Naresh Chand Advocate vs Punjab State Electricity Board

N.K. Kapoor, J.—This is plaintiff''s appeal against the judgment and decree dated 31-8-1978 passed by Senior Sub Judge, Patiala whereby the suit for recovery of Rs. 20,325 60 as arrears of pay and other allowances was dismissed.

Plaintiff filed a suit in forma paupris for recovery of the amount against Punjab State Electricity Board with the averment that he was an employee of the defendant-Board whose services were wrongly terminated w.e.f. 8-8-1965. This order of termination was set aside by the Civil Court and the plaintiff was deemed to be in service and so is entitled to pay and the allowances It is further the case of the plaintiff that after seeking the declaration from the Court he filed a suit for recovery of the amount due i.e. pay upto 15-111973 which claim was also decreed by the Court. Since no appeal was filed against this judgment and decree, the same became final between the (parties It is, thereafter, that the present suit was filed on 1-12-1976 seeking arrears of pay and allowances from 16 11-1973 upto date i.e. Rs. 20,325.60. Defendant Board put in appearance and filed written statement. It was admitted that the termination of service of plaintiff was set aside by the Civil Court. However, it was averred that the plaintiff was a practicing Advocate at Patiala and so was not entitled to any pay and allowances. It was further stated that as held by the High Court, the plaintiff was not entitled to any arrears of pay and allowances. In addition to it, suit was resisted on the ground of limitation, maintainability and on the point of jurisdiction etc.

On the pleadings of the parties, the following issues were framed :-

Whether the plaintiff is entitled to any amount from the defendant, if so how much ? OPP

Whether the suit is time barred ? OPD

Whether this court has no jurisdiction to try the suit ? OPD

Whether the suit is not maintainable ? OPD

Whether the defendant Board is not liable to the obligations of the composit Board 1 OPD

Whether the suit is bad for non-joinder of necessary parties ? OPD

Whether the suit is barred under order 2 rule 2 C.P.C. ? OPD

Whether the plaintiff is estopped from filing the suit ? OPD

Whether the suit is barred by resjudicata ?

Relief.

Trial Court discussed issue Nos. 1, 7, 8 and 9 together. Issue No. 1 was decided against the plaintiff whereas issue Nos. 7, 8 and 9 were decided against the board-defendant. Issue No. 2 was decided in favour of the plaintiff. Issues No. 3, 4, 5 and 6 were not pressed by the counsel for the Board and so were decided against the defendant. In view of the decision of the Court under issue No. 1, the suit of the plaintiff was dismissed. Learned counsel for the appellant has assailed the judgment and decree of the trial Court on the ground that the same is wholly unwarranted on the facts as well as on law. According to the learned counsel, the Court erred in law in declining the relief on the ground that the same is barred on the principle of res judicata. According to him, the point in dispute was not directly and substantially in issue before the High Court and in the context of the dispute the stray observation in the Court could not be considered by the trial Court amounting to decision thereby debaring him from getting just relief on the plea of res judicata. Elaborating, the learned counsel referred to the earlier judgment of Sub Judge 1st Class dated 27-3-1971, Exhibit P-10, with a view to prove that the suit was merely for declaration to the effect that the order dated 7-11-1966 whereby be was removed from service was, illegal and void. In this suit plaintiff did not lay claim for pay, etc. An appeal was filed by the Board which was ultimately dismissed by the High Court i.e. to say decree of Sub Judge was affirmed by High Court in R. S. A. No. 1/11 of 1973, decided on 5-1-1976-Exhibit D-3. It is only after having got the necessary declaration that his termination was illegal that the plaintiff filed suit for recovery of arrears of pay on 14-10-1973 i.e. for recovery of Rs. 24,080/-. In this case, Punjab State Electricity Board-the defendant contested the suit on a number of grounds including that the suit was time barred and that the suit was not maintainable as the same was hit by Order 2 Rule 2 C.P.C. Subsequently, the following additional issues were also framed by the Court ; namely :-

1-A. Whether the suit is barred by principle of res judicata ?

1-B. Whether the suit is barred under order 2 Rule 2 C.P.C.

1-C. Whether the plaintiff is estopped from filing the suit?

