Central Coal Fields Limited Vs Lilawati Devi and Ors

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2000 SCC OnLine Pat 282 : (2000) 2 PLJR 691 : (2001) 1 LLJ 1477
Patna High Court

(Ranchi Bench)
BEFORE N. PANDEY AND S.K. CHATTOPADHYAYA, JJ.
Against the judgment and decree dated 9.10.1991, passed by a learned Single
Judge of this Court in F.A. No. 118 of 1981 (R)
Page: 692
Central Coal Fields Limited … Appellant;

Versus
Smt. Lilawati Devi & ors. … Respondents.
Letters Patent Appeal No. 160 of 1991 (R)
Decided on March 10, 2000
The Judgment of the Court was delivered by
N. PANDEY, J.:—This is an appeal under clause 10 of the Letters Patent of the Patna
High Court on behalf of the defendants against the judgment and decree dated 7th
October, 1991 in First Appeal No. 118 of 1981 (R), whereby and whereunder, the
judgment of the learned Additional Subordinate Judge, Giridih, in Title Suit No. 20/1
of 1976/79 was set aside.
2. Briefly stated the facts of the case is that late Krishna Bihari Jaiswal (plaintiff)
was employed as Mechanical Grade-I under the N.C.D.C. Ltd. and allotted a quarter
bearing no. 112. A case was lodged against his brother, Sadhu Sharan Jaiswal in the
year, 1962 and he was dismissed from service. The said case was
Page: 693
lodged on the allegation that the aforesaid Sadhu Sharan Jaiswal had committed a
criminal trespass in the aforesaid Quarter No. 112, which was in possession of the
plaintiff on allotment. According to the plaintiff, the suit against Sadhu Sharan Jaiswal
was absolutely on a false ground, since Quarter no. 112 was already allotted to the
plaintiff. The further case is that during pendency of the suit for eviction with respect
to House No. 112 against Sadhu Sharan Jaiswal, another House No. 18/1 was
arbitrarily allotted to the plaintiff by the management although House No. 112 was
already allotted to him. The plaintiff, therefore, refused to occupy quarter no. 18/1,
since it was found in a dilapidated condition.
3. In the meantime, a proceeding was started against the plaintiff for allegedly
occupying two quarters i.e. 112 and the other 18/1 and accordingly, he was also
placed under suspension. Although the plaintiff filed show cause, but the same was
not accepted and ultimately two chargesheets were issued against him. The allegation
relating to first charge was that on 30.6.1965 the plaintiff along with his brother
stopped a jeep of the Colliery Manager for an hour and misbehaved with him. He also
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threatened the Manager and demanded supply of coal. According to the Manager, the
aforesaid conduct of the plaintiff constituted a misconduct on his part under Sub-
clauses (c), (i) and (r) of Clause 18 of the Standing Orders.
4. Another chargesheet was then submitted by the respondents on 3rd February,
1966 (Ext. D/19), which related to non-vacating of the quarter despite cancellation of
allotment and forcible occupation without paying any rent and subletting the quarter
to a different employee, which allegedly constituted a misconduct under Clause 18(a)
(b)(c) and 19 of the Standing Orders. Only in relation to the abovementioned charge,
an enquiry was conducted and certain witnesses were examined on behalf of the
plaintiff. The enquiring officer after considering the relevant materials submitted his
report marked as Ext. C, holding the plaintiff guilty of misconduct for forceful
occupation and sub-letting the quarter and accordingly, recommended action against
him including recovery of penal rent from Jaiswal (plaintiff) for occupying Quarter No.
18/1 in addition to Quarter No. 112.
5. Thereafter, a letter dated 11.7.1966 (Ext. D/5) was issued by the Management,
stating that although misconduct committed by Krishna Bihari Jaiswal was very
serious and warrants punishment of dismissal from service, but in order to give him a
chance to mend, the punishment for recovery of penal rent for the period in question
was to be realised at the rate of Rs. 10/- per month from his salary. By the said letter
the plaintiff was also directed to surrender one of the quarters, failing which necessary
disciplinary action including order for dismissal from service shall be recorded. But
inspite of the aforementioned letter, the plaintiff did not vacate the quarter. Therefore,
the letter of dismissal from service was issued on 6.10.1966.
