Full Judgment Text
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PETITIONER:
COAL MINES PROVIDENT FUND COMMISSIONER
Vs.
RESPONDENT:
RAMESH CHANDER JHA
DATE OF JUDGMENT31/01/1990
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
SAIKIA, K.N. (J)
CITATION:
1990 AIR 648 1990 SCR (1) 181
1990 SCC (1) 589 JT 1990 (1) 115
1990 SCALE (1)96
ACT:
Code of Civil Procedure, 1908: Sections 2(17) and
80--Coal Mines Provident Fund Commissioner--Whether ’public
officer’.
HEADNOTE:
Respondent instituted a suit against the appellant, the
Coal Mines Provident Fund Commissioner without a notice as
required under section 80 C.P.C. Appellant objected stating
that he was a public officer within the meaning of the term
occurring in section 80 C.P.C. and that the suit was incom-
petent.
The trial court overruled the objection and held that
the appellant was not a public officer. The High Court
confirmed the same.
Aggrieved, the appellant, has preferred this appeal by
special leave.
Allowing the appeal, this Court,
HELD: 1. I The courts below have erred in holding that
the Coal Mines Provident Fund Commissioner is not a public
officer within the meaning of the term in section 2(17)(h)
of the C.P.C. The word ’service’ in section 2 (17)(h) C.P.C.
must necessarily mean something more than being merely
subject to the orders of Government or control of the Gov-
ernment. To serve means "to perform function; do what is
required for". The Commissioner appointed by Government
performs the functions as envisaged in the Act and the
scheme thereunder. When he is actually acting in the capaci-
ty of Provident Fund Commissioner, he does not cease to be
an officer in the service of the Government. [184E-F; 185F]
1.2 The fact that the Commissioner receives the salary
and allowances out of the Coal Mines Provident Fund and not
from the Government during the tenure as Commissioner would
make no difference when the description as an officer in the
service of the Government is answered. [184D]
182
2. In the present case, the Provident Fund Commissioner
holds the office of Commissioner on appointment by Govern-
ment by virtue of his office. His services are temporarily
placed at the disposal of the Board constituted under Sec-
tion 3 of the Coal Mines Provident Fund and Miscellaneous
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Provisions Act, 1948. He does not, therefore, cease to be an
officer in the service of the Government. The payment of his
pay out of the Fund does not alter his status as Government
employee. [185E]
Liquidator of Society Sangakheda Kalan Co-Operative
Bank, Hoshangabad v. Ayodhyaprasad Shiamlal, AIR 1939 Nagpur
232; Kuppu Govinda Chattiar v. Uttukottai Co-Operative
Society, AIR 1940 Madras 831; Vishnu Wasudeo Joshi v. T.L.H.
Smith Pearse, AIR 1949 Nagpur 362; Commissioner of Wakfs,
Bengal v. Shahebzada Mohammed Zahangir Shah, AIR 1944 Cal-
cutta 206 and Kamta Prasad Singh v. The Regional Manager,
F.C.I., AIR 1974 Patna 376, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1932 of
1982.
From the Judgment and Order dated 7.9. 1981 of the Patna
High Court in C.R. No. 341 of 1980 (R).
M.C. Mahajan, Hemant Sharma and Ms. A. Subhashini for
the Appellant.
M.P. Jha for the Respondent.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. This appeal by special leave is
against the judgment dated 7.9.1981 of the High Court of
Judicature at Patna, Ranchi Bench, Ranchi in Civil Revision
No. 341 of 1981. The short question that falls for consider-
ation in this appeal is whether the Coal Mines Provident
Fund Commissioner is a ’public officer’ as defined in sec-
tion 2(17) of the Code of Civil Procedure.
Section 80 of the Code requires a notice to be issued as
prescribed before instituting a suit against a public offi-
cer in respect of any act purporting to be done by such
pubic officer in his official capacity. The respondent
herein instituted a suit against the appellant--the Coal
Mines Provident Fund Commissioner--without a notice under
section 80 C.P.C. The objection in this behalf was repelled
by the trial court
183
and the High Court holding that the Coal Mines Provident
Fund Commissioner is not a public officer. According to the
appellant the Commissioner is a public officer within the
meaning of the term occurring in section 80 of the C.P.C.,
and, therefore, the suit is incompetent.
The term ’public officer’ is defined in section 2(17) of
the Code of Civil Procedure. Public Officer means a person
falling under any of the descriptions in clauses (a) to (h).
It is contended on behalf of the appellant that the Coal
Mines Provident Fund Commissioner falls under the descrip-
tion in clause (h) which reads as under:
"(h) Every Officer in the service or pay of the government
or remunerated by fees or commission for the performance of
any public duty."
