JUDGMENT
Narbdeshwar Pandey, J.
1. 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 October 7, 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 that facts of the case is that late Krishna Bihari Jaiswal (plaintift) was employed as Mechanic 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 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 June 30, 1965 the plaintiff along with his brother stopped a jeep of the Colliery Manager for an hour and misbehaved with him. He also threatened the Manager and demanded supply of coal. According to the Manager, the aforesaid conduct of (he 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 February 3, 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 Clauses 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 subletting 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 July 11, 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 October 6, 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 August 12, 1975. But the learned Munsif having found that he had no jurisdiction to adjudicate the suit in 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 September 10, 1975 and on July 27, 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.
8. On the amendment of the plaint on behalf of the plaintiff late Krishna Bihari Jaiswal, the following reliefs came up for consideration before the trial Court:
“(a) That it be adjudicated and declared that the order of defendants dated October 6, 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 October 6, 1966.
(b) In case the Court finds that inspite of the declaration that the order dated October 6, 1966 dismissing the plaintiff from service is illegal, improper and ultra vires, but for legal difficulty the Court cannot pass orders that the plaintiffs service is continuing even after October 6, 1966, inspite of the said wrong order, or that the plaintiff be reinstated, that 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 August 12, 1975 as 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 October 6, 1966, but the plaint was amended on August 12, 1975, seeking the alternative relief and suit was filed before the sub-ordinate Judge on September 10, 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 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 enforceable 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 entitled to decree for damages as against the defendant/ respondents?
C. Whether the defendant can be permitted to question the order whereby the plaintiffs 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 paragraph Nos. 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 condition 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, senior 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 or 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 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 Pachisia v. Ranchhor Das Ramji 1982 BLJ 109, and Pandit Rudranath Mishir and Ors. v. Pandit Sheo Shankar Missir and Ors., AIR 1983 Pat 53.
15. Mr. Devi Prasd, senior 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 on the decision of the Supreme Court, namely, in the cases of L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner & Co., AIR 1957 SC 357, Dr. H. Mukherjee v. S.K. Bhargava 1996 (4) SCC 542 : 1996- II-LLJ-540, as well as a recent decision of this Court in the case of Seth Srenikbhai Kasturbhai and Ors. v. Seth Chandulal Kasturchand and Ors., AIR 1997 Pat 179 and Chennamangalam Vala Samajam v. Bhagavathy Devaswom and Ors., A.I.R. 1957 Trav-Co 261.
16. Mr. N.K. Prasad, senior counsel, then contended that the appellate Court has failed to appreciate that under the facts and circumstances of the case, the plaintiff cannot 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 the 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 October 6, 1966, but the order regarding amendment of the plaint for a decree of damages was passed on August 12, 1975 and thereafter, the plaint was presented before the Court of competent jurisdiction on September 10, 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. September 10, 1975 whereas the order of dismissal against the plaintiff was recorded on October 6, 1966. In support of such submission, learned counsel placed reliance on a decision of the Apex Court in the case of Pratap Misra and Ors. v. State of Orissa, AIR 1977 SC 1307 : 1877 (3) SCC 41 and yet another decision of this Court in the case of Ram Kishun Rai and Anr. v. Ashirbad Rai and Ors., AIR 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 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 on a decision of the Apex Court in the case of Zafar Khan and Ors. v. Board of Revenue UP and Ors., AIR 1985 SC 39 : 1984 (Supp) SCC 505 as also a decision of the Bombay High Court in the case of Ajab Enterprises v. Jayant Vegoiles and Chemicals Pvt. Ltd., AIR 1991 Bombay 35.
18. On the other hand, Mr. Devi Prasad senior 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. September 10, 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 April 15, 1967. This also cannot 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 August 12, 1975 the learned Munsif had no jurisdiction. Therefore, on return of the plaint the same was presented before the sub-ordinate Judge on September 10, 1975. Hence the period during which the suit remained pending before the learned Munsif, shall be excluded for the purpose of 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 Ms. Nirmala Chaudhary v. Bisheshar Lal AIR 1979 Delhi 26 and yet another decision in the case of Parameswaran v. N. Ramachandran AIR 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 and Ors., AIR 1970 Pat. 50 and Misrilal Jain v. State of Orissa and Ors., AIR 1977 SC 1686 : 1977 (3) SCC 212.
19. Mr. Prssad further contended that admittedly the defendants had contested that the Miscellaneous 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 September 10, 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 XXXIII, 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. Union of India, AIR 1989 Bombay 401.
20. In the factual background of the 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 Orders) 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 Pachisia v. Ranchhor Das Ramji (supra) and Pandit Rudranath Mishir and Ors. v. Pandit Sheo Shankar Missir and Ors. (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 VI Rule 17 or Order XXIII, 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 cannot 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 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, senior 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 Miscellaneous 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 Singh v. Union of India (supra) that a mere glance of the provisions of Order XXXIII, 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 ever raised by the defendants. Secondly the order passed in the Miscellaneous 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 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 XXXIII, Rule 5 of the Code of Civil Procedure in the Miscellaneous 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. October 6, 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 approiriate 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 and Ors. v. Board of Revenue, UP and Ors. v.(supra), Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu and Ors., AIR 1958 SC 767 as well as Ram Kishun Rai and Ors. v. Ashirbad Rai and Ors. (supra). According to the appellants, in this case the plaint was presented before the learned sub-ordinate Judge on September 10, 1975 and on July 27, 1976 the plaintiff was allowed to sue the case as forma pauperies. Therefore, July 27, 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 April 15, 1967. The said judgment was, however, set aside on February 22, 1975 by the appellate Court with a direction to the learned Munsif for amendment of the plaint Thereafter, on August 12, 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 of Order VII, Rule 10 of the Code of Civil Procedure and ultimately the same was filed on September 10, 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 XXXIII, 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 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 v. State of Orissa and Anr. (supra).
28. In the present case, it has already been noticed that the plaintiff had filed his case before the learned Munsif on April 15, 1967 and the contract had broken on October 6, 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 August 12, 1975, and accordingly, the suit was presented before the sub-ordinate Judge on September 10, 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 September 10, 1975 would be treated as within the time of limitation, therefore, the plea of the 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, or 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 penalised for the negligence of his advocate. Therefore, one cannot 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 subject and policy behind the prescripion 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. Ramchandran (supra), Balbindra Singh Joga Singh v. Union of India (supra), Naram Das v. Banarsi Lal and Ors. v. (supra), L/Naik Mahabir Singh v. Chief of Army Staff 1990 (Supp) SCC 89 and Ms. 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 cannot 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 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 June 30, 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 February 3, 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/l 1, 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 in the proceeding. Ultimately the enquiring committee having found the plaintiff guilty of misconduct, recommended action again him through the enquiry report, contained in Ext. C. Thereafter, on July 11, 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/l, 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 Order 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.
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 letter 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 record 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 pleading of the parties. Unfortunately in this case, there was no pleading on behalf of the plaintiff in 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 Order. 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 costs 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.