REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.41     OF 2012

(Arising out of SLP(C) No.5827 of 2011)

COAL MINES P.F. COMMR. THR.  BOARD OF TRUSTEE  … APPELLANT   

Vs. RAMESH CHANDRA JHA   … RESPONDENT

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The  appellant  herein  is  the  Coal  Mines  

Provident Fund Commissioner through the Board of  

Trustees, constituted under Section 3 of the Coal  

Mines Provident Fund and Miscellaneous Provisions

Act, CMPF Organisation, Dhanbad.  The Respondent  

was  appointed  as  a  Lower  Division  Clerk  on  16th  

January,  1967,  by  the  Chief  Commissioner  in  the  

service  of  the  Coal  Mines  Provident  Fund  

Organisation, hereinafter referred to as ‘CMPFO’.  

In  connection  with  the  forcible  occupation  of  a  

Type  III  quarter,  a  departmental  proceeding  was  

commenced against the Respondent and on 16th March,  

1979, on being found guilty of the charge framed  

against  him,  the  Respondent  was  removed  from  

service.   

3. Challenging  his  removal  from  service,  the  

Respondent filed Title Suit No.78 of 1979 in the  

Court of Munsif at Dhanbad.  Simultaneously, the  

Respondent  also  filed  an  appeal  before  the  

Appellate  Authority  under  Regulation  37  of  the  

Staff Regulations, which was dismissed on 4th March,  

1980.

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4. Meanwhile,  in  the  suit,  the  learned  Munsif,  

Dhanbad (Jharkhand) framed a preliminary issue in  

Suit No.78 of 1979 as to whether in the absence of  

notice  under  Section  80  of  the  Code  of  Civil  

Procedure, the suit was maintainable? Aggrieved by  

the said order, the Respondent filed Civil Revision  

No.341 of 1980(R) in the Ranchi Bench of the Patna  

High Court, which held that since the Appellant was  

not a “public officer” as defined in the Code of  

Civil  Procedure,  no  notice  under  Section  80  was  

required to be served upon him before the suit was  

filed.  By its order dated 7th September, 1981, the  

Ranchi Bench of the Patna High Court set aside the  

findings of the learned Munsif and held the suit to  

be maintainable. The Appellant, thereafter, brought  

the  matter  to  this  Court  and  in  Civil  Appeal  

No.1932 of 1982 this Court by its judgment dated  

31st January,  1990,  reversed  the  finding  of  the  

Appellate  Authority  upon  holding  that  the  Coal  

Mines  Provident  Fund  Commissioner  is  a  “public  

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officer” within the meaning of Section 2(17) of the  

aforesaid Code.  It was, therefore, settled upto  

this Court that the Appellant herein was a public  

officer  and  that  notice  under  Section  80  was  

required to be given to him before the suit was  

filed by the Respondent.    

5. On account of the above decision of this Court,  

on 15th February, 2002, the Respondent withdrew his  

Title Suit No.78 of 1979 and filed a fresh suit  

being  Title  Suit  No.102  of  1990  after  serving  

notice  upon  the  Appellant  under  Section  80  CPC.  

The Appellant contested the suit which was decreed  

in favour of the Respondent on 15th February, 2002,  

by  the  Second  Munsif,  Dhanbad,  declaring  the  

removal  of  the  Respondent  from  service  to  be  

arbitrary  and  in  violation  of  the  principles  of  

natural justice and the provisions of Article 311  

of the Constitution.  Holding the same not to be  

binding  on  the  Respondent/Plaintiff,  the  Munsif  

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declared that the Respondent would be deemed to be  

in  continuous  service  in  the  CMPF  Organisation  

under the Appellant, together with all benefits and  

privileges.    

6. Aggrieved by the order of the learned Munsif  

decreeing  the  Respondent’s  Title  Suit  No.102  of  

1990, the Appellant preferred Title Appeal No.29 of  

2002 before the Court of XIIIth Additional District  

Judge, Dhanbad. In the said Appeal, the Respondent  

herein raised the question as to whether the suit  

of the Respondent was bad for non-joinder of the  

Union of India which was a necessary party in the  

suit? Accepting the contention of the Appellant,  

the First Appellate Court held that since the Coal  

Mines  Provident  Fund  Commissioner  was  a  public  

officer under the Union of India so as to attract  

the provisions of Order XXVII Rule 5A and Section  

79 of the Code of Civil Procedure, the suit was bad  

for non-joinder of the Union of India which was a  

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necessary party.  The XIIIth Additional District  

Judge, Dhanbad, accordingly, set aside the order of  

the learned Munsif, Second Court, Dhanbad, in Title  

Suit No.102 of 1990 by its judgment and order dated  

16th February, 2005.

