The Special Officer, The Rasipuram Silk Handlooms Weaver Cooperative Production & Sales Society Limited v. K.Raja

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.12.2009CORAM:THE HONOURABLE MS.JUSTICE R.MALAS.A.No.100 of 2003The Special Officer,The Rasipuram Silk Handlooms Weaver Cooperative Production & Sales Society Limited,Registered Number MS.A 18,No.4 & 5, Nagendra Street,Rasipuram Post, Namakkal District.(Cause Title accepted-Vide Order dated 9.1.2003 made in C.M.P.No.18934 of 2002) .. Appellant/Appellant/ DefendantVs.K.Raja .. Respondent/Respondent/ PlaintiffSecond Appeal filed under section 100 of CPC against thejudgment and decree dated 28.6.2002in A.S.No.132 of 2002 on thefile of the Principal District Court, Namakkal, against the judgmentand decree dated 21.3.1997 in O.S.No.368 of 1992 on the file of theDistrict Munsif Court, Rasipuram.For appellant : Mr.J.R.K.BhavanandamFor respondent: No appearance JUDGMENTThe appellant-defendant has filed the Second Appeal against thejudgment and decree dated 28.6.2002 in A.S.No.132 of 2002 on the fileof the Principal District Court, Namakkal, confirming the judgmentand decree dated 21.3.1997 in O.S.No.368 of 1992 on the file of theDistrict Munsif Court, Rasipuram. 2. The averments in the plaint are as follows:The respondent-plaintiff appeared for the interview for the postof Attender on 23.12.1991, vide appellant-defendant's letter dated https://hcservices.ecourts.gov.in/hcservices/

20.12.1991. His name was nominated along with others, to thedefendant, by the Assistant Director, Employment Office, Salem. Hewas appointed as Attender. He received the appointment order dated4.2.1992 from the defendant. He joined duty on 5.2.1992 as anAttender in the appellant-defendant-Society. He remitted a securitydeposit of Rs.1,000/- on 17.2.1992. He was working sincerely,honestly and worked to the utmost satisfaction of his superiors. Therespondent-plaintiff belongs to Backward Community. His appointmentorder does not contain any details as to whether he was appointedunder Backward Community quota or in excess of Backward Communityquota. The shortfall, if any in the Most Backward Community quota canbe rectified by the appellant-defendant by recruiting more personsfrom the Community concerned, but without any fault on the part ofthe plaintiff, he was told by the appellant-defendant on 29.9.1992that his services were terminated, alleging that there was ashortfall in the MBC quota. The respondent-plaintiff was recruited asper the Rules prescribed under the provisions of the Tamil Nadu Co-ooerative Societies Rules, 1988, through the District EmploymentExchange. The respondent-plaintiff had already discontinued his B.A.Degree course on 5.2.1992 in order to join the above post. Withouthis fault, the defendant is trying to terminate the plaintiff'sservices. The above action is highly illegal, unconstitutional and ingross violation of the defects due to reservation polity of theGovernment and those who have already been selected, have to beregularly appointed by creating additional post. Hence, the plaintifffiled the suit for injunction against the defendant restraining himfrom terminating the services of the appellant-defendant. But afterfiling of the written statement, the plaintiff amended the plaint fordeclaration that the alleged order dated 29.9.1992 terminating theplaintiff from the services from 30.9.1992 on the ground that hisappointment was made on 4.2.1992 in excess of quota for BC or againstthe quota for MBC, is arbitrary, null and void and also sought formandatory injunction to direct the defendant to reinstate theplaintiff in service from 30.9.1992. He prayed for a decree.3. The gist and essence of the written statement filed by thedefendant are as follows:The civil suit is not maintainable. This Court has nojurisdiction. The plaintiff was already terminated from service on30.9.1992. He was appointed as Attender. There is no necessity togive any details as to on what basis he was appointed. On 29.9.1992itself, the order of termination has been passed, and the plaintiffwas aware of the same. He was terminated in accordance with law.There were two vacancies in the Attender post and by the order passedon 11.11.1991 and 16.11.1992, a letter has been addressed to theDistrict Employment Officer to forward the eligible candidates. Itwas categorically stated that the post is only temporary and likelyto be continued beyond one year. The appellant-defendant received thelist of candidates and then only, interview was conducted. The https://hcservices.ecourts.gov.in/hcservices/ plaintiff as well as one Sakthi Doss were selected and they wereappointed. On 10.4.1992, they received letter from the DistrictEmployment Office, stating that they are not following the