R.M. Veerappan v. Secretary, Ramanathan Chettiar High School

1. This appeal is preferred against the order dated 5th July, 1979 made in I.A. 212/78 in A.S. 5/78 on the file of the Subordinate Judge, Devakottai, dismissing the petition filed by the appellant herein under S. 151, C. P.C., seeking the restoration of the appeal which was dismissed for default on 7th November, 1978.

2. The brief facts of the case are as follows: The appellant was terminated from service by the first respondent, viz., the Secretary, Ramanathan Chettiar High School, Puduvayal, pursuant to a domestic enquiry held under the provisions of Tamil Nadu Recognised Private Schools Regulation Act, 1973 (Act 29 of 1974) (hereinafter referred to as the Act) and the Rules made thereunder, by his order dated 25th March, 1977. On being aggrieved by the said order, he preferred an appeal under S. 23 of the Act, before the second respondent, the Joint Director of School Education (Secondary Education), who dismissed the said appeal on 12th December, 1977, confirming the order terminating his services. Thereafter the appellant preferred A.S. No. 5/78 under S. 24 of the Act against the order of the second respondent before the learned Subordinate Judge, Devakottai (Tribunal constituted under S. 42 of the Act) who dismissed the said appeal for default on 7th November, 1978 on the ground that the appellant was absent and his counsel reported no instructions. Thereafter, the appellant filed I.A. 217/78 under S. 151, C.P.C., seeking to set aside the said order dated 7th November, 1978 and to restore the appeal to file. The Tribunal, by its order dated 5th July, 1979, dismissed the said application holding that there was no merit in the application. Hence this C.M.A.

3. Mr. Govindarajan, learned counsel appearing on behalf of the respondents, advanced an argument that this appeal is not maintainable in law, which argument was strongly resisted by Mr. A.R. Lakshmanan, learned counsel for the appellant. Both the counsel in support of their arguments cited various decisions, which I shall refer to at the time of the discussion.

4. The question that arises for consideration is whether an appeal would lie against an order dismissing an application to set aside an ex parte order passed by the Tribunal constituted under S. 42 of the Act.

5. According to Mr. A.R. Lakshmanan, the C.M.A. is filed under 0. 43, Rule 1(d), C.P.C., and such an appeal is maintainable since the Tribunal has passed the impugned order only in exercise of the powers of a Civil Court vested under S. 42(4) of the Act, which states that every Tribunal under the Act shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure while hearing an appeal. He would add that the application to set aside the ex parte order passed by the Tribunal was filed only under S. 151, C.P.C. and hence, against the order of dismissal of the said application by the Tribunal, an appeal under the provisions of the Civil Procedure Code would be competent. He would make an alternative argument that since the Tribunal is headed by a Judicial officer not below the rank of a subordinate Judge who is subordinate to the High Court, the High Court can exercise its revisional jurisdiction under S. 151, C.P.C., in case it is held that no appeal lies against the order of the Tribunal and the matter may be dealt with accordingly by converting the appeal into a revision.

6. Before adverting to the arguments of the learned counsel, I shall now refer to the relevant provisions of the Act, viz., Ss. 42, 43, 53, and 54 of the Act. S. 42 empowers the Government to constitute as many Tribunals as may be necessary for the purpose of this Act, and sub-section(2) thereof states that each Tribunal shall consist of one person only who shall be a Judicial Officer not below the rank of a Subordinate Judge. Of course, under subsection (4) of that section, the Tribunal is given the same powers as are vested in a civil court under the Civil Procedure Code while hearing an appeal. S. 43 deals with the period within which an appeal has to be preferred and the powers of the appellate authority and the mode in which they have to be exercised by the said appellate authority. S. 53 bars the jurisdiction of the civil court to decide or deal with any question which is by or under the Act required to be decided or dealt with by any authority or officer mentioned in the Act. S. 54 runs thus:—

"(1) Any order made, decision taken or direction issued by any authority or officer in respect of matters to be determined for the purposes of this Act, shall, subject only to appeal or revision, if any, provided under this Act, be final."

"(2) No such order, decision or direction shall be liable to be questioned in any Court of law."

