Jankiram Pandharinath Thorat Vs. - Court Judgment

Excerpt:
section 10: [b.n.agrawal & g.s.singhvi, jj] stay of proceedings - eviction suit tenant making stay application under section 10 of c.p.c., - rejected by rent controller tenant again making an application under section 151 of c.p.c., which was allowed without any further material having been brought on or fresh cause of action being established - high court in revision confirming said order - held, rent controller was not justified in entertaining the second stay petition and high court failed to exercise its revisional jurisdiction properly. eviction proceeding directed to be disposed of in six months, and matter to be reported to supreme court after disposal. unnecessary adjournments not be granted to any of the parties and all attempts made by tenant to prolong litigation directed to.....oral 1. this appeal takes exception to the judgment and decree dated 18th of august, 1992 passed in regular civil appeal no.5/1988, by which the judgment and decree dated 30-11-1987 passed by the trial court in special civil suit no.198/1987 came to be set aside.2. the above second appeal raises the following substantial questions of law :-(1) whether the first appellate court committed the error in holding that the plaintiff-appellant failed to prove that the time consumed in the earlier proceeding is required to be excluded while computing the period of limitation (2) whether the first appellate court wrongly held that as per the provisions of the limitation act, the proceedings before the labour court, are not civil proceedings and hence, the appellant is not entitled for the benefit.....

Judgment:
ORAL

1. This appeal takes exception to the judgment and decree dated 18th of August, 1992 passed in Regular Civil Appeal No.5/1988, by which the judgment and decree dated 30-11-1987 passed by the Trial Court in Special Civil Suit No.198/1987 came to be set aside.

2. The above Second Appeal raises the following substantial questions of law :-

(1) Whether the First Appellate Court committed the error in holding that the plaintiff-appellant failed to prove that the time consumed in the earlier proceeding is required to be excluded while computing the period of limitation

(2) Whether the First Appellate Court wrongly held that as per the provisions of the Limitation Act, the proceedings before the Labour Court, are not civil proceedings and hence, the appellant is not entitled for the benefit of the said provisions of Section 14 of the Limitation Act, 1963, and that the time consumed in that Court cannot be excluded ?

3. The facts in a nutshell can be stated thus :- That, the plaintiff was a permanent employee of the defendant-Municipal Council and was at the relevant time working as a Naka Mohrir on Octroi Naka on a monthly salary of Rs.141/-. The plaintiff was defailed for duty at a table where receipts for payment of octroi were to be issued. The plaintiff was issued a memo by the octroi Superintendent of the defendant calling upon the plaintiff to show cause in respect of certain allegations made against him. The plaintiff denied the allegations and contended that he was innocent. The defendant thereafter suspended the plaintiff from service from 02-9-1967 pending enquiry. A charge- sheet was served on the plaintiff on 10-10-1967 and ultimately pursuant to the departmental enquiry held against the plaintiff a dismissal order came to be passed against the plaintiff under Section 79(3) of the Maharashtra Municipalities Act, 1965 and Section 186(2)(5) of the C.P. and Berar Municipalities Act, 1922.

4. The plaintiff upon service of the said dismissal order was issued a notice to the defendant-Municipal Council, calling upon it to withdraw the order of dismissal, failing which the plaintiff informed the defendant that he would be filing a suit. The plaintiff thereafter approached the Labour Court on 23-6-1968 against the said dismissal order. However, the Labour Court by its order dated 27-3-1969 held that it has no jurisdiction. The plaintiff thereafter filed Special Civil Suit No.46/75. The said Special Civil Suit was dismissed resulting in the plaintiff filing a First Appeal in this Court. In this Court, the plaintiff sought liberty to withdraw the suit as well as Appeal which was granted and the plaintiff filed the instant suit thereafter. The dismissal order was inter alia challenged on various grounds amongst which was the jurisdiction of the authority concerned to pass the order of dismissal. The defendants filed their written statement and the principal contention of the defendants in the said written statement was that the suit was not maintainable on the application of principles of res judicata. The defendants contended that in view of the decision in Special Civil Suit No.49/75, the plaintiff was estopped from filing a fresh suit. The trial Court framed the relevant issues. In so far as the present Second Appeal is concerned, issue No.1 is relevant and is to the following effect 'Whether the suit is barred by limitation ?'

5. The trial Court had framed in as many as eighteen issues and all the issues were decided in favour of the plaintiff. Suffice it to say that the Trial Court held that the dismissal order was illegal. The trial Court resultantly after so recording the findings, decreed the suit and directed defendant Nos.1 and 2 to pay an amount of Rs.28623/- against his loss of pay from 02-9-1967 till the date of filing of the suit.

6. Being aggrieved by the decreeing of the suit, the defendant filed Regular Civil Appeal No.5/88. The First Appellate Court framed the following issues :-

(1) Did the plaintiff prove that the order of dismissal is illegal ?

(2) Did the plaintiff prove that the time consumed in earlier proceedings is required to be excluded while computing the period of limitation ?

(3) Whether the suit is barred by limitation ?