communalrotation. Since Sakthi Doss has been appointed in the OpenCompetition quota, and the respondent-plaintiff, who is in the BCcategory, was appointed under MBC quota and hence, he was terminatedfrom service. A resolution was passed on 29.9.1992 and terminationorder was passed. He refused to receive the termination order and hehas not attended the Office on 30.9.1992. So, the termination orderhas been communicated through Certificate of Posting. The plaintiffis entitled to file appeal under the Tamil Nadu Co-operativeSocieties Act before the Registrar and hence, he prayed for dismissalof the suit.4. After amendment of the plaint, the defendant filed additionalwritten statement. The gist of the same is as follows:The plaintiff is not entitled for declaration and mandatoryinjunction. The Civil Court has no jurisdiction. Since he wasterminated on 29.9.1992 and he filed amendment only in 1996, andhence, the suit is barred by limitation. The suit has been filedagainst the President of Rasipuram Silk Handloom Weavers Co-operativeProduction and Sale Society. The suit is not maintainable. The suitought to have been filed against the Secretary. Hence, he prayed fordismissal of the suit.5. The trial Court, after considering the averments both in theplaint and in the written statement, has framed four issues and sixadditional issues and considering the oral evidence of P.W.1, D.W.1,Exs.A-1 to A-5 and Exs.B-1 to B-8, decreed the suit as prayed for inthe plaint. The defendant preferred appeal and the learned firstappellate Judge, after considering the arguments, has framed fourpoints for determination and confirmed the judgment and decree of thetrial Court and dismissed the appeal. Against that, the presentSecond Appeal has been filed by the defendant. 6. At the time of admission of the Second Appeal, the followingsubstantial questions of law were framed for consideration:"(i) Whether the jurisdiction of Civil Court isexpressly barred under Section 156 of Tamil Nadu CooperativeSocieties Act and Industrial Disputes Act, since thetermination of the respondent from service attracted thedefinition of Industrial Dispute under Sec.2(k) of theIndustrial Disputes Act which meant any dispute ordifference between employees and employers, or betweenemployers and workmen or between workmen which is connectedwith the employment or non-employment or the terms ofemployment or with the condition of labour of any person.(ii) Whether the provisions of Sec.9 CPC bars the https://hcservices.ecourts.gov.in/hcservices/ filing of the suit in Civil Court and that the question ofemployment or non-employment was not civil in nature?(iii) Whether the finding of the lower Court isperverse on failure to appreciate oral or documentaryevidence regarding wrong appointment of the respondent forthe post of Attender ignoring communal reservation wellprotected under Article 15 of the Constitution of India?(iv) Whether the termination of service of therespondent was not in violation of principles of naturaljustice?(v) Whether the Civil Court has jurisdiction to try thesuit of the nature and decide upon the violation ofprinciples of natural justice?(vi) Whether the claim introduced by the amendment ofplaint beyond the period of 3 years was barred by limitationand that the amendment was subject to limitation?"7. The respondent as plaintiff filed the suit for declarationthat since he was appointed as Attender as per the order dated4.2.1992, and since he belongs to Backward Community, and as therewas an excess in the BC category and shortage in MBC category, he wasterminated from service and hence, he has come forward with the suitfor declaration that the termination order is null and void and alsofor mandatory injunction to direct the appellant-defendant to givereinstatement.8. The appellant as defendant resisted the suit stating that theCivil Court has no jurisdiction and they followed the procedures andthen only they terminated the respondent-plaintiff and hence, theyprayed for dismissal of the suit.9. The trial Court, after framing necessary issues andconsidering the oral and documentary evidence, came to the conclusionthat the termination order is null and void and granted the decree asprayed for in the plaint. Against that, the defendant preferredappeal and the first appellate Court has concurred with the findingsof both the trial Court and dismissed the appeal. Against that, thepresent Second Appeal has been preferred by the appellant-defendant.10. Learned counsel for the appellant-defendant would contendthat the Civil Court has no jurisdiction and the respondent-plaintiffought to have worked out his remedy only before the Registrar of Co-operative Societies or in Labour Court and not before the CivilCourt. Moreover, the appellant-defendant