Learned Sub Judge vide judgment and decree dated 6-9-1976 decided the above mentioned issues i.e. issue No. 1 A, 1-B and 1-C against the defendant-Board. Under issue No. 1 the Court decreed the claim of the plaintiff to the extent of Rs. 12,982 76. This judgment is exhibited as P-ll. According to the counsel no appeal was filed against this judgment and decree of Shri. M.M. Bhalla and so the same became final between the parties. Thus, on the basis of this judgment it has been contended by the counsel that the impugned finding of the trial Court under Issue No. 1 is wholly unsustainable. In support of his contention, counsel relied upon Sri Pal and Others Vs. Swami Nath and Others, . Ragho Prasad Gupta Vs. Shri Krishna Poddar, . Basti Ram Vs. Ved Parkash and Others, . . The State of Punjab v. Dharam Parkash Kaushal 1984 (1) S. L. R. 34 and Union of India v. Kewal Krishan Mittal 1984 (2) S. L. R. 614.

Mr. I. J. S. Ahluwalia the learned counsel for the defendant in support of the judgment and decree of the trial Court has laid much emphasis on the earlier decision of this Court in R. S. A. No. 1211 of 1973, decided on 5-1-1976 for the contention that this Court held that the plaintiff is not entitled to any arrears of pay as he had been practicing as an Advocate since the year 1967. Besides this, the counsel relied upon the judicial pronouncements - Ramesh Chandra Vs. Shiv Charan Dass and Others, and Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, .

I have heard learned counsel for a considerable time and perused the relevant material already on record with their help. Facts are not much in dispute. Admittedly, plaintiff filed suit for declaration challenging his removal from service by means of civil suit which claim was decreed by the trial Court and affirmed in appeal as well. Punjab State Electricity Board filed R. S. A. bearing No. 1211 of 1973 which too was dismissed by this Court vide judgmemt and decree dated January 5, 1976 However, the Court further observed as under :-

"Respondent is, however, not entitled to any arrears of pay as admittedly he has been practicing as an Advocate since the year 1967. No costs."

The above observation of the Court is in fact a matter of contention between the parties After getting the declaration plaintiff filed suit for recovery of arrears of pay etc. on 14-10-1973 which was decreed by the Sub Judge on 6-9-1976 i.e. allowing him the necessary relief from 31-8 1970 to 31-8-1973 Admittedly no appeal was filed against this judgment and decree of the trial Court and so the same became final. During the trial of the present appeal, defendant mainly relied upon the observation of this Court in R. S. A. No. 1211 of 1973 whereas the plaintiff laid much emphasis upon the earlier decision of Sub Judge dated 6-9-1976 with a view to support his contention that the Court held that the suit is not barred by principle of res judicata meaning thereby that since no appeal had been tiled against this judgment and decree of the trial Court dated 6-9-1976, the same debars the defendant from re-agitating the point in the present appeal.

Decision in the earlier suit under issue No. 1-A in fact has a material bearing on the point in controversy. -Almost identical pleas were raised by the parties in the earlier suit i e, the Board having relied upon the judgment of the High Court (Exhibit DA)-now D 3, whereas plaintiff urging that this observation of the Court can not be construed as debaring the plaintiff of his just relief for the reason that recovery of salary was not an issue between the parties in the earlier suit. According to the plaintiff there was no issue in this regard and for this reason such an observation of the Court could not be construed as amounting to res judicata. Trial Court accordingly came to the conclusion that suit of the plaintiff was not barred by principle of res judicata as the earlier judgment dated 5-1-1976 (i.e. the observation of the Court were given without any specific pleas of the parties).

