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March 31, 2017 at 11:00 am #1230
Sunder Lal MauryaGuest
I was Employed by Autonomous Body, Civil Aviation Ministry,Government of India in 1998 as Driver. On allegation of misconduct, I was terminated in the year 2000. I challenged the termination in Lucknow Bench of Allahabad High Court, where I impleaded UOI also as one of the party. I personally pleaded my case due financial problem. I got judgement in my favour after 16 years of struggle from High Court. My employer instead of giving job, preferred to appeal in the Division Bench, IN THE APPEAL, MY EMPLOYER, SUPRISINGLY PROJECTED UNION OF INDIA AS PRO-FORMA RESPONDENT i.e. UOI WAS PLACED ON MY SIDE BY THE AUTONOMOUS BODY. , WHEREAS IN MY PETITION THEY WERE RESPONDENTS.
I Pleaded before the Division Bench, after few hearings, the judgement was reserved. I was waiting for the judgement of Division Bench. To my shock, on this case, at this stage, the autonomous body presented a fresh plea that the High Court has no jurisdiction on this matter and moved an appeal under Chapter VIII Rule 5 of Allahabad High Court Rules 1952 for transfer of my case to CAT. By accepting the version of my employer, the Division Bench also reopened my case, which otherwise reserved for Judgement, and issued a notice to me to appear.
I being a Driver by profession, already had long struggle for 17 years to establish fairness of my plea. I have no knowledge on this jurisdiction subject. Even though, I moved a contempt petition, my employer reportedly trying to convince the court on this jurisdiction matter so that, my case can go for litigation before CAT for some more years. Sir Request expertise opinion on this :-
1) Is there any case law of Apex Court on the subject, which I can show to High Court that
(a) UOI who were respondent in my petition cannot be proforma respondent in the appeal filed by the department of the same Administrative Ministry, specially the decision of single bench is in my favour
(b) Reopening of my case by the Division Bench merely on the basis of projection of my employer on CAT jurisdiction is not fair as it was not a subject of my initial petition and the decision was pronounced by signle bench almost after 16 years and the employer has never ever projected this juridiction issue before the High Court. Now just because the judgement is in my favour, this issue is brought before the court.
(c) Decision pronounced by Single bench of High Court is almost equal to the decision of CAT. Under such circumstance, reopening of case by Division bench after reserving it for Judgement, looks like a unfair approach towards me.
2) Can I avoid my appearance, as I have no knowledge on the subject and it is an issue on which the Court alone can decide on appropriateness of their hitherto action.
3) Had the Court denied accommodating my writ at initial stage or my employer intimated the court at initial stage, I would have approached CAT instead of High Court.
4) According to me, my employer should have filed a fresh writ on jurisdiction matter (As there could be 50 odd service cases in High Court) instead of bringing this subject in my case at this stage.
Sir, will you please give some legal input as I am tired of this litigation process due unemployed status for almost 18 years. Inspite of being a Driver and no knowledge on english language, I personally handled/pleaded the case since my termination to till date, just by taking guidance from some of my well wishers and good support of Hon’ble High Court.
Please help me.
April 1, 2017 at 1:17 pm #1236
Dr. Ashok DhamijaAdvocate
Section 21 of the Civil Procedure Code is similar to your case, though it does not directly cover your case. It is reproduced as under:
“21. Objections to jurisdiction.— (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”
In a similar situation, in the case of Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC 634, the Supreme Court held that:
“If the defendant allows the Trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.”
As I mentioned above, though your case is not covered under Section 21 of CPC, the legal principle is somewhat similar. You may try taking a similar ground that before the Single Judge of the high court, the proceedings continued for 16 long years and the opposite party never objected and even a judgment was passed in your favour. Likewise, even before the division bench of the high court, no objection was taken even till the time the judgment was reserved. Therefore, at such late stage, such objection by the opposite party should not be accepted. [Note: however, please be aware that where the competence of the court goes to the root of the jurisdiction, the court may or may not accept this argument.]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.
April 3, 2017 at 3:26 pm #1238
Sunder Lal MauryaGuest
I understood and downloaded the referred case law also and studied it. As you suggested, I shall plead for application of legal principle of 21 CPC and will also try to convince that the decision of single bench almost equal to CAT. On this basis will put forth my case. Will update you for information lateron. Ok sir. Thanking you.
Sunder Lal Maurya
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