{"id":310,"date":"2008-02-08T00:00:00","date_gmt":"2008-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/special-grade-town-panchayat-vs-arasi-on-8-february-2008"},"modified":"2017-01-27T14:48:20","modified_gmt":"2017-01-27T09:18:20","slug":"special-grade-town-panchayat-vs-arasi-on-8-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/special-grade-town-panchayat-vs-arasi-on-8-february-2008","title":{"rendered":"Special Grade Town Panchayat vs Arasi on 8 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Special Grade Town Panchayat vs Arasi on 8 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 08\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nSecond Appeal No.933 of 2000\n\nSpecial Grade Town Panchayat,\nValliyoor through its\nExecutive Officer\t\t\t\t\t... Appellant\n\nVs\n\nArasi\t\t\t\t\t\t\t... Respondent\n\n\nPrayer\n\nSecond Appeal filed against the Judgment and Decree dated 13.12.1999\nmade in A.S. No.149 of 1997 on the file of the II Additional District Court,\nTirunelveli, confirming the Judgment and Decree, dated 12.12.1995 made in O.S.\n502 of 1993 on the file of the District Munsif Court, Valliyoor.\n\n!For Appellant     \t... Mr.S.Meenakshisundaram\n\n^For Respondent\t\t... No appearance\n\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is focussed as against the  judgment and decree dated
\n13.12.1999 passed in A.S. No.149 of 1997 on the file of the II Additional
\nDistrict Court, Tirunelveli, confirming the Judgment and Decree, dated
\n12.12.1995 passed in O.S. 502 of 1993 on the file of the District Munsif Court,
\nValliyoor, in decreeing the suit.\n<\/p>\n
\t2. Heard the learned counsel for the appellant.\n<\/p>\n
\t3. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t4. Broadly but briefly, precisely but narratively, the case of the
\nplaintiff as stood exposited from the plaint could be portrayed thus:
\n\tOn 03.07.1986 she was appointed as permanent santitory worker in the
\nValliyoor Town Panchayat, the defendant herein.  Subsequently, on 03.11.1986 she
\nwas terminated from service without adhering to the procedures.  Thereupon she
\nfiled O.S.No.1156 of 1988 in the District Munsif Court, Valliyoor and got order
\nof reinstatement.  Thereupon appeal was filed in A.S.No.112 of 1991 in the
\nAdditional Sub Court, Tirunelveli, which Court confirmed the Judgment and Decree
\nand thereupon she was reinstated in Service with effect from 19.02.1992 as per
\norder dated 14.02.1992.  However, no back wages were paid to her.  Thereupon she
\nfiled the suit O.S.No.502 of 1993 in the District Munsif Court, Valliyoor for
\ndeclaration that she was entitled to get salary from September, 1986.\n<\/p>\n
\t5.  The trial Court framed the relevant issues.   During trial, on the
\nside plaintiff, without oral evidence,  Exs.A.1 to A.11 were marked and on the
\nside of the defendant D.W.1 was examined and Exs.B.1 and B.2 were marked.
\nUltimately, the trial Court decreed the suit.\n<\/p>\n
\t6. Challenging the said Judgment and decree of the trial Court, the
\ndefendant preferred appeal in A.S.No.149 of 1997, which was dismissed, by
\nconfirming the  Judgment and Decree of the trial Court.\n<\/p>\n
\t7. Being aggrieved by and dissatisfied with, the judgment and decree of
\nboth the Courts below, the present second appeal has been filed on the grounds
\ninter alia thus:\n<\/p>\n
\tThe\tCivil Court had no jurisdiction to entertain the suit. In the
\nearlier the suit O.S.No.1156 of 1988 the same plaintiff has not claimed back
\nwages,  even though it happened to be a consequential relief.  Hence, the
\nsubsequent suit claiming wages would not arise.  Both the Courts below have
\nfailed to note that she worked till 06.11.1986, despite the fact proved that she
\nwas terminated from service. No appropriate Court Fee was paid for claim.
