BOARD OF TRUSTEE Vs. RAMESH CHANDRA JHA

04-01-2012

Coal Mines Provident Fund and Miscellaneous Provisions Act-Coal Mines Provident Fund Commissioner has been held by this Court to be a public officer, it was necessary to join the Union of India as a party in the suit in view of the provisions of Order XXVII Rule 5A of the Code of Civil Procedure

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.41 OF 2012
(Arising out of SLP(C) No.5827 of 2011)
COAL MINES P.F. COMMR. THR.

BOARD OF TRUSTEE … APPELLANT
Vs.
RAMESH CHANDRA JHA … RESPONDENT

J U D G M E N T
ALTAMAS KABIR, J.

1. Leave granted.
2. The appellant herein is the Coal Mines
Provident Fund Commissioner through the Board of
Trustees, constituted under Section 3 of the Coal
Mines Provident Fund and Miscellaneous Provisions
Act, CMPF Organisation, Dhanbad. The Respondent
was appointed as a Lower Division Clerk on 16th
January, 1967, by the Chief Commissioner in the
service of the Coal Mines Provident Fund
Organisation, hereinafter referred to as ‘CMPFO’.
In connection with the forcible occupation of a
Type III quarter, a departmental proceeding was
commenced against the Respondent and on 16th March,
1979, on being found guilty of the charge framed
against him, the Respondent was removed from
service.
3. Challenging his removal from service, the
Respondent filed Title Suit No.78 of 1979 in the
Court of Munsif at Dhanbad. Simultaneously, the
Respondent also filed an appeal before the
Appellate Authority under Regulation 37 of the
Staff Regulations, which was dismissed on 4th March,
1980.

