Prem Singh vs Government of Haryana and Another

Swatanter Kumar, J.—Aggrieved from the judgment and decree passed by the learned Additional District Judge, Sonepat dated 31.5.1997, the appellant has filed this regular second appeal.

Plaintiff, appellant herein, was selected as a driver by the Haryana State and was appointed at Yamuna Nagar Depot at Naraingarh. The services of the plaintiff were terminated vide order dated 1.5.1990 by an order discontinuing the employment of the plaintiff simplicitor. The order was challenged on various grounds as it was non-speaking, was in violation of principles of natural justice and no enquiry was conducted while the order was punitive in nature. Appeal preferred by the appellant was also dismissed by the Transport Commissioner on 9.7.1990. The appellant served a notice u/s 80 of the CPC and thereafter filed the present suit.

The suit was contested by the defendants who raised preliminary objections in relation to valid service of a notice u/s 80 CPC; non-joinder and mis-joinder of necessary parties. On merits it was stated that the services of the appellant were terminated because his work was not found to be satisfactory. It was denied that any enquiry was needed. The order was violative of principles of natural justice. It was further stated that the plaintiff was on probation for two years and as his work was not satisfactory, his services were terminated during the probation period.

Based on the pleadings of the parties, the learned trial Court vide its order dated 16.10.1992 and 30.3.1994 framed the following issues :-

Whether the order dated 1.5.1990 passed by defendant No. 2 is illegal, null and void? If so, to what effect? OPP

1-A Whether the impugned order dated 1.5.1990 passed by defendant No. 2 and subsequent order passed by the appellate court in reference of the appeal are illegal, null and void on the grounds as mentioned in the plaint? OPP

Whether the written statement has not been properly verified by the defendants? If so, to what effect? OPP

Whether the plaintiff has no cause of action to file the present suit? OPD.

Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD

Whether this Court has not jurisdiction to try the suit? OPD

Whether the suit is bad for want to notice u/s 80 CPC? OPD.

Whether the plaintiff has not come with clean hands or has suppressed the material facts before filing the present suit? OPD.

Relief.

The learned trial Court decided issues No. 1 and 1-A in favour of the plaintiff, thus, holding that the impugned order of termination and the order rejecting the appeal of the appellant were illegal and bad in the eyes of law. While learned trial Court answered issue No. 2 against the plaintiff it also decided issues No. 3, 4 and 7 against the defendants. The learned trial Court on issue No. 5 held that as the plaintiff was appointed at Yamuna Nagar Depot, the impugned order was passed when the plaintiff was posted at Naraingarh, therefore, no cause of action or part thereof had arisen within the territorial jurisdiction at the Courts at Gohana. As such the Court had no territorial jurisdiction to entertain and decide the suit. Consequently, it dismissed the suit vide judgment and decree dated 19J2.1994. The plaintiff preferred first appeal before the learned Additional District Judge, Sonepat, who also dismissed the appeal for the same reason while affirming the findings arrived at by the learned trial Court on all the issues vide its judgment and decree dated 31.5.1997 giving rise to this regular second appeal.

It will be appropriate to refer to the concurrent decision of the learned Courts below on the question of territorial jurisdiction which was answered in the negative against the appellant. The relevant part of the judgment reads as under-

"The plaintiff was an employee of the Haryana State. He was appointed as driver by General Manager, Haryana Roadways, Yamuna Nagar, vide order dated 22.1.1990. His services were also terminated by General Manager.Haryana Roadways, Yamuna Nagar by order dated 1.5.1990. From the copy of the letter of Transport Manager, Haryana Roadways Depot, Naraingarh Ex.D-5 and the copy of acknowledgement Ex.D-6, it would appear that the order dated 1.5.1990 terminating the services of the plaintiff was received by the plaintiff on 9.5.1990 at Naraingarh. So no part of the cause of action arose at Gohana. The cause of action to bring the suit accrued to the plaintiff at Yamuna Nagar, where his services were terminated and where the office of the Officer who appointed him and who terminated his services is situated. The authorities cited by learned counsel for the appellant are not relevant in the circumstances of the case and are of no help to the plaintiff. "

For the reasons discussed above, no fault can be found with the finding of the learned lower court that it had no territorial jurisdiction to entertain and decide the suit. This appeal has, therefore, no force and it is accordingly dismissed with no orders as to costs. Decree sheet be drawn accordingly and file be consigned to the record room."