Section 11 of the CPC debars the Court from treating any suit or issue in the matter directly and substantially in issue in a former suit between the parties, or between the parties under whom they or any of them claim, litigation under the same title, in a Court of competent jurisdiction to treat such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. Examined thus, the sole point which was matter of adjudication in R S. A No. 1211 of 1973 was as to whether plaintiff''s removal from service was illegal and void. No claim was laid for recovery of the arrears of .pay, etc. Admittedly, parties did not join any issue as now sought to be raised on the basis of the observation of this Court reproduced in the earlier part of the judgment. . Thus in the absence of any specific plea or issues it cannot be said that the matter with regard to arrears of pay, etc. was directly and substantially in issue in the earlier proceedings between the parties i.e. in the first suit filed by the plaintiff for declaration. Even subsequent conduct of the defendant, as is clear from the finality of the judgment of Sub Judge dated 6.9.1976 makes this present objection on the plea of res judicata wholly hollow. Vide judgment Ex P 11 issue with regard to bar of res judicata was claimed by the defendant though the Court decided the same against the Board. So in view of the decision of the Court vide Exhibit P-11, the present objection that the suit of the plaintiff is barred is wholly misplaced, and the trial Court has indeed erred in law in non-suiting the plaintiff on this ground The judgment in the Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, does not advance the case of the defendant in any manner Judgment in Ramesh Chandra''s case (supra) is for the proposition that finding of the earlier suit operates as res judicata one of the tests is to ascertain if party aggrieved by finding could challenge it This judgment rather supports the case of the plaintiff. It has been observed by the Court that when there was no pleading or evidence, the observation, if any, made would be deemed to be off the mark and unnecessary and the same would not have operated as res judicata. Besides, the plea of res judicata, counsel for the defendant resisted the claim of the plaintiff on the ground that the plaintiff being a practicing advocate is legally not entitled to claim pay and allowances. Since this fact has been admitted by the plaintiff, that he has been enrolled as an Advocate and had been practicing as such, the present suit for recovery of pay and allowances is thus wholly misconceived.

On the other hand, the counsel for the appellant has laid much emphasis upon the statement of the plaintiff to prove that he had not been earning any amount during this period.

As admitted by both the parties, the service conditions of the plaintiff were governed by Punjab Works Department (Electricity Branch) State Service Class-111 (Subordinate Post) Rules, 1952, as adopted by Punjab Electricity Board on 1.2.1959 which came into effect on 1.2,1959. According to rule 10 of the above rules, members of the service are entitled to pay in accordance with the provisions of Punjab Civil Service Rules, Volume I, Part I. Rule 7(3)(i) of the Punjab Civil Service Rules, Vol. I, Part 1, provides that where removal of an employee is set aside by a Court of law and such employee is reinstated without holding any further enquiry he shall be entitled to pay and allowances, subject to the direction of the Court, if any i.e. any payment made to such a person will be subject to adjustment of the amount, if any, earned by him through any employment during the period between the date of dismissal/removal and the date of his reinstatement. In fact on getting the necessary declaration that the order of dismissal/removal is illegal and unwarranted, "the consequential relief of recovery of pay automatically flows from such a declaration. The Court is competent to issue such directions for payment of arrears of pay. This precise point was considered by the Full Bench in Raja Ram v. Municipal Committee, Barnala 1983 85 P. L. R 21 . The Court after relying upon the pronouncements of the apex-Court in Krishan Murali Lal Singal''s case, A. I. R. 1977 S. C. 233 held that the Civil Court or the High Court sitting in appeal are otherwise competent to give any direction etc for the payment of arrears of pay as a result of the dismissal order having been declared illegal or without jurisdiction. To the similar effect is the Division Bench judgment of Delhi High Court in Union of India v. Kewal Krishan Mittal. In this case somewhat identical plea was taken by the Union of India to the effect that Mr. Kewal Krishan Mittal after his dismissal joined the legal profession and practiced as an Advocate in this Court and so on this ground was not entitled to arrears of salary. Reference was made to rule 51 of the Bar Council of India Rules which reads as under:-

"Rule 51.

An Advocate shall not be a full time salaried employee of any person, government, firm corporation or concern, so long as he continues to practise and shall, en taking up any such employment intimate the fact to the Bar Council on whose roll his name appears and shall there-upon cease to practise as an Advocate-so long as he continues in such employment;"

This rule requires an Advocate not to accept a full-time salaried employment from any person or body or company or firm or corporation so long as he continues to practise the profession of law This rule enacts a prohibition, it is a principle of professional ethic now embedded in a statutory rule. Violation of this rule makes the legal practitioner guilty of professional misconduct but all the same the same does not prohibit a person who has obtained a declaration in his favour from claiming his just dues of arrears of pay, etc Admittedly, there is no evidence on the record that the plaintiff had been earning from the profession. On the other hand, as per his own statement, he did not earn any amount and, was only working as an Assistant to another Senior Advocate. The Division Bench after carefully examining the bar of rule 51 of the bar Council of India Rules and Fundamental Rule 54(3) (b) came to a conclusion that same does not debar a person from claiming salary since his dismissal had been set aside. The above Division Bench judgment fully support the case of the appellant.

Accordingly I reverse the decision of the trial Court under issue No. 1 and decide the same in favour of the plaintiff Resultantly the judgment and decree of the trial Court is set aside and the suit of the plaintiff is decreed with costs.