7. In so far as present second appeal is concerned, issue No.3 is relevant. The First Appellate Court confirmed the findings of the Trial Court in so far as the illegality of the dismissal order is concerned. However, in so far as the issue as regards limitation is concerned, the First Appellate Court held that the suit as filed was not within limitation. The First Appellate Court held that though the benefit of Section 14 of the Limitation Act was available to the plaintiff, however the plaintiff could not get the benefit of the time spent by him in prosecuting the remedy before the Labour Court as the proceedings before the Labour Court cannot be said to be civil proceedings. The relevant findings of the First Appellate Court are found in Paragraphs 30 and 34 of the judgment of the First Appellate Court, which are reproduced hereunder ;

"30. The expression "Civil Proceeding" has not been defined in the Limitation Act Judicial opinion is divided in respect of the interpretation. One view is that the "Civil Proceeding" is in the nature of a Civil Proceeding as opposed to the criminal proceeding. A civil proceeding will, thus, include a proceeding, which seeks relief against the enforcement of a taxation statute. In order to find out whether the particular proceeding is in the nature of civil proceeding or not, it is necessary to examine the nature and constitution of the authority before whom such proceeding is taken. There is another view which refers to civil proceeding dealt with under the Code of Civil Procedure. Exercising general civil jurisdiction, the plaintiff filed a suit in the labour court on 23-02-1988. On 27-03-1969 the labour court came to the conclusion that it had no jurisdiction. In other words it took about 11 months to come to the above said conclusion. Thereafter the plaintiff took about 35 days for filing the civil suit in the Court, so far as the time thereafter till the present suit is concerned, it being a civil proceedings, I have no hesitation to come to the conclusion that filing of the present suit, after withdrawal of the suit by the order of the High Court, the plaintiff is very well entitled to exclude it under section 14(1) of the Limitation Act. But so far as period, which was taken before the Labour Court and 35 days thereafter for filing the suit is concerned, the plaintiff cannot be said to exclude to it.

34. So far as other two grounds namely that the plaintiff presented them in good faith, that the Court was unable to entertain them, from the jurisdiction and or other cause of like nature are concerned, it has to be said that they are proved by the plaintiff. It can be also said that the proceeding, which is filed by the plaintiff, is with due diligence, and bonafide. But the proceeding before the Labour Court cannot be said to be a civil proceeding as stated in Section 14 of this Limitation Act. The time consumed in that Court cannot be excluded."

8. In the light of the substantial question of law framed the question, which arises for consideration is whether the proceedings before the Labour Court can be said to be civil proceedings within the meaning of Section 14 of the Limitation Act, 1963. On behalf of the appellant Shri Joharapurkar, learned Counsel drew my attention to the judgment of the Apex Court reported in (2000) 5 SCC 355 in the matter of P Sarathy .vs. State Bank of India. In the said case, a similar situation as regards exclusion of the time spent in persecuting the remedy before the Authority under the Tamil Nadu Shops and Establishments Act, 1947 was concerned. The Hon'ble Apex Court held that whether the Appellate Authority under the said Act can be said to be a "Court". The Hon'ble Apex Court held that the Deputy Commissioner of Labour who was the Appellate Authority may not be a "civil Court" within the meaning of the Civil Procedure Code but it is definitely a "Court" and since Section 14 of the Limitation Act speaks only of a "Court", any authority or Tribunal having the trappings of the Court would be a "Court" within the meaning of the said Section. The Apex Court held that terms of Section 14 the time spent in persecuting for remedy before the said Authority would have to be excluded. Paras 9 and 12 of the said report are material and reproduced hereunder :- "9. The Deputy Commissioner of Labour (Appeals), Madras, which is the authority constituted under the Tamil Nadu Shops and Establishments Act, 1947 has the jurisdiction to adjudicate upon an order by which the services of an employee are terminated. He has the jurisdiction to decide whether the order of dismissal, passed by the employer, was valid or it was passed in violation of any statutory rule or principles of natural justice. Under Section 41(3), the order passed by him is binding on the employer as also on the employee. Thus, the Deputy Commissioner of Labour (Appeals) may not be a 'civil court" within the meaning of the Code of Civil Procedure but it is definitely a 'Court.

12. It will be noticed that Section 14 of the Limitation Act does not speak of a "civil Court" but speaks only of a "Court". It is not necessary that the court spoken of in Section 14 should be a "civil court". Any authority or tribunal having the trappings of a court would be a "Court" within the meaning of this section."

9. In the light of the authoritative pronouncement of the Hon'ble Apex Court in P Sarathy's case (Supra), the issue as to whether the proceedings before the Labour Court are civil proceedings stands concluded as the Apex Court has held that any Authority or a Tribunal having the trappings of a Court would be a Court and hence the benefit of the time spent before the said Authority or Tribunal can be given to a litigant. In the light of the judgment in P. Sarathy's case (Supra), the questions of law would have to be answered in favour of the appellant and if that be so the time spent by the appellant before the Labour Court would have to be excluded whilst computing the period of limitation. As the said period is of 35 days, if that period is excluded, the suit filed by the plaintiff would be within limitation. Since the other issues which include the legality of the dismissal order have already been held against the defendants and in favour of the plaintiff. The plaintiff would be entitled to the reliefs sought in the suit. The consequence of which would be that the plaintiff though having superannuated, would be entitled to all consequential benefits as if he was in service upto the date of his superannuation. The Second Appeal is accordingly allowed. The decree passed by the First Appellate Court stands set aside, the decree passed by the Trial Court stands confirmed.