J & K Khadi Village and Industries Board vs Mohd.Amin

One Mohammad Amin Rather, an employee of the Dhadi and Village Industries Board appointed in the year 1962 was transferred from the

post of Incharge Paper Industry as Senior Assistant, but was assigned the job of Cashier in the year 1967 and in the month of November, 1977,

the services of the individual seem to have been terminated. A dispute was joined by said Mohammad Amin Rather, challenging his order of

termination before the Lahour Court. It is averred that the said court after summoning the records and hearing the par Lies, quashed the order of

termination and ordered reinstatement of the individual with full back wages and fixation of seniority etc.

It is further alleged that the said order of Labour court was challenged by the J and K Khadi and Village Industries Board before this court by

way of writ petition No:502 of 1987 and the said writ petition seems to have been dismissed in default on 2294993. Subsequently the person of

Mohammed Amin Rather joined the Board, by submitting his joining report, which as per averments seems to have been received by the Board

authorities, but he was not paid his emoluments and dues and feeling aggrieved of the action of Board authorities, said Mohammad Amin Rather

has filed a suit in the Civil Court (SubJudge/City Magistrate), Srinagar and is numbered as Civil Original SuitNo;98/Numbri instituted on 2631994.

In the suit, said Mohammad Amin Rather has asked for a declaratory decree with consequential relief for in junction, declaring the plaintiff as an

employee of the defendant/Board in continuity and without break and directing them to allot work to the plaintiff and pay him the salary etc. to

which he has become entitled to and so on.

In the said suit, an order came to be passed on the interim application on 1451994, which is impugned in the present revision petition.

The order impugned before this Court in the revision petition is order passed on the application of plaintiff Mohammad Amin Rather,

whereunder for the reasons given therein, learned trial Judge had directed that the plaintiff/respondent herein be allowed to work and be also paid

his emoluments and salary which has accrued to him as per orders and rules and further directed the defendants/petitioner herein to furnish service

records of the plaintiff/respondent. The order has been passed subject to objections of other side.

The revision petitioners had infact filed the objections before the court below, but then they seem to have absented themselves as minutes of the

file reveals. Even the impugned order also shows that the revision/petitioners absented themselves after they filed the written statement before the

Court below.

From the perusal of the written statement filed by the revision/petitioners, admittedly certain preliminary legal objections have been taken by

them to the very maintainability of the suit viz. the writ petition No:502 of 1987 which is reported to have been dismissed in default, but an

application for restoration of the petition has been moved which is pending consideration before the High Court and that the suit is not maintainable

as the same is hit by Section 56(d) of the Specific Relief Act and also provisions of Section 80 C.P.C. have not been complied with.

Learned Counsel for the petitioners has filed this revision petition challenging that the order impugned has been passed by a court having no

jurisdiction or competent to pass such order and that the order impugned is without jurisdiction and is nonest in the eyes of law. Further more it has

been projected in the revision petition that on 1451994, when the case was fixed for striking of issues, counsel for the petitioners could not attend

the court below due to some security reasons and the court below passed the impugned order in exparte, which is impugned before me in this

revision petition.

It is also averred in the revision petition that the order passed by the court below is infact execution of the orders purported to have been passed

by the Labour laws applicable to the case that civil court has no jurisdiction to entertain a suit for the execution of the order passed by Labour

court. The order impugned as per averments of the petitioner has resulted in miscarriage of justice inasmuch as that detailed pleadings has been

submitted by the petitioners in the court below, but the same have not been properly appreciated in the correct perspective, though from records it

transpires that passing reference has been made about the pleadings and submissions [SIC] made by the petitioner before the court below. It is

also submitted that petitioner has raised objections with regard to jurisdiction of the court below and it was incumbent on the court to have framed

its preliminary issues before passing the impugned order and so on.

Heard learned counsel for the parties and perused the material on record.

It is an admitted fact that the order impugned passed by the court below is order passed under the provisions of order 39 Rule 1 and 2 and

such orders are appealable orders as provided under order 43 Rule l(r) of Civil P.C.

Secondly the order impugned is subject to objections of other side. The petitioner instead of approaching this court in revision should have

approached court below, filed his objections to the said order which is not admitted a revisable order as it is specifically provided that for such

orders, an appeal will lye and without filling objections before the court below and agitating and projecting the matter there, he has wrongly

choosen this revisional forum. Secondly the averments made by the petitioner regarding maintainability of the suit and also jurisdiction of the court

etc. should be put to an issue by the court below and after hearing parties, pass appropriate orders regarding preliminary objections raised by the

petitioner/ defendants in his written statement. Moreover the court is not the appellate forum also for other order impugned.

In support of his contentions and as observed by this court hereinabove, Mr. Zahoor Ahmad Shah appearing on behalf of the respondent

referred to AIR 1994 Calcutta 229, wherein ratio of the decision is same as has been arrived at by this court here in before.

So in the totality of circumstances, the revision petition is misconceived and is rejected. However, a direction is given to the court below to

frame preliminary issues regarding maintainability of the suit and jurisdiction of the court and other legal pleas which have been raised in the written

statement by the petitioner/defendant. The petitioner is also at liberty to file his objections to the order impugned before the Court below and get

adjudication thereto, and the court below will hear the parties and consider objections regarding order impugned in this revision petition. The

parties are directed to cause their appearance before the court below on expiry of winter vacations.