority in connection with any condition of service or pension matters and only thereafter there can be an occasion for such civil servant to file an appeal and the second pre-condition for entertaining any matter by the Assam Administrative Tribunal under sub-section 2 of section 4 of the 1977 Act is that the concerned civil servant ought to have avail of the remedies available to him under the relevant rules or executive instruction or orders otherwise the jurisdiction of the Tribunal would be ousted. In the said connection, respondent No.1 submits that in the present case in hand, the petitioner was deprived of his legitimate rights compelling him to approach this Court in writ jurisdiction by filing C.R. No.885/98. Hence, he even had to file a CRP No. 134/2016 Page 6 of 13 contempt petition to enforce the judgment and order dated 27.6.06 passed by this Court in the aforesaid petition and that only after the contempt petition was filed, the petitioner respondent No.1 received certain benefits and therefore to enforce his other rights, the petitioner had filed the civil suit. It is submitted that no order was passed by the competent authority is in challenged in the present suit and therefore, respondent No.1 had no occasion to seek remedy and therefore, there was no cause of action to file an appeal before the Assam Administrative Tribunal.
12) Mrs. R. Choudhury, learned counsel for the respondents No. 3, 4 & 7 has also relied on the argument made by the learned senior counsel for the petitioner and specifically stressed on the provisions of section 9(3) of the 1977 Act and submitted that as the issue in the suit relates to service matter, the suit of the petitioner is liable to be transferred to the Tribunal as the said issue was not gone into by the learned trial court while deciding the matter relating to rejection of plaint.
13) In course of argument, learned senior counsel for the petitioner had relied on the following cases:
1) J.N. Goswami and another vs. GN Saharia and others, (1993) 1 GLR
448.
2) Unreported judgment of this Court dated 20.3.15 passed in RSA No.131/03 (Charan Karbi Purkayastha vs. Dilip Kumar Chanda).
14) Similarly, respondent No.1 has relied on the following cases:
1) Bhanu Kr. Jain vs. Archana Kumar and another , AIR 2005 SC 626,
2) AIR 1991 SC 1546 (Iswar Singh vs. National Fertilizers Ltd.)
3) AIR 1954 SC 245 (State of Bihar vs. Abdul Majid)
4) (1981) 1 GLR 241 (Chief Secretary to the Govt. of Assam vs. P.C. Mahanta) CRP No. 134/2016 Page 7 of 13
15) In order to appreciate arguments of the parties, the following provisions are examined by this Court:
1) P ream ble- An Act to provide for the constitution of Tribunal to adjudicate disputes in respect of certain conditions of service of certain classes of Civil Servants of the State.
2) Section 2(b) - "Civil Servant" means a person who is or has been a member of a civil service or who holds or has held a civil post in connection with the affairs of the State of Assam and includes any such person on foreign service, a person whose services have been temporarily placed at the disposal of a local or other authority, any person in the service of a local or other authority whose services have been temporarily placed at the disposal of the State Government on a contract and a person who has retired from the Government service elsewhere and has been reemployed under the State Government but does not include employees of the Gauhati High court, employees of the Assam Legislative Assembly Secretariat, employees of the Assam Public Service Commission, persons in the All India Service and other Civil services of the Indian Union, or persons of Civil services of other State Government serving on deputation in Assam.
3) Section 2 (c)- "Civil Services" means the Civil Services of the State of Assam and such other services as may be specified by the State Government from time to time by notification, but shall not include-
(i) Services under the Gauhati High Court;
(ii) Services under the Assam Legislative Assembly;
(iii) Services under the Assam Public Service Commission;
(iv) All India Service and other Civil services of the Indian Union.CRP No. 134/2016 Page 8 of 13
4) Section- 2(e) "Conditions of service" includes all matter relating to the-
(i) Appointment, seniority, confirmation and termination of service of a civil servant'
(ii) Censure, withholding of increments or promotion, recovery from pay of any loss to the Government, reduction to a lower service, grade or post, or to a lower time scale, or to a lower stage in a time scale, denial or variation or pension or denial of the maximum pension;
(iii) All matter arising out of application of the Fundamental Rules and Subsidiary Rules"
5) Section 4- Jurisdiction -
(i) Save as otherwise expressly provided in sub-section (2) below the Tribunal the Tribunal shall have jurisdiction to entertain and dispose of appeals preferred by civil servants against any order passed by a competent authority in any condition of service.
(ii) Notwithstanding anything contained in sub-seciton (1) above, the Tribunal shall have no jurisdiction with respect to any order passed, when the civil servant has not availed of all the remedies available to him under the relevant service rules, executive instructions of order:
Provided that notwithstanding anything contained in the above paragraph the Tribunal may entertain an appeal from a civil servant, if any appeal, revision petition or representation filed by him under the relevant service rules before the competent authority has not been finally disposed of by the competent authority within a period of six months from the date of filing such appeal, revision petition or representation.CRP No. 134/2016 Page 9 of 13
"Provided further that in an appropriate case the Tribunal may relax the provisions contained in the foregoing proviso regarding the period of six months specified therein"
(ii) Notwithstanding anything contained in sub-section (1) above, the Tribunal shall have no jurisdiction to entertain and dispose of appeals against any order passed by a competent authority under Article 311 (2) provisos (a) , (b) and (c) as also under F.R. 56(b)
6) Section 6- The Tribunal shall, for the purpose of the disposal of an appeal have all the powers of a Civil court for the trial of a suit under the Code of Civil Procedure, 1908 (V of 1908) in respect of the following matters, namely,-
(a) Summoning and enforcing the attendance of any person and examining him on oath.
