BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Second Appeal No.933 of 2000 Special Grade Town Panchayat, Valliyoor through its Executive Officer ... Appellant Vs Arasi ... Respondent Prayer Second Appeal filed against the Judgment and Decree dated 13.12.1999 made in A.S. No.149 of 1997 on the file of the II Additional District Court, Tirunelveli, confirming the Judgment and Decree, dated 12.12.1995 made in O.S. 502 of 1993 on the file of the District Munsif Court, Valliyoor. !For Appellant ... Mr.S.Meenakshisundaram ^For Respondent ... No appearance :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
13.12.1999 passed in A.S. No.149 of 1997 on the file of the II Additional
District Court, Tirunelveli, confirming the Judgment and Decree, dated
12.12.1995 passed in O.S. 502 of 1993 on the file of the District Munsif Court,
Valliyoor, in decreeing the suit.
2. Heard the learned counsel for the appellant.
3. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
4. Broadly but briefly, precisely but narratively, the case of the
plaintiff as stood exposited from the plaint could be portrayed thus:
On 03.07.1986 she was appointed as permanent santitory worker in the
Valliyoor Town Panchayat, the defendant herein. Subsequently, on 03.11.1986 she
was terminated from service without adhering to the procedures. Thereupon she
filed O.S.No.1156 of 1988 in the District Munsif Court, Valliyoor and got order
of reinstatement. Thereupon appeal was filed in A.S.No.112 of 1991 in the
Additional Sub Court, Tirunelveli, which Court confirmed the Judgment and Decree
and thereupon she was reinstated in Service with effect from 19.02.1992 as per
order dated 14.02.1992. However, no back wages were paid to her. Thereupon she
filed the suit O.S.No.502 of 1993 in the District Munsif Court, Valliyoor for
declaration that she was entitled to get salary from September, 1986.
5. The trial Court framed the relevant issues. During trial, on the
side plaintiff, without oral evidence, Exs.A.1 to A.11 were marked and on the
side of the defendant D.W.1 was examined and Exs.B.1 and B.2 were marked.
Ultimately, the trial Court decreed the suit.
6. Challenging the said Judgment and decree of the trial Court, the
defendant preferred appeal in A.S.No.149 of 1997, which was dismissed, by
confirming the Judgment and Decree of the trial Court.
7. Being aggrieved by and dissatisfied with, the judgment and decree of
both the Courts below, the present second appeal has been filed on the grounds
inter alia thus:
The Civil Court had no jurisdiction to entertain the suit. In the
earlier the suit O.S.No.1156 of 1988 the same plaintiff has not claimed back
wages, even though it happened to be a consequential relief. Hence, the
subsequent suit claiming wages would not arise. Both the Courts below have
failed to note that she worked till 06.11.1986, despite the fact proved that she
was terminated from service. No appropriate Court Fee was paid for claim.
Accordingly, the defendant prays for setting aside the judgments and decrees of
both the Courts below.
8. At the time of admission of the Second Appeal, my learned Predecessor
framed the following question of law:
(1) Whether the Civil Court has got jurisdiction to decide the matter in
dispute since the dispute is a labour dispute and hence the suit is not
maintainable in law?
At the time of argument I found some more substantial questions of law could be
framed as per proviso 100 of C.P.C. as under:
Additional Substantial Questions of Law:
(1) Whether both the Courts below are erroneous in not applying the law
relating to
(a) Court fee.
(b) Framing of Suit.
(c) the embargo as embodied in Order 2 Rule 2 of C.P.C.
(ii) Whether the findings of both the Courts below are perverse?
Substantial Question of Law No:(1) and Additional Substantial Questions of Law
Nos.(1) and (2):
9. All these points are taken together for discussion as they are
interlinked and interconnected with one another.