It is necessary to refer to the relevant provision in
the Coal Mines Provident Fund and Miscellaneous Provisions
Act, 1948 for the purpose of determining whether the appel-
lant answers this description. Under section 3, the Central
Government may, by notification in the Official Gazette,
frame the Coal Mines Provident Fund Scheme for the estab-
lishment of a provident fund for employees and specify the
coal mines to which the said scheme shall apply. The fund
shall vest in, and be administered by the Board constituted
under section 3A. The Board thus constituted consists of (a)
a Chairman appointed by the Central Government; (b) the Coal
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Mines Provident Fund Commissioner, ex-officio; and others
specified in the section. The other relevant provisions read
thus:
"3B. The Board of Trustees constituted under section 3A
shall be a body corporate under the name specified in the
Notification constituting it, having perpetual succession
and a common seal and shall by the said name sue and be
sued.
3C. Appointment of Officers: (1) The Central Government
shall appoint a Coal Mines Provident Fund Commissioner, who
shall be the Chief Executive Officer of the Board and shall
be subject to the general control and superintendence of the
Board.
184
4. The method of recruitment, salary and allowances, disci-
pline and other conditions of service of the Coal Mines
Provident Fund Commissioner shall be such as may be speci-
fied by the Central Government and such salary and allow-
ances shall be paid out of the Fund."
It is thus seen that the Commissioner is an officer
appointed by the Central Government as the Chief Executive
Officer of the Board. Though subject to the general control
of the Board, discipline and the condition of service are
such as may be specified by the Central Government. The
salary and allowances are paid out of the fund. The Commis-
sioner may exercise the powers exercisable by the Central
Government under the Act or scheme framed thereunder on
delegation of such power under section 10C.
It will be clear from these provisions that an officer in
the service the Government by virtue of his office, is
appointed as Commissioner by the Government and he performs
public duties. The fact that the Commissioner receives the
salary and allowances out of the fund and not from the
Government during the tenure as Commissioner would make no
difference when the description as an officer in service of
the Government is answered.
The word ’service’ in section 2 (17)(h) must necessarily
mean something more than being merely subject to the orders
of Government or control of the Government. To serve means
"to perform function; do what is required for". The Commis-
sioner appointed by Government performs the functions as
envisaged in the Act and the scheme thereunder. When he is
actually acting in the capacity of Provident Fund Commis-
sioner, he does not cease to be an officer in the service of
the Government.
In Liquidator of Society Sangakheda Kalan Co-operative
Bank, Hoshangabad v. Ayodhyaprasad Shiamlal, AIR 1939 Nagpur
232, Pollock, J. held that liquidator is a public officer as
he is appointed by the Government and discharges public
duties. This decision is distinguished in Kuppu Govinda
Chettiar v. Uttukottai Co-operative Society, AIR 1940 Madras
831 holding that Deputy Registrar acting as Liquidator is
not a public officer. The reasoning adopted is that qualiq-
uidator he is not an officer in the service of the Govern-
ment.
In Vishnu Wasudeo Joshi v. T.L.H. Smith Pearse, AIR 1949
Nagpur 362 it was held that a person who was a member of the
Indian
185
Educational Service but whose services were lent to the
Rajkumar College, Raipur as principal is a public officer
within section 2(17)(h) and did not cease to be in the
service of the Crown by reason of deputation.
In Commissioner of Wakfs, Bengal v. Shahebzada Mohammed
Zahangir Shah, AIR 1944 Calcutta 206 the Court said that the
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expression "public duty" refers to duty concerning to the
affairs or service of the public and the word ’public’ may
include any class of the public or any community. In this
view, the Commissioner of Wakfs who functions in relation to
such public endowments in general was held to perform a
public duty and, therefore, a public officer within the
meaning of section 80 of the Code.
In Kamta Prasad Singh v. The Regional Manager, F.C.I.,
AIR 1974 Patna 376 the question arose whether the officers
of the Food Corporation of India are public officers. The
Corporation is a body corporate. The Court held that Govern-
ment does not include a Corporation and that officers of the
Corporation are not in the service of Government and are not
public officers. These are cases where the concerned officer
did not hold his office in the Corporation by virtue of his
being a Government employee. In the present case, the Provi-
dent Fund Commissioner holds the office of Commissioner on
appointment by Government by virtue of his office. His
services are temporarily placed at the disposal of the
Board. He does not, therefore, cease to be an officer in the
service of the Government. The payment of his pay out of the
Fund does not alter his status as Government employee. We
are, therefore, of the opinion that the courts below have
erred in holding that the Coal Mines Provident Fund Commi-
sioner is not a public officer within the meaning of the
term in section 2(17)(h) of the C.P.C. We, accordingly,
allow the appeal and remit the case to the trial court for
disposal in the light of what has been stated above.
G.N. Appeal allowed.
186