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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.

REPORTABLE

English: coal mine in India

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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
2

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.
3

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
4

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
5

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
6

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
7

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.
8

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
9

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
10

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
11

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
12

was ultimately allowed and the finding of the lower

Appellate Court that the suit was bad for non-

joinder 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
13

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
14

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.

……………………………………………………J.

(ALTAMAS KABIR)

……………………………………………………J.

(SURINDER SINGH NIJJAR)

New Delhi …………………………………………………J.

Dated: 04.01.2012 (J. CHELAMESWAR)

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