6. It would be relevant to mention that initially the suit was filed before the Munsif
bearing Title Suit No. 287 of 1967, but the same was dismissed. Thereafter, the
plaintiff filed Title Appeal No. 63 of 1971; which was disposed of with a leave to the
plaintiff to make suitable amendments in the plaint. Undisputedly thereafter, the
plaint was amended by the order of the learned Munsif, Giridih vide his order dated
12.8.1975. But the learned Munsif having found that he had no jurisdiction to
adjudicate the suit in
Page: 694
view of the amendment of the plaint, returned the plaint on the same day for
presentation before a proper court. Accordingly, the plaintiff filed his plaint before the
Sub-ordinate Judge, Giridih on 10.9.1975 and on 27.7.1976 the court allowed the
plaintiff to sue as forma pauperies.
7. The defendants resisted the suit on various grounds including maintainability

etc. before the civil court. It was further pointed out that from a bare reference to the
materials available on the record as well as the written statement, it would appear that
the plaintiff was guilty of gross misconduct and disobedience. It would further appear
that during the enquiry, full opportunity was given to the plaintiff to defend his case.
The further case of the defendant is that the suit for damages was hopelessly barred
by limitation. The further case is that from a bare reference to the entire plaint it
would appear that there is no pleading under what circumstances there was any
breach of contract of service of the plaintiff or there was any violation of the provisions
of the Standing Orders. It would further appear that no claim of damage was made in
the original plaint and in fact, for the first time in the year, 1975 the claim for damage
was made, whereas the order of dismissal of the plaintiff from service was passed in
the year, 1966.
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8. On the amendment of the plaint on behalf of the plaintiff late Krishna Bihari
Jaiswal, the following reliefs came up of consideration before the trial court:
(a) That it be adjudicated and declared that the order of defendants dated
6.10.1966 dismissing the plaintiff from service is tainted with malice and is
illegal and improper and ultra vires and the plaintiff be declared to be continued
in service even after 6.10.1966.
(b) In case the court finds that inspite of the declaration that the order dated
6.10.1966 dismissing the plaintiff from service is illegal, improper and ultra
vires, but for legal difficulty the court can not pass orders that the plaintiff's
service is continuing even after 6.10.1966, inspite of the said wrong order, or
that the plaintiff be reinstated, then a decree for damages of Rs. 1,00,000/- be
passed in favour of the plaintiff against the defendants.
(c) A decree for the costs of the suit be passed in favour of the plaintiff.
(d) Any other relief or reliefs to which the plaintiff be found entitled in law and
equity be given to the plaintiff.
9. The matter was ultimately heard by the learned Sub-ordinate Judge. Although he
was of the opinion that the order of dismissal of the plaintiff was illegal, but dismissed
the suit, holding that the jurisdiction of the civil court was barred with respect to such
remedies, which are available under the provisions of the Industrial Disputes Act. The
suit seeking relief against dismissal from service and reinstatement with back wages
was not maintainable. It can be examined only under the provisions of the Industrial
Disputes Act. While answering the issue whether the suit for a decree of damages in
view of the amendment of the plaint on 12.8.1975 was barred by the provisions of
Section 14 of the Limitation Act, the learned Judge answered this issue in favour of the
defendants and held that the plaintiff was not entitled for the alternative relief, since
the cause of action arose on 6.10.1966, but the plaint was amended on 12.8.1975,
seeking the alternative relief and suit was filed before the Sub-ordinate Judge on
10.9.1975, therefore, obviously barred by limitation.
10. The appellate court however, after considering the aforesaid aspect of the
matter although agreed with the views of the trial court that jurisdiction of the
Page: 695
civil court was barred with respect to the remedies which are available under the
provisions of the Industrial Disputes Act, but held that right of the plaintiff to sue for
the breach of contract of service was maintainable before the civil court, because the
right to sue for damages stands on a different footing. He held that in view of the
provisions of the Specific Relief Act, 1963 a contract of personal service which depends
on the volition of the parties, may not be enforcible before the civil court but it can
only be adjudicated before the forum, constituted under the Industrial Disputes Act.