7. Aggrieved by the order of the First Appellate  

Authority,  the  Respondent  filed  Second  Appeal  

No.134 of 2005 before the Jharkhand High Court at  

Ranchi.  Four years later, on 15th June, 2009, since  

the Respondent had not delivered vacant possession  

of  the  quarters  in  his  possession,  the  Estate  

Officer, by his order dated 15th June, 2009, gave  

the Respondent 15 days’ time to vacate the suit  

premises along with other members of his family.  

The  Respondent,  however,  did  not  vacate  the  

quarters as directed, whereupon the Appellant filed  

I.A. No.1871 of 2009 in the Second Appeal No.134 of  

2005 pending before the High Court, for a direction  

upon the Respondent to vacate the quarters occupied  

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by  him.  On  24th August,  2009,  the  Respondent,  

through his counsel, gave an undertaking to vacate  

the quarters by 30th November, 2009.  In addition,  

the Estate Officer passed an order in the execution  

proceedings on 28th August, 2009, for eviction of  

the Respondent from the quarters in question.   On  

his failure to honour the undertaking given by him  

to vacate the suit premises, the High Court took  

strong  exception  to  the  violation  of  the  

undertaking given by the Respondent and initiated  

fresh contempt proceedings against him and ordered  

the Superintendent of Police, Dhanbad, to get the  

quarters vacated and to hand over vacant possession  

of  the  same  to  the  competent  authority  of  the  

CMPFO, Dhanbad within 48 hours of the receipt of  

the order.   On 19th February, 2010, the High Court  

heard the contempt case when it was informed that  

the  Respondent  had  vacated  the  quarters  and  had  

handed over the keys to the concerned authorities  

on 17th February, 2010.   

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8. It is necessary to indicate at this stage that  

Second Appeal No.134 of 2006, which had been filed  

by the Respondent, was admitted on the substantial  

question of law as to whether the Lower Appellate  

Court had committed a serious error in dismissing  

the Respondent/Plaintiff’s suit on the ground of  

non-joinder of the Union of India thereby upsetting  

the judgment and decree of the Trial Court without  

deciding the question as to whether the Coal Mines  

Provident  Fund  Commissioner  is  a  public  officer  

under  the  Union  of  India  so  as  to  attract  the  

provisions of Order XXVII Rule 5A of the Code of  

Civil Procedure.

9. Appearing in support of the Appeal, Mr. J.P.  

Singh, learned Senior Advocate, urged that the High  

Court  had  not  properly  answered  the  aforesaid  

question ignoring the fact that earlier this Court  

had in Civil Appeal No.1932 of 1982 between the  

same parties, categorically decided that the Coal  

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Mines  Provident  Fund  Commissioner,  though  

functioning  as  the  Chairman  of  the  Board  of  

Trustees constituted under paragraph 3 of the Coal  

Mines Provident Fund Act, is a public officer and  

was, therefore, required to be made a party in the  

proceedings under Order XXVII Rule 5A of the Code  

of Civil Procedure, which, inter alia, provides as  

follows :-   

“Order 27 Rule 5A – To be joined as a party in  suit against a public officer. - Where a suit  is  instituted  against  a  public  officer  for  damages or other relief in respect of any act  alleged  to  have  been  done  by  him  in  his  official  capacity,  the  Government  shall  be  joined as a party to the suit.”

Mr. J.P. Singh urged that since this Court had  

already  decided  the  issue,  there  was  no  further  

need for the High Court to go into the question  

once again and decide the same in a manner which  

was contrary to the law declared by this Court.  

Mr.  Singh  submitted  that  this  was  in  blatant  

violation of the principles of hierarchy of Courts  

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and also the binding nature of the judgments of the  

Supreme  Court  in  terms  of  Article  141  of  the  

Constitution of India.  Learned counsel submitted  

that this was a fit case where the order of the  

High Court was liable to be set aside since the  

provisions of Order XXVII Rule 5A of the Code of  

Civil  Procedure  were  squarely  attracted  to  the  

facts of the case.

