Indira Raveendran v. The Secretary, Department of Labour, Government of Kerala, and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).No. 25104 of 2010(O) -------------------------AGAINST THE ORDER DATED 22/06/2010 IN IA 1479/2010 IN OS.481/2009 of II ADDL.SUB COURT,THIUVANANTHAPURAM .................... PETITIONER(S): - --------------- INDIRA RAVEENDRAN, AGED 49 YEARS, W/O.P.RAVEENDRAN PILLAI, VANCHIYOOR TOWERS, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.N.J.MATHEWS SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): - --------------- 1. THE SECRTARY, DEPARTMENT OF LABOUR, GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 2. SRI.A.ALEXANDER, DISTRICT LABOUR OFFICER (VIGILANCE), OFFICE OF THE LABOUR COMMISSIONR, HOUSING BOARD BUILDING SANTHINAGAR, THIRUVANANTHAPURAM. 3. SMT.A.V.GEETHA KUMARI, DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE VANCHIYOOR, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.25104 of 2010 -------------------------------------Dated this the 18[th] day of August, 2010.** ## **JUDGMENT** This Writ Petition at the instance of the plaintiff is in challenge of Ext.P3, order dated 22.06.2010 on I.A.No.1479 of 2010 in O.S.No.481 of 2009 setting aside the exparte order against respondent Nos.1 to 3, the State and its officials and receiving written statement filed by them beyond 90 days of date of service of summons on them. In the affidavit in support of I.A.No.1479 of 2010 sworn by respondent No.3, it is stated that respondents were served with “notice” on 11.08.2009 and the case was adjourned to 24.11.2009 for written statement but on that day respondents could not file the written statement due to nonavailability of records and statement of facts and hence the matter was represented to the court. But the court declared respondents/State and its officials exparte for not filing written statement. It is stated that non-filing of written statement was not due to any willful laches or negligence of respondents but only due to the delay in getting statement of facts from various departments (of the Government). The application was resisted by petitioner as per Ext.P2, objection where she contended that there is no good cause shown to set aside the exparte order and receive written statement filed beyond the period of 90 days. Learned counsel for petitioner states that Ext.P2, objection was filed in court on 21.06.2010. Learned Sub Judge heard I.A.No.1479 of 2010 on 22.06.2010 and observing that petitioner has not filed objection, allowed **WP(C) No.25104/2010** 2 request of respondents and passed the impugned order. Learned counsel wanted this Court to consider Ext.P2, objection also while disposing of this Writ Petition. Learned counsel for petitioner contends that the impugned order is bad in law for various reasons. 2. One contention raised is that as there is no compliance with Order XXVII Rule 8 of the Code, the Government Pleader could not appear in the court below on behalf of respondent Nos.2 and 3. It is also contended that as per Rule 27 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (for short, “the Rules”), the Government Pleader could not have appeared on behalf of a private parties (referring to respondent Nos.2 and 3) while he is appearing on behalf of the Government (respondent No.1). According to the learned counsel, it should therefore be taken that there was no appearance for respondent Nos.2 and 3 in the court below. Further argument is that the learned Sub Judge should not and could not have extended the time for filing written statement beyond 90 days from date of service of summons in view of Section 148 of the Code. According to the learned counsel it is only in exceptional circumstances that court could extent time as held in **Kailash v. Nanhku and others ((2005) 4 SCC 480)** and **R.N.Jadi & Brothers and others v. Subhashchandra ((2007) 6 SCC 420)** . On facts it is contended that court below went wrong in allowing request to set aside the exparte order and extent time for filing written **WP(C) No.25104/2010** 3 statement. It is also argued that the application filed by respondents is defective since in one application two reliefs are claimed. Learned Government Pleader appearing for the respondents contended that there was no objection before the learned Sub Judge when the application was heard and disposed of. At any rate, on facts and circumstances as well as the point of law learned Sub Judge is justified in allowing the application to set aside the exparte order and receiving the written statement. 3. To decide the contention raised by learned counsel it is relevant to refer to the facts involved. According to the petitioner, respondent Nos.2 and 3 who, it is not disputed before me are public officers under the Government (respondent No.1) initiated prosecution proceedings against petitioner, malafide and without any material and ultimately petitioner was acquitted in the criminal prosecution. Petitioner wanted the respondents to pay compensation to her for the injury and mental agony she suffered. Before instituting the suit a notice under Section 80 of the Code was also served on respondents. Order XXVII Rule 8 of the Code relied on by the learned counsel says that when the Government undertakes defence of a suit against a public officer, the Government Pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the court and upon such application the court shall cause a note of his authority to be entered in the register of civil suits. Sub-rule (2) says that where no application as referred to under Sub-rule (1) is made by the Government Pleader on or before the day fixed in the notice for the **WP(C) No.25104/2010** 4 defendant to appear and answer, the case shall proceed as in a suit between private parties. Learned counsel has placed reliance on the decisions in **Lutfar** **Rahaman Laskar Haji Kabadali Naskar v. The State of West Bengal and others(AIR 1954 Calcutta 455)** and **State of Orissa and others v. Orissa