IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.F.A. No. 180/2007 Date of decision: 16. 8. 2010 Raj Kumar Sood ….Appellant Versus State of H.P. and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 no For the Appellant: Mr. N.K. Sood, Advocate. For the respondent : Mr. Anshul Bansal, Addl. Advocate General with Mr. J. S. Rana, Assistant Advocate General. Surinder Singh J. (Oral) This Regular First Appeal has been field by the appellant feeling aggrieved and dissatisfied by the judgment and decree passed by the Court below whereby the suit for recovery of Rs.9,90,000/ was dismissed. 2. Shorn of the unnecessary details, facts in brief can be stated thus. Appellant was Junior Engineer in (PWD) posted in Indira Gandhi Medical College (IGMC), Shimla w.e.f. 1982 to March, 2000, i.e., for about 18 years. It is alleged that at the instance of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - respondents No. 3 and 4, who were daily-wagers, subordinate to him working under his control, made a false complaint to the Engineer-in-Chief of the P.W.D. as well to the Hon’ble Chief Minister of the State which resulted in his transfer. Appellant also wrote against them to the Assistant Engineer concerned and higher authorities which was of no avail. Respondents No. 3 and 4 were the members of the Trade Union. Respondent No. 3 was holding the office of Finance Secretary of the “H.P.P.W.D. Karamchari Sangh” (affiliated to Bhartiya Majdoor Sangh). He also alleged to have exercised considerable influence on account of his position as office bearer of the Trade Union to get him transferred. It is also alleged that services of brother of respondent No. 3 were terminated by him. On this, brother of respondent No. 3 became inimically disposed of towards him. He had threatened to settle the score with the appellant by transferring him from the I.G.M.C. It was also averred that respondent No. 4 Om Parkash was not working properly under him. This fact was also brought to the notice of the higher authorities but they did not take any action against him. He also averred that in the month of October, 1999, water supply to the Hospital got disrupted. He deputed respondent No. 4 to correct it but his directions were not complied with despite the fact that the then Home - 3 - Minister of India was to visit Shimla. Appellant alleged that respondents No. 3 and 4 were quite in-disciplined and did not care for the orders of their superiors. This fact was also brought to the notice of respondents No. 1 an 2 but no action was taken but in turn, appellant was got transferred from his place of posting and even threatened that he would not be promoted despite the order of his promotion. Appellant was allegedly harassed by them thus, he was compelled to send a notice under Section 80 of the Code of Civil Procedure and filed the suit for recovery of damages. 3. The suit was resisted and contested by respondents No. 1 and 2 on the ground that notice in terms of Section 80 of the Code of Civil Procedure was not served and further that jurisdiction of the Court was barred. They also pleaded that complaints received by them were baseless thus no action was taken thereupon but the appellant was transferred in public interest as per the Policy of the Government without having been influenced by any one and also respondents No. 3 and 4. It was further pleaded that prior to the present transfer appellant was also transferred on 25.2.1998 and 13.1.1997 but on both these occasions his transfer was cancelled on his oral request. 4. Respondents No. 3 and 4 contested the suit on the ground that they were the members of “Bhartiya - 4 - Majdoor Sangh”, a Trade Union, thus the suit against them was barred under Section 18 of the Trade Union Act, 1986. They pleaded no cause of action and also contended that the allegations contained in the suit were wrong and false. Rest of the allegations were denied and prayed for the dismissal of the suit. 5. In replication, appellant reiterated the pleas taken by him. 6. On the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the suit is not maintainable in the present form, as alleged? OPD 2. Whether the plaintiff has no cause of action against defendants No. 1 and 2?OPD 3. Whether the suit is bad for want of valid notice under Section 80 CPC?OPD. 4. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD. 5. Whether this court has no jurisdiction to entertain the present suit in view of the provisions of H.P. Administrative Tribunal Act? OPD-1 and 2. 