However, a suit for damages for commission of breach of contract of service on the
part of the defendants would certainly be maintainable before the civil court.
Expressing opinion on the aforesaid points and having taken into consideration rival
contentions of parties, following questions were formulated in the first appeal:
“A. Whether the suit of the plaintiff was barred under the provisions of the
Industrial Disputes Act?
B. Whether the defendants/respondents terminated the contract of service of
Jaiswal in accordance with the Contract of Service and/or the provisions of the
Certified Standing Orders framed under Industrial Employment Standing Orders
Act, 1946 and if so, whether Jaiswal and consequently the appellants became
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entitled to decree for damages as against the defendant/respondents?

C. Whether the defendant can be permitted to question the order whereby the
plaintiff's application for amendment of plaint was allowed on the ground that
plea for alternative decree for damages became barred under the law of
limitation?
D. Whether the suit was otherwise barred under the law of limitation?
11. During the pendency of the First Appeal, as would appear from paragraphs no.
20 and 21 of the impugned judgment, the plaintiff Krishna Bihari Jaiswal died,
therefore, his heirs and legal representatives were brought on record. In such a
situation, the appeal was only confined with regard to the alternative claim of the
plaintiff for damages.
12. Undisputedly, the first question i.e. “A” was answered in favour of the
defendants that the civil court had no jurisdiction to adjudicate a suit for which a
remedy is available under the Industrial Disputes Act. But with respect to the question
at “B”, according to the learned Judge, since there was a breach of contract of service
and certain conditions of the Standing Order, such action of the disciplinary authority
rendered the order of dismissal void, inoperative, illegal and, therefore, late Jaiswal
(plaintiff) became entitled to the damages for the wrongful termination of contract of
service.
13. On behalf of the appellants, Mr. N.K. Prasad, Sr. counsel contended that the
plaintiff cannot be entitled for damages unless and until it is held that the order of
dismissal was in breach of the conditions of the contract of service. Because from a
bare reference to the entire plaint, it would appear that the plaintiff was not able to
show that there was any breach of the terms of contract of service or even the
conditions of Standing Orders nor any such issue was framed in the trial court of any
claim for damage was made.
14. He next contended that the learned Munsif having held that he had no
jurisdiction to decide the suit, was neither justified nor competent in law to amend the
plaint. It is well settled where there is inherent lack of jurisdiction for a court to
entertain the suit, it can not make any order for amendment of the plaint otherwise
the court would be exercising a
Page: 696
jurisdiction, which is not vested in it. Mr. Prasad in support of his contention placed
reliance on a decision of this Court in the case of Ratan Lal Lal Pachisia v. Ranchhor
Das Ramji, 1982 BLJ 109, and Pandit Rudranath Mishir v. Pandit Sheo Shankar Missir,
A.I.R. 1983 Pat. 53 : 1983 PLJR 58.
15. Mr. Devi Prasad, Sr. counsel for the plaintiff on the other hand, contended that
there is no substance in such submission of the appellants regarding amendment of
the plaint, because undisputedly until amendment petition of the plaintiff was allowed,
the learned Munsif had jurisdiction to decide the case. In fact, his jurisdiction ceases
on the day, the amendment petition was allowed. This is not the case of the
defendants that the learned Munsif even after allowing the plaint, had proceeded to
decide the case. The case laws relied upon by the defendants are not applicable to the
facts of the present case. He contended that apart from what has been noticed above,
it is well, known that in an appropriate case amendment of the plaint with regard to
even a barred claim can be allowed at any stage of the suit or appeal in the interest of
justice. In support of his submission reliance was placed to the decisions of the
Supreme Court, namely, in the cases of L.J. Leach and Co. Ltd. v. Jardine Skinner &
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Co., A.I.R. 1957 SC 357, Dr. H. Mukherjee v. S.K. Bhargava, (1996) 4 SCC 542, as
well as a recent decision of this Court in the case of Seth Srenikbhai Kasturbhai & ors.
etc. v. Seth Chandulal Kasturchand, A.I.R. 1997 Pat. 179 : 1998 (1) PLJR 43 and
Chennamangalam Vala Samajam v. Bhagavathy Devaswom, A.I.R., 1957 Trav-Co.