Oil Industries Ltd. and others (AIR 1982** **Orissa 245)** to buttress his contention that in so far as no such application in compliance of Rule 8 of Order XXVII of the Code has been made by the Government Pleader he could not have appeared in the court below on behalf of respondent Nos.2 and 3 in his capacity as Government Pleader. Rule 27(5) of the Rules relied on by learned counsel states that the Government Law Officer referred to therein shall not accept any engagement or fee from private parties in cases in which he appears on behalf of Government. According to the learned counsel, for the said reason the Government Pleader could not appear on behalf of respondent Nos.2 and 3 personally also. 4. Two questions arise for decision; whether respondent Nos.2 and 3 have been impleaded in the suit as private parties and whether in the absence of an application under Order XXVII Rule 8 of the Code the Government Pleader could have appeared on behalf of respondent Nos.2 an 3. What is stated in the plaint is that respondent Nos.2 and 3 (though they are also described in the cause title by their names) in their capacity as public officers initiated prosecution proceedings against petitioner, malafide, and without probable cause and it resulted in acquittal of petitioner resulting in loss and injury to her which is **WP(C) No.25104/2010** 5 required to be compensated by payment of damages by the respondents. As I stated, though respondent Nos.2 and 3 are mentioned by their names also, they are described by the respective departments as well. There is no case that prosecution proceedings were initiated by respondent Nos.2 and 3 in their individual and personal capacity. Instead allegations in the plaint show that they initiated prosecution only in the capacity as officials of the department concerned. In otherwords it was in the discharge of their official duty though allegedly tainted with malafides that they acted against petitioner. It is apposite to refer to Rule 5A of Order XXVII of the Code which states that where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit. Here, State has been made a party to the suit obviously in compliance of the said Rule and as petitioner is proceeding against respondent Nos.2 and 3, public officers for recovery of damages for acts alleged to be done by them in the discharge of their official duty. Hence I cannot accept a contention that respondent Nos.2 and 3 are impleaded in their individual capacity as private parties to the suit. Notwithstanding that respondent Nos.2 and 3 are also named by their names I must understand that they have been impleaded as public officers for discharging their official duty which ofcourse petitioner would say is tainted with malafides. Rule 27(2) of the Rules has therefore no application. 5. Then the question is whether for non-compliance of Order XXVII Rule 8 of the Code appearance of Government Pleader on behalf of respondent **WP(C) No.25104/2010** 6 Nos.2 and 3 in the court below has to be ignored and it should be taken that there was no appearance for respondent Nos.2 and 3 in the court below. Here is a case where the suit is instituted against State as well as its officers and not merely against public officers alone. The Government Pleader has appeared on behalf of the State and the public officers. Order XXVII Rule 8 of the Code relied on by learned counsel refers to the procedure to be followed by a Government Pleader “upon being furnished with authority to appear and answer the plaint”. In **Lutfar Rahaman Laskar Haji Kabadali Naskar v. The State of West Bengal and others** (supra) facts of the case would show that the decision concerned an advocate who was authorised to appear and answer the plaint on behalf of public officers concerned. The act of that advocate without complying with Rule 8 of Order XXVII was found to be not done by an advocate who had authority to do so (on behalf of the public officers). Though, the above said Rule referred to 'Government Pleader' it was pointed out from Section 2(7) of the Code that the expression included any pleader acting under the direction of the Government Pleader. The decision did not concern the act of a Government Pleader appointed by the Government. The decision in State of Orissa and others v. Orissa Oil Industries Ltd. and others (supra) concerned Rule 9 of Order XXVII as amended by the Orissa High Court. In paragraph No.6 of the decision it is observed that there is no material that the Government Pleader had authority from the State Government to appear on behalf of public officers (involved in that case). Rule 22(1)(vi) of the Rules **WP(C) No.25104/2010** 7 specifically empowers the Government Pleader when so instructed by the District Collector or the Government to appear on behalf of public officers. When the Government Pleader has appeared on behalf of respondent Nos.2 and 3 (public officers) I must presume that it was as per the instruction of the District Collector or the Government as the case may be. Hence contention that in the absence of compliance of Order XXVII Rule 8 of the Code the Government Pleader could not have appeared on behalf of respondent Nos.2 and 3 cannot be accepted. At any rate as the Rajasthan High Court observed in **State of Rajasthan v. Chander Singh (AIR 1971 Rajasthan 299)** compliance with Order XXVII Rule 8 of the Code can be made at any stage, even in appeal. 