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Machiraju Parthasarathy Vs. the Tobacco Export Promotion Council and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 391 of 1973
Judge
Reported inAIR1976AP321
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 11 - Order 33, Rule 5 - Order 41, Rule 33; Andhra Pradesh Shops and Establishments Act, 1947 - Sections 2 and 42; Specific Relief Act, 1877 - Sections 42
AppellantMachiraju Parthasarathy
RespondentThe Tobacco Export Promotion Council and ors.
Appellant AdvocateP.M. Gopal Rao, Adv.
Respondent AdvocateA. Hanumantha Rao, Adv.
Excerpt:
service - termination - order 7 rule 11, order 33 rule 5 and order 41 rule 33 of code of civil procedure, 1908, sections 2 and 42 of andhra pradesh shops and establishments act, 1947 and section 42 of specific relief act, 1877 - appellant's service terminated - appeal filed against respondent no. 1 to 4 to permit appellant to file suit in forma pauperis and for declaring termination order as illegal - respondents contended that respondents no.2to 4 are merely representative of respondent no. 1 for passing of resolution of termination - intendment of order 33 rule 5 of code is to allow petitioner to sue only such persons against whom he can show cause of action - pauper petition not allowed with respect to other defendants except respondent no. 1 against whom no cause of action arises -..........terminated and as such they committed a tortious act rendering themselves liable for damages. the learned counsel in the context referred to certain passages in 'law of torts' by s. ramaswamy iyer (sixth edition). in a passage at page 303 it is pointed out by the learned author that---'the principle that persons combining with the object of injuring another should be liable in a civil action though apart from combination their methods are not illegal and they are not guilty of a crime, rests on grounds of policy and may be useful to penalise forms of wrong doing and oppression which may otherwise escaped the law. thought the principle appears to be simple and intelligible there have been difficulties applying it. it can and need be invoked only when a single individual is.....
Judgment:

Jayachandra Reddy, J.

1. The appellant was appointed as Market Information Officer on 5-11-1966 in the Sub Office of the Tobacco Export Promotion Council (lst respondent) at Guntur on a salary of Rs. 210 for a period of one year and served continuously for 5 years. Respondents 2 to 4 are the Secretary, Chairman and Vice-Chairman of the Tobacco Export Promotion Council (1st respondent). On 15-2-1971 the Administrative Committee passed a resolution authorising the 3rd respondent to take action against the appellant and the appellant's services were terminated with effect from 1-4-1971 in pursuance of a notice issued on 28-2-1971. The appellant filed O.P. No. 40 of 1971 against respondents 1 to 4 herein to permit him to file the suit in forma pauperis and for declaration that the order terminating his services is illegal inoperative. He also claimed damages against the respondents to an extent of Rs. 92,705 being the total amount of his salary for 12 years and also further damages of Rs. 100 against respondents 2 and 4. It is case that he served the 1st respondent-Council to the best of his ability and secured good name for the Council and this became an eyesore to respondents 2 and 4 and they prejudiced the mind of the 3rd respondent against the appellant and managed to get a resolution passed on 15-2-171 in pursuance of which his services were terminated. According to him there was no reasonable case for termination of his services and in view of Section 41 of the Andhra Pradesh Shops and Establishments Act, the respondents have no right to terminate the services of the appellant. Hence he was entitled for damages as prayed for.

2. The respondents filed a counter stating that respondents 3 and 4 are merely representatives of the 1st respondent, that the 4th respondent has no power except to preside over the meetings in the absence of the Chairman and that they cannot be impleaded in their individual capacity and they are not liable for any damages.

3. The learned Subordinate Judge after considering the rival contentions held that the petitioner, has no cause of action against respondents 2 to 4 as contemplated under Order 33, Rule 5, Cl (d), C.P.C. and consequently he directed the numbering of the pauper petition as a suit only against the 1st respondent and dismissed it against respondents 2 to 4. The present Civil Miscellaneous Appeal is filed by the petitioner against this order of the Court below, and no appeal is preferred by the 1st respondent.