10. The Respondent, who appeared in-person, urged  

that notwithstanding the earlier decision of this  

Court  in  which  the  Coal  Mines  Provident  Fund  

Commissioner had been held to be a public officer,  

such a stand was contrary to the other decisions of  

this  Court  in  (1)  R.P.F.  Commissioner Vs.  Shiv  

Kumar  Joshi [AIR  2000  SC  331]  and  (2)  Steel  

Authority of India Ltd. & Ors. Vs.  National Union  

Waterfront  Workers  and  Ors. [2001  (7)  SCC  1],  

wherein  it  had  been  held  that  the  Regional  

Provident  Fund  Commissioner  under  the  Employees  

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Provident Fund Act and the Employees Provident Fund  

Scheme, 1952, is not a public officer, though it  

discharges  statutory  functions  for  running  the  

Scheme.   It was also observed that the Board of  

Trustees had not in any way been delegated with the  

sovereign powers of the State even if it is held  

that  administrative  charges  were  payable  by  the  

Central Government. The Respondent urged that the  

finding of the lower Appellate Court holding the  

suit to be bad for non-joinder of the Union of  

India  as  a  party  in  the  Appeal,  was  patently  

erroneous,  contrary  to  law  and  unsustainable.  

Consequently,  the  order  of  the  learned  lower  

Appellate Court was set aside and the judgment and  

decree of the Trial Court in Title Suit No.102 of  

1990 was restored.   

11. Challenging  the  order  of  the  learned  Single  

Judge of the Jharkhand High Court, the Appellant  

herein filed Second Appeal No.134 of 2005, which  

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was ultimately allowed and the finding of the lower  

Appellate  Court  that  the  suit  was  bad  for  non-

joinder of the Union of India as a party was held  

to be erroneous and was liable to be set aside.   

12. As  indicated  hereinbefore,  it  is  the  said  

judgment and order of the High Court of Jharkhand  

which is the subject matter of the present Civil  

Appeal.  

13. Having  considered  the  submissions  made  on  

behalf  of  the  Appellant  and  the  Respondent  

appearing in-person, we are of the view that the  

judgment  and  order  of  the  High  Court  does  not  

require  any  interference,  particularly  when  the  

issue  raised  in  this  Appeal  has  already  been  

decided by this Court in Civil Appeal No.1932 of  

1982, wherein it was categorically held that the  

Coal Mines Provident Fund Commissioner is a “public  

servant” within the meaning of Section 2(17) of the  

Code of Civil Procedure.  It cannot be forgotten  

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that the First Suit filed by the Respondent, being  

Title  Suit  No.78  of  1979,  was  withdrawn  on  the  

ground that it had been held that a notice under  

Section 80 of the Code was necessary since the Coal  

Mines  Provident  Fund  Commissioner  was  a  public  

servant and, thereafter, a second suit, being Title  

Suit No.102 of 1990, was filed by the Respondent  

upon due notice to the Coal Mines Provident Fund  

Commissioner.   In  view  of  the  aforesaid  finding  

regarding the status of the Coal Mines Provident  

Fund Commissioner, the First Appellate Court erred  

in reversing the finding of the Trial Court on this  

score. It was not open to the First Appellate Court  

to re-open the question which had been decided by  

this Court, at least on the same submissions which  

had  been  made  earlier  that  though  the  officer  

concerned  was  an  employee  of  the  Central  

Government, he no longer enjoyed the said status  

when  he  was  discharging  the  functions  of  the  

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Chairman of the Board of Trustees of the Coal Mines  

Provident Fund Scheme.

14. We, therefore, have no hesitation in holding  

that  in  view  of  the  fact  that  the  Coal  Mines  

Provident Fund Commissioner has been held by this  

Court to be a public officer, it was necessary to  

join the Union of India as a party in the suit in  

view of the provisions of Order XXVII Rule 5A of  

the Code of Civil Procedure.  We, accordingly, see  

no reason to interfere with the judgment and order  

appealed against and the Appeal filed by the Coal  

Mines  Provident  Fund  Commissioner  is  dismissed,  

though without any order as to costs.

……………………………………………………J.                      (ALTAMAS KABIR)

……………………………………………………J. (SURINDER SINGH NIJJAR)

New Delhi                    …………………………………………………J. Dated: 04.01.2012            (J. CHELAMESWAR)      

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