Supreme Court of India
COAL MINES PROVIDENT FUND COMMISSIONERversusRAMESH CHANDER JHA
- Citation
- 1990 INSC 23
- Decided
- 31 January 1990
- Disposal
- Appeal(s) allowed
- Bench
- K N SAIKIA
Holding
The Coal Mines Provident Fund Commissioner is a public officer within the meaning of Section 2(17)(h) of the Code of Civil Procedure.
Summary
The respondent filed a suit against the Coal Mines Provident Fund Commissioner without the notice required under Section 80 of the Code of Civil Procedure (CPC). The Commissioner contended that he was a "public officer" within the meaning of Section 2(17)(h) CPC, making the suit incompetent. The trial court and the Patna High Court held that he was not a public officer. On appeal, the Supreme Court examined the definition of "public officer" and the nature of the Commissioner's appointment, salary, and duties under the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948. It concluded that the Commissioner, appointed by the Central Government and performing public duties, remains an officer in the service of the Government despite being paid from the Fund. Consequently, the Court held that the Commissioner is a public officer and allowed the appeal, remitting the case for disposal in accordance with this finding.
Issues considered
- Whether the Coal Mines Provident Fund Commissioner qualifies as a "public officer" under Section 2(17)(h) of the Code of Civil Procedure.
- Whether a suit instituted against the Commissioner without a notice under Section 80 CPC is incompetent.
Legislation cited
- Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948s. 3, s. 3A, s. 3B, s. 3C, s. 4
- Code of Civil Procedure, 1908s. 2(17), s. 80
Subjects
public officersection 80 CPCnotice requirementCoal Mines Provident Fundservice of governmentcivil proceduregovernment appointment
Judgment
COAL MINES PROVIDENT FUND COMMISSIONER
A
v.
RAMESH CHANDER JHA
JANUARY 31, 1990
[K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.] B
Code of Civil Procedure, 1908: Sections 2(17) and 80-Coa/
Mines Provident Fund Commissioner-Whether 'public officer'.
Respondent instituted a suit against the appellant, the Coal Mines
Provident Fund Commissioner without a notice as required under sec-
tion 80 C.P.C. Appellant objected stating that he was a public officer c
within the meaning of the term occurring in section 80 C.P.c. and that
the suit was incompetent.
The trial court overruled the objection an'1 held that the appellant
was not a pubhc officer. The High Court confirmed the same. D
Aggrieved, the appellant, has preferred this appeal by special
leave.
Allowing the appeal, this Court,
E
HELD: 1.1 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
Government. To serve means "to per{orm function; do what is re- F
quired 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 capllcity of Provident Fund Com-
missioner, he does not cease to be an officer in the service of the
Government. f184E-F; 18SF]
-G
1.2 The fact that the Commissioner receives the salary and allo-
wances out of the Coal Mines Provident Fund and not from the Govern-
ment during the tenure as Commissioner would make no difference
when th-e description_ as an officer in the servire of the Government is
answered. 11840 J
H
181
182 SUPREME COURT REPORTS [ 1990] 1 S.C.R.
2. In th~ present case, the Provident Fund Commissioner holds
A
the office of Commissioner on appointment by Government by virtue of
his office. His services are temporarily placed at the disposal of the
Board constituted under Section 3 of the Coal Mines Provident Fund
and Miscellaneous Provisions Act, 1948. He does not, therefore,
cease to be an officer in the service of the Government. The pay-
B ment of his pay out of the Fund does not alter his status as Govern-
ment employee. [!SSE]
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
c Nagpur 362; Commissioner of Wakfs, Bengal v. Shahebzada Moham-
med Zahangir Shah, AIR 1944 Calcutta 206 and Kamta Prasad Singh v.
The Regional Manager, F. C.J., AIR 1974 Patna 376, referred to.
CIVIL APPELLATE JTTRJSDICTION: CivilAppeal No. 1932
D of 1982.
From the Judgment and Order dated 7 .9.1981 of the Patna High
Court in C.R. No. 341of1980 (R).
