Executive Director, Hindustan Paper Corporation and Others vs Ramyash Bind and Others

J.N. Sarma, J.—This appeal has been filed against the judgment dated 14.10.93 passed by learned Assistant District Judge. Hailakandi in Title Suit No. 44/93. As many as 33 persons filed a suit praying the following reliefs:

a) declaring that the Plaintiffs are eligible and entitled to be promoted to the upper supervisory pay scale of Rs. 2150-3850/- P.M. of the 2-Tier clubbed posts with all requisite benefits as per the existing corporation rules from the existing lower supervisory pay scale of Rs. 2000-3440/- P.M.

&

b) declaring that the Plaintiffs are entitled to get proper house rent, annual increments and leave benefits for the existing post of service with retrospective effects i.e. 1.1.87 as other non-technical promotee supervisors of the corporation on the same pay scale.

(c) declaring thatthenon-submissions of the names of the eligible Plaintiffs for due recommendation for promotion, batch by batch, in the D.P.C. session held in the year 1990-91-1992 respectively under the initiative of the Defendants No. 1 and 2 are illegal, void unconstitutional and repugnant to the natural justice and violation of corporation rules and further a direction to the defdt. No. 1 & 2 to submit the seniority lists of the Plaintiffs in the current D.P.C. session 1992 for recommendation of the names of Plaintiffs for promotions to the next higher pay scale W/e from the dates of previous respective dates of promotion from workmen to the lower supervisory pay scale, without hampering and interfering the Plaintiffs in their respective peaceful services within a period to be prescribed by the Court.

d) declaring that the ambiguous order issued from the office of Defendant No. 2 did. 1.8.91 respecting counting of seniority status of the Plaintiffs from the dale of redesignation did. 1.8.91 is illegal, void, unconstitutional, ineffective and repugnant to the corporation rules and tripartite settlement dtd. 27.6.91 & directing the defdts. to follow up and implement the departmental relevant rules and enforce the decisions of Tripartite settlements ''or the due promotion of the Plaintiffs, and its genuine privilege within a period to be prescribed by the Court.

e) issue temporary/permanent mandatory injunction against the deft. No. 1 and 2 from publishing (sic) of D.P.C. session 1992 scheduled to be published on 1.7.92, until further orders and directing the deft. Nos. 1 and 2, to prepare and submit a seniority list of the Plaintiffs to the current D.P.C. session of 1992 for recommendation of their due promotion with retrospective effect and publish the result within a lime to be prescribed by tins Court.

In this suit the following are the Defendants:

(i) The Executive Director, Hindustan Paper Corporation Ltd. Cachar Paper Mill, P.O. - Panchgram Dist. Hailakandi.

(ii) The Deputy General Manager (P & A) Hindustan Paper Coiporalion Ltd. Cachar Paper Mill, P.O Panchgram, District - Hailakandi.

(iii) The Chairman-cum-Managing Director Hindustan Paper Corporation Limited, Buby Building, 75-C, Park Street, Calcutta-700016, West Bengal.

A written statement was filed denying the allegations made in the plaint and specifically a plea was taken in paragraph-4 of the Written Statement, that the suit is highly bad for non-joinder of parties.

As many as S issues were framed. Bui the Issue of non-joinder was not framed and/or taken up. Witnesses were examined and a large number of documents were exhibited and the learned Assistant District judge decreed the suit, inter-alia, as follows:

(a) That the Plaintiffs are entitled to get the Upper Supervisory Pay Scale immediately after the date of their completion of two years service in the lower Supervisory Scale, individually. The Plaintiffs are entitled to get all the benefits ancillary to Lower Supervisory Scale and Upper Supervisory scale in respect of house rent, annual increments, leave benefits, etc. as per rules since their joining in the Lower Supervisory Scale. Discrimination in the matter of giving any pecuniary benefits in different categories of employees in the same scale is declared illegal. Ii is further declared that the cases of the Plaintiffs in respect of their induction in the Upper Supervisory Scale be not referred to the Departmental Promotion Committee. The Plaintiffs who after promotion to Lower Supervisory Scale has enjoyed benefits of workmen which are not entitled to the Lower Supervisory Scale are liable to have the benefits returned in terms of money to the Defendants by deduction from their dues/arrear dues. It is further declared that if over-time allowance given to the Plaintiffs'' is deducted from the dues of the Plaintiffs, the Plaintiffs must be given compensatory benefits for their rendering service by serving over-time; otherwise the overtime allowance given to the Plaintiffs be not realised by the Defendants.