On a reading of the above provisions, it is clear that the Tribunal is only a persona designata and that the mere vesting of the same powers as are vested in a civil court under the Civil Procedure Code will not convert the Tribunal into a Civil Court or give the status of a decree to an order passed by the said Tribunal. There is no express provision in the Act prescribing an appeal against the order of the Tribunal. So, in the absence of such an express provision, and in the face of the language of Ss. 53 and 54, it would be very difficult to conceive of an appeal to this Court against the order of the Tribunal passed under S. 24 of the Act. In this connection, I would like to refer to the observations of the Supreme Court made in Gangabat v. Vijay Kumar AIR 1974 S.C 1126 which read as follows:

"A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."

The principle of law touching on this point was first laid down in Sand Rack Charity Trustee v. North Staffordshire Railway Co. (1877) 3 Q.B.D. 1 wherein it has been observed as follows:

"An appeal does not arise. A right of appeal from any decision or from any Tribunal must be given by express enactment."

In Meenakshi Naidu v. Subramanya 14 I.A. 160; ILR 11 Mad 26 (P.C.) the Privy Council held that a right of appeal from the decision of a Judge must be given by the statute or an equivalent authority. In that case, questions arose with reference to an order passed by the District Judge of Madurai under S. 10 of Act 20 of 1863 appointing the appellant in that case (Appellant before the Privy Council) to fill up a vacancy in the Temple Committee administering Sri Meenakshi Sundareswarar Devasthanams. Though the order was passed by the District Judge, the Privy Council held that the appeal filed against the said order in the High Court was not maintainable as no right of appeal was provided by the statute. A Full Bench of this Court in N.K.R.M. Rajagopala Chettiar v. Hindu Religious Endowment Board, MadraAIR 1934 Mad. 103: 39 L.W. 4 (F.B.) held that an appeal against the order passed by the District Judge under S. 84(2) of Madras Act II of 1887 was not maintainable. A similar view was taken by a Division Bench of this Court in P.S. Krishnamurthy Iyer v. Special Deputy Collector of Land Acquisition, Kumbakonam AIR 1936 Mad. 514: 43 L W. 338 holding that no appeal could be filed against the decision of a court under S. 49, proviso (2) of the Land Acquisition Act. In P.B. Rao v. Ahmed Haji Noor Mohamed Lathif AIR 1949 Bombay, 125 a Division Bench of the Bombay High Court consisting of Chagla, C.J. and Gajendragadkar, J., as he then was, reiterated the principle that

"appeals are creatures of statutes and Court can never have an eminent right hearing appeal from another Court unless the law so expressly provides just as a litigant, has no right of appeal from the decision which he obtains from one Court to a higher Court unless the law expressly gives him that right."

A Full Bench of the Rajasthan High Court in Kishan Lal v. Sonan Lal AIR 1954 Rajasthan 138 observed:

"The right of appeal is a creature of statute and it is the statute alone that we must look to determine whether such a right exists in a particular instance or not"

A Division Bench of this Court in Sundararaja Iyer v. Sub-Collector, Dindigul , AIR 1957 Mad. 333: 70 L.W. 221 while dealing with the constitutional validity of the Madras Cultivating Tenants Protection Act (Act 25 of 1955), observed as follows:

"Nor do we see any point in the objection that the failure to provide for an appeal from the order of Revenue Divisional Officer forms the ground of denial of equal protection. After all the appeal is only a creature of statute and there is no common law or general right to appeal unless the statute so provides. Jagan Mohan Reddy, J, as he then was, in Veeraiah v. State AIR 1967 A.P. 265 while dealing with the question under the Motor Vehicles Act, ruled that the power to hear an appeal is a judicial one and it can never be conferred by a statute in as much as that right of appeal is a creature of statute. In Isher Das v. State of Haryana AIR 1975 P. & H. 29 while dealing with the contention that S. 67-A of the Punjab Co-operative Societies Act is very harsh as no appeal or revision has been provided for against an order passed under the said Act, the High Court has observed as follows:"

"It is also not necessary for the legislature that remedy of appeal should be given under the enactment. If the legislature in its wisdom thinks in a particular case that no appeal should be provided, it can be held that the legislation is bad. The remedy of appeal is a creature of statute and is not an inherent right of the person"

In view of the principles laid down by various decisions cited above, it is clear that the present appeal is not maintainable in law.