has specifically stated thatthey have followed the procedures laid down under the provisions ofthe Tamil Nadu Co-operative Societies Act and they ought to havefollowed the communal rotation, but since there was an excess in theBC quota, on communal rotation, to accommodate the MBC quotacandidate, the respondent-plaintiff was terminated. So, all theprocess had been done in accordance with law. The trial Court and the https://hcservices.ecourts.gov.in/hcservices/ first appellate Court has come to the wrong conclusion that the CivilCourt has jurisdiction to entertain the suit. The learned counsel forthe appellant-defendant further submitted that since the terminationorder has been issued on 29.9.1992, but the respondent-plaintiff madeamendment only on 6.6.1996 after three years, the suit itself is notmaintainable and is barred by limitation. He prayed for allowing theSecond Appeal.11. It is pertinent to note that the respondent-plaintiff hasnot appeared, even though he received the summons from this Court.12. Substantial question of law (i), (ii) and (v):First, we have to decide whether the Civil Court hasjurisdiction to entertain the suit. The admitted facts are that asper Ex.B-1, the appellant-defendant has received an officialmemorandum for filling up of two posts of Attenders and so, on11.11.1991, the appellant-defendant addressed a letter to theEmployment Officer to call for the list of eligible candidates and inturn, the appellant-defendant received a list from the EmploymentExchange as per Ex.B-3. Then, they conducted interview as seen fromEx.A-1 and the respondent-plaintiff received the same and attendedthe interview on 23.12.1991. He was appointed as per Ex.A-2appointment order, dated 4.2.1992. He also paid the security depositas per Ex.A-3 on 17.2.1992. So, from 5.2.1992 onwards, therespondent-plaintiff is in service till 29.9.1992.13. It is also admitted fact that as per Ex.B-4, on 10.4.1992,the appellant-defendant has received the letter, stating that theappointment of two Attenders has not been made in accordance with thecommunal rotation maintained by the Government and so, the appellant-defendant was directed to remove one person and appoint one MBCcandidate in that vacancy. It is also not disputed as the respondent-plaintiff has made such averment in the plaint. In pursuance of thesaid letter, another letter dated 14.5.1992—Ex.B-5, also has beenreceived by the appellant-defendant and in that letter also, it wasclearly stated that the rotation Nos.21 and 22 has been made for MBCand Open Competition candidates in the same place. In pursuance ofthe same, as seen from Ex.B-6 dated 29.9.1992, the resolution hasbeen passed to remove the respondent-plaintiff and the order has beenissued as per Ex.A-5. 14. At this juncture, learned counsel for the appellant-defendant relies on Section 156 of the Tamil Nadu Co-operativeSocieties Act, which deals with bar of jurisdiction of the CivilCourt, and Section 156 reads as follows:"Section 156: Bar of jurisdiction of Civil Courts--Notwithstanding anything contained in any other law for thetime being in force, no order or award passed, decision oraction taken or direction issued under this Act by anArbitrator, a Liquidator, the Registrar or an officer https://hcservices.ecourts.gov.in/hcservices/ authorised or empowered by him, the Tribunal or theGovernment or any officer subordinate to them, shall beliable to be called in question in any Court and noinjunction shall be granted by any Court in respect ofanything which is done or intended to be done by orunder this Act."15. While considering Section 156, it is true that thetermination order has been passed by the appellant-defendant. But itwas not issued for certain acts of commission or omission. But here,the termination order has been passed only on the basis of the letterreceived from the District Employment Officer for not following thecommunal rotation while giving appointment. So, the termination orderhas not been passed in accordance with the provisions of the TamilNadu Co-operative Societies Act. In the abovesaid circumstances, I amof the view that the Civil Court is not barred under Section 156 ofthe Tamil Nadu Co-operative Societies Act. Since the Civil Court isnot barred under Section 156 of the Tamil Nadu Co-operative SocietiesAct, no appeal is entertainable under the provisions of the TamilNadu Co-operative Societies Act. For the above reasons, thetermination of the respondent-plaintiff cannot also not be termed as'industrial dispute' under the provisions of the Industrial DisputesAct. 