I have heard Shri A.K. Phukan, learned Advocate for the Appellant and Shri D. Mazumdar, learned Advocate for the Respondents. In course of argument, Shri Phukan, learned Counsel for the Appellant states that a relief which has been given by the learned Assistant District Judge that the cases of the Plaintiffs in respect of induction to the Upper Supervisory Scale be not referred to the Departmental Promotion Committee is; against the prayers made by the Plaintiffs in their own plaint and that was not the prayer made by the Plaintiffs and this relief can be granted by the Trial Court at all.

The next point urged by Shri Phukan is regarding, the non jounder necessary parties. Shri Phukan draws my attention to the proviso to Order 1 Rule 9 of the CPC which provides that anything in this Rule shall not apply to nonjoinder of necessary parties meanings thereby that if the necessary party is not before the Court, the suit is liable to be dismissed on that ground alone and no relief what-so-ever can be granted by the Court. But it is settled law that even in the absence of necessary party the suit can be proceeded by allowing the Plaintiff to add necessary parties at the proper time and Court can exercise power for that purpose to do justice. The Legislature by adding the proviso though it fit to bring to an end of the litigation and the proviso to Order 1 Rule 9 of the CPC has barred the application of the rule to non-joinder of necessary I party.

Shri Phukan points out that the relief and the liability in terms of money shall be on the Corporation. But the Hindustan Paper Corporation Limited has not been made a party in this suit and only its officers have been made parties arid therefore though this objection was not specifically taken up, it is the duty/obligation of the Plaintiff to add necessary party m the absence of whom the suit can not proceed. In the instant case Plaintiffs did not implead the necessary party. In support of his contention Shri Phukan places eliance:

(i) 1993 (1) GLJ 102 ( The State of Kerala Vs. The General Manager, Southern Railway, Madras, Madras in paragraph-11 this Court pointed out as follows:

in that case there was a dispute between State of Kerala and Railways and the suit was filed without impleadng the Union of India. The Apex Court held that the Union of India, being the owner of the Railways merely because the General Manager was impleaded it would not be sufficient compliance of law and in the absence of the owner of the Railways, namely. Union of India the suit cannot proceed. Similarly, in the case in hand, merely because the Chairman and the Managing Director have been impleaded it would not be sufficient compliance with the provisions of law and not by impleading the Bank as a party, the provisions of the proviso of Order 1 Rule 9 CPC would be attracted. In other words the suit is bad for non-joinder of parties. In that particular case also the relief was granted against the Assam Co-operative Apex Bank Limited, but it was not made a party. But only the Chairman and Managing Director were impleaded as the party and this Court dismissed the suit on the ground of non-joinder. That matter of non-joinder was considered at the appeal stage and there a prayer was made that the Plaintiff be allowed to make the Assam Co-operative Apex Bank Limited a party, but that prayer was rejected by the Court stating this power should be exercised at the trial stage. It is the duty of the Plaintiff to know and ascertain whether a necessary party has been left out, when a suit is filed, it does not depend or is related with the objection of the Defendant.

(2) 1989 GHC Gauhati University v. Shri Bhabendra Nath Talukdar and Ors. where this Court pointed out that if necessary party is not added, the suit shall be dismissed. This Court further pointed out that in the case of a necessary party the Rule is not applicable in view of the proviso to Order 1 Rule 9. This Court further held that if a necessary party is not added the suit shall be dismissed, not by reason of the non-joinder of parties but because of the fact that no order can be passed effectively or no relief can be granted 10 the parties on records. That aspect of the matter has been considered by this Court in paragraph-11 of the judgment which is quoted below:

A reading of Rules 9 and 13 together indicates that except in the case of necessary party, non-joinder or misjoinder is not fatal to the suit, and that all the objections on the ground of non-joinder or misjoinder not taken at the earliest opportunity shall be deemed to have been waived. But in the case of a necessary party, these Rules are not applicable in view of the proviso to Rule 9. Therefore, in a suit, if a necessary party is not added, the suit shall be dismissed, not by reasons of the non-joinder of parties but because of the fact that no order can be passed effectively or no relief can be granted to the parties on records.