4. Meanwhile, in the suit, the learned Munsif,
Dhanbad (Jharkhand) framed a preliminary issue in
Suit No.78 of 1979 as to whether in the absence of
notice under Section 80 of the Code of Civil
Procedure, the suit was maintainable? Aggrieved by
the said order, the Respondent filed Civil Revision
No.341 of 1980(R) in the Ranchi Bench of the Patna
High Court, which held that since the Appellant was
not a “public officer” as defined in the Code of
Civil Procedure, no notice under Section 80 was
required to be served upon him before the suit was
filed. By its order dated 7th September, 1981, the
Ranchi Bench of the Patna High Court set aside the
findings of the learned Munsif and held the suit to
be maintainable. The Appellant, thereafter, brought
the matter to this Court and in Civil Appeal
No.1932 of 1982 this Court by its judgment dated
31st January, 1990, reversed the finding of the
Appellate Authority upon holding that the Coal
Mines Provident Fund Commissioner is a “public
3
officer” within the meaning of Section 2(17) of the
aforesaid Code. It was, therefore, settled upto
this Court that the Appellant herein was a public
officer and that notice under Section 80 was
required to be given to him before the suit was
filed by the Respondent.
5. On account of the above decision of this Court,
on 15th February, 2002, the Respondent withdrew his
Title Suit No.78 of 1979 and filed a fresh suit
being Title Suit No.102 of 1990 after serving
notice upon the Appellant under Section 80 CPC.
The Appellant contested the suit which was decreed
in favour of the Respondent on 15th February, 2002,
by the Second Munsif, Dhanbad, declaring the
removal of the Respondent from service to be
arbitrary and in violation of the principles of
natural justice and the provisions of Article 311
of the Constitution. Holding the same not to be
binding on the Respondent/Plaintiff, the Munsif
4
declared that the Respondent would be deemed to be
in continuous service in the CMPF Organisation
under the Appellant, together with all benefits and
privileges.
6. Aggrieved by the order of the learned Munsif
decreeing the Respondent’s Title Suit No.102 of
1990, the Appellant preferred Title Appeal No.29 of
2002 before the Court of XIIIth Additional District
Judge, Dhanbad. In the said Appeal, the Respondent
herein raised the question as to whether the suit
of the Respondent was bad for non-joinder of the
Union of India which was a necessary party in the
suit? Accepting the contention of the Appellant,
the First Appellate Court held that since the Coal
Mines Provident Fund Commissioner was a public
officer under the Union of India so as to attract
the provisions of Order XXVII Rule 5A and Section
79 of the Code of Civil Procedure, the suit was bad
for non-joinder of the Union of India which was a
5
necessary party. The XIIIth Additional District
Judge, Dhanbad, accordingly, set aside the order of
the learned Munsif, Second Court, Dhanbad, in Title
Suit No.102 of 1990 by its judgment and order dated
16th February, 2005.
7. Aggrieved by the order of the First Appellate
Authority, the Respondent filed Second Appeal
No.134 of 2005 before the Jharkhand High Court at
Ranchi. Four years later, on 15th June, 2009, since
the Respondent had not delivered vacant possession
of the quarters in his possession, the Estate
Officer, by his order dated 15th June, 2009, gave
the Respondent 15 days’ time to vacate the suit
premises along with other members of his family.
The Respondent, however, did not vacate the
quarters as directed, whereupon the Appellant filed
I.A. No.1871 of 2009 in the Second Appeal No.134 of
2005 pending before the High Court, for a direction
upon the Respondent to vacate the quarters occupied
6
by him. On 24th August, 2009, the Respondent,
through his counsel, gave an undertaking to vacate
the quarters by 30th November, 2009. In addition,
the Estate Officer passed an order in the execution
proceedings on 28th August, 2009, for eviction of
the Respondent from the quarters in question. On
his failure to honour the undertaking given by him
to vacate the suit premises, the High Court took
strong exception to the violation of the
undertaking given by the Respondent and initiated
fresh contempt proceedings against him and ordered
the Superintendent of Police, Dhanbad, to get the
quarters vacated and to hand over vacant possession
of the same to the competent authority of the
CMPFO, Dhanbad within 48 hours of the receipt of
the order. On 19th February, 2010, the High Court
heard the contempt case when it was informed that
the Respondent had vacated the quarters and had
handed over the keys to the concerned authorities
on 17th February, 2010.
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8. It is necessary to indicate at this stage that
Second Appeal No.134 of 2006, which had been filed
by the Respondent, was admitted on the substantial
question of law as to whether the Lower Appellate
Court had committed a serious error in dismissing
the Respondent/Plaintiff’s suit on the ground of
non-joinder of the Union of India thereby upsetting
the judgment and decree of the Trial Court without
deciding the question as to whether the Coal Mines
Provident Fund Commissioner is a public officer
under the Union of India so as to attract the
provisions of Order XXVII Rule 5A of the Code of
Civil Procedure.
9. Appearing in support of the Appeal, Mr. J.P.
Singh, learned Senior Advocate, urged that the High
Court had not properly answered the aforesaid
question ignoring the fact that earlier this Court
had in Civil Appeal No.1932 of 1982 between the
same parties, categorically decided that the Coal
8
Mines Provident Fund Commissioner, though
functioning as the Chairman of the Board of
Trustees constituted under paragraph 3 of the Coal
Mines Provident Fund Act, is a public officer and
was, therefore, required to be made a party in the
proceedings under Order XXVII Rule 5A of the Code
of Civil Procedure, which, inter alia, provides as
follows :-
“Order 27 Rule 5A – To be joined as a party in
suit against a public officer. – Where a suit
is instituted against a public officer for
damages or other relief in respect of any act
alleged to have been done by him in his
official capacity, the Government shall be
joined as a party to the suit.”
Mr. J.P. Singh urged that since this Court had
already decided the issue, there was no further
need for the High Court to go into the question
once again and decide the same in a manner which
was contrary to the law declared by this Court.
Mr. Singh submitted that this was in blatant
violation of the principles of hierarchy of Courts
9
and also the binding nature of the judgments of the
Supreme Court in terms of Article 141 of the
Constitution of India. Learned counsel submitted
that this was a fit case where the order of the
High Court was liable to be set aside since the
provisions of Order XXVII Rule 5A of the Code of
Civil Procedure were squarely attracted to the
facts of the case.
10. The Respondent, who appeared in-person, urged
that notwithstanding the earlier decision of this
Court in which the Coal Mines Provident Fund
Commissioner had been held to be a public officer,
such a stand was contrary to the other decisions of
this Court in (1) R.P.F. Commissioner Vs. Shiv
Kumar Joshi [AIR 2000 SC 331] and (2) Steel
Authority of India Ltd. & Ors. Vs. National Union
Waterfront Workers and Ors. [2001 (7) SCC 1],
wherein it had been held that the Regional
Provident Fund Commissioner under the Employees
10
Provident Fund Act and the Employees Provident Fund
Scheme, 1952, is not a public officer, though it
discharges statutory functions for running the
Scheme. It was also observed that the Board of
Trustees had not in any way been delegated with the
sovereign powers of the State even if it is held
that administrative charges were payable by the
Central Government. The Respondent urged that the
finding of the lower Appellate Court holding the
suit to be bad for non-joinder of the Union of
India as a party in the Appeal, was patently
erroneous, contrary to law and unsustainable.
Consequently, the order of the learned lower
Appellate Court was set aside and the judgment and
decree of the Trial Court in Title Suit No.102 of
1990 was restored.
11. Challenging the order of the learned Single
Judge of the Jharkhand High Court, the Appellant
herein filed Second Appeal No.134 of 2005, which
11
was ultimately allowed and the finding of the lower
Appellate Court that the suit was bad for nonjoinder
of the Union of India as a party was held
to be erroneous and was liable to be set aside.
12. As indicated hereinbefore, it is the said
judgment and order of the High Court of Jharkhand
which is the subject matter of the present Civil
Appeal.
13. Having considered the submissions made on
behalf of the Appellant and the Respondent
appearing in-person, we are of the view that the
judgment and order of the High Court does not
require any interference, particularly when the
issue raised in this Appeal has already been
decided by this Court in Civil Appeal No.1932 of
1982, wherein it was categorically held that the
Coal Mines Provident Fund Commissioner is a “public
servant” within the meaning of Section 2(17) of the
Code of Civil Procedure. It cannot be forgotten
12
that the First Suit filed by the Respondent, being
Title Suit No.78 of 1979, was withdrawn on the
ground that it had been held that a notice under
Section 80 of the Code was necessary since the Coal
Mines Provident Fund Commissioner was a public
servant and, thereafter, a second suit, being Title
Suit No.102 of 1990, was filed by the Respondent
upon due notice to the Coal Mines Provident Fund
Commissioner. In view of the aforesaid finding
regarding the status of the Coal Mines Provident
Fund Commissioner, the First Appellate Court erred
in reversing the finding of the Trial Court on this
score. It was not open to the First Appellate Court
to re-open the question which had been decided by
this Court, at least on the same submissions which
had been made earlier that though the officer
concerned was an employee of the Central
Government, he no longer enjoyed the said status
when he was discharging the functions of the
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Chairman of the Board of Trustees of the Coal Mines
Provident Fund Scheme.
14. We, therefore, have no hesitation in holding
that in view of the fact that the Coal Mines
Provident Fund Commissioner has been held by this
Court to be a public officer, it was necessary to
join the Union of India as a party in the suit in
view of the provisions of Order XXVII Rule 5A of
the Code of Civil Procedure. We, accordingly, see
no reason to interfere with the judgment and order
appealed against and the Appeal filed by the Coal
Mines Provident Fund Commissioner is dismissed,
though without any order as to costs.