"7. Now, I shall examine the alternative contention. S. 42 of the Act gives authority to the Government to constitute as many Tribunals as may be necessary for the purpose of this Act. S. 2(10) of the Act defines the ‘Tribunal’ as meaning a tribunal constituted under S. 42 and having jurisdiction. S. 54 specifies that any order made, decision taken or direction issued by any authority or officer in respect of matters to be determined for the purposes of this Act shall, subject only to appeal or revision provided under the Act, be final. Under sub-section (2) of S. 54, no order, decision or direction made, taken or issued under sub-section (1) of that section shall be liable to be questioned in any Court of law. The question would be whether the Tribunal, which shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure while hearing the appeal, can be considered as a Court subordinate to the High Court so as to enable the High Court to entertain a revision under S. 115, C.P.C., against the decision of the Tribunal. In this connection, I would like to refer to some of the decisions touching on this question."

"8. In Lakshmanan Chettiar v. J.S. Kannappar AIR 1927 Mad 93-F.B. (1926) 50 ILR Mad 121: ( 1926) 24 L.W. 773 Coutts Trotter, C.J., agreeing with the view held by the Rangoon High Court in Municipal Corporation of Rangoon v. M.A. Shakur AIR 1926 Rangoon 25 pointed out that the Chief Judge, Court of small causes, appointed under the Rules framed under Madras District Municipalities Act as the Tribunal was only functioning as a persona designata and therefore, could not be taken as a Court. This Full Bench decision distinguished the earlier Full Bench decision in Parthasarathi Naidu v. Kotteswara Rao ( 1923) 47 ILR Mad 369-F.B.: AIR 1924 Mad. 560: ( 1924) 19 L.W. 402 (F.B.) which held a contrary view, viz., that when it was named as a District Judge or Subordinate Judge the concerned District Judge or Subordinate Judge was not acting merely as a persona designata but also were acting as a Court. Yahya Ali J., in Abdul Wahid v. Abdul Khather ILR 1948 Mad. 43.: ( 1947) 60 L.W. 199 following the decision of the Full Bench in Lakshmanan Chettiar's Case A.I.R. 1927 Mad. 93: 50 I.L.R. Mad. 121: 24 L.W. 773, held that any officer designated by name, though he might hold the position of a judicial authority, was still acting only as a persona designata and not as a Court. Clark, J., in Chinaiah Thevar v. F.M. Bacha 1948 M.L.J. 314: 61 L.W. 364 agreed with the view taken by Yahya Ali, in Abdul Wahid's Case and pointed out that a judicial officer named was only acting as a persona designata and not as a Court. Basheer Ahmed, J., in Poondraman v. Rajappa 7 following the decision in Lakshmanan Chettiar's Case A.I.R. 1927 Mad. 93: 50 I.L.R. Mad. 121: 24 L.W. 773, held that the District munsif having been named and desigriated as a judicial authority to enquire into the petitions under S. 19(1) of the Madras Village Panchayats Act, is not a Civil Court which could be said to be subordinate to the jurisdiction of the High Court so as to be brought within the purview of S. 15 of the Civil Procedure Code."

A Division Bench of the Andhra Pradesh High Court in Jaganatha Rao v. Venkateswara Rao A.I.R. 1960 A.P. 49 has laid down that a Tribunal cannot be considered as a Court subordinate to the High Court and that the order of the Tribunal is therefore not liable to be revised under S. 115, C.P.C. A single Judge of the Andhra Pradesh High Court in Paidayta v. Muralidhar A.I.R. 1961 A.P. 498 has held that even if a District Judge is appointed as the Tribunal, he is only a persona designata and his orders are not subject to the revisional jurisdiction of the High Court and added thus;

"It thus becomes clear that it is not the application of the Civil Procedure Code for regulating the proceedings of the Tribunal that is made the basis, but the position the Tribunal occupies vis-a-vis the High Court as subordinate thereto, that constitutes the real test. Therefore, the mere fact that the procedure contained in the Code of the Civil Procedure is also to be followed by a Tribunal cannot be considered as the procedure for conferring upon a Tribunal the position or status of a Court subordinate to the High Court,"