4. Sri P.M. Gopal Rao, the learned counsel for the appellant contends that a reading of the averments in the plaint would show that there is sufficient cause of action for the appellant against resspiracy was hatched by respondents 2 to respondents 2 to 4. According to him a conspiracy was hatched by respondents 2 to 4 in which respondents 2 and 4 in particular played the key-role in getting the resolution passed by prejudicing the mind of the 3rd respondent and so they are liable for damages as prayed for in the original petition. The conduct of the respondents 2 and 4, according to the learned counsel was malicious and that resulted in the termination of the services of the appellant and tortious act of the respondents rendered them liable for damages. Relying on a decision of the Supreme Court in Vijay Pratap v. Dukh Haran Nath (AIR 1962 SC 9410) the learned counsel contends that if the allegations in the petition filed under Order 33, Rule 5 (d) C.P.C. prima facie show a cause of action the court cannot embark upon an enquiry as to whether the allegations are true and whether the petitioner would succeed in the claims made by him.

5. In the list of the above decision of the Supreme Court, the averment in the plaint in this case may be examined. Even the learned counsel contended that in view of the plaint averments there is absolutely no cause of action for the plaintiff against the 3rd respondent. Now coming to respondents 2 and 4, as already noted, the 2nd respondent is the Secretary of the 1st respondent-Council and also can be gathered from the cause title the 1st respondent council is represented by him. The 4th respondent is the Vice-Chairman of the 1st respondent-Council. The main allegation against these two respondents is that they grew jealous of the appellant who became extremely popular by rendering meritorious service in raising the image of the council. The further averment in the plaint is that as the appellant a petty employee earned high reputation among the world tobacco dignitaries, respondents 2 and 4 have been trying to send him away out of the office and thus put an end to his popularity. But having failed in their efforts they were successful in prejudicing the mind of the 3rd respondent by carrying tales against the appellant-petitioner. Ultimately the two respondents manoeuvred to get a resolution moved and prevailed upon the 3rd respondent to get the same passed in the Administrative Committee held at Guntur on 15-2-1971 authorising the 3rd respondent to take action against the appellant-petitioner. In pursuance of this resolution his services were terminated, given if all these plaint allegations against respondents 2 and 4 are taken to be true we are not able to see as to how they are directly responsible for the termination of the services of the appellant-petitioner. It is the Administrative Committee that authorised the 3rd respondent by its resolution to take action. Respondents 2 and 4 are only statutory heads of the 1st respondent-Council. It is the decision of the Administrative Committee that was put into effect. It is not the case of the appellant-petitioner that respondents 2 and 4 are directly responsible for passing the resolution or the termination order. If the petitioner is aggrieved by the resolution and the termination orders, he can undoubtedly proceed against the 1st respondent-Council which is its employee for wrongful termination of the services and claim damages, but we are not able to understand how respondents 2 and 4 could be held responsible. Assuming that respondents 2 and 4 had influenced the 3rd respondent and prejudiced him against the appellant-petitioner, that by itself cannot amount to a tort. There are no averments in the plaint which render the act of respondents 2 and 4 tortious and expose them to pay damages.

6. The learned counsel for the appellant relied on Daily Mirror Newspapers Ltd., v. Gardener, ((1968) 2 QB 762) and argued that respondents 2 and 4 who procured breach of contract of the appointment between the appellant and the 1st respondent, committed an unlawful act. In that case the plaintiff-company, publishers of a national daily newspaper sued the defendants who were the officers and the executive members of the retailer's federation, a trade union and who instructed their members to boycott the newspaper for a week and that they would not be liable for supplies delivered by the wholesalers despite the 'stop' notice. The Court of Appeal held that the retailers committed breach of the contract without sufficient cause and thus committed an unlawful act. It may thus to seen that the officers of the retailers federation, the respondents therein were directly involved in instructing their members to boycott the newspapers and their members to boycott the newspapers and thus committed a breach of the contract directly. In the instant case it is the 1st respondent that appointed the appellant-petitioner. Even according to the appellant-petitioner, respondents 2 to 4 are not directly responsible for the resolution of the Administrative Committee. Further it is not in dispute that the services of the appellant-petitioner are to be renewed every year by he 1st respondent. The petitioner was not holding a permanent part. If at all there was any breach of the contract, the 1st respondent would alone be directly liable and not the others. The above mentioned decision relied upon by the learned counsel is therefore of no assistance to the appellant.

7. In this regard reliance is also placed on Pratt v British Medical Association, (1919) 1 KB 244. In this case also the defendants were directly involved in the unlawful and complained of and hence were found to be liable for damages for their misconduct. This case also does not lend support to the appellant's plea, that respondents 3 and 4 are liable for damages.

