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1983 DIGILAW 344 (PAT)

Pratap Narain Sinha v. State Of Bihar

1983-12-22

CHAUDHARY SIA SARAN SINHA

body1983
Judgment 1. This is a plaintiffs second appeal against a judgment of reversal. Certain facts are undisputed and they are these : In 1939 the plaintiff joined as lower division Assistant in the office of the I. G. (Prisons) Bihar. He was confirmed to this post in the year 1952. He officiated as upper division Assistant in the office of I. G. (Prisons) in the year 1954. On 20-12-1955 he was appointed upper division Assistant in the Development (Cottage) Department. In 1956 the Development (Cottage) Department was designated as Department of Industries and Mines and in the same year the plaintiff was posted in the Crafts-cum-Training Scheme of the department of Industries and Mines. In 1963 under orders of the Government the Crafts-cum-Training Scheme of department of Industries and Mines was made part of the Labour and Employment Department and it began so functioning with effect from 1964. Two persons, arrayed as defendants Nos. 6 and 7 were promoted as Sectional Officer in the Labour and Employment Department in the years 1967 and 1968 respectively. The plaintiff filed a representation challenging the promotion of defendants Nos. 6 and 7 to the post of Section Officer overlooking his claim. On the 2nd Mar., 1968, the plaintiff received a letter of the Labour and Employment department intimating that his services were no longer required in this department with effect from 31-3-1968. He should, therefore, join his parent department that is to say the department of I. G. (Prisons) with effect from 1-4-1968. This led the petitioner to serve a notice under S.80 of the Civil P. C. on 21-5-1968. After service of this notice, the plaintiff received another order, substantially to the same effect as the earlier order dated 2-3-1968 (marked Exhibit 4-f) directing reversion of the plaintiff to the parent department with effect from 24-11-1968. There was further direction to him to join the department with effect from that date. 2. The grievance of the plaintiff not having been redressed he instituted the suit on 3-1-1969 for a declaration, inter alia, that his services had been permanently transferred and merged in the department of Labour and Employment and that the order of reversion to Jail department was without jurisdiction and illegal. The order promoting defendants 6 and 7 as Sectional Head was also sought to be declared illegal. The order promoting defendants 6 and 7 as Sectional Head was also sought to be declared illegal. There was yet another declaration sought for by him which was that the plaintiff be held entitled to the post, remuneration and privileges of the post of Sectional Officer, or in the alternative for an order to the defendants to consider the case of the plaintiff to the said post and to promote him to the said post. During the pendency of the suit the plaintiff retired from service on 31-3-1972. On 8-9-1971 he filed a petition for amendment to the plaint. By this amendment, which was allowed by the Court by order dated 25-11-1972, he prayed for a decree for damage and compensation past and future. 3. The defendants contested the suit alleging inter alia, the non-maintainability of the suit on account of the bar created by Section 80 of the Civil P. C. The trial Court recorded all the findings in favour of the plaintiff including the validity of the notice under Section 80 of the Civil P. C. The result was that the trial Court decreed the suit. 4. The defendants carried out the matter in appeal. As is undisputed, the lower appellate Court agreed with all the findings recorded by the trial Court except its finding regarding the validity of the notice under Section 80 of the Civil P. C. The lower appellate Court held that though upon consideration of the facts and circumstances, the plaintiff-appellant had a good case but the suit was hit by Section 80 of the Civil P. C. for want of notice anal he was not entitled to any relief. The result was that the appeal was allowed. This has given rise to the second appeal. 5. The result was that the appeal was allowed. This has given rise to the second appeal. 5. The sole substantial question of law, formulated by this Court for decision of the second appeal, may be found in order No. 4 dated 18-9-1980 which runs as follows: "Whether the Court of appeal below has committed any apparent error of law in dismissing the suit of the plaintiff-appellant on the ground that a fresh notice under S.80, C. P. C. was necessary in the present case after amendment of the plaint." This second appeal, thus, raises a short point; whether the lower appellate Court, after affirming all the findings of the trial Court recorded in favour of the plaintiff, acted legally in non-suiting him on account of the bar created by Section 80 of the Civil P. C. 6 Section 80 (3) (b) of the Civil P. C., as mended by Act 104 of 1976, provides that no suit instituted against the Government or against a Public Officer in respect of any act purported to be done by such Public Officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to under sub-section (1) if in such notice the cause of action and the relief claimed by the plaintiff had been substantially indicated. The suit having been instituted in the year 1969, the plaintiff-appellant has to fall back upon