Gram Panchayat, Dhamanda and another vs Tejmal and another

K.N. Shukal, J.—This is defendants second appeal.

Respondent No. 1 Tejmal had brought a suit against the present appellants and respondent No. 2 State of Madhya Pradesh for declaration that the order terminating his services was illegal and he was still in service of the appellants and for arrears of salary. The trial Court decreed plaintiff''s claim against the present appellants only. The claim against the State of Madhya Pradesh through Collector, Dhar was dismissed. The judgment and decree were confirmed by the learned District Judge, Dhar.

Tejmal, respondent No. 1 was appointed as Secretary of Gram Panchayat by order of the Collector dated 13th November 1962 (Ex. P-13). He was sent for training to a Government sponsored institute and he had executed a bond date 27-1-1965 (Ex. P-12) for serving as Secretary in the Gram Panchayat atleast for a period of three years. On 27-4-1967 Collector, Dhar terminated his services vide Order Ex. P-15. While plaintiff-respondent was in service and before his termination, he had sued the Collector and other Government servants for recovery of arrears of pay as he had not been paid his salary. While the suit was pending his services were terminated by order Ex. P-15 dated 27-4-1967.

It was suggested during arguments that the termination order was in the nature of punishment for the impudence of the plaintiff to sue the Collector and other government officers for recovery of arrears of pay. This, however, is not material for the disposal of the present appeal.

Plaintiff-respondent brought a suit out of which this second appeal arises, on 13-11-1969 against the State Government. However, during the pendency of the suit plaintiff filed an amendment application for impleading the present appellants Gram Panchayat Ahu and Gram Panchayat Dhamanda as defendants on the ground that he was working as Secretary to these two Gram Panchayats and was entitled to recover his pay from them. The amendment was allowed and the present appellants were aided as defendants on 10-5-74. This date is relevant because the appellants have contended that on the date of their joinder, the claim had become barred by limitation.

Learned trial Judge held that order dated 27-4-1967 terminating the services of the plaintiff was illegal and plaintiff was entitled to the declaration, and arrears of salary claimed by him against Gram Panchayats Ahu and Dhamanda (present appellants).

In appeal learned District-Judge confirmed the judgment and decree passed by the learned trial Judge. Before proceeding to deal with the various grounds raised in this appeal, I will mention that the present appellants remained absent before the trial Court and the decree passed against them was ex-parte.

Learned counsel for the appellants raised four grounds during arguments. First was that the Courts below erred in holding that the termination order was invalid being in contravention of rule 150 of the Madhya Bharat Panchayat Niyam, Samvat 2008 published in the Madhya Bharat Gazette dated 17th November 1951. Learned counsel argued that there was no specific pleading in the plaint to the effect that the termination order contravened rule 150 It was further argued that there was actually no contravention of rule 150 of the said Niyam and, therefore, the termination was perfectly valid. The third limb of the argument on the issue of validity of the termination order was that the conditions of employment of the plain-tiff were governed by bond Ex P-12 and the Madhya Bharat Niyam (supra) was not applicable.

There is no substance in these arguments. Perusal of paragraph 3 of the plaint showed that the termination order had been challenged on various grounds. One of them was that the Collector, Dhar had terminated plaintiffs services in contravention of the Madhya Bharat Panchayat Niyam, Samvat 2008, True there is no specific reference to rule 150 of the Niyam but the fact remains that breach of the rule had been specifically pleaded, There was thus no prejudice to the defendants-appellants when at the stage of trial and before the first Appellate Court the termination order was challenged by specific reference to rule 150 of the Panchayat Niyam. In fact the appellants did not take a ground in their memo of appeal to this Court that there was absence of such a pleading causing prejudice to the appellants.

Learned counsel for the appellants then invited my attention to rule 150 of the Madhya Bharat Panchayat Niyam and contended that the absence of three months'' notice merely entitled the plaintiff to recover three months salary but did not warrant a declaration that the termination order was itself invalid and the plaintiff should be deemed to be continued in service. Perusal of rule 150 shows that service of notice or payment of three months'' salary in lieu thereof is a condition precedent before termination of employment The opening words are crucial and indicate that a termination order to be valid must comply with the conditions laid down in the rule. The Supreme Court in Senior Superintendent, R. M. S, Coch n and another v. K. V. Gopinath, Sorter (AIR 1972 SC, 487) while interpreting analogous rule 5 of the Central Civil Ser-vices (Temporary Service) rules, 1965 observed that proviso to rule 5 is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order. This case was again followed by the Supreme Court in Raj Kumar Vs. Union of India (UOI) and Others, wherein it was held that "the payment is a condition of the termination of service forthwith."