8. The learned counsel for the appellant next contended that the averments in the plaint go to show that respondents 2 and 4 entered into a conspiracy to get the services of the appellant-petitioner terminated and as such they committed a tortious act rendering themselves liable for damages. The learned counsel in the context referred to certain passages in 'Law of Torts' by S. Ramaswamy Iyer (Sixth Edition). In a passage at page 303 it is pointed out by the learned author that---

'The principle that persons combining with the object of injuring another should be liable in a civil action though apart from combination their methods are not illegal and they are not guilty of a crime, rests on grounds of policy and may be useful to penalise forms of wrong doing and oppression which may otherwise escaped the law. Thought the principle appears to be simple and intelligible there have been difficulties applying it. It can and need be invoked only when a single individual is not liable for the conduct complained of.'

But we are unable to see as to how such a conspiracy can be spelled out from the circumstances of the case and the averments in the plaint. It is not the case of the appellant that respondents 2 and 4 derived any benefit by getting the services f the appellant terminated, nor is it his case that they in their individual capacity had any direct say in passing the resolution or in the ultimate order of termination of his services. Admittedly the appellant was appointed on a contract basis and his services were being extended only year after year. It was not incumbent on the Council to continue him unless it so desired. It is also not averred in the plaint that the respondents entered into a conspiracy as such. There is absolutely no whisper of any malicious conduct of the 3rd respondent much less an unequivocal allegation to that effect. On the other hand what all that is stated is that respondents 2 and 4 become jealous of the appellant and manoeuvered to get the resolution adopted. In this context it my be noticed that the appellant was drawing a salary of only Rs. 210 and respondents 2 and 3 are occupying very high positions in the Council. Having regard to all these circumstances and even after taking the averments in the plaint to be true, it is not possible to spell out an allegation of conspiracy between respondents 2 and 4 to commit a wrongful act so as to cause wrongful harm or loss to the appellant. In support of the contention that where there is a conspiracy is wrongfully terminate a contract of service, persons so conspiring render themselves liable, reliance was placed on De Jetley Marks v. Greenwood (Lord) (1936) 1 All ER 863). In that se the company was incurring losses and the respondents-Directors was responsible for the poor financial position of the company, suspended him from his duties pending investigation. The plaintiff filed a case against the respondents for non-payment of salary and for damages for wrongfully conspiring to procure a breach of contract. His Lordship Porter, J, held that a conspiracy to cause a breach of contract is not in itself a good cause of action, that the plaintiff did not make out a case for damages against the Directors and that the plaintiff can complain of his alleged dismissal and nothing else. No doubt in this case it is pointed out that the action of those who induced others to break their contracts can only be justified where such action is taken as a duly. It is on this observation reliance is placed for further contending that when there is an allegation of conspiracy against respondents 2 and 4 that they induced the 3rd respondent to break the contract of service, then there is a case for damages. As already observed while conspiracy as such is not alleged, the averments in the plaint are so vague that even if there are taken to be true, it is impossible to spell out even a remote Chief Justice of conspiracy. Thus we are clear in our mind that no cause of action is made out against respondents 2 to 4.

9. The Court below has permitted the appellant to sue as pauper against the 1st respondent only and, dismissed the petition as against respondents 2 to 4 holding that there is no cause of action against them. Relying on State of Punjab v. R.P Kapoor, (1968 All LJ 1102), the learned counsel for the appellant contended that the Court has no power to split upto the petition under Order 33, Rule 5, C.P.C. in that manner. So the next important question that falls for consideration is whether under Order 33, Rule 5, Cl (d) C.P.C. the petitioner-pauper can be permitted to sue all the defendants though cause of action is disclosed only against some of them, or whether the permission can be limited only in respect of such of the defendants against whom there is cause of action and not others. Order 33, Rule 5, Cl (d) C.P.C. reads thus :

'5. The Court shall reject an application for permission to sue as a pauper---

(a) to (c) xx xx xx

(d) where the allegations do not show a cause of action.'