The only issue answered against the plaintiff is with regard to the territorial jurisdiction of the Courts at Gohana and consequently at Sonepat. This issue has been answered against the plaintiff mainly on the ground that no cause of action or part thereof had arisen within the territorial jurisdiction of that Court, the case of the plaintiff being that he is resident of Gohana and the impugned order was served upon him at his place of residence.

This finding of the learned Courts below does not appear to be correct in view of the statement of the plaintiff on oath. Firstly, the plaintiff had made a specific averment in the plaint that order of termination was served upon him at his place of residence and secondly while appearing as his own witness he had clearly stated that the order/information of termination of his services was given to him at his house. He had also proved his notice u/s 80 C.P.C. which was Ex.P.3. It is interesting to note that in his entire cross examination not even a suggestion was put to this witness that the order of termination was served on him while he was in service at Naraingarh or at Yamuna Nagar. Rather, in his cross examination he had stated that he was on leave when the notice was served upon him. Mr. Subhash Chander, Clerk, who appeared as the only witness of the department, even did not say in his examination in chief that the order of termination was served at Naraingarh. In his cros6 examination he clearly admitted that copy of order of termination Ex.P.2 was sent to Prem Singh at Village address in Gohana, District Sonepat. The order of termination was served from the Naraingarh Office.

The learned Courts below have committed an error apparent on the face of the record and have ignored a material piece of evidence which has come on record from both sides. There is definite admission on the part of the defendants and a certain pleading on behalf of the plaintiff that the order of termination was served on the plaintiff at his village in Gohana. Once this fact is established on record it cannot be said by any stretch of imagination that the Courts at Gohana had no jurisdiction to entertain and decide the suit in accordance with law.

The judgment of the learned courts below suffer from an apparent infirmity of law as well. If the Courts had come to a concurrent conclusion that they had no territorial jurisdiction. The learned Courts could have no occasion to comment upon the merit of the case and decide issues on merits. They ought to have returned the plaint for presentation before the Court of competent jurisdiction. It is a settled principle of law that if the Court have no territorial jurisdiction, the proper course under the provisions of Order 7 Rule 10 C.P.C. would be return of the plaint for its presentation to the Court of competent jurisdiction. Courts would normally refrain from determining and deciding the controversy on merits of the case. To my mind the learned Courts below have fallen in error of jurisdiction as wail in not returning the plaint and further deciding the controversy on merits. Viewed even from this angle the judgment of the Courts below are open to interference and are liable to be set aside.

The result of the above discussion is that the findings of the learned Courts below on issue No. 5 are set aside and it is held that the Courts at Gohana had territorial jurisdiction to entertain and decide the suit. As such the issue is answered against the defendants and in favour of plaintiff.

The State has filed no cross objections nor has challenged the impugned judgment on other issues before this Court. Even during the course of arguments nothing was pressed by the learned counsel for the state to contend that the findings on Issues No. 1, 1-A, 3, 4 and 6 are not sustainable.....Both the courts below have come to a concurrent finding of fact and upon appreciation of evidence have held that the impugned orders of termination of the petitioner are illegal, unjust and are liable to be set aside. Firstly. there is no challenge to the findings on this issue and secondly I find no reason to interfere with the findings of the learned courts below.

Consequently the appeal is allowed. The judgment of the Courts below are modified to the limited extent that issue No. 5 is also answered in favour of the plaintiff. As rest of the issues were already decided by both the learned Courts below in favour of the plaintiff which findings are also affirmed in this appeal, consequently, the suit for declaration filed by the plaintiff is decreed. The impugned order Ex.P.2 dated 5.9.1990 is hereby set aside. The plaintiff will be entitled to the consequential benefits.

Decree sheet be drawn accordingly.