Shri Garg, learned counsel for the appellants attempted to distinguish these two authorities by contending that the language in the Central Civil Services rules was different inasmuch as the payment had to be made "forthwith'''' This distinction cannot be accepted because in fact no such distinction exists. The word "forthwith" in the Central Civil Services Rules qualifies not payment but termination. It actually means that if the Government wants to terminate the services forthwith i.e. before the expiry of the period of notice, it has to make payment as a conduction precedent of termination.

As regards the argument that rule 150 of the Niyam was not applicable as plaintiff''s employment was governed by contract under the terms of the bond Ex. P-12; it is clear from perusal of the document that it is a bond by which the plaintiff who was sent for training at Government expenses, was bound to serve the Government atleast for a period of three years. This bond had nothing to do with the terms of plaintiff''s employment as secretary of the Panchayat and conditions of his service were governed by Chapter 9 of the Panchayat Niyam which provides for rules governing appointment and other conditions of service of the Panchayat employees.

The second ground urged on behalf of the appellant was that the suit was barred by limitation if the date of the suit was reckoned from the date on which the appellants were joined as defendants. It was argued that the Court below erred in applying the proviso to section 21(1) of the Limitation Act, 1963. Learned District Judge has considered this objection in paragraph 13 of his judgment. He found that the plaintiff acted under a mistake in good faith. It may be noted that earlier the plaintiff was labouring under the impression that he was a Government Servant There was some ambivalence in the legal advice rendered to him and it appears that the Advocate or Advocates appearing for him in the first suit which was instituted for recovery of salary and also in the present suit were not quite sure as to who was liable for payment of salary. This mistake could reasonably occur because the orders of appointment and termination were both passed by the Collector and not by the Gram Panchayat. It was, therefore, proper on the part of the learned District Judge to hold that proviso to section 21(1) of the Limitation Act was fully applicable to the facts of this case. It may be mentioned that the present appellants had been noticed before they were joined as defendants, they did not enter appearance and, therefore, the reasons for which they were joined as defendants as stated in plaintiff''s application for the purpose should be held good in proof of the fact that there was a bona fide mistake on his part for his failure to add the present appellants as defendants at the time of institution of the suit The finding of the learned District Judge that the suit as regards these defendants shall be deemed to have been instituted on the earlier date i.e. the date on which the plaint was filed, is upheld.

Third ground arged by the learned counsel for the appellants was that the plaintiff had instituted the suit as an indigent person and was permitted to do so. The appellants, however, when added as defendant at a later date did not get an opportunity of proving that the plaintiff was not an indigent person. Learned counsel contended that the Court below was wrong in holding that the question of exemption from payment of Court fees was a matter between the plaintiff and the State Government only. Accor-ding to him defendants also had a say in the matter and for this he relied on Shri M.L. Sethi Vs. Shri R.P. Kapur, The question before the Supreme Court had come up in a different context. Before permission is granted under Order 33 of the CPC and the application is treated as plaint, notice is necessary to the defendants already on record to show cause against such an application bat once the permission is granted and the application is converted into a plaint, any person added subsequently in the suit cannot seek re-opening of the question except under the provisions of Order 33 rule 9 of the Code by applying to dis-pauper the plaintiff. The appellants were free to do so after they were noticed and added as defendants. They chose to remain absent and it was not open for them now to claim that they had a right to be heard before the plaintiff was exempted from payment of Court fees. This objection, therefore, has no merit whatsoever.

Fourth and the last ground on which the appellants sought to avoid the decree was that the plaintiff was a Government Servant and only the State of Madhaya Pradesh was liable to pay arrears of salary As already noted these appellants did not enter any defence. The plea therefore, that the plaintiff was not their employee is not available to them. Learned counsel for the appellants however, argued that the issue whether the plaintiff was Government Servant or not bad been decided in the earlier suit (Civil suit No. 22-B of 1966) between the plaintiff and some Government Officers Collector, Chief Secretary etc.) and this operated as res-judicata. The argument is misconceived. The present appellants were not parties to the earlier suit and any decision in that suit could not operate as res-judicata between the plaintiff and the appellants. The plea of res-judicata has to be raised specially and material facts relevant therefore have to be averred before the same can be considered. Appellants never filed any written statement and, therefore, it was not open to them to raise this question at the appellate stage.

The discussion above clearly shows that the grounds urged by the learned counsel for the appellants challenging the decree passed by the learned District Judge have no merit and the appeal is liable to be dismissed.

In the result the appeal is dismissed with costs. Advocate''s fee according to the schedule, if certified.