\nAccordingly, the defendant prays for setting aside the judgments and decrees of
\nboth the Courts below.\n<\/p>\n
\t8. At the time of admission of the Second Appeal, my learned Predecessor
\nframed the following question of law:\n<\/p>\n
\t(1) Whether the Civil Court has got jurisdiction to decide the matter in
\ndispute since the dispute is a labour dispute and hence the suit is not
\nmaintainable in law?\n<\/p>\n
At the time of argument I found some more substantial questions of law could be
\nframed as per proviso 100 of C.P.C. as under:\n<\/p>\n
Additional Substantial Questions of Law:\n<\/p>\n
\t(1) Whether both the Courts below are erroneous in not applying the law
\nrelating to\n<\/p>\n
\t(a) Court fee.\n<\/p>\n
\t(b) Framing of Suit.\n<\/p>\n
\t(c) the embargo as embodied in Order 2 Rule 2 of C.P.C.\n<\/p>\n
(ii) Whether the findings of both the Courts below are perverse?\n<\/p>\n
Substantial Question of Law No:(1) and Additional Substantial Questions of Law
\nNos.(1) and (2):\n<\/p>\n
\t9. All these points are taken together for discussion as they are
\ninterlinked and interconnected with one another.\n<\/p>\n
\t10. At the outset I would like to point out that both the Courts below
\nsimply turned their attention away from the relevant provisions of the Court
\nFees Act. Following the Suit in O.S.No.1156 of 1988, the present suit O.S.No.502
\nof  1993 was filed for recovery of back wages. The Back wages are quantifiable
\nas such an ad-valorum Court fee ought to have been paid.  But without resorting
\nto such a measure, the suit was filed simply for declaration, which cannot be
\ncountenanced as per law.    I would like to cite here Section 34 of the Specific
\nReleif Act, 1963.\n<\/p>\n
\t34. Discretion of Court as to declaration of status of right. – Any person
\nentitled to any legal character, or any right as to any property, may institute
\na suit against any person denying, or interested to deny, his title to such
\ncharacter or right, and the Court may in its discretion make therein a
\ndeclaration that he is so entitled, and the plaintiff need not in such suit ask
\nfor any further relief:\n<\/p>\n
\tProvided that no Court shall make any such declaration where the
\nplaintiff, being able to seek further relief than a mere declaration of title,
\nomits to do so.”\n<\/p>\n
(emphasis supplied)
\nEven though consequential relief of recovery of back wages very much could be
\nprayed, here only the suit for declaration was filed. Both the Courts below
\nshould have held that the suit instituted was prima-facie and ex-facie
\nuntenable.  Order 2 Rule 2 is extracted hereunder for ready reference.
\n“Order II Rule 2: Suit to include the whole claim. – (1) Every suit shall
\ninclude the whole of the claim which the plaintiff is entitled to make in
\nrespect of the cause of action; but a plaintiff may relinquish any portion of
\nhis claim in order to bring the suit within the jurisdiction of any Court.\n<\/p>\n
\t(2) Relinquishment of part of claim. – Where a plaintiff omits to sue in
\nrespect of, or intentionally relinquishes, any portion of his claim, he shall
\nnot afterwards sue in respect of the portion so omitted or relinquished.
\n\t(3) Ommission to sue one of several reliefs.- A person entitled to more
\nthan one relief in respect of the same cause of action may sue for all or any of
\nsuch reliefs; but if he omits, except with the leave of the Court, to sue for
\nall such reliefs, he shall not afterwards sue for any relief so omitted.”
\nAs on the date of filing of the suit as well as  during the pendency of the suit
\nthe plaintiff was very much aware that she was not given with salary, in such a
\ncase at the time of filing of the suit itself the plaintiff should have prayed
\nfor the additional relief of payment of wages or atleast before the disposal of
\nthe suit, necessary prayer should have been made. But it was not done so. Here a
\nbare prayer for declaration that she is entitled to back wages by no stretch of
\nimagination can be countenanced.  As such the judgment and decree of both the
\nCourts below are perverse and no more elaboration in this regard is required.\n<\/p>\n
\t11. For the purpose of comprehensively deciding the second appeal, I
\nproceed to deal with the other points also.  Both the Courts below wrongly
\nrelied on Ex.B.1 and B.2.  Ex.B.1 is nothing but an application given by the
\nplaintiff seeking reinstatement based on the earlier judgment of the Court as
\nset out supra.  In Ex.B.1 she never requested that she should be paid back
\nwages.  Ex.A.3 is the reinstatement order in that clearly and categorically the
\nauthority concerned stated that appointment should be treated as fresh
\nappointment. Without any demur she got reappointed also.  Ex.B.2 is the
\ncertified copy of the legal opinion given by the Government Pleader, consequent
\nupon the Additional Sub Court, Tirunelveli having rendered judgment in
\nA.S.No.112 of 2001 so to say in the earlier proceedings. The Government Pleader
\nopined that no second appeal need be filed further, and back wages need not be
\npaid also.  An excerpt from it would run thus:\n<\/p>\n
\t“There is no decree either by the lower Court or by the Appellate Court
\nfor the payment of Salary to the said Arasi.  She herself has not claimed the
\nsalary in the said suit or in the appeal.  Therefore is is enough for the
\nPanchayat to give employment to the said Arasi immediately without salary.  If
\nshe goes to Court and get a decree for salary, thereafter it can be paid and not
\nbefore it.”\n<\/p>\n
Both the Courts below misunderstood as though the Government Pleader’s opinion
\nwas that she was entitled to back wages from the Court.  The Government Pleader
\nnever expressed that the plaintiff was entitled to back wages, but he opined
\nthat back wages could be paid, if at all she could get a decree for back wages.