(b) Requiring the discovery and production of documents;
(c) Receiving evidence on affidavit;
(d) Requisitioning any public record or copy thereof from any Cort of office; and
(e) Issuing commissions for examination of witness or documents.
7) Section 9- Finality of decision and bar of suit, powers of review of its own order and transfer of pending proceedings.
(a) The order of the tribunal passed in any appeal under the provisions of this Act shall be final;
(b) Notwithstanding anything contained in sub-section (1)(a) above, the Tribunal may, on the application of any of the parties, review its own decision or order in any case and may pass such order as its thinks fit:
Provided that no such decision or order shall be reviewed unless notice has been given to the opposite parties to CRP No. 134/2016 Page 10 of 13 appear and to show cause why such order or decision should not be reviewed:
Provided further that an application for review under sub- Section (1) (b) shall be made within thirty days from the date of decision or order of the Tribunal.
(2) Notwithstanding anything contained in any law, no Civil Court or other authority shall entertain any civil suit or other proceedings with respect to any matter relating to any condition of service of any civil servant or question in any form any order passed by the Tribunal in any appeal or review with respect to any other matter with arises out of the exercise of powers under the Act. (3) Notwithstanding anything contained in any law, all suits or their proceedings with respect of any matter relating to any condition of service of any Civil servant and which are pending before any Civil Court or other authority on the date of coming into force of the Act, shall stand transferred to the Tribunal and the Civil Court or other authority before whom such a suit or proceedings is pending shall transfer all relevant and connected papers and records to the Tribunal and thereupon the Tribunal shall decide the suit and proceeding in the same manner as if they were appeals referred under the provisions of this Act."
(4) The decision of the Tribunal shall be implemented within such reasonable time as may be specified by the Tribunal.
16) As has been stated above, respondent No.1 at the relevant time was working as whole time lecturer of the B.R. Medhi Govt. Law college and from the materials available on record, it is not discernible whether the respondent No.1 falls within the definition of 'civil servant' as defined in section 2 (b) of the 1977 Act because the nature of service rendered by lecturer of college is not found to be covered by the definition of sub-section (c) of section 2. It ex-facie appears that the service of a lecturer is not covered by the definition of civil servant as per section 2(c) of the 1977 Act.CRP No. 134/2016 Page 11 of 13
17) The respondents have not been able to demonstrate that the prayer made in the suit is in the nature of an appeal by the petitioner against any order passed by the competent authority or that the petitioner had availed any o the prescribed statutory remedy under any law for the time being in force in respect of the prayer made in the suit. Thus, the basic pre-condition for filing any appeal within the meaning of Section 4 of the 1977 Act
18) The core issue rising in the present case is that whether the order dated 20.3.14 passed in T.S. No. 487/12 would operate as the resjudicata and/or constructive resjudicata for the adjudicating of the preliminary issue sought to be raised by the petitioner by petition under Order 14 Rule 2 CPC on consideration of which the impugned order dated 9.3.16 was passed.
19) Considering the materials on record, it is seen that the matter in issue in the application for rejection of plaint was that in view of the provisions of section 6 & 9 of the 1977 Act, only the Administrative Tribunal have the jurisdiction to try and decide the matter pleaded by the plaintiff and the application Order 14 Rule 2 CPC, the said petition is based on the ground that the suit is not maintainable as the subject matter would fall within the jurisdiction of Assam Administrative Tribunal. Hence, this Court is of the view that both the issues are similar and that the order dated 20.3.14 has attained finality, there is no infirmity in the impugned short and precise order passed by the learned court below in holding as follows:
"...it is stated that sub-section (2) of section 9 of the Assam Administrative Tribunal Act, 1977 contains as express bar of the jurisdiction of civil court. The provision states, inter alia, that no civil court shall entertain any suit with respect to any of the matters relating to any condition of service which fall within the jurisdiction of the Tribunal with respect to any matter when an appeal could have been preferred under the Act. Therefore, in relation to CRP No. 134/2016 Page 12 of 13 matters which come within the purview of the Tribunal, there is an express and absolute bar on the jurisdiction of the civil court. The language used in the provision is wide and encompasses all kinds of suits in regard to matter which attract the jurisdiction of the Tribunal.
But this preliminary issue has already been decided by this Court."
20) Having gone through the case laws cited by the parties, there facts are not similar to the present case in hand, this Court is of the view that nor a decision and authority on the fact on which, the impugned decision is rendered. None of the cases, referred by the parties apply to the singular facts of this present case wherein after refusal of the court to reject the plaint under Order 7 Rule 11(d) was passed on the issue of ouster of jurisdiction of civil court, the issue relating to jurisdiction of civil court was raised for the second time by involving the provisions of Order 14 Rule 2 CPC. Therefore, the aforesaid case laws citied by the parties are of no use in the present case as facts in those cases are not found to be similar to the present case.
21) This Court is of the view that the petitioner having elected not to participate in the hearing in the matter relating to rejection of plaint, again in the subsequent stage of the suit cannot be permitted to raise the same issue by filing an application under Order 14 Rule 2 of CPC. This Court finds that the subject matter raised in the subsequent petition filed by the present petitioner was a matter which was directly and subsequently in issue in the previous petition in the same proceeding arising in the petition for rejection of plaint filed by the defendants No.2,3,6 & 7 under Order 7 Rule 11(d) of CPC. Therefore, the revision petition is dismissed.
22) There shall be no order as to costs.
JUDGE
Mks/
CRP No. 134/2016 Page 13 of 13