SUPREME COURT OF INDIA
National Institute of Mental Health and Neuro Sciences
Vs.
C. Parameshwara
C.A.No.8038 of 2004
(Arijit Pasayat and S.H.Kapadia JJ.)
13.12.2004
S.H.Kapadia, J.
1.
Leave granted.
2. This appeal by grant of special leave is directed against judgment and order
dated 8.9.2003 passed by the High Court of Karnataka in Civil Revision Petition
No.2211 of 2003.
3. Briefly stated, the facts are as follows:
“On 29.6.1985, respondent herein was appointed as senior pharmacist in National
Institute of Mental Health & Neuro Sciences, appellant herein. On
21.6.1988, respondent herein was charge-sheeted for alleged misappropriation of
drugs to the extent of Rs.1,79,668.46. A detailed and elaborate enquiry was
conducted by the enquiry officer. On 20.2.1993, the enquiry officer submitted
his findings holding that the respondent, as a senior pharmacist, was
responsible for shortages of drugs in the year 1987 to the extent of
Rs.1,79,668.46. By show-cause notice dated 1.3.1993, the disciplinary
authority, being the Director of the appellant-Institute, stated that he has
perused the enquiry report dated 20.2.1993 and he was satisfied with the
findings given by the enquiry officer. Consequently, by the said show-cause
notice, the respondent herein was called upon to show-cause why penalty of
removal from service should not be imposed. By the said show-cause notice, the
respondent herein was asked to explain as to why the pecuniary loss suffered by
the appellant be not recovered from him. The respondent herein submitted his
reply to the show-cause notice. By order dated 12.4.1993, the disciplinary
authority ordered removal of respondent from service and also directed the
respondent to reimburse the appellant to the extent of pecuniary loss suffered.
Being aggrieved, the respondent herein moved the appellate authority.”
4. By notice dated 10.6.1993, the appellant called upon the respondent to pay
Rs.1, 79,668.46 on and before 30.6.1993, on account of the pecuniary loss
suffered by the appellant. On failure on the part of the respondent to
reimburse the loss, the appellant filed civil suit no.1732 of 1995 in the Court
of City Civil Judge, Bangalore, seeking a decree for Rs. 1,79,668.46 with
interest. The said suit was instituted on 13.3.1995. On 16.2.1996, the
respondent herein filed his written statement in the above suit. On 23.12.1997,
the Government of Karnataka referred the industrial dispute raised by the
respondent to the Labour Court at Bangalore for adjudication. The question before
the Labour Court was whether the action of the appellant in removing the
respondent from service by order dated 12.4.1993 was justified. On 16.8.2000,
issues were framed by the Civil Court in the aforestated suit no.1732/95, the
main issue being whether the Institute proves that the respondent has caused
pecuniary loss of Rs.1,79,668.46. On 29.10.2001, the Labour Court set aside the
order of removal dated 12.4.1993 and directed reinstatement of the respondent
with continuity of service but without back wages.
5. Aggrieved by the award of the Labour Court the appellant preferred writ
petition no. 24348 of 2002 in the High Court questioning the award of the
Labour Court dated 29.10.2001. By interim order dated 24.7.2002, the High Court
stayed the operation of the order of reinstatement dated 29.10.2001 passed by
the Labour Court.
6. On 20.6.2003, the respondent herein filed an application under section 10
read with section 151 CPC, in the said suit no. 1732/95. By the said
application, the respondent herein sought stay of the said suit till disposal
of the writ petition no. 24348/02. By order dated 20.6.2003, the application
for stay of the suit filed by the respondent was dismissed by the City Civil
Judge, Bangalore. Being aggrieved, the respondent herein filed Civil Revision
Petition No. 2211/03 before the High Court challenging the order of the City
Civil Judge, Bangalore, dismissing application for stay under section 10 CPC.
The said civil revision petition was opposed by the appellant inter alia on the
ground of non-applicability of section 10 CPC to the facts of the present case.
By the impugned judgment and order dated 8.9.2003, the High Court stayed the
said civil suit no. 1732/05 and directed expeditious disposal of the writ
petition filed by the appellant bearing no. 24348/02 within three months; that
in the event of the High Court failing to dispose of the said writ petition
within three months, liberty was given to the appellant to proceed with the
suit up to the stage of final orders, however, the registry was directed not to
draw-up the final decree, in case the appellant succeeds, fill the writ
petition no. 24348/02 filed by the appellant is fully heard and disposed of by
the High Court. Hence, this civil appeal.