the provisions of Section 80, as it stood prior to the 1976 amendment, which necessitated the service of notice stating the cause of action the name, description and place of residence of the plaintiff and the relief which he claims and further that the plaint shall contain a statement that such notice had been so delivered or left. 7. The object of the notice required by Section 80, C. P. C. is to give to the Secretary of the State or the Public Officer concerned an opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without litigation. The primary point for consideration is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avoid litigation. So long as the notice substantially informs the defendant of the nature of the suit and the grounds of complaint, the legal requirement would stand satisfied. The primary point for consideration is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avoid litigation. So long as the notice substantially informs the defendant of the nature of the suit and the grounds of complaint, the legal requirement would stand satisfied. Learned counsel for the appellant relied on a decision of the Supreme Court in the case of Union of India V/s. Jiwan Ram, ( AIR 1958 SC 905 ) where their Lordship of the Supreme Court held that where there was no substantial difference between the relief mentioned in the notice and the plaint, the notice under Section 80 was not invalid on that ground. The plaintiff might have been appointed initially as a lower division Assistant of the I. G. (Prisons) in 1939 but his case, which undisputedly stands proved as found by the two Courts below, is that subsequently he become a permanent member of the department of Development of Cottage which, as stated above, became a part of the Labour and Employment Department. He, therefore, entertained a grievance when he was asked to revert to the office of I. G. (Prisons) by order dated 2-3-1968. He also entertained a grievance because of promotion of two of his juniors, defendants 6 and 7, to the post of Section Officer. By the notice dated 2nd Mar., 1968 he was ordered to be relieved from the department of Labour and Employment and was reverted to his parent department. He, therefore, served the notice (Exhibit 11). Subsequently, the order dated 23-11-1968 was served on him reverting him to the office of I. G. (Prisons). The subsequent order dated 23-11-1968 appears to be a mere repetition of the order dated 2-3-1968 and the order dated 23-11-1968 nowhere revokes or withdraws the earlier order dated 2-3-1968. These two orders being almost to the same effect, it would be wrong to argue that a fresh notice under Section 80, C. P. C. was required to be served after the order dated 23-11-1968 and that the notice served on account of the order dated 2-3-1968, if otherwise in order, will not serve the purpose. 8. In the plaint, as it originally stood, the plaintiff claimed the various declarations as mentioned above. 8. In the plaint, as it originally stood, the plaintiff claimed the various declarations as mentioned above. After declaration that his reversion to the office of I. G. (Prisons) was wrong, he sought for another declaration that he was entitled to remuneration of the post of Section Officer and, lastly, added a prayer that any other relief or reliefs to which the petitioner is entitled should be allowed to him. The plaintiff was to retire on 13-9-1971 though it appears that he actually retired on 13-3-1972 presumably because some extension was granted to him. After his retirement, the question of promotion to the post of Section Officer did not arise. He, therefore, made a prayer that a decree for damage and compensation past and future be passed in his favour. The declaration sought for by the plaintiff that he was entitled to be absorbed as a Sectional Head in the department of Labour and Employment necessarily included, in it the entitlement of the plaintiff to get the remuneration of that post. In the notice (Exhibit 11) he had put forward a claim that in case his grievances are not redressed he will file a suit making the defendants liable; for all cost and damages incurred thereby which terms are wide enough to include his claim for damages and compensation as put forward in the plaint as subsequently amended. Can it be said, in such a situation, that the amendment of the plaint, sought for by the plaintiff and allowed by the Court, necessitated, in the facts and circumstances of the case, a fresh notice under Section 80 of the Civil P. C. The reply, in my opinion, is in negative and I am constrained to hold that the view taken by the lower appellate Court, in this respect, is illegal and wrong. The relief sought for by the plaintiff in the notice under Section 80 of the Civil P. C. and the relief claimed by him in the plaint, even after amendment, are substantially the same and, the notice (Exhibit 11), duly served on the defendants, would meet the requirement of law. 9. The result is that the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court is restored. 9. The result is that the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court is restored. In the facts and circumstances of this case, there will be no order as to costs either of the first appeal before the lower appellate Court or of the second appeal in this Court and the parties are directed to bear their own cost of these two stages of the litigations.