261.
16. Mr. N.K. Prasad, Sr. Counsel, then contended that the appellate court has failed
to appreciate that under the facts and circumstances of the case, the plaintiff can not
be allowed for a decree of damages because such a claim was hopelessly barred by
limitation. Even the trial court had also held that the claim of plaintiff for a decree of
damages was barred in terms of the provisions of Section 14 of the Limitation Act. To
elaborate the submission, it was pointed out that admittedly the order for dismissal
against the plaintiff was recorded on 6.10.1966, but the order regarding amendment
of the plaint for a decree of damages was passed on 12.8.1975 and thereafter, the
plaint was presented before the court of competent jurisdiction on 10.9.1975 and that
too without any application under Section 14 of the Limitation Act for the condonation
of delay. The maximum period of limitation having been prescribed under the
provisions of the Limitation Act is three years for institution of a suit regarding the
decree of damages, the instant suit was obviously barred by limitation. Reference was
made to Articles 35, 58, 113 etc. of the Limitation Act. The trial court had also held
that the suit was barred by limitation. Because the period of limitation in such cases
will run from the day the plaint was presented before the competent court i.e.
10.9.1975 whereas the order of dismissal against the plaintiff was recorded on
6.10.1966. In support of such submission, learned counsel placed reliance on a
decision of the Apex Court in the case of Pratap Mishra v. State of Orissa, (1977) 3
SCC 41 : A.I.R. 1977 SC 1307 and yet another decision of this Court in the case of
Ram Kishun Rai v. Ashirbad Rai, A.I.R. 1950 Pat. 473.
17. Mr. Prasad submitted that apart from what has been stated above, yet there is
another difficulty in the way of the plaintiff because no evidence or any
Page: 697
material was brought on the record to show that he was prosecuting the previously
instituted suit with due diligence as required under section 14 of the Limitation Act. It
is well known that unless and until there is an application under Section 14 of the
Limitation Act to meet the necessary conditions to bring the case within the ambit of
the said provisions, it would not be proper for a court to condone the delay. In support
of such submission learned counsel placed reliance to a decision of the Apex Court in
the case of Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505 : A.I.R. 1985
SC 39 as also a decision of the Bombay High Court in the case of Ajab Enterprises v.
Jayant Vegoiles and Chemicals Pvt. Ltd., A.I.R. 1991 Bombay 35.
18. On the other hand, Mr. Devi Prasad Sr. counsel contended that in the facts and
circumstances of the case, it would be wrong on the part of the appellants to submit
that the date of presentation of plaint before the Sub-ordinate Judge i.e. 10.9.1975
will be the relevant date for the purpose of counting the period of limitation. Because
admittedly the plaint was filed before the Munsif on 16.4.1967. This also can not be
disputed that on the day of presentation of the plaint, the learned Munsif had the
pecuniary jurisdiction to entertain the suit. But because of the amendment of the
plaint regarding the claim of damage of Rs. 1,00,000/- on 12.8.1975 the learned
Munsif had no jurisdiction. Therefore, on return of the plaint the same was presented
before the Sub-ordinate Judge on 10.9.1975. Hence the period during which the suit
remained pending before the learned Munsif, shall be excluded for the purpose of
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condoning the delay. Non-filing of limitation petition for the benefit of Section 14 of
the Limitation Act may not prove fatal. The Court in appropriate cases can condone the
delay if satisfied with the materials on record that the plaintiff was prosecuting the
previously instituted suit with due diligence. In support of his submission, Mr. Prasad
placed reliance on a decision of the Delhi High Court in the case of Miss Nirmala
Chaudhary v. Bisheshwar Lal, A.I.R. 1979 Delhi 26 and yet another decision in the
case of Parameswaran v. N. Ramchandra, A.I.R. 1987 Kerala 37. He contended that
apart from the cases referred to above, there are numerous cases where even on oral
prayer of the plaintiff, condonation was allowed. Reference in this regard was made to
the case of Narain Das v. Banarsi Lal, A.I.R. 1970 Pat. 50 and Misrilal Jain etc. etc. v.