7. The short question which arises for determination is whether application
dated 20.6.2003 filed by the respondent under section 10 read with section 151
CPC seeking stay of civil suit no.1732/95 in the Court of City Civil Judge,
Bangalore, was maintainable.
8. The object underlying section 10 is to prevent Courts of concurrent
jurisdiction from simultaneously trying two parallel suits in respect of the
same matter in issue. The object underlying section 10 is to avoid two parallel
trials on the same issue by two Courts and to avoid recording of conflicting
findings on issues which are directly and substantially in issue in previously
instituted suit. The language of section 10 suggests that it is referable to a
suit instituted in the civil Court and it cannot apply to proceedings of other
nature instituted under any other statute. The object of section 10 is to
prevent Courts of concurrent jurisdiction from simultaneously trying two
parallel suits between the same parties in respect of the same matter in issue.
The fundamental test to attract section 10 is, whether on final decision being
reached in the previous suit, such decision would operate as res-judicata in
the subsequent suit. Section 10 applies only in cases where the whole of the
subject matter in both the suits is identical. The key words in section 10 are
"the matter in issue is directly and substantially in issue" in the
previous instituted suit. The words "directly and substantially in
issue" are used in contra-distinction to the words "incidentally or
collaterally in issue”. Therefore, section 10 would apply only if there is
identity of the matter in issue in both the suits, meaning thereby, that the
whole of subject matter in both the proceedings is identical.
9. In the present case, the appellant had initiated the disciplinary
proceedings against the respondent herein on charges of misappropriation of
drugs. In the said disciplinary proceedings, the respondent was found guilty of
alleged misappropriation of drugs. On the basis of the findings arrived at in
the disciplinary enquiry, the respondent herein was removed. The extent of the
loss suffered by the appellant, as found in the disciplinary enquiry, was Rs.
1, 79,668.46. Being aggrieved by the order of dismissal, the respondent moved
the Labour Court. On 29.10.2001, the Labour Court passed an award setting aside
the order of removal dated 12.4.1993. Being aggrieved, the appellant instituted
writ petition no. 2434/02. The appellant has also instituted civil suit no.
1732/95 for recovery of the loss suffered by it to the tune of Rs. 1, 79,668.46
with interest. Thus, as can be seen from the above facts, both the proceedings
operated in different spheres. The subject matter of the two proceedings is
entirely distinct and different. The cause of action of the two proceedings is distinct
and different. The cause of action in filing the said suit is the loss suffered
by the appellant on account of the shortage of drugs. On the other hand, in the
said writ petition no. 24348/02, the management has challenged the award of the
Labour Court granting reinstatement of the respondent.
10. As stated above, section 10 CPC is referable to a suit instituted in a
civil Court. The proceedings before the Labour Court cannot be equated with the
proceedings before the Civil Court. They are not the Courts of concurrent
jurisdiction. In the circumstances, section 10 CPC has no application to the
facts of this case.
11. In the impugned judgment, the High Court has observed that since the writ
petition no. 24348/02 filed by the appellant against the award of the Labour
Court was pending in the High Court and since the High Court was superior to
the Civil Court, it was desirable to stay the passing of the decree by the
Civil Court. At this stage, it may be mentioned that the respondent applied for
stay of the trial pending in the City Civil Court, Bangalore under section 10
read with section 151 CPC. Since the scope of the writ petition filed by the
management was entirely distinct and separate from the suit instituted by the
management in the Civil Court, we are of the view, that, the High Court had
erred in directing the trial Court not to proceed with the drawing up of the
decree.
12. In the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal
reported in it has been held that inherent jurisdiction of the Court to make
orders ex debito justitiae is undoubtedly affirmed by section 151 CPC, but that
jurisdiction cannot be exercised so as to nullify the provisions of the Code.
Where the Code deals expressly with a particular matter, the provision should
normally be regarded as exhaustive. In the present case, as stated above,
section 10 CPC has no application and consequently, it was not open to the High
Court to bye-pass section 10 CPC by invoking section 151 CPC.
13. Before concluding, we may clarify that we have not gone into the merits of
the two cases and observations made herein constitute reasons in support of this
judgment and such observations will neither bind the trial Court in the pending
civil suit no. 1732/95 nor the High Court in the pending writ petition no.
24348/02. All questions on merit are expressly kept open. Nothing we have
stated in this judgment will affect the rights of the parties.
14. Subject to the above, the appeal is allowed. The impugned judgment and
order of the High Court is set aside. In the facts and circumstances of the
case, there will be no order as to costs.