Punjab-Haryana High Court
M.R. Batra vs Uhbvn And Others on 29 January, 2013
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
R.S.A. No.1617 of 2011 (O&M)
Date of decision: January 29, 2013
M.R. Batra
.. Appellant
Vs.
UHBVN and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. J.K. Goel, Advocate for the appellant.
Mr. Sudhir Kumar Hooda, Advocate for the respondents.
A.N. Jindal, J The suit of the plaintiff-appellant was for declaration to the effect that the orders of penalty dated 30.12.2002 and 20.8.2004, are wrong, illegal, null and void and he be granted consequential benefits and mandatory injunction to the effect that the Board be directed to pay arrears of pay of the suspension period w.e.f. 10.5.2002 to 14.11.2002 and all the retiral benefits due to him along with interest @ 18% per annum from the date of accrual till the date of realization. He also sought the reimbursement of the medical bills to the tune of Rs.67,000/- as submitted by him. The trial court decreed the suit of the plaintiff-appellant to the effect that the orders dated 30.12.2002 and 20.8.2004 are illegal, null and void and he was held entitled to pay of suspension period w.e.f. 10.5.2002 to 14.11.2002 and also for retiral benefits due to him along with interest @ 6% per annum.
As regards the medical bills, the plaintiff was directed to submit his claim complete in all respect to the defendants within one month from the date of passing of the decree and thereafter the said claim was to be decided by the defendants within three months. However, on appeal, filed by the Nigam, Additional District Judge, Karnal, vide judgment dated 4.3.2011 observed that the plaintiff before knocking the door of the civil court should have exhausted the remedy available to him with the department and in the light of the said fact, civil court has no jurisdiction to try the suit. In this regard, the court relied upon the judgment delivered by R.S.A. No.1617 of 2011 (O&M) -2- the Apex Court in case Transport and Dock Workers Union vs. Mumbai Port Trust 2010 SLR 691 (SC), Virendra Mohan Kaushal vs. Bank of India 2010 (5) SLR 253 and Rameshwari Devi vs. State of Haryana 2008 (3) SLR 233.
Having gone through the facts and circumstances of the present case, the plaintiff had challenged the order of suspension as well as order of penalty based on the enquiry proceedings. Since the plaintiff has come to challenge some orders passed by the competent authority on the ground that same are in violation of the principles of natural justice and procedure as laid down under the Act, the same could not be said to be barred. The judgments relied upon by the court on Transport and Dock Workers Union's case (supra) are on different facts. The law relates to the non entertaining of the writ petition in the High Court unless appropriate remedy provided for is not availed. But the same are not applicable in the case of civil suit where the party challenged the said order as nonest, illegal and not affecting their rights of being a regular employee. Similar observations were made in case Sri Ramendra Kishore Biswas vs. The State of Tripura and Ors. 1999 (1) Apex Court Journal 126 (SC) wherein it was observed as under :-
"5. The opinion expressed by the learned single Judge to the effect that in view of C.C.A. Rules, the jurisdiction of the civil court is ousted from dealing with an order passed by the disciplinary authority which can be questioned under the service rules and that even after recourse is had to the Departmental proceedings recourse can only be to file a writ petition is palpably erroneous. The learned single Judge readily accepted the ouster of jurisdiction of civil courts to deal with service matters without proper consideration of the matter. Indeed, it is appropriate to relegate a person to exhaust Departmental remedies when he approaches the Court without exhausting departmental remedies under the service rules but to hold that the civil court had no jurisdiction while hearing a second appeal, after the matter has been litigated in civil court for more than five years was, to say the least, not proper. The R.S.A. No.1617 of 2011 (O&M) -3- learned single Judge ought to have decided the case on its own merits and not made a short cut of it. The appellant could not have been non-suited on the ground that he had failed to take recourse to proceedings under the C.C.S. (C.C. & A.) Rules, 1965 against the order of dismissal.
6. Again the opinion expressed by the learned single Judge to the effect, "Itis my firm conviction that in the present case the Civil Court cannot make a declaration under Section 34 of the Specific Relief Act as its jurisdiction has been taken by the special rules i.e. CCS(CCA) Rules, 1965. Under the circumstances, it means a Civil Court does not have jurisdiction in respect of matters which are entertained and decided by the statutory tribunal in conformity with the powers conferred by the enactment."
is clearly erroneous and cannot be sustained. Service Rules, neither expressly nor by implication have taken away the jurisdiction of the civil courts to deal with service matter. The opinion of the learned single Judge does violence both to the code of Civil Procedure, the Specific Relief Act and the Service Rules. As a matter of fact it appears to us that the learned single Judge failed to exercise the jurisdiction vested in him while non-suiting the appellant. It, therefore, appears appropriate to us to allow this appeal, set aside the order of the learned single Judge and remit the matter to the High Court for a fresh decision of the regular second appeal and the cross objections on their own merits. The appeal, therefore, succeeds and is allowed. The RSA and cross objections are remitted to the High Court for fresh disposal on merits in accordance with law.
Thus, on perusal of the view taken by the Apex Court with regard to maintainability of the suit before the civil court, observations made by the first appellate court with regard to maintainability of the appeal do R.S.A. No.1617 of 2011 (O&M) -4- not stand to the reason and deserves to be set aside.
Resultantly, this appeal is accepted, impugned judgment is set aside and the appellate court is directed to proceed in accordance with law.
The parties are directed to appear before the first appellate court on 26.2.2013.
At this stage, I have been apprised by the learned counsel for the appellant that the appellant has already retired and is not given the full pensionary benefits, leave encashment and gratuity. As such, the first appellate court, before proceeding to decide the case, would make an endeavour to amicably settle the matter.
January 29, 2013 (A.N. Jindal) deepak Judge