FA/1017/1988 2/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1017 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH =================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================== GUJARAT HOUSING BOARD - Appellant(s) Versus GUJARAT HOUSING BOARD EMPLOYEES ASSOCIATION - Defendant(s) =================================== Appearance : MR YF MEHTA for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, =================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/06/2008 ORAL JUDGMENT
1. The
appellant Gujarat Housing Board, constituted under the Gujarat
Housing Board Act, 1961 has preferred the present First Appeal under
Section 96 of the Code of Civil Procedure against the judgment and
decree passed by the learned City Civil Court No.15, Ahmedabad in
Civil Suit No. 2452 of 1980 of dated 25.09.1987, whereby the learned
Judge has decreed the suit by partly allowing the suit declaring the
Gujarat Housing Board Service Classification and Recruitment
Regulations, 1981 as illegal, void and inoperative so far as the
allocated employees of the Gujarat Housing Board are concerned. The
learned Judge has also granted the permanent injunction restraining
the Gujarat Housing Board from implementing aforesaid Regulation so
far as allocated employees of the Gujarat Housing Board are
concerned.
2. That
the original plaintiff instituted aforesaid Civil Suit No. 2452 of
1980 in the City Civil Court, Ahmedabad for the relief of declaration
that the service rules and regulations moved for sanctioned before
the State Government are arbitrary, unconstitutional and passed
without giving an opportunity of hearing to the plaintiff-Gujarat
Housing Board Employees Association and therefore, be declared bad
and void. It was the case on behalf of the original plaintiff that it
is registered trade union registered under the Indian Trade Union
Act, 1947 and was recognized as trade union by the Gujarat Housing
Board. That on bifurcation of State of Maharastra into State of
Gujarat and State of Maharastra Housing Board in existence had come
to end and employees in the Bombay Housing Board were allocated to
the Gujarat and they constituted as employee of the Gujarat Housing
Board. That in view of the provision contained in Section 86(2) of
the Gujarat Housing Board Act, 1961, service condition of the
allocated employees cannot be altered to their disadvantage etc. It
is the case on behalf of the plaintiff that there was award of the
Industrial Tribunal in (I.T.) No. 96 of 1973 which was accepted by
the Housing Board and there were other Reference (IT) Nos. 7 of 1974
and 18 of 1974 to the effect that without previous sanction of the
State Government service rules cannot be altered as contemplated
under Section 86(2) of the Act. The sum and substance of the
contention on behalf of the plaintiff was that the Gujarat Housing
Board had no right to frame service rules and regulation for
allocated employees and they stand governed by own rules only and no
advantage get nor any movement for approval of Government sanction
can be made by the Board and consequently Board again fill up the
post by merit person on deputation from other department. It was the
case on behalf of the plaintiff that approval taken by the Board in
its meeting dated 9.5.1980 for revise service rules be declared null
and void, without jurisdiction, incompetent and colourable exercise
of powers and illegal. It was also the case on behalf of the
plaintiff that finalizing the rules without taking the union and
plaintiff into confidence is violative of principles of natural
justice and mala fide. It was also contended that rules are hit by
Section 115 of the State Reorganization Act. Plaintiff therefore,
gave statutory notice dated 7.5.1980 that suit is required under
Section 71 of the Act and according to the plaintiff as nothing was
heard in reply, they were constrained to file aforesaid suit. As per
the plaintiff the cause of action arise on 29.4.1980 when plaintiff
protested against said proposed rules and when Civil Suit No. 1509 of
1980 was filed and that notice was served on 7.7.1980 and when
statutory rules were produced on 10.09.1982, in the suit. The
plaintiff ultimately prayed that Gujarat Housing Board Service
Classification and Recruitment Regulation 1981 are illegal and void
so far as allocated employees are concerned and in so far as they
provide for taking deputation from foreign department.
3. Suit
was resisted by the Gujarat Housing Board by filing written statement
at Exh. 8. It was contended that the suit is false, bad and malafide.
It was further contended that suit is required to be dismissed for
non joinder of State as party. It was also contended that suit was
barred by limitation in view of provision of Section 71 of the Act.
It was also further contended that under powers conferred to board
by Section 74(c) of the Act, it was competent for board to frame
regulation as it did. It was also further contended that at the
relevant time the suit was premature since the regulation required
sanction of the Government. It was further ascertaining that Section
86(2) was implicitly clear to spell out the power of the board to
make rules subject to sanction from State Government. That the
learned trial Court framed the issues at Exh. 38 of dated 14.3.1984
and re-cast on 27.11.1984. After hearing the parties, the learned
trial Court held issue Nos. 1 to 6 in negative and issue No. 7 to 9
in affirmative and decreed the suit and granted the injunction as
prayed by the plaintiff against the present appellant. Hence, being
aggrieved and dissatisfied with the judgment and decree passed by the
learned City Civil Court, Ahmedabad passed in Civil Suit No. 2452 of
1980, the appellant -original plaintiff has preferred the present
First Appeal.