State of Orissa (1977) 3 SCC 212 : A.I.R. 1977 SC 1686.
19. Mr. Prasad further contended that admittedly the defendants had contested
that the Misc. Case No. 25 of 1975 which was filed on behalf of the plaintiff for a leave
of the court to sue as forma pauperies and the same was allowed on 10.9.1975, but no
objection was raised regarding limitation etc. at that stage. Therefore the defendants
are estopped from raising such objection at the subsequent stage of the litigation
since the question of limitation stood closed. A mere glance at Order 3 Rule 5 of the
Code of Civil Procedure is enough to show that a court is duty bound to reject an
application for permission to sue as pauper where the suit was barred by any law for
the time being in force, including the law of limitation as contained in Limitation Act.
In support of his contention Mr. Prasad referred to a decision of the Bombay High
Court in the case of Balbindra Singh Joga Singh v. The Union of India, A.I.R. 1989
Bombay 401.
20. In the factual background of the
Page: 698
case, as noticed above, and from rival contentions of the parties, the questions which
arise for consideration are (a) Whether the dismissal of the plaintiff from service was
in accordance with the conditions of the contract of service and the provisions of the
Certified Standing Orders, framed under Industrial Employment Standing Order Act,
1946 and, if so, (b) Whether the plaintiff was entitled to a decree for damages against
the defendants/appellants; and (c) whether such a claim was barred by limitation on
the day the plaint was presented before a proper court, after the amendment of the
reliefs.
21. Before considering the claim of the plaintiff for a decree of damages, I would
like to go to the next question whether the learned Munsif was competent to allow the
amendment of the plaint and, if so, whether the relief of the plaintiff for damages on
such amendment was barred by limitation. I have already noticed that on behalf of the
appellants while placing reliance on the decisions of this Court in the cases of Ratan
Lal Lal Pachisia v. Ranchhor Das Ramji (supra) and Pandit Rudranath Mishir v. Pandit
Sheo Shankar Missir (supra), it was urged that in a case where the court inherently
lacks jurisdiction to entertain the suit, it has no jurisdiction to bring the suit within its
jurisdiction, by allowing the amendment of the plaint under Order 6 Rule 17 or Order
23 Rule 1 of the Code of Civil Procedure. But in my view, on a bare reading of the facts
of both the cases it appears difficult to apply the ratio of those cases to the present
one. Because there can not be any dispute that on the first occasion when the suit was
filed before the Munsif, he had the jurisdiction to entertain. This has also been noticed
when the matter was taken up under appeal and in fact, the appellate court permitted
the withdrawal of the appeal to enable the plaintiff to get his plaint amended before
the learned Munsif. But certainly after the amendment of the plaint for a decree of
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damages of Rs. 1,00,000/- the Munsif had no jurisdiction. Therefore, he had no option
but to return the plaint for presentation before the proper court. This is not the case of
the defendants that even after amendment of the plaint, the learned Munsif
entertained the suit as was done in those reported cases, which have been relied upon
on behalf of the appellants. That apart, while considering the submission of Mr. Devi
Prasad, Sr. counsel, I have already noticed that a plaint can be amended even at the
appellate stage in appropriate cases for the ends of justice.
22. Apart from what has been noticed above, it would also be significant to note
that admittedly the Misc. Case No. 25 of 1975 filed on behalf of the plaintiff for a leave
of the court to sue as forma pauperies was contested by the defendants. But no
objection was raised either with regard to the amendment of the plaint nor any
objection regarding limitation. I am therefore, in quite agreement with the views
expressed by the Bombay High Court in the case of Balbindra Singh Joga Sigh v. The
Union of India (supra) that a mere glance of the provisions of Order 33 rule 5 of the
Code of Civil Procedure is enough to show that a court is duty bound to reject an
application for grant of permission to sue, if the suit was barred by limitation or
defective in any manner, but no such objection was even raised by the defendants.
Secondly the order passed in the Misc. Case was never challenged by the appellants
before a higher court.
23. True it is Courts should as a rule decline to allow amendments, if a fresh
Page: 699
suit on the amended claim is barred by limitation on the date of the application. But
these are the factors to be taken into account in exercise of the discretion of a court as
to whether amendment should be ordered. In fact it does not affect power of the court
to order, if that is required in the interest of justice.
