Srimati Suryamoni Nayak vs Rakhal Chandra Mohapatra

R.N. Misra, J.—The Plaintiff is in appeal against the reversing decree of the learned Subordinate Judge of Balasore.

The Plaintiff was working as a teacher in the Hemaprava Girl''s High School, Sora. She had joined the school as an untrained matriculate

teacher when the school had not been upgraded and was a middle English school. On 21-7-1970, Plaintiff''s services were terminated with effect

from the afternoon of the following day by Defendant who happens to be the Secretary of the said school. Plaintiff Instituted the suit on 7-9-l970

on the allegation that the order of termination is illegal, invalid, discriminatory, malafide and without the authority of the Managing Committee and

contrary to the provisions of the Orissa Education Code.

The Defendant claimed that the suit was bad for nonjoinder of parties. It was claimed that a month before termination of the services of the

Plaintiff, she had been informed that her services would be dispensed with unless she underwent training. The Plaintiff informed on 17th of July,

1970 that she was not in a position to undergo training as she had a young child to look after. The Managing Committee duly passed resolution on

17-5-1970 for termination of services of the Plaintiff in case she, declined to undergo training. The services of the Plaintiff had been; duly

terminated and as such the suit was not maintainable.

The learned Munsif came to find that the Plaintiff had a permanent post and as such the order of termination was void, inoperative and malicious.

Accordingly he decreed the suit and held that the Plaintiff must be deemed to be continuing in service with full benefits of salary and other

perquisites. The Defendant has restrained permanently from dispensing with the services of the Plaintiff.

The learned. Appellate Judge came to hold that the Plaintiff was not a permanent teacher of the school. Be next held that personal service could

not be enforced as ''has been'' done under the decree of the trial Court. Relying on Ext. A, he came to the conclusion that the Plaintiff and another

teacher had been asked to go for training and unless they went for the training, their services were to be terminated. On these findings, the lower

appellate Court reversed the decree of the trial Court and dismissed the suit. The reversing decree is now under challenge.

Issue No. 3 of the trial Court had been struck on the defence plea that the suit was bad for non-joinder of parties. According to the Defendant,

members of the Managing Committee were necessary parties. The learned Trial Judge held:

The Plaintiff has no grievance against the managing committee, because of her services have not been terminated by a resolution of the managing

committee. The Managing Committee should not be held liable for the wrong committed by the Secretary behind their back. The Plaintiff is not

seeking for any relief against the Managing Committee. This is not a suit to enforce contract of service. The Plaintiff is aggrieved by the illegal action

taken by the Defendant. Therefore, the Managing Committee is not a necessary party, much less a proper party. Moreover, no suit shall be

dismissed for non-joinder or mis-joinder of parties. This issue is, therefore, answered in the negative.

In the judgment of the lower appellate Court, there does not appear to be any pointed discussion on this aspect of the matter. In the written

statement, Defendant had pleaded that there was a resolution of the Managing Committee authorising the termination of Plaintiff''s service. Ext. K

has been produced as the supporting resolution. Resolution No. 5 of the meeting dated 17-5-1970 when translated into English reads thus:

In terms of the letter of the Inspector of Schools, Northern Range, Cuttack, bearing No. 1539 dated 18-3-1969/21. 7/69, the two lady teachers

Smt. Suryamani Nayak (Plaintiff) and Smt. Karjidan Bibi are directed to proceed for training at the commencement of the ensuring educational

year and they be relieved. The Secretary is authorised to relieve these two teachers who are untrained from the beginning of the next academic

year and to fill up the vacancies by appointment of properly trained teachers.

In the face of such pleading, it is difficult to accept the Plaintiff''s case that the Defendant. Secretary of the school was the author of the order of

termination. If the Plaintiff''s services are to be restored it can be done only upon declaration that the resolution of the Managing Committee is bad.

The members of the Managing Committee are, therefore, necessary parties to the litigation when the resolution of the Managing Committee is

assailed. The Plaintiff has not taken any steps to bring the members of the Managing Committee on record. I am of the view that the Managing

Committee and its members should have been impleaded as Defendants.

It is true that under Order 1, Rule 9 of the Code of Civil Procedure, it has been provided:

No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy

so far as regards the rights and interests of the parties actually before it,

Order 1, Rule 9 is a rule of procedure and does not affect the substantive law. If the decree cannot be effective without the absent parties, the suit

becomes liable to be dismissed. In the instant case, until the resolution of the Managing Committee is not vacated, the Plaintiff cannot be restored

to service because the actual decision to terminate her service is of the Managing Committee and the Defendant-Secretary had only communicated

the decision. The decree against the Secretary would create an anomalous situation, namely, the resolution of the Managing Committee requiring

the Plaintiff''s services to be terminated would be in force and yet the direction of the Secretary terminating the services of the Plaintiff would stand

superseded. Objection on such score had been taken in the written statement. The Plaintiff did not take appropriate action to implead the

Managing Committee and its members notwithstanding such objection in the trial Court. At the trial, Ext. K was produced. Even if steps for

addition of parties had not been taken at the first instance, it could have been taken when the matter was still in the trial Court. The Plaintiff chose

to keep indifferent and must now suffer the consequences. I would accordingly conclude that the Plaintiff''s suit is not maintainable in the absence of

the Managing Committee and its members who are necessary parties to the litigation and in the facts of the case her suit became liable to be

dismissed.

It is unnecessary to examine the stand of the Plaintiff that the provisions of the Specific Relief Act have no application because statute regulates

the terms of employment of the Plaintiff and termination of service in breach of statute is available to be corrected by restoration of service.

Reliance has been placed on two cases of the Supreme Court being Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran

Tyagi, , and State of Punjab Vs. Ramjilal and Others, . There may be some force in the contention of Appellant''s counsel, but in view of my

finding that the suit is not maintainable in the absence of the Managing Committee and its members, it is unnecessary to deal with that aspect of the

matter for academic purposes.

On the analysis indicated above, the second appeal is bound to fail though on grounds different from those adopted in the lower appellate Court.

I accordingly dismiss the appeal and uphold the dismissal of the suit. Parties are directed to bear their own costs throughout.