"9. Learned counsel for the appellant cited the decision rendered by Balasubramaniyan, J., in E.K. Venkai Mohan v. Dakshnamurthi 94 L.W. 843 in which the learned Judge, referring to the Supreme Court decision in Central Talkies Limited v. Dwarka Prasad AIR 1961 S.C. 606 has held that it would be a misnomer and a misconception in law to regard as persona designata those who are appointed by reference to a class name or by a generic description of status or legal character"

and contended that the Tribunal in the present case is not a persona designata but a Court in the rank of a subordinate Judge and as such subordinate to the High Court and consequently the orders rendered by the Tribunal are liable to be interfered with by the High Court in its revisional jurisdiction under S. 115, C.P.C. I am unable to agree with the contention of Mr. AR. Lakshmanan, for the following reason:

1) Under S. 42, all the subordinate Judges are not constituted a Tribunal. But on the other hand, the Tribunal constituted under the Act should consist of one person only who shall be a Judicial officer not below the rank of a Subordinate Judge.

2) As per sub-section (4) of S. 42 of the Act, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil procedure, while hearing an appeal.

3) As per S. 42(2) of the Act, the person designated as the Tribunal is not selected in his capacity as a Subordinate Judge but the section only insists that such person appointed as a Tribunal should be a Judicial officer not below the rank of a subordinate Judge.

In this connection, it may be pointed out that a Division Bench of our High Court in Rethinasamy v. Komalavalli 95 L.W. 552 before which the view taken by Balasubramanyan, J., was referred to, on account of the conflicting views expressed in the judgments of single Judges, viz., by N.S. Ramaswami, J., in Eswaran v. Palanammal 1974 TLNJ 380 and by Gokula krishnan, J., as he then was, in Ganapathi v. Kumarswamy 1975 II MLJ 171=88 L.W. 525 holding the view that the authorities constituted under the Tamil Nadu Building (Lease and Rent Control) Act 1960, are not courts, did not express any view on the observation of Balasubramanyan, J., on the question as to whether an appellate authority is a persona designata or not, but considered the question whether it is a court, and held thus:

"In our view, the question whether the appellate authorities are persona designata or not is not a criterion for invoking the application of S. 5 of the Limitation Act since the main question to be considered is whether the appellate authority is a Court as defined in the Indian Limitation Act."

"For the reasons stated above, I hold that the judgment rendered by Balasubramanyan, J., cannot be made applicable to the case of a Tribunal constituted under the Act."

10. Reference can also be made to the decision of a Division Bench of this Court consisting of Veeraswami, C.J. and Gokulakrishnan, J., as he then was, in Sankar v. Buvanambal Ammal 84 L.W. 134 wherein it has been held:

"The Controller is not a Court and investiture of power under S. 2(3)(of Act 18 of 1960) is persona designata , that is to say, the principal or any other District Munsif based specifically and not on the Court as such of a District Munsif."

Coming to the present case, in my view, the Tribunal constituted under S. 42 of the Act is not a Court but a persona designata as is, clear from S. 42(4) of the Act.

11. The other argument that since by virtue of S. 42(4) a Tribunal under the Act shall have the same powers as are vested in a Civil Court under the Civil Procedure Code in hearing an appeal, the Tribunal has only the status of a Civil Court subordinate to the High Court and as such a revision under S. 115, C.P.C., will lie, cannot also be accepted in view of the decision rendered by the Andhra Pradesh High Court in Paidayya, ROC v. Muralidharan A.I.R. 1961 A.P. 498 and the recent decision of the Supreme Court in Sakuru v. Tenaji A.I.R. 1585 S.C. 1279 holding:

"The provisions of the Limitation Act of 1963 apply only to proceedings in ‘Courts’ and not to appeals or applications before bodies other than Courts such as quasi judicial tibunals or executive authorities notwithstanding the fact that such bodies or authorities maybe vested with certain specified powers conferred on courts under the Codes of Civil or Criminal Procedure."

12. In view of the above discussion, I hold that the Tribunal constituted under the Act is only a persona designata and not a Court subordinate to the High Court and as such a revision under S. 115, C.P.C., against the orders passed by the Tribunal in an appeal under S. 24 of the Act is not maintainable. In my opinion, the remedy open to a person aggrieved by an order passed by the Tribunal under the Act is to seek recourse under Art. 227 of the Constitution of India.

13. In the result, the appeal is dismissed. No costs.