24. I, therefore, taking into consideration all the facts and circumstances of the
case hold that the defendants having failed to raise any objection at the time when the
plaint was amended or even at the subsequent stage under Order 33 Rule 5 of the
Code of Civil Procedure in the Misc. Case are not entitled at this stage to raise such
questions.
25. True it is as pointed out by the Senior counsel appearing for the appellants, the
period for filing a suit for a decree of damages as prescribed under different provisions
of the Limitation Act, is three years from the day the contract is broken i.e. 6.10.1966
in the present case. It is also true that for the purpose of counting the period of three
years, the date of the presentation of the plaint before an appropriate court would be
the relevant factor. Reliance in this regard has already been made to different
decisions of the Apex Court in the case of Zafar Khan v. Board of Revenue, U.P.
(supra), Madhavrao Narayanrao Patwardhan etc. v. Ram Krishna Govind Bhanu, A.I.R.
1958 SC 767 as well as Ram Kishun Rai v. Ashirbad Rai (supra). According to the
appellants, in this case the plaint was presented before the learned Sub-ordinate
Judge on 10.9.1975 and on 27.7.1976 the plaintiff was allowed to sue the case as
forma pauperies. Therefore, 27.7.1976 has to be treated as the relevant date on which
the suit was instituted.
26. But it would be relevant to mention that the suit in question was presented
before the learned Munsif on 15.4.1967. The said judgment was, however, set aside on
22.2.1975 by the appellate court with a direction to the learned Munsif for amendment
of the plaint. Thereafter, on 12.8.1975 the plaint was amended and returned to the
plaintiff for filing it before a court, having pecuniary jurisdiction to try the suit in terms
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of Order 7 Rule 10 of the Code of Civil Procedure and ultimately the same was filed on
10.9.1975. The order granting leave for amendment of the plaint was never
questioned by the defendants. Similarly as I have already noticed, the order of the
Sub-ordinate Judge under Order 33 Rule 5 of the Code of Civil Procedure granting
permission to the plaintiff to sue as forma pauperies was also not challenged before
any higher court.
27. No doubt, in terms of Section 3 of the Limitation Act, 1963 a law court cannot
pass a decree if the suit is barred by limitation, even if the question of limitation has
not been raised in the written statement. But having regard to the provisions of
Section 14 of the Limitation Act as well as different pronouncements of this Court as
well as the Apex Court, it is well settled that in a case where the plaintiff who was
prosecuting the remedies before a wrong court with due diligence and care, time spent
before such court can be excluded for the purposes of counting limitation. Reference in
this regard has already been made to different decisions including that in the case of
Misrilal Jain etc. etc. v. State of Orissa (supra).
28. In the present case, it has already been noticed that the plaintiff had filed his
case before the learned Munsif on 15.4.1967 and the contract had broken
Page: 700
on 6.10.1966, therefore, well within time. When the judgment of the learned Munsif
was set aside by the appellate court with a direction to amend the plaint, such an
amendment was brought into effect by order dated 12.8.1975 and accordingly, the
suit was presented before the Subordinate Judge on 10.9.1975, who had the
pecuniary jurisdiction to try the case. It is, thus, obvious that the plaintiff was
prosecuting his case in a good faith before the learned Munsif, who ultimately due to
lack of pecuniary jurisdiction was unable to entertain the same and, therefore,
returned the plaint with a permission to the plaintiff for presentation before a court,
having pecuniary jurisdiction. Therefore, if the aforesaid period is excluded then
refiling of the suit on 10.9.1975 would be treated within the time of limitation and,
therefore, the plea of bar of limitation as raised by the learned Senior counsel for the
contesting defendants has to be rejected.
29. Apart from what has been noticed above, from a bare reference to the relevant
developments which had taken place after filing of the suit before the learned Munsif,
one can safely infer that the plaintiff was virtually unaware of the consequences for
which he had to suffer. This is the reason the Apex Court has repeatedly held that a
party should not be panalised for the negligence of his Advocate. Therefore, one can
not say that the plaintiff did not act with due care and caution when he had entrusted
the matter to an Advocate for the appropriate remedy.