10. At the outset I would like to point out that both the Courts below
simply turned their attention away from the relevant provisions of the Court
Fees Act. Following the Suit in O.S.No.1156 of 1988, the present suit O.S.No.502
of 1993 was filed for recovery of back wages. The Back wages are quantifiable
as such an ad-valorum Court fee ought to have been paid. But without resorting
to such a measure, the suit was filed simply for declaration, which cannot be
countenanced as per law. I would like to cite here Section 34 of the Specific
Releif Act, 1963.
34. Discretion of Court as to declaration of status of right. – Any person
entitled to any legal character, or any right as to any property, may institute
a suit against any person denying, or interested to deny, his title to such
character or right, and the Court may in its discretion make therein a
declaration that he is so entitled, and the plaintiff need not in such suit ask
for any further relief:
Provided that no Court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so.”
(emphasis supplied)
Even though consequential relief of recovery of back wages very much could be
prayed, here only the suit for declaration was filed. Both the Courts below
should have held that the suit instituted was prima-facie and ex-facie
untenable. Order 2 Rule 2 is extracted hereunder for ready reference.
“Order II Rule 2: Suit to include the whole claim. – (1) Every suit shall
include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any portion of
his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. – Where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim, he shall
not afterwards sue in respect of the portion so omitted or relinquished.
(3) Ommission to sue one of several reliefs.- A person entitled to more
than one relief in respect of the same cause of action may sue for all or any of
such reliefs; but if he omits, except with the leave of the Court, to sue for
all such reliefs, he shall not afterwards sue for any relief so omitted.”
As on the date of filing of the suit as well as during the pendency of the suit
the plaintiff was very much aware that she was not given with salary, in such a
case at the time of filing of the suit itself the plaintiff should have prayed
for the additional relief of payment of wages or atleast before the disposal of
the suit, necessary prayer should have been made. But it was not done so. Here a
bare prayer for declaration that she is entitled to back wages by no stretch of
imagination can be countenanced. As such the judgment and decree of both the
Courts below are perverse and no more elaboration in this regard is required.
11. For the purpose of comprehensively deciding the second appeal, I
proceed to deal with the other points also. Both the Courts below wrongly
relied on Ex.B.1 and B.2. Ex.B.1 is nothing but an application given by the
plaintiff seeking reinstatement based on the earlier judgment of the Court as
set out supra. In Ex.B.1 she never requested that she should be paid back
wages. Ex.A.3 is the reinstatement order in that clearly and categorically the
authority concerned stated that appointment should be treated as fresh
appointment. Without any demur she got reappointed also. Ex.B.2 is the
certified copy of the legal opinion given by the Government Pleader, consequent
upon the Additional Sub Court, Tirunelveli having rendered judgment in
A.S.No.112 of 2001 so to say in the earlier proceedings. The Government Pleader
opined that no second appeal need be filed further, and back wages need not be
paid also. An excerpt from it would run thus:
“There is no decree either by the lower Court or by the Appellate Court
for the payment of Salary to the said Arasi. She herself has not claimed the
salary in the said suit or in the appeal. Therefore is is enough for the
Panchayat to give employment to the said Arasi immediately without salary. If
she goes to Court and get a decree for salary, thereafter it can be paid and not
before it.”
Both the Courts below misunderstood as though the Government Pleader’s opinion
was that she was entitled to back wages from the Court. The Government Pleader
never expressed that the plaintiff was entitled to back wages, but he opined
that back wages could be paid, if at all she could get a decree for back wages.
The observation of the Sub Court in the previous A.S.No.112 of 1991 at paragraph
12 of its judgment is extracted hereunder:
“mt;tpjk; ePf;fk; bra;ag;gl;l cj;jut[ rl;lg;go bry;yhjjhYk; thjp bjhlh;e;J mBj
gq;rhaj;jpy; Jg;g[wt[ bjhHpyhspahfBt gzpahw;wp te;Js;sjhy; thjpf;F mth; Bfhhpago
cWj;Jf;fl;lis ghpfhuk; fpilf;fj;jf;fJ vd;W fpHik ePjpkd;wk; Kot[ fz;ljpy; ve;j
Fiwa[k; nUg;gjhf bjhpatpy;iy.”