\nThe observation of the Sub Court in the previous A.S.No.112 of 1991 at paragraph
\n12 of its judgment is extracted hereunder:\n<\/p>\n
“mt;tpjk; ePf;fk; bra;ag;gl;l cj;jut[ rl;lg;go bry;yhjjhYk; thjp bjhlh;e;J mBj
\ngq;rhaj;jpy; Jg;g[wt[ bjhHpyhspahfBt gzpahw;wp te;Js;sjhy; thjpf;F mth; Bfhhpago
\ncWj;Jf;fl;lis ghpfhuk; fpilf;fj;jf;fJ vd;W fpHik ePjpkd;wk; Kot[ fz;ljpy; ve;j
\nFiwa[k; nUg;gjhf bjhpatpy;iy.”\n<\/p>\n
(emphasis supplied)
\nThose words underlined above should not have been read in isolation by the
\nCourt.  No where the said Court gave any finding that she had been working as a
\npermanent servant on regular time scale of pay even after the termination from
\nservice with effect from 03.11.1986.  It could be only taken as a passing
\nremarks by the Court which should not be understood out of context.  Had the Sub
\ncourt in A.S.No.112 of 1991 felt that she worked during the pendency of the
\nearlier proceedings it could have  accordingly permitted her for amending relief
\nor permitted her to seek for additional relief for back wages.  In fact DW1,
\ndeposed that during the pendency of the earlier proceedings from may 1987 to
\nApril 1988 she worked on part time basis.\n<\/p>\n
\t12. Instead of both the Courts below looking for independent evidence
\nrelating to the factum of she having allegedly worked, had assumed and presumed
\nand simply ordered declaration that she is entitled for back wages. Ex-facie and
\nprima-facie such a declaration is an un-executable one, and it is also against
\nlaw.  The facts remains that after termination, the plaintiff had filed the
\nprevious suit O.S.No.1156 of 1988 for setting aside such order of termination
\nand it is not known as to how both the Courts below could arrive at the
\nconclusion that she was  an illiterate and she might not have known under what
\ncapacity she signed the wage register etc.   Apart from all these legal flaws
\ninvolved in the proceedings initiated by the plaintiff, she has not established
\nher right to claim wages.  The recent decision of the Honourable Apex Court in
\nU.P. SRTC v. Mithu Singh reported in (2006) 7 Supreme Court Cases 180 could
\nfruitfully be cited.  An excerpt from it would run thus:
\n\t“12. Since limited notice was issued with regard to payment of back wages,
\nwe do not enter into the larger question whether the action of terminating the
\nservices of the respondent was legal, proper and in consonance with law.  But we
\nare fully satisfied that in the facts and circumstances of the case, back wages
\nshould not have been awarded to the respondent workman.  In several cases, this
\nCourt has held that payment of back wages is a discretionary power which has to
\nbe exercised by a Court\/tribunal keeping in view the facts in their entirety and
\nneither straitjacket formula can be evolved nor a rule of universal application
\ncan be laid down in such cases.”\n<\/p>\n
\t13. Back wages is not a matter of course. In this case,  the plaintiff has
\nasked for back wages on the ground that even for the period for which she has
\nnot worked, she should be paid wages and it can not be countenanced.  Between
\nthe termination of Service on 03.11.1986 and reinstatement on 14.02.1992, she
\nclaimed to have worked under the respondent and for that she wants back wages.
\nI am of the considered view that no person could take such a plea and that too
\nwhen the plaintiff and the defendant were fighting arms at length before the two
\nCourts earlier.  Hence, there is no merit in the suit filed by the plaintiff.
\nThe judgments and decrees of both the courts below, accordingly  are liable to
\nbe set aside.\n<\/p>\n
\t14.  A plea has raised about the competence of the Civil Court to award
\nback wage. I am of the opinion that it may not be correct. Section 9 of C.P.C.
\nwould enable any one to file suit claiming wages, if at all the plaintiff is
\nentitled to it.  Here the plaintiff is not entitle to claim back wages in view
\nof the discussion supra.\n<\/p>\n
\t15.  Accordingly, the substantial question of law is decided to the effect
\nthat even though the Civil Court is having jurisdiction to entertain the suit
\nfor recovery of back wages, yet so far this O.S.No.502 of 1993 is concerned it
\nought not have been entertained by the trial Court as it was not properly framed
\nfor the reasons set out supra.  The Additional Substantial Question of Law (1)
\nis decided to the effect that the suit  was not properly valued, and the framing
\nof suit is bad in law in addition to correct Court fee having been not paid. The
\nsuit was not maintainable in view of order 2 Rule 2 of C.P.C.\t The
\nAdditional Substantial question of Law (ii) is decided to the effect that in
\nview of Section 34 of the Specific Relief Act the Judgments and Decrees of both
\nthe Courts below are perverse.\n<\/p>\n
\t16. Accordingly, the Second Appeal is allowed setting aside the judgments
\nand decrees of the both the Courts below and ultimately the suit O.S.No.502 of
\n1993 on the file of the District Munsif Court, Valliyoor, is dismissed.  In the
\nfacts and circumstances of the case, there is no order as to the costs.\n<\/p>\n
sj<\/p>\n
To<\/p>\n
1.The II Additional District Judge, Tirunelveli.\n<\/p>\n
2.The District Munsif, Valliyoor.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Special Grade Town Panchayat vs Arasi on 8 February, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-310","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSpecial Grade Town Panchayat vs Arasi on 8 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/special-grade-town-panchayat-vs-arasi-on-8-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Special Grade Town Panchayat vs Arasi on 8 February, 2008 - 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