30. It is well settled that the whole object and policy behind the prescription of
Section 14 of the Limitation Act is to protect an innocent person from being stumbled
by the mischief of limitation when he was honestly trying his best to see that his case
is tried on the merits, but he failed, because the court where the suit was pending was
unable to give relief due to lack of pecuniary jurisdiction. Therefore, I do not find any
merit in the contention of the defendant that in absence of an application under
Section 14 of the Limitation Act, the 1st appellate court could not have condoned the
delay.
31. True it is as pointed out by the learned counsel for the defendants appellants,
no petition was filed by the plaintiff to get the benefit of Section 14 of the Limitation
Act. But as would appear from different decisions in the cases of Parmeswaran v. N.
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Ramachandran (supra), Balbindra Singh Joga Singh v. The Union of India (supra),
Narain Das v. Banarsi Lal (supra), L/Naik Mahabir Singh v. Chief of Army Staff, 1990
Supp SCC 89 (1) and Miss Nirmala Chaudhary v. Bisheshwar Lal (supra), failure on the
part of the plaintiff to file an application under Section 14 of the Limitation Act will not
be fatal, particularly when all such facts were known to the defendants.
32. That apart, the question of limitation is a mixed question of law and fact.
Therefore, if such objection was raised by the defendants at the appropriate stage, the
plaintiff would have filed an application under Section 14 of the Limitation Act. But the
defendants not having raised any objection, in fact, submitted to the jurisdiction of the
learned Sub-ordinate Judge and fought the case, therefore, they can not be permitted
to turn round and contend that in absence of an application under Section 14 of the
Limitation Act, the plaintiff is not entitled for a decree of the barred claim. Therefore,
in the background of the facts, noticed above, I have no option but to reject such
objection of the defendants.
33. Now the crucial question is
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whether the dismissal of the plaintiff from service was in accordance with the
conditions of the contract of service and provisions of the Certified Standing Orders
and if so, whether he was entitled for a decree for damages. It would be relevant to
notice that two separate chargesheets were issued against the plaintiff in relation to
certain allegations, the first charge was that on 30.6.1965 he and his brother had
forcefully stopped the jeep of Colliery Manager for an hour and also misbehaved with
him since alleged demand of coal was not fulfilled. Therefore, such a conduct of the
plaintiff constituted misconduct on his part under Sub-clause (c), (i) and (r) of Clause
18 of the Standing Orders. Another chargesheet was submitted against him on 3rd
February, 1966 (Ext. D/19) on the allegation of forceful occupation of a quarter of the
company without paying rent and also sub-letting etc. This part of the illegal act of the
plaintiff also constituted a serious misconduct under Clause 18(a)(b)(c) and 19 of the
Standing Orders. But only with relation to the second charge, enquiry was conducted
and punishment imposed.
34. This is not in dispute that the defendants by letters contained in Exts. D/11,
D/12 and D/14 had informed the plaintiff regarding formation of the enquiry
committee with a request to him to appear before such committee and file show
cause. The plaintiff also filed his show cause (Ext. B/15) and participated at the
proceeding. Ultimately the enquiring committee having found the plaintiff guilty of
misconduct, recommended action against him through the enquiry report, contained in
Ext. C. Thereafter, on 11.7.1966 a letter (Ext. D/5) was issued by the management
stating that although the alleged misconduct of the plaintiff was enough to dismiss
him from service but in order to provide him a chance to mend, the management
thought it proper to recover a penal rent at the rate of Rs. 10/- per month for the
alleged period with a request that the plaintiff should surrender the quarter. In the
letter, it was also disclosed in case the quarter was not surrendered, necessary
disciplinary action including order of dismissal shall be recorded. But the plaintiff
neither deposited the penal rent nor vacated the quarter. Therefore, from the letters
contained in Exts. D/1, D/2 and D/5, as noticed above, it is, thus, evident that after
receipt of the enquiry report (Ext. C) sufficient opportunity was given to the plaintiff to
pay the penal rent for the period during which the quarter in question was in his
wrongful possession and also to vacate the quarter.