It is not necessary to consider The State of Kerala Vs. The General Manager, Southern Railway, Madras, inasmuch as that case has been considered and cited by this Court in 1993 (1) GLJ 102 (Assam Co-operative Apex Bank limited. Appellant v. Shri Tarun Kumar Chakravarty, Respondent).

(3) Smt. Sooraj and others Vs. S.D.O., Rchli and others, Respondents wherein paragraph-5 the Supreme Court, inter-alia, has pointed cut as follows:

The State has not been impleaded eo nomine as a party Defendant to the suit nor notice u/s 80 of CPC was issued to the State. The first Defendant is only a statutory authority under the Ceiling Act. Therefore, without impleading the State Government or the Collector and without issuing notice to the Government as enjoined u/s 80, the suit itself is not maintainable and is liable to be dismissed on this ground.

The Superme Court in paragraph-7 of the judgment has further pointed out as follows:

Though none of these questions have been raised nor deal with by the Courts below since they are pure questions of law untrammelled by any questions of facts we have adverted to and round that the suit, is not maintainable for these reasons.

It is the duty of the Court to see and find out whether necessary parties are impleaded or not. If the necessary party is not impleaded, the Court is to dismiss the suit on that ground alone. Otherwise the decree passed will be a futile decree.

(4) Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., P.M.A. Metropolitan and Ors. etc. etc. Appellants v. Moran Mar Marthoma and Anr. etc. etc. Respondents wherein in Para-graph-P the Supreme Court has pointed out, inter-alia, as follows:

(P) CPC (5 of 1908) Order 1 Rule 9 Necessary party-suit for declaration that Malankara Church was episcopal and not union of autonomous Churches - Declaration can not be given in absence of Parish Churches.

No declaration can be granted affecting the rights of Parish Churches in their absence nor can it be declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metropolitan or the Metropolitan of the concerned diocese, as the case may be. Indeed no such specific relief has been asked for in the suit and without impleading the affected parties, no declaration can be claimed by the Plaintiff''s that their Church is episcopal in nature, if that declaration means that it gives the Catholicos/Malankara Metropolitan/the Metropolitan of the diocese any title to or any control over the properties held by the Parish Churches

In the instant case the entire relief is sought for as against the Hindustan Paper Corporation Limited. But it has not made a party in the suit. So he judgment of the Apex Court reported in Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., shall squarely apply in the preset cafe.

On the other hand Sri Mazumdar, learned Advocate appearing for the "Respondents relied on Karuppaswamy and Others Vs. C. Ramamurthy, Respondent that is a case u/s 21(1) of the Limitation Act, This case does not help the Respondent. Shri Mazumdar has pointed out that if a party acts in good faith and had committed mistake in that frame of mind, one should not be vested with the power ending in dismissal of a suit. That observation made by the Supreme Court is in a different context and the context was that an application for substitution was filed and in that application for substitution some heirs were loft out and subsequently they were brought on record and the question was whether limitation will run as against them from dial dale or limitation will run from the death of the person. The Supreme Court pointed out that the limitation will run from the date on which the first state of affairs were brought in record.

Shri Mazumdar prays that the Hindustan Paper Corporation be added as a party in the case, it be impleaded even now, he intends to file an application under Order 1 Rule 9 of the Code of Civil Procedure. But in view of the decision of this Court mentioned above I am not inclined to accept this prayer and that also at the time of delivery of the judgment. So this appeal is allowed on this short ground alone and the suit of the Plaintiffs shall stand dismissed. The other points urged by Shri Phukan are not considered.

In the impugned judgment a benefit has been given that the overtime allowance given to the Plaintiffs be not realised. Shri Phukan assures and gives verbal undertaking that he win instruct his client to adhere to that part of the decree.