16. While it is appropriate to consider Section 9 of the CivilProcedure Code, as per which, the Civil Court has jurisdiction.Section 9 of the CPC reads as follows:"Section 9: Courts to try all civil suits unlessbarred:The Courts shall (subject to the provisionsherein contained) have jurisdiction to try all suits of acivil nature excepting suits of which their cognizance iseither expressly or impliedly barred."17. As already stated, the respondent-plaintiff has challengedthe termination order, which has not been passed for the acts ofcommission or omission by the respondent-plaintiff, but passed onlythe basis of the letter received from the District EmploymentExchange, stating that at the time when the respondent-plaintiff andanother person, by name Sakthi Doss, were appointed, the communalrotation has not been followed, and of them, one was appointed underOpen Category quota and another was appointed under MBC quota, butsince the respondent-plaintiff who was a BC category candidate, hewas removed from service by way of issuance of the termination order.In such circumstances, the Civil Court has jurisdiction to entertainthe suit. It is pertinent to note that a suit will lie fordeclaration that the removal of a person from the Chairmanship of theDistrict Board, by the State Government, was illegal and also forinjunction restraining the interference with the work as Chairman andthat the said suit is maintainable. https://hcservices.ecourts.gov.in/hcservices/

18. The first appellate Court has considered the decision ofthis Court reported in AIR 2000 Noc 82, Madras, (A-1663 AundipattiCo-operative Stores Ltd. Vs. The Dist. Munsif, Pariyakulam andothers), wherein, it was observed as follows: "The Tamil Nadu Co-operative Societies Act, 1983 isself contained Code wherein regarding the co-operativeactivities alien influence is averted giving powers to suchco-operative officials to effectively deal with in order tostreamline the co-operative activities wherever it isrequired and wherever it is necessary. While such being thescope and application of the said Act even so far as itsgeneral activities are concerned, it is unimaginable that asuit could be entertained in the civil Courts regardingdisciplinary proceedings instituted against its officials.Since always it is the special Act which prevails on thegeneral provisions of law and the subject being one which isdirectly covered under the Act and Rules, the bar ofjurisdiction of Civil Courts created under S.156 of the Actundoubtedly prevails and in application of the same, itshould be decided that the suit as instituted regardingdisciplinary proceedings against its officials and theorders of injunction granted therein and all such actsperpetrated on the part of the respondent should be declarednull and void and unenforceable in law as they are quiterepugnant to S.156 of the Act from the very institution ofthe suit itself."19. Moreover, it is pertinent to note that before issuance ofthe termination order, no notice has been issued to the respondent-plaintiff. The principles of natural justice has not been followed.He shall be terminated only after giving him a fair opportunity toput forth his defence and after reasonable notice before termination.When the basic right of the respondent-plaintiff is infringed and ifhe was arbitrarily terminated without following due process of law,the Civil Court can always step in to protect the right of theindividual. As per the decision of this Court reported in 1997 (1)CTC 4 (Somasundaram Vs. Liyakat Ali and another), which was relied onby the first appellate Court, the Civil Court has jurisdiction.20. So, I am of the opinion that the first appellate Court, inparagraph 14 of its judgment, has dealt that the Civil Court hasjurisdiction and when once the fundamental right of the individual isaffected, the Civil Court can interfere and set right the defects.Hence, I concur with the findings of the first appellate Court. https://hcservices.ecourts.gov.in/hcservices/

21. Substantial question of law (vi):Learned counsel for the appellant-defendant would contend thateven though the respondent-plaintiff was terminated on 29.9.1992, andhe filed the suit in time, but he amended the plaint only on6.6.1996, for a declaration that the termination order is illegal,and hence, the suit is barred by limitation.22. As per Article 58 of the Limitation Act, to obtain any otherdeclaration, the limitation period is three years, when the right tosue first accrues. Learned counsel for the appellant-defendant wouldcontend that as per Ex.A-5, the termination order has been issued on29.9.1992, but he made the amendment in the plaint only on 6.6.1996and hence, the suit is clearly barred by limitation. The abovesaidargument does not merit acceptance, because, when once the amendmentin the plaint has been carried out, it relates back to the originaldate of the filing of the suit. The suit was filed on 1.10.1992. Soeven though the amendment has been made on 