35. I have already noticed that Ext. D/5 further shows that the Deputy Chief
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Manager had already informed the plaintiff that in case the quarter in question was not
vacated, an order of dismissal may be passed against him. Therefore, from the
materials noticed above, it will not be proper to allege that the order of dismissal was
recorded without drawing a regular proceeding as prescribed under Standing Orders
No. 17(ii) and (iv). True it is as would appear from the aforesaid orders, no
punishment can be recorded unless the workman concerned is informed in writing of
the alleged misconduct and an opportunity to explain the same are given. It further
shows that a departmental enquiry shall be instituted before dealing with the charges
and the record of such a departmental enquiry shall be kept in writing. It further
shows in case the enquiry committee proposes to dismiss the workman, a copy of the
enquiry report shall be given to him at his request, Clause (iv) of the aforesaid
Standing Orders further provides that before awarding punishment, the gravity of the
misconduct and the previous record of the workman shall also be taken into
consideration.
Page: 702
36. In this case, from a bare reference to the proceeding of the enquiry, as
contained in Ext. C, and different communications to the plaintiff on behalf of the
management, like Exts. D/1, D/2, to D/15, would show that from time to time the
plaintiff was given full opportunity to file his show cause and also to mend himself so
that a minor punishment for realisation of the penal rent can only be recorded. But the
plaintiff did not avail those opportunities and refused to vacate the quarter. Therefore,
having regard to such a serious misconduct, on his part, the defendants had no option
but to dismiss the plaintiff from service. The trial court has also after taking into
consideration all the relevant documents, held that the enquiry proceeding was valid
and justified. In fact, the appellate court has committed an error in holding that the
trial court had also declared the order of dismissal illegal.
37. True it is although the conducting officer had also found the plaintiff guilty of
the gross misconduct, but had suggested for recovery of penal rent for the period
during which the quarter was in possession of the plaintiff. According to the plaintiff,
the recommendation of the enquiring committee regarding realisation of the penal rent
was final and no order for dismissal could have been recorded. In my view, the finding
of the enquiring committee holding the plaintiff guilty of gross misconduct was enough
for the disciplinary authority to record an order for dismissal after extending an
opportunity to him to file show cause. The disciplinary authority, therefore, on receipt
of the enquiry report, as I have already noticed, issued letters like Exts. D/1 and D/5
to grant a liberty to the plaintiff to pay the penal rent and vacate the quarter. It was
also indicated through these letters that the misconduct committed by the plaintiff
was grave and warrants punishment of dismissal from service but in order to give a
chance to mend, a request was made to vacate the quarter and deposit the penal rent.
It was also indicated in case the plaintiff fails to vacate the quarter, an order of
dismissal from service will be recorded without any more reference.
38. That apart, from a bare reference to the entire plaint, it would appear that no
allegation was made regarding any breach of the terms of contract and/or the
conditions of the Standing Orders nor there was any claim for damage. It is well
known that any decree for damages on the ground of breach of the terms of contract
of service or the conditions of Standing Orders depends upon the pleadings of the
parties. Unfortunately in the case, there was no pleading on behalf of the plaintiff in
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the plaint. Hence keeping in mind all these facts into consideration, it would not be
proper to allege that the order of dismissal was recorded without applying the
provisions of the Standing Orders. In fact, this aspect of the matter has not been
considered in the judgment under appeal. Therefore, in my considered view, the
findings recorded by the appellate court for the decree of damages against the
defendants appears not justified.
39. In the result, having regard to the findings, recorded above, the plaintiff was
not entitled for any decree of damages or the cost of litigation. Accordingly, the appeal
is allowed to the extent indicated above and the judgment and decree under appeal
are hereby set aside. But in the facts and circumstances of the case, there shall be no
order as to costs.
S.K. CHATTOPADHYAYA, J.:—I agree.
———
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Central Coal Fields Limited Vs Lilawati Devi and Ors

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Central Coal Fields Limited Vs Lilawati Devi and Ors

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Thursday, September 29, 2022

Patna High Court

Central Coal Fields Limited … Appellant;

7. The defendants resisted the suit on various grounds including maintainability

entitled to decree for damages as against the defendant/respondents?

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