M.C. Mahajan, Heman! Sharma and Ms. A. Subhashini for the
E Appellant.
M.P. Jha for the Respondent.
The Judgment of the Court was delivered by
F 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 consideration in this appeal is whether the Coal
Mines Provident Fund Commissioner is a 'public officer' as defined in
section 2(17) of the Code of Civil Procedure.
G
Section 80 of the Code requires a notice to be issued as pre-
scribed before instituting a suit against a public officer 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
H 80 C.P .C. The objection in this behalf was repelled by the trial court
P.F. COMMR. v. R.C. JHA [FATHIMA BEEVI, J.) 183
and the High Court holding that the Coal Mines Provident Fund Com- A
. missioner is not a public officer. According to the appellant the Com-
missioner 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 B
the descriptions in clauses (a) to {h). It is contended on behalf of the
l appellant that the Coal Mines Provident Fund Commissioner falls
under the description 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."
c
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 appellant answers this descrip-
tion. Under section 3, the Central Government may, by notification in D
the Official Gazette, frame the Coal Mines Provident Fund Scheme for
the establishment 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 Mines Provident Fund Commis- E
sioner, ex-officio; and others specified in the section. The other rele-
vant 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 F
and a common seal and shall by the said name sue and be
sued.
3C. Appointment of Officers: ( 1) The Central Govern-
ment shall appoint a Coal Mines n·ovident Fund Commis-
sioner, who shall be the Chief Executive Officer of the G
Board and shall be subject to the general control and
vI superintendence of the Board.
2.................... .
3. . .................. . H
184 SUPREME COURT REPORTS I 1990] 1 S.C.R.
4. The method of recruitment, salary and allowances, dis-
A
cipline arid other conditions of service of the Coal Mines
Provident Fund Commissioner shall be such as may be
specified by the Central Government and such salary and
allowances shall be paid out of the Fund."
B 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
Commissioner may exercise the powers exercisable by the Central
Government under the Act or scheme framed thereunder on delega-
c tion of such power under section lOC.
It will be dear from these provisions that an officer in the service
of the Government by virtue of his office, is appointed as Commis-
sioner by the Government and he performs public duties. The fact that
D the Commissioner receives the salary and allowances out of the fund
and not from the Governn1ent 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
E something more than being merely subject to the orders of Govern-
ment or sontrol of the Government. 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 capacity of Provi-
dent Fund Commissioner, he does not cease to be an officer in the
F service of the Government.
In Liquidator of Society Sangakheda Kalan Co-operative Bank,
Hoshangabad v. Ayodhyaprasad Shiamlal, AIR 1939 Nagpur 232, Pol-
lock, J. held that liquidator is a public officer as he is appointed by the
Government and discharges public duties. This decision is distin-
G guished 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 qua-
liquidator he is not an officer in the service of the Government.
In Vishnu Wasudeo Joshi v. T.L.H. Smith Pearse, AIR 1949
H Nagpur 362 it was held that a person who was a member of the Indian
PT COMMR. v. R.C. JHA IFATHIMA BEEVI, J.J 185
Educational Service but whose services were lent to the Rajkum"r
A
Colleg~, 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 hi'
deputation.
In Commissioner of Wakj;, Bengal v. Shahebzada Mohammed
Zahangir Shah, AIR 1944 Calcµtta 206 the Court said that the expres- B
sion "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 func-
tions in relation to such public endowments in general was held to
perform a public duty and, therefore, a public officer within the mean-
ing of section 80 of the Code,
c
In Kamta Prasad Singh v. The Regional Manager, F.C.I., AIR
1974 Patna :j76 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 Government does not include a Corpo-
ration and that officers of the Corporation are not in the service of D
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, there- E
fore, 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 Govern-
ment employee. We are, therefore, of the opinion that the courts
below have erred in holding that the Coal Mines Provident Fund Com-
misioner 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 F
and remit the case to the trial court for disposal in the light of what has
been stated above.
G.N. Appeal allowed.
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