6.6.1996, the amendmentreverts back to the date of filing, i.e. 1.10.1992 and hence, thesuit is well within time and hence, the suit is not barred bylimitation.23. Substantial questions of law (iii) and (iv):Even though other substantial questions of law have been raised,learned counsel for the appellant-defendant has not advanced anyargument on the substantial questions of law (iii) and (iv). Asalready discussed, after the appellant-defendant has got the list ofcandidates as per Ex.B-3, the respondent-plaintiff was called forinterview, as seen from Ex.A-1, and he attended interview and hereceived the appointment order as per Ex.A-2 and in Ex.A-2, it wasstated as follows: @ghh;it 2?y; fz;Ls;s gl;oaypy; mDg;gg;gl;l egh;fspd; gl;oaypd; go 23/12/91jp'fl;fpHik Kw;gfy; cld; Ms; neh;Kf njh;t[f;F M$uhd egh;fspy; jpU/nf/uh$h 10420-87vd;gth; v!;/v/18. ,uhrpg[uk; gl;L ifj;jwp berthsh; Tl;Lwt[ cw;gj;jp & tpw;gid r';fk;ypkpbl;lod; cld; Ms; gzpf;F njh;t[ bra;ag;gl;L 5/2/92 e; njjp Kjy; gzpakh;j;jg;gLfpwhh;/ghh;it 1?y; fz;l cjtp ,af;Feh; ifj;jwp kw;Wk; Jzp E}y; jpUr;br';nfhL mth;fsJcj;jput[f;Fl;gl;L ,tUf;F gpujpkhjk; U:/300-? (U:gha; Kd;D}W kl;Lk;) xl;L bkhj;jrk;gskhf tH';fg;gLk;/,th; gzpapy; nrUk; ehspypUe;J Xuhz;L fhyj;jpw;F jFjpfhz; gUtj;jpy;itf;fg;gLfpwhh;/@ 24. In the abovesaid Ex.A-2 appointment order, it was notstated that he was appointed temporarily and it was stated that the https://hcservices.ecourts.gov.in/hcservices/ respondent-plaintiff will be kept under probation for one year. So,in pursuance of Ex.A-2 appointment order, the respondent-plaintiffjoined duty on 5.2.1992. He also deposited security deposit as seenfrom Ex.A-3, on 17.2.1992. Before he was terminated from service, hewas not given opportunity. As already stated, he has not committedany misconduct or any act of omission or commission. The case of theappellant-defendant is that only communal rotation has not beenfollowed and so, on receipt of the letter from the DistrictEmployment Office, as per the instructions, the appellant-defendantwas forced to terminate one person and since Sakthi Doss has beenappointed in OC category, and since the respondent-plaintiff belongsto BC category, and since the post has to be given only to MBCcandidate, the respondent-plaintiff was terminated. Even in hiswritten statement, the appellant-defendant would contend that theappointment is only temporary. On a perusal of the appointment order,it is seen that the respondent-plaintiff was not appointedtemporarily, but regarding the probation period of the respondent-plaintiff has only been stated, i.e. it reads that, @,th; gzpapy; nrUk;ehspypUe;J Xuhz;L fhyj;jpw;F jFjpfhz; gUtj;jpy; itf;fg;gLfpwhh;/@ But, it is not the caseof the appellant-defendant that the respondent-plaintiff committedany irregularity. 25. In the above circumstances, since the respondent-plaintiffhas not committed any wrong, he will not be liable to be terminatedfrom services, and before termination, opportunity has also not beengiven. Hence, I am of the view that the respondent-plaintiff isentitled for declaration that the termination order is null and void.26. In Ex.A-5 termination order, it was stated that since Rajawas appointed in the place of MBC category, but he belongs to BCcategory, and so, he was terminated from service from 30.9.1992 inpursuance of the letter received from the District Employment Officerand in that letter, the authority has not stated anything about theperformance of the respondent-plaintiff.27. In the abovesaid circumstances, it is to be held that theappellant-defendant has not followed the procedures and issued thetermination order. The trial Court and the first appellate Court haveconsidered all the above aspects and came to the conclusion that theselection itself not being in accordance with the communal rotationbasis and for that, the respondent-plaintiff could not be terminated.I concur with the findings of both the Courts below. There is noperversity in the judgment and decree passed by both the Courtsbelow. Both the Courts below have considered all the materials andcame to the correct conclusion.28. Hence, the judgment and decree passed by both the Courtsbelow are hereby confirmed. The respondent-plaintiff is entitled to adeclaration and mandatory injunction as prayed for in the plaint. Two https://hcservices.ecourts.gov.in/hcservices/ months' time is granted to the appellant-defendant to reinstate therespondent-plaintiff. 29. With the above observations and direction, the Second Appealis dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Principal District Judge, Namakkal.2. The District Musnif, Rasipuram.3. The Section Officer, V.R. Section, High Court, Madras.+ 1 cc to Mr.J.R.K.Bhavanandam, Advocate, SR 71222Judgment in S.A.No.100 of 2003BVN (CO)RH (21.1.10)