6. Whether this Court has no jurisdiction to try the suit under Section 18 of the Trade Union Act? OPD-3 and 4. 7. Whether the suit is bad for non-joionder of the necessary parties? OPD 8. Whether the defendants No. 1 and 2 were justified in not acting upon various complaints of in subordination and indiscipline of defendants No. 3 and 4? OPD. 9. If issue No.8 is decided against the defendants, whether the inaction on part of the defendants No. 1 and 2 caused grievous mental harassment - 5 - and loss of reputation to the plaintiff for which he is entitled to the compensation from the defendants? OPP 10. Whether the plaintiff is entitled to the relief of mandatory injunction where by directing the defendants No. 1 and 2 to institute disciplinary proceedings against defendants No. 3 and 4? OPP 11. Whether with malafide intention the defendants No. 3 and 4 filed false and frivolous complaint against the plaintiff resulting in transfer of the plaintiff? OPP 12. If above three issues are decided in favour of the plaintiff; to what amount of compensation and from whom, the plaintiff is entitled to? OPP 13. Relief. 7. The findings on Issues No. 3, 6 and 8 were returned in affirmative and others in negative as such the suit was dismissed. 8. I have heard learned counsel for the parties and have gone through the record carefully. 9. To file a suit against the government or its officer, compliance of Section 80 of the Code of Civil Procedure is a sine qua non unless exempted under Section 80 (2). There is a communication Ext. D40 placed on record addressed to the Engineer-in-Chief alleging humiliation and threat by the daily-waged workers and another is Ext.PW1-A, D43 addressed to the Assistant Engineer PWD and Ext. D44 is addressed to the Hon’ble Chief Minister on the same subject and a - 6 - notice Ext. D47 was sent to the Engineer-in-Chief through his Advocate calling upon him to take legal as well as disciplinary action against the daily-wagers lest he would institute a suit on the expiry of two months. Admittedly no notice was served upon the Collector or the Secretary to the Department concerned in terms of Section 80 of the Code of Civil Procedure. Therefore, the learned trial Court rightly held that the suit was not competent against respondents No. 1 and 2. 10. Further, respondents No. 3 and 4 are the office bearers of the Trade Union. This fact has also been admitted in the pleadings by the appellant. Section 18 of the Trade Union Act 1926 is a bar to a suit or other legal proceedings in a Civil Court against any registered Trade Union or any office bearer or a member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party. Therefore, the dispute in the instant case is rightly held to be a Trade Union dispute by the learned trial Court and Section 18 is a bar to maintain the suit. 11. The evidence on record also reveals that the petitioner was posted as Junior Engineer in I.G.M.C. Shimla in PWD Wing for the last about 18 years as already stated above, twice his transfer was cancelled on his oral request. He tried to take support to exert - 7 - pressure by capitalizing out of the complainant made by respondents No. 3 and 4 either to get his transfer cancelled and to stick to the same place for another period to whatever he could prolong. Had respondents No. 3 and 4 caused any indiscipline or defied his any order, he could have proceeded against them under the relevant provisions by taking disciplinary action against them but in turn he also made representation to the Assistant Engineer/Engineer-in-Chief and also to the Hon’ble Chief Minister. The reason is obvious. 12. The case of respondents No. 1 and 2 is that the appellant was transferred in public interest as per Policy of the Government, without any pressure. Otherwise also the appellant had no right to remain at one place till his retirement because the transfer is a necessary incident of service. 13. On the critical examination of the entire evidence on record neither the suit was properly instituted after complying with the provisions of Section 80 of the code of Civil Procedure nor I do find it a fit case for awarding compensation. Otherwise also the suit is barred as per Section 18 of the Trade Union Act. Therefore, no fault can be found in the judgment and decree of dismissal passed by the learned trial Court, as such the appeal is without any merit hence dismissed. Parties to bear their own costs. August 16, 2010 (Surinder Singh),J (cm)