4. Learned
advocate for the respondent-original defendant has remained absent
and this being old appeal of 1988, this Court has no other
alternative but to proceed further with the same ex parte.
5. Shri
YF Mehta,learned Advocate has appeared on behalf of the
appellant-original defendant. It is submitted by Shri Mehta, learned
Advocate for the appellant that the impugned judgment and decree
passed by the learned trial Court is absolutely illegal which
deserves to be quashed and set aside. It is submitted that learned
Judge has materially erred in not properly appreciating the relevant
provision more particularly, Section 71 of the Gujarat Housing Board
Act, 1961. It is submitted that the learned Judge ought to have
dismissed the suit on the ground that no legal and valid statutory
notice as contemplated under Section 71 of the Act of 1961 was given
by the plaintiff before filing the suit and within six months of
arising of cause of action.
6. It
is further submitted that learned Judge ought to have appreciated
that at the relevant time when the suit was filed it was absolutely
premature as at the relevant time there was no sanction by the State
Government and at the relevant time there were proposed regulation.
It is further submitted that even otherwise the learned trial Court
ought to have appreciated the fact that the Gujarat Housing Board was
well within its power to frame the recruitment rules and regulations.
It is further submitted that even otherwise the impugned judgment and
decree passed by the learned trial Court quashing and setting aside
the statutory regulation is without jurisdiction. It is further
submitted that the learned Judge has not at all examined the factum
of the rules at all and as to how they are arbitrary and illegal. It
is submitted that the learned Judge has failed to appreciate the fact
that admittedly the plaintiff has submitted his objection of dated
26.12.1980 and the rules were framed and published on 26.5.1982,
there was sufficient compliance of principles of natural justice. It
is further submitted that the learned Judge ought to have appreciated
that framing of the rules of governing the employees is a matter of a
policy and only on limited ground of the legislation competence it
could have been questioned. It is submitted that the learned trial
Court ought not to have examined legislation competence since it is
not a Court under the Constitution of India but Court under the Civil
Court Act.
7. Shri
Mehta learned advocate for the appellant has heavily relied upon the
following decision in support of his above submissions and in respect
of his request to quash and set aside.
SCC
2005(4) 613.
AIR
1995 SC 1715.
AIR
1968 SC 292.
AIR
1971 SC 1828.
AIR
1974 SC 259
AIR
1976 SC 888.
AIR
1998 SC 2276.
8. Heard
the learned Advocate Shri YF Mehta on behalf of the appellant and
having considered the impugned judgment and decree passed by the
learned trial Court and record and proceedings of the case. It
appears to the Court that learned trial Court has materially erred in
decreeing the suit and by quashing and setting aside and declaring
that the Gujarat Housing Board Service and Classification Recruitment
Rules, 1981 in so far as the allocated employees of the defendant
board are concerned, as illegal, void and inoperative. First of all
it is to be noted that when the suit was filed the recruitment rules/
regulation were at draft stage only and were sent to the State
Government for its sanction. It is also required to be noted that at
the relevant time the objections were raised against said draft
rules. It is also not in dispute that during the pendency of the
suit, the draft rules have been sanctioned by the State Government
and they were produced on record. Once the draft rules have been
sanctioned by the State Government and the same are published
thereafter so far as Civil Court is concerned, the Civil Court would
have a very limited scope to consider the legality and validity of
the same. On considering the entire judgment and decree passed by the
learned trial Court, it appears that there is no finding given by the
learned trial Court how the recruitment rules are arbitrary and / or
illegal. The learned Judge has not addressed itself on merits of the
rules and regulations which have been sanctioned by the State
Government. So far as the power of the Board to frame the recruitment
regulation are concerned, the same cannot be disputed. It appears
that the learned trial Court has held that the said recruitment rules
are against the principles of natural justice as no opportunity of
hearing has been given to the plaintiff and the members. However, it
is to be noted that when statutory rules and regulation are to be
framed there is no question of personal hearing. Inviting objections
to the proposed rules is sufficient. In the present case as stated
above against the draft rules the plaintiff did submit the objection.
Therefore, it cannot be said that the recruitment rules are in breach
of principles of natural justice. The contrary finding of the learned
trial Court cannot be sustained and which deserves to be quashed and
set aside.
9. Even
otherwise considering the decisions relied upon by the learned
Advocate for the appellant referred to herein above the impugned
judgment and decree passed by the learned trial Court is without
jurisdiction and / or it can be said that the learned trial Court has
exceeded the jurisdiction vested in it and the same cannot be
sustained.
10. In
view of the above and for the reasons stated above, the judgment and
decree passed by the learned trial Court deserves to be quashed and
set aside and is hereby quashed and set aside. First Appeal is
accordingly allowed. No costs.
(M.R.SHAH,
J.)
kaushik