6. The next argument is concerning power of the court to receive written statement beyond the period of 90 days of service of summons. Question for consideration is whether on the facts and circumstances and on point of law it was within the power of learned Sub Judge to have accepted the ## written statement. (See **Kailash v. Nanhku and others** and **R.N.Jadi &** ## **Brothers and others v. Subhashchandra** referred supra). These decisions ofcourse say that the power to extent time for filing written statement beyond the maximum time referred to in Order VIII Rule 1 of the Code must be exercised in exceptional circumstances taking into account the legislative mandate under the said provision. But these decisions also hold that the time limit under Order VIII Rule 1 of the Code though couched in a mandatory form is **WP(C) No.25104/2010** 8 directory in nature and that it does not affect power of the court to extent time in appropriate cases. It is argued by learned counsel for petitioner that Section 148 of the Code empowers the court to extent the time only not exceeding 30 days. I am afraid, that argument cannot be accepted in the light of the decision in **R.N.Jadi & Brothers and others v. Subhashchandra** (supra) where in paragraph No.14, P.K.Balasubramanyan, J. has referred to Section 148 of the Code as well in holding that it is within the power of court to extent time for filing written statement provided circumstances warranted such a course of action. Therefore the contention that Section 148 of the Code limited the power of court to extent time only upto a period of 30 days cannot be accepted. 7. Yet another argument learned counsel has advanced is that in Ext.P1, application the provision of law quoted is Section 151 of the Code and not Section 148 and Order IX Rule 7 of the Code. In **G.K.Prabhakaran &** ## **Co., Irinjalakuda v. David Traders, Trichur ( AIR 1973 Kerala 1)** in paragraph No.3 it is held that no party has a right to insist on the court exercising its inherent jurisdiction under Section 151 of the Code and that it is the power of court to pass appropriate orders in the ends of justice. No doubt, provision of law invoked by respondents in Ext.P1 is Section 151 of the Code. But a wrong quoting of Section is not a ground to disallow relief if otherwise parties are entitled to it. Then the question is whether learned Sub Judge was **WP(C) No.25104/2010** 9 justified in setting aside the exparte order and receiving written statement of respondents. Order IX Rule 7 of the code says what is required is to show “good cause” as against “sufficient cause” occurring in Order IX Rule 13 of the Code. The degree of proof in the matter of 'good cause' is lesser than in the matter of “sufficient cause”. Here respondent No.1 is the State and respondent Nos.2 and 3, as already stated are public officers. They received summons on 11.08.2009. Learned counsel for petitioner states from the copy of summons served on respondents that respondent No.3 received it on 13.07.2009. But this aspect was not brought to the notice of the trial court. Assuming that respondent No.3 had received summons on 13.07.2009 question is whether exparte order against respondents could have been set aside and their written statement received. I referred to Ext.P1, affidavit of respondent No.3 in that regard. Learned counsel states that there is no mention in the affidavit that it is sworn for and on behalf of respondent Nos.1 and 2 also. It is true. But one must go through the affidavit as a whole to understand whether the affidavit is sworn on behalf of respondent Nos.1 and 2 also. Respondent No.3 in his affidavit refers to the inability of respondent Nos.1 and 2 also to file written statement within the prescribed time. Therefore I am inclined to think that the affidavit were sworn on behalf of respondent Nos.1 and 2 as well. Order XXVII Rule 5 of the Code as amended in State of Kerala states that the court in fixing the day the Government is to answer the plaint, shall allow not less than three months time from the date of summons for necessary communication with the Government through proper channel and for issue of instructions to the **WP(C) No.25104/2010** 10 Government Pleader to appear and answer on behalf of the Government and that the court may extend the time at its discretion. No doubt Order VIII Rule 1 of the Code has to be read along with Order XXVII Rule 5 of the Code. In the matter of granting time to the Government or public officers to file written statement some laxity is permissible. In the affidavit it is stated that non-filing of written statement within the stipulated time was on account of non availability of records and statement of facts. The Government Pleader has to prepare written statement on receiving statement of facts and other relevant records from the Departments concerned and get it approved by the appropriate authority before it is filed in court. It is taking that also into account that State amendment has been made to Order XXVII Rule 5 of the Code enabling the Government to get three months time to file written statement and the court is empowered to extent the time for filing written statement. 8. I stated that the decisions on the point say that extension of time for filing written statement beyond the period of 90 days should not be granted as a matter of routine and on mere asking. Learned Sub Judge on facts was satisfied that respondents must be given an opportunity to contest the case. I find no reason to interfere with the discretion exercised by the learned Sub Judge. **WP(C) No.25104/2010** 11 9. The last objection is that in one application two reliefs - one to set aside the exparte order and the other, to receive written statement - are claimed which is defective. The defect is only concerning the form and if the required fee is paid on the application, it is not of any fatal consequence. 10. Having gone through the order under challenge and having heard learned counsel for petitioner and learned Government Pleader I do not find reason to interfere with the impugned order. Writ Petition is dismissed. Learned counsel for petitioner has requested leave of this court to appeal to the Supreme Court under Article 134A read with Article 133(1)(a) of the Constitution of India and requests for issue of a certificate. Having regard to the facts and circumstances of the case I am not satisfied that any substantial question of law having general importance is involved and hence the request for issue of certificate is declined. **THOMAS P.JOSEPH, Judge.** **cks**