The express terms of Order 33, Rule 5 (d) require the court to ascertain whether the allegations made in the petition disclose a cause of action and to satisfy itself that the allegations made in the petition, if accepted to be true, entitle the petitioner to the relief he claims. What then would happen in a case where a plaintiff vexatiously and frivolously adds some defendants against whom there is absolutely no cause of action, along with some others against whom there is some cause of action? So far as the latter category of the defendants is concerned, the Court can allow the pauper petition, if other requirements are satisfied. But does it necessarily follow that the pauper petition should be allowed even with respect of the other defendants against whom there is no cause of action whatsoever? We are clear in our mind that the intendment of Order 33, Rule 5 Cl (d) is to allow that petitioner to sue only such persons against whom he can show some cause of action and not to allow him to have that luxury of litigating at the cost of the State even against those defendants against whom he is unable to show any cause of action whatsoever. In this connection it is useful to note that under Order 7, Rule 11 (a) a plaint can be rejected when it does not disclose a cause of action. A Division Bench of the Nagpur High Court in Sharkarrao Balaji v. Shambihari (AIR 1951 Nag 419) held that under Order 7, Rule 11 the court after examination of the plaint can discharge some of the defendants against whom no cause of action is disclosed and have their names struck off from the plaint. We see no reason why this principle cannot be applied to a case falling under Order 33, Rule 5, Cl (d) where there is no cause of action against some the respondents-defendants. At this juncture we any notice Section 141, C.P.C. which states that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction. Having regard to this general provision, we are of the view that the principles that apply to a case falling under Order 7, Rule 11 (a) will also apply with equal force to a case falling under Order 33, Rule 9, Cl (d). In Ramakrishna Chetty v. Govidammal, : AIR1954Mad537 , it is pointed out that a person who applies for leave to institute a ut or prefer an appeal in forma paupers must act with the utmost good faith. So it is axiomatic that in cases where no cause of action is disclosed in respect of some of the defendants, under Order 33, Rule 5 (d) the petitioner cannot be permitted to sue them. In State of Punjab v. R.P. Kapoor, (1968 All LJ 1102) the Division Bench of the Allahabad High Court held :

'If the allegations made by the pauper disclose cause of action, though not against all the defendants, permission to sue as a pauper cannot be refused.'

This proposition cannot be disputed, but during the course of the judgment, the learned Judges held that 'it does not appeal to reason that the petitioners should be permitted to sue as paupers some of the defendants in the case while the petitioners should be called upon to pay court-fee as against the other defendants to the same cause,' and also disagreed with the view expressed by the Nagpur High Court in Shankarrao Balaji v. Shambihari (AIR 1951 Nag 419). But with great respect, we are unable to agree with this view of the Allahabad High Court in view of our aforesaid discussion about the scope of Order 33, Rule 5 (d). We therefore hold that the lower Court was right in permitting the appellant-petitioner to sue in forma pauperis only the 1st respondent and not respondents 2, 3 and 4.

10. The learned counsel for the respondents next contended that this Court while exercising its powers under Order 41, Rule 33 which are very wide, can give suitable relief to the 1st respondent also, though no appeal is preferred on its behalf, as according to him, even against the 1st respondent no cause of action is disclosed. We see no substance in the contention. In the plaintiff is clearly averred that the 1st respondent is liable for damages as it wrongfully terminated the services of the appellant-petitioner. At this stage we can neither take into consideration the possible defences open to the 1st respondent on the material of the petitioner's claim nor can we make an elaborate enquiry into the question of fact or law.

11. The learned counsel for the respondent relying on Sections 2 and 42 of the A.P. Shops and Establishments Act also contended that a specific remedy is provided under those provisions for the appellant in a case of illegal termination of service. We have examined Section 42 of the said Act and find that it does not cover a case of damages. The definition of 'wages' in Section 2 also is not comprehensive enough to include damages which one may claim for breach of contract of service. However, it is unnecessary for us to express any considered opinion in this regard; this is also a question which has to be decided in the suit as such.

12. The learned counsel for the respondents relying on the decision in the Guntur Tobacco Market Committee v. Narasaiah, : (1967)ILLJ1AP further contended that a suit for declaration and reinstatement is not maintainable under Section 42 of the Specific Relief Act as the services of the appellant could be terminated by the 1st respondent-Council as per the terms of the contract. We are no force in this contention. The observations made in the aforesaid judgment of this court have no relevance to the facts of this case that was a case where a ut was filed under Section 43 of the Specific Relief Act for a declaration that he still continued in service. In the instant case the suit is filed only for a declaration that the order of termination of service is illegal and for award of damages and other reliefs. The granting of these reliefs is not prohibited under Section 42 of the Specific Relief Act. We are unable to agree with the contention of the learned counsel for the respondents. Further, these are all matters which have to be decided in the suit itself as it is not shown prima facie that the suit is not maintainable.

13. For all the aforesaid reasons the Civil Miscellaneous Appeal is dismissed with costs.

14. Appeal dismissed.


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