(emphasis supplied)
Those words underlined above should not have been read in isolation by the
Court. No where the said Court gave any finding that she had been working as a
permanent servant on regular time scale of pay even after the termination from
service with effect from 03.11.1986. It could be only taken as a passing
remarks by the Court which should not be understood out of context. Had the Sub
court in A.S.No.112 of 1991 felt that she worked during the pendency of the
earlier proceedings it could have accordingly permitted her for amending relief
or permitted her to seek for additional relief for back wages. In fact DW1,
deposed that during the pendency of the earlier proceedings from may 1987 to
April 1988 she worked on part time basis.
12. Instead of both the Courts below looking for independent evidence
relating to the factum of she having allegedly worked, had assumed and presumed
and simply ordered declaration that she is entitled for back wages. Ex-facie and
prima-facie such a declaration is an un-executable one, and it is also against
law. The facts remains that after termination, the plaintiff had filed the
previous suit O.S.No.1156 of 1988 for setting aside such order of termination
and it is not known as to how both the Courts below could arrive at the
conclusion that she was an illiterate and she might not have known under what
capacity she signed the wage register etc. Apart from all these legal flaws
involved in the proceedings initiated by the plaintiff, she has not established
her right to claim wages. The recent decision of the Honourable Apex Court in
U.P. SRTC v. Mithu Singh reported in (2006) 7 Supreme Court Cases 180 could
fruitfully be cited. An excerpt from it would run thus:
“12. Since limited notice was issued with regard to payment of back wages,
we do not enter into the larger question whether the action of terminating the
services of the respondent was legal, proper and in consonance with law. But we
are fully satisfied that in the facts and circumstances of the case, back wages
should not have been awarded to the respondent workman. In several cases, this
Court has held that payment of back wages is a discretionary power which has to
be exercised by a Court/tribunal keeping in view the facts in their entirety and
neither straitjacket formula can be evolved nor a rule of universal application
can be laid down in such cases.”
13. Back wages is not a matter of course. In this case, the plaintiff has
asked for back wages on the ground that even for the period for which she has
not worked, she should be paid wages and it can not be countenanced. Between
the termination of Service on 03.11.1986 and reinstatement on 14.02.1992, she
claimed to have worked under the respondent and for that she wants back wages.
I am of the considered view that no person could take such a plea and that too
when the plaintiff and the defendant were fighting arms at length before the two
Courts earlier. Hence, there is no merit in the suit filed by the plaintiff.
The judgments and decrees of both the courts below, accordingly are liable to
be set aside.
14. A plea has raised about the competence of the Civil Court to award
back wage. I am of the opinion that it may not be correct. Section 9 of C.P.C.
would enable any one to file suit claiming wages, if at all the plaintiff is
entitled to it. Here the plaintiff is not entitle to claim back wages in view
of the discussion supra.
15. Accordingly, the substantial question of law is decided to the effect
that even though the Civil Court is having jurisdiction to entertain the suit
for recovery of back wages, yet so far this O.S.No.502 of 1993 is concerned it
ought not have been entertained by the trial Court as it was not properly framed
for the reasons set out supra. The Additional Substantial Question of Law (1)
is decided to the effect that the suit was not properly valued, and the framing
of suit is bad in law in addition to correct Court fee having been not paid. The
suit was not maintainable in view of order 2 Rule 2 of C.P.C. The
Additional Substantial question of Law (ii) is decided to the effect that in
view of Section 34 of the Specific Relief Act the Judgments and Decrees of both
the Courts below are perverse.
16. Accordingly, the Second Appeal is allowed setting aside the judgments
and decrees of the both the Courts below and ultimately the suit O.S.No.502 of
1993 on the file of the District Munsif Court, Valliyoor, is dismissed. In the
facts and circumstances of the case, there is no order as to the costs.
sj
To
1.The II Additional District Judge, Tirunelveli.
2.The District Munsif, Valliyoor.